United States v. McDonnell, No. 15-4019 (4th Cir. 2015)
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Defendant, the former Governor of Virginia, appealed his convictions for eleven counts of corruption. Defendant raised numerous errors on appeal. The court concluded that the district court did not err by denying defendant's motion for severance and his request for ex parte consideration of this motion; the district court did not abuse its discretion by failing to adequately question prospective jurors on the subject of pretrial publicity; the court rejected defendant's claims of evidentiary errors; the district court's jury instructions did not misstate fundamental principles of federal bribery law; and the evidence was sufficient to support his convictions pursuant to the honest-services wire fraud statute and the Hobbs Act. Accordingly, the court affirmed the judgment.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4019 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ROBERT F. MCDONNELL, Defendant – Appellant. -----------------------------------FORMER VIRGINIA ATTORNEYS GENERAL; ANDREW P. MILLER; ANTHONY FRANCIS TROY; J. MARSHALL COLEMAN; MARY SUE TERRY; STEPHEN DOUGLAS ROSENTHAL; MARK L. EARLEY; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; NANCY GERTNER, Law Professor; CHARLES J. OGLETREE, JR., Law Professor; JOHN C. JEFFRIES, JR., Law Professor; BENJAMIN TODD JEALOUS; REPUBLICAN GOVERNORS PUBLIC POLICY COMMITTEE; FORMER STATE ATTORNEYS GENERAL (NON-VIRGINIA); BUSINESS LEADERS AND PUBLIC POLICY ADVOCATES; VIRGINIA LAW PROFESSORS; FORMER FEDERAL OFFICIALS; MEMBERS AND FORMER MEMBERS OF THE VIRGINIA GENERAL ASSEMBLY, Amici Supporting Appellant. 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: May 12, 2015 Decided: Before MOTZ, KING, and THACKER, Circuit Judges. July 10, 2015 Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Motz and Judge King joined. ARGUED: Noel J. Francisco, JONES DAY, Washington, D.C., for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: John L. Brownlee, Daniel I. Small, Christopher M. Iaquinto, Elizabeth N. Jochum, HOLLAND & KNIGHT LLP, Washington, D.C.; Henry W. Asbill, Charlotte H. Taylor, James M. Burnham, Ian Samuel, JONES DAY, Washington, D.C., for Appellant. Dana J. Boente, United States Attorney, Ryan S. Faulconer, Assistant United States Attorney, Raymond Hulser, Acting Chief, Public Integrity Section, Alexandria, Virginia, Michael S. Dry, Assistant United States Attorney, Jessica D. Aber, Assistant United States Attorney, David V. Harbach, II, Criminal Division, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. William H. Hurd, Stephen C. Piepgrass, TROUTMAN SANDERS LLP, Richmond, Virginia, for Amici Former Virginia Attorneys General Andrew P. Miller, Anthony Francis Troy, J. Marshall Coleman, Mary Sue Terry, Stephen Douglas Rosenthal, and Mark L. Earley. David B. Smith, SMITH & ZIMMERMAN, PLLC, Alexandria, Virginia; John D. Cline, LAW OFFICE OF JOHN D. CLINE, San Francisco, California, for Amicus National Association of Criminal Defense Lawyers. William W. Taylor, III, ZUCKERMAN SPAEDER LLP, Washington, D.C., for Amici Nancy Gertner, Law Professor, Charles J. Ogletree, Jr., Law Professor, and John C. Jeffries, Jr., Law Professor. Wyatt B. Durrette, Jr., Barrett E. Pope, Robert Rae Gordon, DURRETTECRUMP PLC, Richmond, Virginia, for Amicus Benjamin Todd Jealous. Charles J. Cooper, David H. Thompson, Peter A. Patterson, John D. Ohlendorf, COOPER & KIRK, PLLC, Washington, D.C., for Amicus Republican Governors Public Policy Committee, a/k/a RGPPC. Brian D. Boone, Emily C. McGowan, Charlotte, North Carolina, Edward T. Kang, ALSTON & BIRD LLP, Washington, D.C., for Amici Former State Attorneys General (Non-Virginia). Gregory N. Stillman, Norfolk, Virginia, Edward J. Fuhr, Johnathan E. Schronce, Richmond, Virginia, William J. Haun, HUNTON & WILLIAMS LLP, Washington, D.C., for Amici Business Leaders and Public Policy Advocates. Timothy M. Richardson, POOLE MAHONEY PC, Virginia Beach, Virginia, for Amici Virginia Law Professors. William J. Kilberg, Thomas G. Hungar, Helgi C. Walker, David Debold, Katherine C. Yarger, Jacob T. Spencer, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Amici Former Federal Officials. John S. Davis, Joseph R. Pope, Jonathan T. Lucier, WILLIAMS MULLEN, Richmond, Virginia, for Amici Members and Former Members of the Virginia General Assembly. 2 THACKER, Circuit Judge: Over the course of five weeks of trial, federal prosecutors sought to prove that former Governor of Virginia Robert 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 The jury found Appellant guilty of eleven counts of corruption and not guilty of two counts of making a false statement. 