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Mcdonnell Conviction Upheld 4th Circuit Opinion
Mcdonnell Conviction Upheld 4th Circuit Opinion
Mcdonnell Conviction Upheld 4th Circuit Opinion
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Filed: 07/10/2015
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4019
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, Senior
District Judge. (3:14-cr-00012-JRS-1)
Argued:
Decided:
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the
course
of
five
weeks
of
trial,
federal
F.
McDonnell,
efforts
McDonnell
accepted
to
university
developed.
money
assist
testing
(Appellant)
a
of
and
lavish
Virginia
a
and
gifts
company
dietary
his
wife,
in
in
supplement
Maureen
exchange
securing
the
for
state
company
had
corruption
and
not
guilty
of
two
counts
of
making
false
statement. 1
Appellant
multitude of errors.
appeals
his
convictions,
alleging
instructions -- claiming the district court misstated the law -and the sufficiency of the evidence presented against him.
He
also argues that his trial should have been severed from his
wifes trial; that the district courts voir dire questioning
violated his Sixth Amendment rights; and that the district court
made several erroneous evidentiary rulings.
Upon consideration
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verdict must stand and that the district courts judgment should
be affirmed.
I.
A.
On
November
3,
2009,
Appellant
was
elected
the
money
Virginia
on
Beach.
pair
When
of
beachfront
Appellant
became
rental
properties
Governor,
he
loan
balance
increased,
and
by
2012,
his
By 2011, they
and
in
the
Each year
outstanding
In
had
months
combined
later,
credit
in
card
September
exceeded $90,000.
balance
2010,
exceeding
the
combined
$74,000.
balance
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B.
While
Appellant
was
campaigning
on
promises
of
Star
had
been
evaluating
the
curative
potential
For
of
it
Anatabloc
could
was
one
be
of
used
the
to
treat
chronic
anatabine-based
inflammation.
dietary
supplements
wanted
the
Food
and
Drug
Administration
to
Otherwise, it would
pharmaceutical
trials,
and
wherewithal
would
studies.
to
conduct
require
But
Star
the
Classification as
expensive
did
not
necessary
testing,
have
testing,
the
clinical
financial
trials,
and
after
Appellants
election
to
the
governorship
but
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in New York. 2
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During
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the
end
of
the
flight,
the
two
agreed
that
J.A. 2211.
Ill have
you seated with the Governor and we can go shopping now, Mrs.
McDonnell
said,
according
to
Williams.
J.A.
2222
(internal
Williams
bought
Mrs.
McDonnell
dresses
and
white
few
and
weeks
Mrs.
Mansion.
and
the
later,
McDonnell
The
need
for
on
for
April
a
discussion
private
at
independent
29,
Williams
dinner
dinner
testing
joined
at
centered
and
the
on
studies.
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J.A. 6561.
Two
this
days
after
private
dinner
--
on
May
1,
The
Mrs.
p.m.
McDonnell
Less
than
forwarded
an
hour
this
later,
to
Appellant
Appellant
texted
at
his
sister, asking for information about loans and bank options for
their Mobo properties.
began
explaining
her
familys
However, Mrs.
financial
woes
--
Then,
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$50,000.
McDonnell
also
Mrs.
quotation
Mrs.
omitted).
I need you to
mentioned
McDonnell
that
she
and
to
provide
the
money.
Before
asked
her
to
borrow
husband
owed
Again, Williams
cutting
the
checks,
Williams
recounted
Thank you.
at
trial.
Id.
Appellants
response
was
Id.
Shortly
after
the
meeting,
Appellant
directed
his
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that was not made out to anyone but was going to the wedding
caterers.
After
Williams
delivered
these
checks
to
Mrs.
his two sons, and his soon-to-be son-in-law spent the day at
Kinloch
Golf
Club
in
Manakin-Sabot,
Virginia.
During
this
outing, they spent more than seven hours playing golf, eating,
and
shopping.
Williams,
who
was
not
present,
covered
the
$2,380.24 bill.
Also
as
mentioned
in
the
email,
Mrs.
McDonnell
traveled to Florida at the start of June to attend a Starsponsored event at the Roskamp Institute. 6
addressed the audience, expressing her support for Star and its
research.
She
also
invited
the
audience
to
the
launch
for
The
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Williams wrote, I am
the
University
emphasis
on
of
Virginia
endocrinology,
gastroenterology.
School
of
cardiology,
G.S.A. 29.
Medicine,
with
osteoarthritis
an
and
June 23, 2011, and was attended by the top donors to Opportunity
Virginia.
campaign
Williams,
and
the
PAC,
$100,000
was
in-kind
invited,
and
contributor
he
flew
to
the
Appellants
J.A. 6117.
Appellant
A few
days later, Williams sent golf bags with brand new clubs and
golf shoes to Appellant and one of his sons.
From
vacationed
at
July
28
to
Williamss
July
there
free
of
Appellant
multi-million-dollar
31,
charge.
and
his
home
at
family
Smith
also
paid
$2,268
for
the
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McDonnell
snapped
several
to
from
Williams
the
at
Smith
of
Appellant
driving
p.m.
Mountain
At
Lake
11:29
p.m.,
vacation,
after
Appellant
McDonnell met with Dr. John Clore from VCU, who Williams said
was important, and he could cause studies to happen at VCUs
medical school.
J.A. 2273.
McDonnell
noticed
the
Rolex
12
adorning
Williamss
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wrist.
She
Appellant.