1 Appellant multitude of errors. appeals his convictions, alleging a Chiefly, Appellant challenges the jury 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 wife’s trial; that the district court’s voir dire questioning violated his Sixth Amendment rights; and that the district court made several erroneous evidentiary rulings. Upon consideration of each of Appellant’s contentions, we conclude that the jury’s 1 The jury also found Mrs. McDonnell guilty of eight counts of corruption and one count of obstruction of an official proceeding. The jury found her not guilty of three counts of corruption and one count of making a false statement. Her appeal is not at issue here, as it is pursued separately. 3 verdict must stand and that the district court’s judgment should be affirmed. I. A. On November 3, 2009, Appellant seventy-first Governor of Virginia. was elected the From the outset, he made economic development and the promotion of Virginia businesses priorities of his administration. The economic downturn preceding the election had taken a personal toll on Appellant. Mobo Real Estate Partners LLC (“Mobo”), a business operated by Appellant and his sister, was losing money Virginia on Beach. a pair When of beachfront Appellant became rental properties Governor, sister were losing more than $40,000 each year. he loan balance increased, and by 2012, his By 2011, they owed more than $11,000 per month in loan payments. their and in the Each year outstanding balance was nearing $2.5 million. Appellant was also piling up credit card debt. In January 2010, the month of his inauguration, Appellant and his wife Eight had a months combined later, credit in card September exceeded $90,000. 4 balance 2010, exceeding the combined $74,000. balance B. While Appellant was campaigning on promises of economic development in Virginia, Virginia-based Star Scientific Inc. (“Star”) and its founder and chief executive officer Jonnie Williams were close to launching a new product: Anatabloc. years, Star had been evaluating the curative potential For of anatabine, an alkaloid found in the tobacco plant, focusing on whether it Anatabloc could was one be of used the to treat chronic anatabine-based inflammation. dietary supplements Star developed as a result of these years of evaluation. Star wanted the Food and Drug classify Anatabloc as a pharmaceutical. Administration to Otherwise, it would have to market Anatabloc as a nutraceutical, which generally has less profit potential than a pharmaceutical. a pharmaceutical trials, and wherewithal would studies. to conduct studies on its own. require But Star the Classification as expensive did not necessary testing, have testing, the clinical financial trials, and It needed outside research and funding. C. Appellant and Williams first met in December 2009 -shortly after Appellant’s before his inauguration. election to the governorship but Appellant had used Williams’s plane during his campaign, and he wanted to thank Williams over dinner 5 in New York. 2 During dinner, Williams ordered a $5,000 bottle of cognac and the conversation turned to the gown Appellant’s wife would wear to Appellant’s inauguration. Williams mentioned that he knew Oscar de la Renta and offered to purchase Mrs. McDonnell an expensive custom dress. 3 In October 2010, Appellant and Williams crossed paths again. This time, the two were on the same plane -- Williams’s plane -- making their way from California to Virginia. During the six-hour flight, Williams extolled the virtues of Anatabloc and explained that he needed Appellant’s help to move forward with the product: [W]hat I did was I explained to him how I discovered it. I gave him a basic education on the -- on smoking, the diseases that don’t happen with smokers and just tried to make sure he understood, you know, what I had discovered in this tobacco plant and that I was going to -- what I needed from 2 Williams was one of several individuals who offered the use of a private plane to Appellant during his campaign on an as-needed basis. Although Appellant had used Williams’s plane during his campaign, the two men did not meet until December 2009. 3 In the end, Williams did not purchase an inauguration dress for Mrs. McDonnell. According to Williams, Appellant’s chief counsel, Jacob Jasen Eige, called Williams, saying, “I understand that you’re getting ready to purchase [Mrs.] McDonnell a dress for the inauguration. I’m calling to let you know that you can’t do that.” J.A. 2208 (internal quotation marks omitted). Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal. 6 him was that I needed testing and I wanted to have this done in Virginia. J.A. 2211. By the end of the flight, the two agreed “independent testing in Virginia was a good idea.” that J.A. 2211. Appellant agreed to introduce Williams to Dr. William A. Hazel Jr., the Commonwealth’s secretary of health and human resources. In April 2011, Mrs. McDonnell invited Williams to join the first couple at a political rally in New York. “I’ll have you seated with the Governor and we can go shopping now,” Mrs. McDonnell said, according quotation marks omitted). to Williams. J.A. 2222 (internal So Williams took Mrs. McDonnell on a shopping spree; they lunched and shopped at Bergdorf Goodman and visited Oscar de la Renta and Louis Vuitton stores on Fifth Avenue. Williams bought Mrs. McDonnell dresses and a white leather coat from Oscar de la Renta; shoes, a purse, and a raincoat from Louis Vuitton; and a dress from Bergdorf Goodman. Williams spent approximately $20,000 on Mrs. McDonnell during this shopping spree. That evening, Williams sat with Appellant and Mrs. McDonnell during a political rally. A Appellant Governor’s Anatabloc few and weeks Mrs. Mansion. and the later, McDonnell The need for on for April a discussion private at independent 7 29, Williams dinner dinner testing joined at centered and the on studies. Appellant, who had campaigned on promoting business in Virginia, was “intrigued that [Star] was a Virginia company with an idea,” and he wanted to have Anatabloc studies conducted within the Commonwealth’s borders. J.A. 6561. Two this days after private dinner -- on May 2011 -- Mrs. McDonnell received an email via Williams. 4 1, The email included a link to an article entitled “Star Scientific Has Home Run Potential,” which discussed Star’s research and stock. 12:17 Mrs. p.m. McDonnell Less than forwarded an hour this email later, to Appellant Appellant texted at his sister, asking for information about loans and bank options for their Mobo properties. Later that evening, Appellant emailed his daughter Cailin, asking her to send him information about the payments he still owed for her wedding. The next day, May 2, Mrs. McDonnell and Williams met at the Governor’s Mansion to discuss Anatabloc. McDonnell began explaining her family’s However, Mrs. financial woes -- thoughts about filing for bankruptcy, high-interest loans, the decline in the real estate market, and credit card debt. Then, according to Williams, Mrs. McDonnell said, “I have a background 4 Williams did not send the email to Mrs. McDonnell. However, the sender wrote, “Please give to the governor and his wife as per Jonnie Williams.” G.S.A. 3. Citations to the “G.S.A.” refer to the Supplemental Appendix filed by the Government. 8 in nutritional supplements and I can be helpful to you with this project, with your company. The Governor says it’s okay for me to help you and -- but I need you to help me. help me with this financial situation.” marks $50,000. Williams agreed to loan the money to the McDonnells. McDonnell also Mrs. J.A. 2231 (internal quotation Mrs. omitted). I need you to mentioned McDonnell that she and $15,000 for their daughter’s wedding reception. agreed to provide the money. Before asked her to borrow husband owed Again, Williams cutting the checks, Williams called Appellant to “make sure [he] knew about it.” J.A. 2233. Maureen. help. “I called him and said that, you know, ‘I met with I understand the financial problems and I’m willing to I just wanted to make sure that you knew about this,’” Williams recounted “Thank you.” at trial. Id. Appellant’s response was Id. Three days later, on May 5 at 11 a.m., Appellant met with Secretary Hazel and Chief of Staff Martin Kent to discuss the strategic plan for the state’s health and human resources office. Shortly after the meeting, Appellant directed his assistant to forward to Hazel the article about Star that Mrs. McDonnell had earlier brought to Appellant’s attention. Williams returned to the Governor’s Mansion on May 23, 2011, to deliver two checks for the amounts discussed on May 2: a $50,000 check made out to Mrs. McDonnell and a $15,000 check 9 that was not made out to anyone but was going to the wedding caterers. After Williams delivered these checks to Mrs. McDonnell, Appellant expressed his gratitude in a May 28 email to Williams: Johnnie. Thanks so much for alll your help with my family. Your very generous gift to Cailin was most appreciated as well as the golf round tomorrow for the boys. Maureen is excited about the trip to fla to learn more about the products . . . . Have a restful weekend with your family. Thanks. 