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mentioned
that
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she
wanted
to
get
Rolex
for
next
day
--
August
2,
2011
--
Mrs.
McDonnell
Williams again
$1,309.17.
paid,
was
The
next
day,
Williams
Robert
F.
McDonnell,
71st
Governor
of
Virginia.
Mrs. McDonnell
the
next
few
weeks,
Governors
Mansion
staff
paid
for
by
Appellants
PAC.
Invitations
bore
the
G.S.A.
Invitees included Dr. Clore and Dr. John Lazo from UVA.
Anatabloc,
and
Williams
handed
13
out
checks
for
grant
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applications
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--
each
for
Pg: 14 of 89
$25,000
--
to
doctors
from
various
medical institutions. 7
Appellant also attended the luncheon.
According to
3344.
According
to
Williams,
Appellant
was
[a]sking
What are
Id. at 2283.
Appellant also
thanked the attendees for their presence and talked about his
interest in a Virginia company doing this, and his interest in
the product.
Id. at 3927.
supportive. . . .
Id. at 2284.
In
total,
Williams
provided
$200,000
for
grant
applications. All of the checks were distributed to researchers
either at or about the time of the Anatabloc launch luncheon at
the Governors Mansion.
14
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with
UVA
unprepared.
this
officials,
Perito
During a particular
felt
the
officials
were
information,
understand it.
[h]e
was
furious
and
said,
cant
J.A.
3934.
D.
Prior to the beginning of 2012, Mrs. McDonnell sold
all of her 6,522 shares of Star stock for $15,279.45, resulting
in a loss of more than $17,000.
disclosure
of
the
stock
purchases
on
required
financial
Then
that
Williams
again
paid.
Appellant
omitted
this
golf
outing and the 2011 golf trips from his Statements of Economic
Interest.
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Appellant
in
January
2012,
Williams
discussed
the
Mobo
As
she
want[ed]
had
the
relayed
contact
this
information
information
of
the
to
Appellant,
people
that
who
[Star]
marks omitted).
Appellant followed up on these discussions by calling
Williams on February 3, 2012, to talk about a $50,000 loan.
Initially, Appellant wanted a cash loan, but Williams mentioned
that he could loan stock to Appellant.
loan
it
to
[Mobo].
J.A.
6224.
This
conversation
Williams did not move forward with this idea because Williams
16
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discovered
he
Securities
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would
and
have
to
Exchange
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report
stock
Commission.
transfer
At
trial,
to
the
Williams
Williams
testified,
expected
what
had
already
testing,
or
help
with
government
employees,
Id. at 2355.
or
publicly
to
on
Mrs.
February
3,
McDonnells
one
request
of
Williamss
for
list
employees
of
doctors
reception
at
the
Governors
Mansion.
on
February
--
Mrs.
McDonnell
sent
The
employee
list
of
invitees for this event, a list that now included the doctors
identified
by
Williams.
The
next
day,
Sarah
Scarbrough,
that [t]he First Lady and Governor were going over the list
17
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last
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night
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for
the
healthcare
Pg: 18 of 89
industry
event.
The
Governor
wants to make sure [head officers at UVA and VCU, along with
those of other institutions,] are included in the list.
G.S.A.
146.
requested
Mrs.
McDonnell
by
Appellant,
received
an
containing
email,
the
as
names
previously
of
the
UVA
emailed
certificates
providing
for
and
Williams
documents
Mobo.
Six
to
check
relating
minutes
to
after
on
the
loans
status
Williams
Appellant
sent
of
was
this
18
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Thx.
G.S.A. 157.
loan
from
Williams.
Following
the
reception,
$1,400
dinner
on
Williamss
dime.
During
dinner
the
J.A. 2728
Mansion
for
the
evening
--
an
offer
the
doctors
accepted.
On
March
21,
2012,
Appellant
met
with
Virginia
J.A. 4227.
19
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Almost
two
months
Pg: 20 of 89
later
--
on
May
18,
2012
--
Johnnie.
G.S.A. 166.
Will FedEx.
Jonnie.
Id. at 168.
Later the same month -- from May 18 to May 26 -Appellant and his family vacationed at Kiawah Island in South
Carolina.
Williams
April
and
about
Star
July
2012,
stock
on
Appellant
four
sent
on
July
3,
Williams
said,
emailed
occasions,
and
each
In response to a
Johns
Hopkins
human
Lets go golfing and sailing Chatham Bars inn Chatham mass labor
day weekend if you can.
Jonnie.
G.S.A. 170.
20
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Also joining
This
revelation
led
to
tense
conversation
J.A.
about
reporting requirements:
[I]t was her money that she had used for
this.
But I told her, you know, Listen.
If you have this stock, you know, this is
-- again, triggers a reporting requirement
for me. I can do it, but I need -- I just
dont -- I really dont appreciate you
doing things that really -- that affect me
without -- without me knowing about it.
Id. at 6271.
Star
her
stock
to
children
as
gift.
This
again
allowed
21
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21,
2014,
grand
jury
indicted
Appellant
And on
and
Mrs.
the
jury
verdict
of
September
4,
2014,
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at
range.
the
low
end
However,
of
the
the
applicable
district
Sentencing
court
departed
Guidelines
downward
and
when
begin,
it
Appellant
denied
both
argues
his
that
motion
the
for
district
severance
616
F.3d
321,
348
(4th
Cir.
court
and
his
We review
2010)
(severance);
RZS
Holdings AVV v. PDVSA Petroleo S.A., 506 F.3d 350, 356 (4th Cir.
2007) (ex parte proceeding).