5 G.S.A. 20. The next day, as mentioned in the email, Appellant, 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 While there, she addressed the audience, expressing her support for Star and its research. She also invited the audience to the launch Anatabloc, which would be held at the Governor’s Mansion. for The 5 Text messages and emails are quoted verbatim without identifying any mistakes in the original. Alterations have been made only when necessary for clarification. 6 The Roskamp Institute is a private research institute that studies Alzheimer’s disease. 10 same day -- June 1, 2011 -- she purchased 6,000 shares of Star stock at $5.1799 per share, for a total of $31,079.40. Weeks later, Williams sent Appellant a letter about conducting Anatabloc studies in Virginia. Williams wrote, “I am suggesting that you use the attached protocol to initiate the ‘Virginia study’ of Anatabloc at the Medical College of Virginia and the University emphasis on of Virginia endocrinology, gastroenterology.” School of cardiology, G.S.A. 29. Medicine, with osteoarthritis an and Appellant forwarded the letter and its attachments to Secretary Hazel for review. Appellant’s political action committee -- Opportunity Virginia (the “PAC”) -- hosted and funded a retreat at the Omni Homestead Resort in Hot Springs, Virginia. The retreat began on June 23, 2011, and was attended by the top donors to Opportunity Virginia. campaign Williams, and the “a PAC,” $100,000 was in-kind invited, and children to the resort for the retreat. contributor he flew to the Appellant’s J.A. 6117. Appellant and Williams played golf together during the retreat. 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 Williams’s July there free of Appellant multi-million-dollar Mountain Lake in Virginia. stay 31, charge. and his home at family Smith Williams allowed the McDonnells to He 11 also paid $2,268 for the McDonnells to rent a boat. And Williams provided transportation for the family: Appellant’s children used Williams’s Range Rover for the trip to the home, and he paid more than $600 to have his Ferrari delivered to the home for Appellant to use. Appellant drove the Ferrari back to Richmond at the end of the vacation on July 31. Mrs. McDonnell snapped several with the Ferrari’s top down. photographs returning to from Williams the at Smith During the three-hour drive, pictures of Appellant driving Mrs. McDonnell emailed one of the 7:47 p.m. Mountain At Lake 11:29 p.m., vacation, after Appellant directed Secretary Hazel to have his deputy attend a meeting about Anatabloc with Mrs. McDonnell at the Governor’s Mansion the next day. Hazel sent a staffer, Molly Huffstetler, to the August 1 meeting, which Williams also attended. During the meeting, Williams discussed clinical trials at the University of Virginia (“UVA”) and Virginia Commonwealth University (“VCU”), home of the Medical College of Virginia (“MCV”). Then Williams and Mrs. McDonnell met with Dr. John Clore from VCU, who Williams said was “important, and he could cause studies to happen at VCU’s medical school.” J.A. 2273. Williams -- with Mrs. McDonnell at his side -- told Dr. Clore that clinical testing of Anatabloc in Virginia was important to Appellant. Mrs. McDonnell noticed the Rolex 12 After the meeting ended, watch adorning Williams’s wrist. She Appellant. mentioned that she wanted to get a Rolex for When Williams asked if she wanted him to purchase one for Appellant, she responded affirmatively. The next day -- August 2, 2011 -- Mrs. McDonnell purchased another 522 shares of Star stock at $3.82 per share, for a total of $1,994.04. Appellant and one of his sons returned to Kinloch Golf Club on August 13, 2011. The bill for this golf outing, which Williams again $1,309.17. paid, was The next day, Williams purchased a Rolex from Malibu Jewelers in Malibu, California. The Rolex cost between $6,000 and $7,000 and featured a custom engraving: “Robert F. McDonnell, 71st Governor J.A. 2275 (internal quotation marks omitted). of Virginia.” Mrs. McDonnell later took several pictures of Appellant showing off his new Rolex -- pictures that were later sent to Williams via text message. Over the next few weeks, Governor’s Mansion staff planned and coordinated a luncheon to launch Anatabloc -- an event paid for by Appellant’s PAC. Invitations bore the Governor’s seal and read, “Governor and Mrs. Robert F. McDonnell Request the Pleasure of your Company at a Luncheon.” 