1.
Appellant contends that he was entitled to a trial
separate from the trial of Mrs. McDonnell.
joint
trial
precluded
him
from
calling
Mrs.
18 U.S.C. 1951.
Only Mrs. McDonnell
obstruction of official proceedings.
23
He argues that a
McDonnell
was
charged
as
with
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witness
and
thus
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introducing
exculpatory
district
court
denied
Appellant
claims
this
Appellants
decision
was
testimony.
motion
an
abuse
for
of
The
severance.
the
courts
discretion.
In
general,
tried together.
defendants
indicted
together
should
be
This is especially
Cir. 1983).
Id.
24
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Appellants
offered
only
motion
vague
and
for
severance
conclusory
because
statements
Appellant
regarding
the
As we expressed in
Parodi,
regarding
vague
and
conclusory
statements
potential
296
Presented
(alternation
with
only
in
these
original)
unadorned
(citations
statements
omitted).
regarding
the
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claimed
he
could
provide
more
detailed
1977), quoted in Thompson v. Greene, 427 F.3d 263, 269 n.7 (4th
Cir. 2005).
decision
and,
second,
on
whether
the
ex
parte
F.3d at 357.
Ex parte proceedings were not justified in this case.
Appellant
sought
to
withhold
from
the
Government
all
of
the
Appellant
actually
satisfied
26
the
initial
showing
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required
by
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Parodi.
If
Pg: 27 of 89
the
district
court
proceeded
as
to
was
challenge
reluctant
to
motion
Appellants
assume
evaluating
to
intensive,
multi-factored
the
contentions.
role
of
sever[,
which]
analysis
for
The
an
advocate
requires
which
district
when
there
factis
J.A. 351. 10
a
It
10
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properly
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exercised
its
Pg: 28 of 89
discretion
by
denying
Appellants
request.
Appellant also maintains that the district court erred
by failing to defer its ruling on the motion to sever until 14
days prior to trial.
580 F.3d 233, 255 n.23 (4th Cir. 2009) (Ordinarily we do not
consider
arguments
brief . . . .);
raised
Mikes
for
Train
the
first
House,
Inc.
time
v.
in
reply
Broadway
Ltd.
Imports, LLC, 708 F. Supp. 2d 527, 535 (D. Md. 2010) (applying
this
principle
to
reply
memoranda).
We
are
satisfied,
therefore, that the district court did not abuse its discretion
by denying this request outright.
Appellant
simply
failed
to
provide
adequate
He
we
affirm
the
denial
of
Appellants
motion
to
sever.
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B.
Voir Dire
Appellant next argues that the district court failed
to
adequately
question
pretrial publicity.
proceedings,
questioning
the
on
prospective
jurors
on
the
subject
of
court
this
declined
topic.
his
request
Instead,
the
for
court
individual
polled
the
prospective
jurors
J.A. 1692.
to
the
bench
for
one-on-one
questioning, but only after the defense singled them out on the
basis
of
Appellant
their
responses
argues
that
to
such
jury
selection
perfunctory
questionnaire.
questioning
violated
Appellants Br.
65.
necessarily
Because
[t]he
conduct
of
voir
dire
is
also review
this
contention
for
abuse
of
discretion,
see
United States v. Caro, 597 F.3d 608, 613 (4th Cir. 2010).
Appellants
assertion
United
argument
begins
that
the
Supreme
Courts
States,
130
S.
2896
Ct.
inauspiciously,
decision
(2010),
in
with
an
Skilling
v.
establishes
minimum
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this one.
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Court approved the voir dire procedure only because the trial
court
asked
prospective
jurors
to
indicate
whether
they
had
Id.
took
provide
neither
a
of
those
reasonable
discovered if present.
steps,
assurance
it
necessarily
that
prejudice
failed
to
would
be
740).
Skilling,
however,
does
not
purport
to
hand
down
was,
narrowly,
the
adequacy
of
jury
selection
in
it
remains
trial judge.
particularly
within
the
province
of
the
see also United States v. Wood, 299 U.S. 123, 145-46 (1936)
(stating that procedures for detecting and rooting out juror
bias cannot be chained to any ancient and artificial formula).
Trial judges, as we have repeatedly recognized, retain broad
discretion
over
the
conduct
of
30
voir
dire,
see,
e.g.,
United
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States v. Jeffery, 631 F.3d 669, 673 (4th Cir. 2011), both as a
general
matter
and
in
the
area
of
pretrial
publicity,
discretion
trial
courts
enjoy
in
questioning
of
limit[ing]
voir
dire
on
this
issue
to
asking
the
31
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to pretrial publicity. 11
Pg: 32 of 89
J.A. 592-93.
It
elaborate
expressed.
on
both
the
circumstances
and
the
opinion
Id. at 593.
Appellant
questionnaire
makes
merely
much
asked
of
the
whether
fact
that
prospective
the
jurors
jury
had
document.
And
while
the
jointly
proposed
jury
the
suspect.
case,
the
wording
of
this
proposed
question
was
11
32
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J.A. 527.
question
the
the
court
prospective
did
exercise
jurors
as
its
discretion
group,
to
instead
of
See Bakker,
question
prospective
jurors
collectively
rather
than
individually.).
the
the
court
asked
members
of
the
venire,
collectively,
to
12
33
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sit down if, despite this, they believed they were able to put
aside whatever it is that [they] heard, listen to the evidence
in this case and be fair to both sides.
still,
the
court
invited
defense
J.A. 1691-92.
counsel
to
Even
identify
any
each
individual
of
those
prospective
questioning.
The
jurors
court
to
the
struck
one
bench
of
for
these
When
this
process
was
complete,
the
court
asked
J.A. 1706.
Id.
502
F.2d
71
(4th
Cir.
1974),
argues
that
the
others
presence.
however, is inapplicable.
courts
refusal
to
poll
See
Appellants
Br.
65.
Hankish,
after
they
had
already
been
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then, and have not held since, that individual questioning, out
of earshot of the rest of the venire, is required to alleviate
generalized concerns about the pernicious effects of pretrial
publicity.
740
States
(internal
v.
Hsu,
quotation
364
F.3d
marks
192,
Lancaster, 96 F.3d
omitted);
203-04
(4th
see
Cir.
also
United
2004).
And
Appellant does not contend that any actual juror bias has been
discovered.
We
conclude,
therefore,
that
the
court
did
not
made
multiple
asserts
evidentiary
rulings
for
the
district
rulings.
an
abuse
In
of
court
general,
discretion,
review
affording
we
A district
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court
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abuses
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its
discretion
Pg: 36 of 89
if
its
conclusion
is
guided
by
(4th
Cir.
1999)
(citations
omitted).
Reversal
is
below
committed
clear
error
of
judgment
in
the
objects
to
the
exclusion
of
his
proposed
to
exclude
this
evidence
were
not
abuses
of
discretion.
a.
First,
permitted
to
cooperation
Appellant
present
agreement
argues
expert
with
the
that
he
testimony
should
have
about
Williamss
Government,
which
provided
been
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7918.
White
--
Appellant
partner
at
offered
the
Schulte
expert
Roth
&
testimony
Zabel
LLP
of
and
Peter
former
In
other
words,
the
sole
purpose
that
the
district
courts
of
Whites
This is a
Accordingly, we cannot
decision
to
exclude
this
37
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Appellant
argues
that
he
should
have
been
13
38
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Filed: 07/10/2015
Pg: 39 of 89
--
to
explain
the
vagueness
would
have
explained
and
complexity
of
the
that
Appellants
Statements
of
testimony
must
help
the
trier
of
fact
to
Fed.
As the court
of
the
speaking,
[Statements]
one
does
for
not
themselves.
need
any
special
matter
jurors.
was
plainly
within
the
common
J.A.
719.
skills
or
Accordingly,
knowledge
of
the
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As
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result,
Filed: 07/10/2015
we
cannot
Pg: 40 of 89
conclude
that
the
district
courts
Economic
office.
Interest
filed
by
Appellant
during
his
time
in
of
Economic
concealment
evidence,
Interest
which
would
and
reveal
related
evidence
Appellants
J.A. 723.
as
corrupt
In support of
Statements
of
Economic
Interest
amounted
to
concealment
evidence:
[F]irst, because of [Appellants] deliberate
omission of his golf-related gifts paid by
Jonnie
Williams;
second,
because
of
[Appellants] deliberate omission of the
$15,000 check from Mr. Williams to pay the
remainder
of
the
catering
bill
the
McDonnells
owed
for
their
daughters
wedding; third, as the reason why Mrs.
McDonnell sold and repurchased all Star
stock held in her account on dates flanking
the
due
date
for
[Appellants]
2011
[Statement of Economic Interest], and why
the next year, she similarly unloaded Star
40
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more
or
less
probable
than
it
would
be
without
the
danger
of
unfair
prejudice,
confusing
the
issues,
Id. 403.
not
unfairly
prejudice
[Appellant]
because
there
is
no
Virginias
ethics
laws
reporting
requirements.
guilty
conscience
Interest
did
not
or
is
aware
of
the
or
include
41
various
gifts,
stock
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to
conceal
Appellants
dealings
with
Williams.
The
Accordingly, we
14
42
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Pg: 43 of 89
limine
to
exclude
this
evidence
as
Appellant moved
extrinsic
evidence
of
of
the
requirements.
personal
This
friend
evidence,
the
exception
Government
to
reporting
further
noted,
when
to
it
comes
disclose
the
to
assessing
gifts
and
[Appellants]
loans
from
Mr.
intent
in
Williams.
J.A. 731.
As a general rule, [e]vidence of a crime, wrong, or
other act is not admissible to prove a persons character in
order to show that on a particular occasion the person acted in
accordance
with
the
character.
Fed.
R.
Evid.
404(b)(1).
--
omission
of
gifts
from
43
Williams
pursuant
to
the
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personal
Filed: 07/10/2015
friend
established
that
Pg: 44 of 89
exception.
J.A.
Appellant
about
knew
761.
the
This
evidence
personal
friend
Appellants
knowledge
and
the
absence
of
mistake
was
objects
to
the
admission
Emily
Rabbitt
--
Appellants
travel
of
an
On January 4,
aide
and
deputy
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however,
inadmissible
Appellant
hearsay
and
has
claimed
inadmissible
the
exchange
character
was
evidence.
was
plain;
substantial rights.
and
(3)
that
the
error
affect[ed
his]
An error affects
error
the
affected
prejudice.
the
See id.
outcome
of
trial
does
not
establish
Bennett, 698
45
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At
discussion
Filed: 07/10/2015
first,
of
the
the
Pg: 46 of 89
district
particular
court
refused
exchange
to
when
permit
it
was
the
exchange
focused
on
whether
The discussion
Appellant
received
appear that this exchange was mentioned again, and the parties
have not identified any other discussion of the exchange.
The
use
of
the
exchange
was
quite
limited,
the
trial.