104. G.S.A. Invitees included Dr. Clore and Dr. John Lazo from UVA. At the August 30 luncheon, each place setting featured samples of Anatabloc, and Williams handed 13 out checks for grant applications -- each for $25,000 -- to doctors from various medical institutions. 7 Appellant also attended the luncheon. According to Lazo, Appellant asked attendees various questions about their thoughts about Anatabloc: So I think one question he asked us was, did we think that there was some scientific validity to the conversation and some of the pre-clinical studies that were discussed, or at least alluded to. He also, I think, asked us whether or not there was any reason to explore this further; would it help to have additional information. And also, he asked us about could this be something good for the Commonwealth, particularly as it relates to [the] economy or job creation. J.A. 3344. According to Williams, Appellant was “[a]sking questions like . . . ‘What are the end points here? What are you looking for to show efficacy with the studies? going to proceed with that?’” Id. at 2283. How are you 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. . . . Overall, “[Appellant] was generally [T]hat was the purpose.” 7 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 Governor’s Mansion. 14 Despite the fanfare of the luncheon, Star’s President, Paul L. Perito, began to worry that Star had lost the support of UVA and VCU. In the fall of 2011, Perito was working with those universities to file grant applications. call with UVA unprepared. this officials, Perito During a particular felt the officials were According to Perito, when Williams learned about information, understand it. “[h]e was furious and said, ‘I can’t [Appellant] and his wife are so supportive of this and suddenly the administration has no interest.’” 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 This allowed Appellant to omit purchases on a required financial disclosure form known as a Statement of Economic Interest. Then on January 20, 2012 -- four days after the Statement of Economic Interest had been filed -- Mrs. McDonnell purchased 6,672 shares of Star stock at $2.29 per share, for a total of $15,276.88. In the meantime, on January 7, 2012, Appellant made another golf visit to Kinloch Golf Club, running up a $1,368.91 bill that Williams again paid. Appellant omitted this golf outing and the 2011 golf trips from his Statements of Economic Interest. See J.A. 723 (noting Appellant’s “deliberate omission 15 of his golf-related gifts paid by Jonnie Williams”). Appellant also omitted from his Statement of Economic Interest the $15,000 check for the caterers at his daughter’s wedding. Also in January 2012, Williams discussed the properties with Mrs. McDonnell, who wanted additional loans. a result, Williams agreed to loan more money. Mobo As At the same time, he mentioned to Mrs. McDonnell that the studies with UVA were proceeding slowly. Mrs. McDonnell was “furious when [Williams] told her that [they were] bogged down in the administration.” J.A. 2308. that Later, Mrs. McDonnell called Williams to advise him she “want[ed] had the relayed contact this information information [was] dealing with at [UVA].” of the to Appellant, people that who [Star] Id. at 2309 (internal quotation 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. Williams proposed “that he could loan that stock either to [Appellant’s] wife or he could loan it to [Mobo].” J.A. 6224. This conversation continued to February 29, when Williams visited the Governor’s Mansion. During this meeting, Appellant and Williams discussed the potential terms of a stock transfer. However, Appellant and Williams did not move forward with this idea because Williams 16 discovered he Securities would and have to Exchange report a stock Commission. transfer At trial, to the Williams testified that he did not want to transfer Star stock because he “didn’t want anyone to know that I was helping the Governor financially with his problems while he was helping our company.” Id. at 2333-34. Appellant, When asked what he expected in return from Williams testified, “I expected what had already happened, that he would continue to help me move this product forward in Virginia” by “assisting with the universities, with the testing, or help with supporting the product.” government employees, Id. at 2355. or publicly In the end, Williams agreed to make a $50,000 loan, writing a check in this amount to the order of Mobo on March 6. Also responded to on Mrs. February 3, McDonnell’s one request of Williams’s for a list employees of doctors Williams wished to invite to an upcoming healthcare industry leaders reception at the Governor’s Mansion. emailed the list of doctors