The
indictment,
we
note,
did
not
seek
to
We
presume
instruction.
(2000).
the
jurors
followed
the
district
J.A.
courts
Accordingly,
the
claim
that
evidence
of
the
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5.
Return of Forensic Image of Williamss iPhone
Appellant also asserts the district court erroneously
ordered
him
Williamss
to
return
iPhone,
all
which
copies
the
of
forensic
Government
had
image
of
produced
to
Appellant
waives
treatment of it is conclusory.
[Appellant]
evidence,
which
material.
its
receives
almost
new
claim
because
his
trial,
certainly
he
is
entitled
contains
Brady
to
and
this
Giglio
confiscation
(citations
citations
this
requires
omitted).
to
two
new
trial.
Appellants
decisions
of
little
Appellants
argument
obvious
Br.
85
includes
bare
relevance
from
any
the
effort
violation.
to
establish
elements
of
Brady
or
Giglio
47
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evidence
must
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have
been
Pg: 48 of 89
suppressed
by
the
State,
either
the
treatment
claim.
See,
of
e.g.,
claim
Russell
does
v.
not
sufficiently
Absolute
Collection
Servs., Inc., 763 F.3d 385, 396 n.* (4th Cir. 2014) (noting that
failure
to
present
legal
arguments
and
record
citations
or
Although
Appellant
raised
this
issue
in
an
To avoid waiver, a
party
over
must
exercise
brief
the
issue
jurisdiction.
in
an
Thus,
appeal
because
which
Appellant
we
may
fails
to
at
these
the
matters
core
of
resolved,
this
appeal.
we
turn
First
to
and
the
two
foremost,
fundamental
he
asserts
principles
that
the
of
federal
Governments
bribery
evidence
law.
was
insufficient to support his convictions pursuant to the honestservices wire fraud statute and the Hobbs Act.
of these contentions in turn.
48
We address each
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A.
Jury Instructions
Appellants
instructions
expansively.
instruction
is
claim
that
We
failed
the
review
to
with
court
de
defined
novo
correctly
respect
the
state
to
bribery
claim
the
the
that
jury
far
too
jury
applicable
law.
United States v. Jefferson, 674 F.3d 332, 351 (4th Cir. 2012).
[W]e do not view a single instruction in isolation, but instead
consider whether taken as a whole and in the context of the
entire charge, the instructions accurately and fairly state the
controlling law.
Even if,
15
Ramos-
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Cruz, 667 F.3d at 496 (quoting Neder v. United States, 527 U.S.
1, 18 (1999)).
1.
statutes
We
begin
our
of
conviction.
analysis
The
with
first
of
an
examination
these
is
the
of
honest-
requires
the
Government
to
prove
that
the
the
This
defendant
United States v.
Terry, 707 F.3d 607, 611 (6th Cir. 2013) (citations omitted)
(quoting
18
U.S.C.
1341,
1346).
The
Supreme
Court
has
18 U.S.C. 1343.
[T]he term scheme or artifice to defraud
includes a scheme or artifice to deprive another of the
intangible right of honest services. Id. 1346.
50
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bribery
and
kickback
schemes.
See
Skilling
v.
similar
crimes,
including
the
general
federal
bribery
bribery
involving
federal
funds,
18
U.S.C.
666(a)(2).
services
Here,
in
their
wire
fraud,
proposed
both
instructions
parties
sought
for
to
honest-
import
provides
demand,
seek,
that
or
public
receive
officials
anything
may
of
not
the
This
corruptly
value
in
return
18 U.S.C. 201(b)(2).
proceeding
pending,
official,
or
in
which
such
or
controversy,
may
by
law
officials
be
which
may
brought
official
court
provided
near-verbatim
any
before
capacity,
at
time
any
or
public
in
such
Id. 201(a)(3).
The
recitation
of
51
be
these
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defendant
may
commit
18 U.S.C. 1951(a).
extortion
through
threats
or
Id. 1951(b)(2).
In
of
1951
is
informed
by
the
common-law
prosecutions
like
for
prosecutions
Accordingly, we have
extortion
under
other
under
color
of
bribery-related
The trial
52
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J.A. 7681.
2.
Official Acts
Appellant
instructions
on
first
the
challenges
meaning
of
the
district
official
courts
act,
or,
virtually
any
action
public
official
might
take
while in office.
In its instructions on honest-services wire fraud, the
district court defined official action:
The term official action means any decision
or action on any question, matter, cause,
suit, proceeding, or controversy, which may
at any time be pending, or which may by law
be brought before any public official, in
such public officials official capacity.
Official
action
as
I
just
defined
it
includes
those
actions
that
have
been
clearly established by settled practice as
part of a public officials position, even
if the action was not taken pursuant to
responsibilities explicitly assigned by law.
In other words, official actions may include
acts that a public official customarily
performs, even if those actions are not
described
in
any
law,
rule,
or
job
description. And a public official need not
have actual or final authority over the end
result sought by a bribe payor so long as
the alleged bribe payor reasonably believes
that the public official had influence,
power or authority over a means to the end
sought by the bribe payor.
In addition,
53
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broad
strokes,
Id. at 7683.
Appellants
argument
is
that
the
By
innocuous.
For
public
figures
such
as
governor,
who
routine
meeting,
or
functions
posing
for
as
attending
photograph.
luncheon,
arranging
Appellant
argues
that
We
are
satisfied,
that
the
district
court
the
term
official
act
covers
only
decision[s]
or
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be
brought
officials
before
official
any
public
capacity.
official,
J.A.