to Mrs. McDonnell. -- on February 7 -- Mrs. McDonnell sent a The employee Four days later revised list of invitees for this event, a list that now included the doctors identified by Williams. The next day, Sarah Scarbrough, director of the Governor’s Mansion, sent an email to Secretary Hazel’s assistant, Elaina Schramm. Scarbrough informed Schramm that “[t]he First Lady and Governor were going over the list 17 last night for the healthcare 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. Mrs. requested McDonnell by Appellant, received an containing email, the as names officials with whom Star had been working. previously of the UVA She forwarded this list to Appellant and his chief counsel, Jacob Jasen Eige, on February 9. The next day, while riding with Appellant, Mrs. McDonnell followed up with Eige: Pls call Jonnie today [and] get him to fill u in on where this is at. Gov wants to know why nothing has developed w studies after Jonnie gave $200,000. I’m just trying to talk w Jonnie. Gov wants to get this going w VCU MCV. Pls let us know what u find out after we return . . . . G.S.A. 154. 8 Less than a week later -- on February 16, 2012 -Appellant emailed certificates providing for and Williams documents Mobo. Six to check relating minutes 8 to after on the loans status Williams Appellant sent of was this The $200,000 mentioned in Mrs. McDonnell’s email to chief counsel Eige referred to checks that Star distributed to researchers either at or about the time of the Anatabloc launch luncheon at the Governor’s Mansion. 18 email, he emailed Eige: “Pls see me about anatabloc issues at VCU and UVA. Thx.” G.S.A. 157. The healthcare industry leaders reception was held on February 29 -- the same day as Appellant’s private meeting about securing a loan from Williams. Following the reception, Appellant, Mrs. McDonnell, Williams, and two doctors went out for a $1,400 dinner on Williams’s diners discussed Anatabloc. dime. During dinner the Mrs. McDonnell talked about her use of Anatabloc, and Appellant asked one of the doctors -- a Star consultant -- “How big of a discovery is this?” (internal quotation marks omitted). J.A. 2728 At one point during the dinner Mrs. McDonnell invited the two doctors to stay at the Governor’s Mansion for the evening -- an offer the doctors accepted. On March 21, 2012, Appellant met with Virginia Secretary of Administration Lisa Hicks-Thomas, who oversaw state employee health plans and helped determine which drugs would be covered by the state health plan. At one point during the meeting, Appellant reached into his pocket, retrieving a bottle of Anatabloc. He told Hicks-Thomas that Anatabloc was “working well for him, and that he thought it would be good for . . . state employees.” J.A. 4227. He then asked Hicks-Thomas to meet with representatives from Star. 19 Almost two months later -- on May 18, 2012 -- Appellant sent Williams a text message concerning yet another loan: “Johnnie. Per voicemail would like to see if you could extend another 20k loan for this year. I’ll ask mike to send instructions. Call if possible and Thx bob.” G.S.A. 166. Twelve minutes later, Williams responded, “Done, tell me who to make it out to and address. 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. According to Appellant, the $23,000 vacation was a gift from William H. Goodwin Jr., whom Appellant characterized as a personal friend. Appellant did not report this gift on his 2012 Statement of Economic Interest. He said he did not need to report it because it fell under the “personal friend” exception to the reporting requirements. Between texted Williams April and about Star July 2012, stock on Appellant four coinciding with a rise in the stock price. text sent on July 3, Williams clinical trials report on aug 8. said, emailed occasions, and each In response to a “Johns Hopkins human If you need cash let me know. Let’s go golfing and sailing Chatham Bars inn Chatham mass labor day weekend if you can. Jonnie.” Business about to break out strong. G.S.A. 170. 