7671
in
such
public
(paraphrasing
18
U.S.C. 201(a)(3)).
a.
The Supreme Court has twice expounded on the meaning
of official act.
There,
17
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U.S. at 227.
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recommend
leniency
for
individuals
convicted
of
liquor
The
there
[was]
no
act
of
Congress
conferring
upon
the
of
the
clemency
government
shall
be
whether
or
extended.
not
executive
United
States
or
v.
Birdsall, 206 F. 818, 821 (N.D. Iowa 1913), revd, 233 U.S. 223
(1914).
In doing so, it
Indeed,
56
statute,
18
U.S.C.
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official
act
may
include
acts
that
[public
servant]
process.
Jefferson,
674
F.3d
at
357;
see
also
United States v. Morlang, 531 F.2d 183, 192 (4th Cir. 1975).
Importantly, though, Birdsall did not rule, and we have never
held, that every act an official performs as a matter of custom
is an official act.
Jefferson,
way
of
dicta
in
United
States
v.
Sun-Diamond
18 U.S.C.
the
dual
prohibitions
57
on
bribery
and
illegal
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gratuities.
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Pg: 58 of 89
Sun-Diamond
Court
explained
that
the
illegal
the
course
of
its
explanation,
the
Court
stated
that
an
sports
visits;
teams
high
each
school
year
during
principals
ceremonial
gift
of
White
school
complimentary
Agriculture
in
lunch
connection
provided
with
his
for
the
speech
Secretary
to
the
of
farmers
Id. at 406-07.
The
three
visiting
the
acts
high
--
that
school,
is,
or
receiving
speaking
to
the
sports
farmers
--
teams,
were
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have
previously
declined
to
read
Sun-Diamond
to
acknowledging
official
acts.
that
some
Appellants
Br.
settled
37
Jefferson,
practices
(emphasis
can
omitted).
be
He
meetings
they
--
can
implicate
(emphasis omitted).
no
never
constitute
official
official
power. 18
Id.
acts
at
31
18
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job
functions
of
strictly
ceremonial
or
educational
The
60
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When, as in the
students.
U.S.
at
407
(emphasis
supplied)
Sun-Diamond,
(quoting
18
U.S.C.
201(a)(3)).
In view of these precedents, we are satisfied that the
reach of 201(a)(3) is broad enough to encompass the customary
and
settled
purpose
or
practices
effect
of
of
an
those
office,
but
practices
only
is
to
insofar
as
influence
18 U.S.C. 201(a)(3).
19
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b.
Appellant
jury
an
accuses
unprecedented
the
and
district
court
misleading
of
giving
instruction
on
the
the
We disagree with
these characterizations.
unprecedented.
official
instruction
Second,
act
the
correctly
instruction
stated,
in
here
consistent
United
was
not
with
States
v.
Jefferson. 20
misleading.
Birdsall,
The
that
court
the
term
even
responsibilities
if
the
action
explicitly
was
assigned
not
by
taken
law.
pursuant
J.A.
to
7671-72.
62
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tethered
to
decisions
or
actions
on
question,
matter,
Appellant
that
an
takes
official
issue
action
with
can
include
the
courts
instruction
actions
taken
in
For
similar
instruction
that
reasons,
an
Appellant
official
challenges
action
is
no
the
less
courts
official
draws
meaning,
criminalizes
the
act
of
corruptly
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Pg: 64 of 89
128 (1st Cir. 1965) ([I]t has been long established that the
crime of bribery is complete upon the acceptance of a bribe
regardless
of
taken.).
See
Evans,
whether
504
U.S.
or
at
not
improper
268
action
(recognizing
is
that
thereafter
the
crime
of
In either case,
See 18
before
any
public
official
(emphasis
supplied)).
233 U.S.
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were
Doc: 126
Filed: 07/10/2015
performing
an
official
Pg: 65 of 89
function,
for
purposes
of
two
As the court
stated:
The fact that these inspectors acted only in
a preliminary or in an advisory capacity,
and without final power to reject or accept,
does
not
prevent
their
duties
from
being official duties.
Final decisions
frequently, perhaps generally, rest in large
part upon the honesty and efficiency of
preliminary advice. . . .
To sustain the
contention of the defendants that these
inspectors were not performing an official
function would be to rule that the thousands
of inspectors employed to advise and assist
the government under the contracts for the
hundreds of millions of war supplies might
be bribed with impunity.
To state the
proposition is to reject it.
Id.
Our
decision
in
Jefferson
supports
the
proposition
Louisiana
and
congressman
Investment
Nigeria,
was
Africa.
bribery
and
largely
Caucus
responsible
honest-services
as
the
for
co-chair
of
the
Congressional
promoting
Africa
Caucus
trade
on
with
fraud,
based
in
part
on
65
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his
Doc: 126
familys
Filed: 07/10/2015
consulting
firm
Pg: 66 of 89
in
return
for
his
efforts
to
and
performed
meetings.
by
Jefferson
In
particular,
in
exchange
we
for
explained,
the
acts
various
bribe
officials;
certain
business
[a]ttempting
ventures;
to
facilitate
[s]cheduling
and
and
promote
conducting
Id.
Id. at 357-58.
ii.
Appellant
instruction
that
next
public
challenges
official
the
need
district
not
have
courts
actual
or
J.A. 7672.
argues
law:
that
subjective
this
belief
is
cannot
misstatement
convert
66
of
non-official
Appellant
bribe
act
payors
into
an
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official
Filed: 07/10/2015
one.
See
Pg: 67 of 89
Appellants
Br.
55.
Again,
we
are
unpersuaded.
The
first
part
indisputably correct. 21
of
the
courts
instruction
is
at
Fort
Jackson
--
even
though
the
solicitations
of
actual
authority
immaterial:
Regardless
of
his
67
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been . . . .
Pg: 68 of 89
forwarded
an
to
another
government
official
in
an
212-13 (3d Cir. 2014); United States v. Blackwood, 768 F.2d 131,
134-35 (7th Cir. 1985); United States v. Bibby, 752 F.2d 1116
(6th Cir. 1985); United States v. Rabbitt, 583 F.2d 1014, 1027
(8th Cir. 1978) (The official need not control the function in
question if the extorted party possesses a reasonable belief in
the officials powers.).
Accordingly, the
68
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Hobbs
instruction
that
Act
a
Id.
principles
bribe
support
recipients
the
lack
district
of
actual
J.A. 7672.
this instruction was not erroneous with respect to the Hobbs Act
extortion charges.
It is less certain that a bribe payors subjective
belief in the recipients power or influence will suffice to
demonstrate an official act for purposes of an honest-services
wire fraud charge.
When a government
services.
Id.
(internal
quotation
marks
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cannot
Filed: 07/10/2015
convert
debatable.
non-official
Appellants
Br.
Pg: 70 of 89
acts
55
into
official
(emphasis
omitted).
instruction
be
on
harmless.
this
See
point
were
Ramos-Cruz,
F.3d
is
This,
Even if the
erroneous,
667
ones
at
the
error
496.
As
We have no
would
have
been
the
same
even
if
the
instructions
reversible
error
with
respect
to
the
United States
Appellants claim
official
act
in
refusing
to
give
his
proposed
instructions
on
the
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jury;
Doc: 126
and
Filed: 07/10/2015
(3)
dealt
with
Pg: 71 of 89
some
point
in
the
trial
so
impaired
the
defendants
ability
to
conduct
his
defense.
proposed
instruction
contained
the
following passage:
[T]he fact that an activity is a routine
activity, or a settled practice, of an
office-holder does not alone make it an
official act.
Many settled practices of
government officials are not official acts
within the meaning of the statute.
For
example,
merely
arranging
a
meeting,
attending an event, hosting a reception, or
making a speech are not, standing alone,
official acts, even if they are settled
practices of the official.
A government
officials decisions on who[m] to invite to
lunch, whether to attend an event, or
whether to attend a meeting or respond to a
phone call are not decisions on matters
pending before the government.
That is
because mere ingratiation and access are not
corruption.
J.A. 753.
This
passage
is
problematic
in
number
of
ways.
J.A. 753.
Rather, it seems to us a
71
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risk
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of
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misleading
the
jury,
Pg: 72 of 89
we
cannot
fault
the
justified
in
court
for
court
was
assertion
likewise
that
merely
arranging
rejecting
a
meeting,
to
invite
to
lunch,
whether
to
attend
an
event,
or
J.A. 753.
acts,
never do so.
we
cannot
accept
the
assertion
that
they
may
far.
Finally,
refusing
to
we
hold
that
the
the
jury,
in
instruct
court
did
language
not
err
borrowed
in
from
(2010),
corruption.
that
mere
J.A. 753.
ingratiation
and
access
are
not
statute
nor
the
Hobbs
72
Act.
Moreover,
the
Citizens
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United
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Court
Filed: 07/10/2015
employed
the
Pg: 73 of 89
ingratiation
language
only
after
corruption
is
the
political favors.
financial
quid
pro
quo:
dollars
for
omitted).
(internal
quotation
marks
omitted).
The
district
court
believed
in
good
faith
that
he
. . . was
acting
J.A.
73
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Pg: 74 of 89
3.
Quid Pro Quo
Appellant
also
contests
the
courts
instructions
on
526
specific
intent
U.S.
at
to
404-05
give
(defining
or
receive
quid
pro
something
quo
of
as
value
in
Accordingly,
district
court
explained
that
the
jury
must
find
that
Appellant demanded or received the item of value corruptly -i.e., with an improper motive or purpose.
United
States
(defining
v.
Quinn,
[c]orrupt
359
F.3d
intent
666,
under
674
18
(4th
Cir.
U.S.C.
2004)
201(b)).
entitled,
knowing
that
the
thing
of
value
was
given
in
268.
74
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Appellants
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contention
that
jury
aware
of
that
courts
incomplete.
make
rather,
the
were
to
but,
not
instructions
failed
incorrect
is
critical
they
were
limitation
on
that
[a]
gift
or
payment
given
with
the
United States v.
Arthur, 544 F.2d 730, 734 (4th Cir. 1976) (citations omitted)
(reversing
conviction
for
misapplication
of
bank
funds
1013 (quoting United States v. Allen, 10 F.3d 405, 411 (7th Cir.
75
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1993)).
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Id. at
is
little
reason
to
doubt
that
if
the
Indeed,
defense
had
Instead,
its
proposed
goodwill
gift
language
was
of
purpose).
value
knowingly
As
outlined
and
above,
dishonestly
the
for
court
wrongful
emphasized
the
Appellant was
Id. at 7360.
76
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If,
as
it
happens,
the
rejected
instruction
was
Put
Similarly,
in
its
instruction
on
honest-services
wire fraud, the court referred to the quo in a quid pro quo
exchange as the requested official action -- signaling that an
official action necessarily entails some particular type of act
within the parties contemplation at the time of the exchange.
Id. at 7669.
In
sum,
we
are
satisfied
that
the
court
properly
77
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B.
Sufficiency of the Evidence
This
leads
us
to
was
Appellants
claim
support
the
evidence
convictions.
to
to
verdict.
Cir.
the
to
the
Governments
evidence de novo . . . .
insufficient
that
Government,
support
the
we
find
conviction,
there
we
will
is
substantial
affirm
the
jury
2013).
reasonable
Substantial
finder
of
evidence
fact
is
could
such
accept
evidence
as
that
adequate
and
review,
and
Appellant
Government
engaged
in
set
a
out
corrupt
to
prove
quid
that
pro
quo.
Among
and
was
his
family
obligated
were
to
pro
prove,
78
quo.
In
first,
that
short,
the
Williamss
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18
U.S.C.
evidence
of
201(a)(3).
three
questions
at
any
study
state-created
of
of
or
the
Government
matters
within
Virginias
Anatabloc.
Tobacco
Here,
state
The
universities
second
Indemnification
was
would
whether
and
the
Community
the
chief
Governor
with
[t]he
79
executive
power
of
the
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Commonwealth.
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Pg: 80 of 89
the
provided
level.
authority
to
to
approve
public-sector
the
employees
health
at
the
These powers
insurance
state
and
plans
local
power
comes
influence.
As
the
witness
Jerry
to
evidence
go
out
and
at
trial
talk
made
about
clear
issues.
that
Star
J.A.
4374.
executives
The
wanted
testifying
that
when
the
Commonwealth . . . embraces
Chief
the
Executive
worthiness
of
of
the
the
at
2314
(Williams
testifying
80
that
the
opportunity
to
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the
extent,
then,
that
Appellant
made
any
laws
official.
would
hold
that
decision
18 U.S.C. 201(a)(3).
or
action
to
be
As we have explained, it
show
was
that
the
allegedly
corrupt
agreement
between
In his email to
staffer,
G.S.A. 80.
Molly
Huffstetler,
wrote
in
an
to
As
her
Id. at 81.
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That
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same
month,
Pg: 82 of 89
Appellant
and
his
wife
hosted
Prior
of
the
universities
purposes
to
do
of
the
research
on
event
the
was
to
encourag[e]
product.
J.A.
3608.
Appellant
spoke with Lazo, asking him and other attendees whether they
thought there was some scientific validity to the pre-clinical
studies of Anatabloc presented at the event and whether or not
there was any reason to explore this further; would it help to
have additional information.
J.A. 3344.
the
Commonwealth,
particularly
as
it
relates
to
[the]
Id.
his
wife,
and
chief
counsel
Eige
shows
Appellant
G.S.A. 157.
Eige would
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J.A. 4374
This email
said that Williams has calls in to VCU & UVA & no one will
return his calls.
G.S.A. 147.
McDonnell
wanted
him
to
[s]omehow
reach
out
and
J.A. 3214.
Appellant
staffer
to
attend
argues
a
that
these
briefing,
actions
questioning
-a
asking
university
see
him
about
an
issue
--
are
We disagree.
too
insignificant
to
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reasonable
doubt,
that
the
actions
contemplated
under
jury
could
likewise
conclude
that
Appellant
2012
officials:
meeting
with
Secretary
of
two
high-ranking
Administration
administration
Hicks-Thomas
and
amid
discussion
about
the
state
employee
health
As
J.A. 4227.
Appellant
used
his
position
as
Governor
to
influence
we
turn
to
whether
the
Government
presented
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of
value
in
exchange
for
an
official
act.
Sun-
To establish
necessary,
and
[s]uch
circumstantial evidence.
At
trial,
the
an
intent
may
be
established
by
Id.
Government
presented
an
array
of
Critically, the
official
acts
and
the
money,
loans,
gifts,
and
For example:
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invitations
to
the
launch
bore
the
Governors seal.
UVA and VCU researchers
attended as invited representatives of
their institutions, boxes of Anatabloc
were placed at each place setting, and
Williams and Mrs. McDonnell spoke at the
event.
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plan.
Appellant also asked Hicks-Thomas
to meet with Star representatives.
The temporal relationship between the quids and quos -- the
gifts, payments,
loans,
and
favors
and
the
official
acts
--
the
official
acts
alleged,
Williams
lavished
In
May
2011,
Williams
loaned
the
McDonnells $50,000 and provided $15,000 to
cover the McDonnells daughters wedding
reception.
When she requested the loan,
Mrs. McDonnell said, The Governor says
its okay for me to help you and -- but I
need you to help me. J.A. 2231 (internal
quotation
marks
omitted).
In
the
meantime, Appellant passed an article
about Anatabloc along to members of his
administration.
87
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after
Appellant
was
elected
Governor.
As
Williams
He
expected
Appellant
to
help
me
move
Id. at
this
product
testing,
or
help
with
government
Id. at 2355.
employees,
or
publicly
wanted
for
his
company:
independent
studies
of
evidence
established
that
Appellant
received
infer that there were multiple quid pro quo payments, and that
Appellant
acted
in
the
absence
of
good
faith
and
with
the
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F.3d 404, 409 (4th Cir. 2012) ([I]ntent can be implied -- and
it is the jurys role to make such factual inferences.). 23
In sum, Appellant has thereby failed to sustain his
heavy
burden
inadequate.
of
showing
that
the
Governments
evidence
was
omitted)
(internal
quotation
marks
omitted)).
23
89