20 Appellant and his wife took Williams up on his Labor Day weekend vacation offer. Williams spent more than $7,300 on this vacation for the McDonnells. Williams paid the McDonnells’ share of a $5,823.79 bill for a private clambake. Also joining in on the weekend excursion was one of the doctors who attended the February healthcare leaders reception, whom Williams invited in an attempt “to try to help get the Governor more involved.” J.A. 2371. Appellant said he learned in December 2012 that Mrs. McDonnell had repurchased Star stock in January 2012 -- despite having sold her entire holding of Star stock the previous year. Appellant testified that he “was pretty upset with her.” 6270. This revelation led to a 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 don’t” -- “I really don’t appreciate you doing things that really” -- “that affect me without” -- “without me knowing about it.” Id. at 6271. That Christmas, Mrs. McDonnell transferred her Star her stock to children as a gift. This again allowed Appellant to file a Statement of Economic Interest that did not report ownership of the stock. That same month -- December 2012 21 -- Williams gave Appellant’s daughter Jeanine a $10,000 wedding gift. E. Eventually, all of these events came to light. January 21, 2014, a grand jury indicted McDonnell in a fourteen-count indictment. Appellant And on and Mrs. Appellant and Mrs. McDonnell were charged with one count of conspiracy to commit honest-services wire fraud, in violation of 18 U.S.C. § 1349; three counts of honest-services wire fraud, in violation of 18 U.S.C. § 1343; one count of conspiracy to obtain property under color of official right, in violation of 18 U.S.C. § 1951; six counts of obtaining property under color of official right, in violation of 18 U.S.C. § 1951; two counts of making a false statement, in violation of 18 U.S.C. § 1014; and one count of obstruction of official proceedings, in violation of 18 U.S.C. § 1512(c)(2). Ultimately, the jury verdict of September 4, 2014, found Appellant not guilty of the false statements counts but guilty of all eleven counts of corruption. 9 9 The corruption counts include one count of conspiracy to commit honest-services wire fraud pursuant to 18 U.S.C. § 1349; three counts of honest-services wire fraud pursuant to 18 U.S.C. § 1343; one count of conspiracy to obtain property under color of official right pursuant to 18 U.S.C. § 1951; and six counts of obtaining property under color of official right pursuant to (Continued) 22 At sentencing the Government requested a sentence of 78 months -- or six and a half years -- of imprisonment, which was at range. the low end However, of the the applicable district Sentencing court departed Guidelines downward and sentenced Appellant to two years of imprisonment, followed by two years of supervised release. Appellant now challenges his convictions, asserting a litany of errors. II. A. Motion for Severance To erred when begin, it Appellant denied both argues his that motion the for district severance request for ex parte consideration of this motion. these rulings for an abuse of discretion. Lighty, 616 F.3d 321, 348 (4th Cir. court and his We review See United States v. 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 a with witness and thus introducing district court denied Appellant claims this exculpatory Appellant’s decision was testimony. motion an abuse for of The severance. the court’s discretion. In general, tried together.” “defendants indicted Lighty, 616 F.3d at 348. together should be This is especially true when, as in this case, the defendants are charged with conspiracy. See United States v. Parodi, 703 F.2d 768, 779 (4th Cir. 1983). So a defendant seeking severance based on the need for a co-defendant’s testimony must make an initial showing of “(1) a bona fide need for the testimony of his co-defendant, (2) the likelihood that the co-defendant would testify at a second trial and waive his Fifth Amendment privilege, (3) the substance of his co-defendant’s testimony, and (4) the exculpatory nature and effect of such testimony.” Id. After the initial showing is made, a district court should (1) examine the significance of the testimony in relation to the defendant’s theory of defense; (2) assess the extent of prejudice caused by the absence of the testimony; (3) pay close attention to judicial administration and economy; (4) give weight to the timeliness of the motion[;] and (5) consider the likelihood that the co-defendant’s testimony could be impeached. Id. 24 Appellant failed to satisfy even the initial showing requirements of United States v. Parodi. denied Appellant’s offered only motion vague and for The district court severance conclusory because statements Appellant regarding the substance of Mrs. McDonnell’s testimony. As we expressed in Parodi, regarding vague and conclusory statements potential testimony are not enough to establish the substance of a codefendant’s testimony. See 703 F.2d at 780. Appellant’s motion to sever paints a picture of Mrs. McDonnell’s potential testimony in broad strokes without filling in any details: First, her testimony would disprove the Government’s primary claim that the McDonnells acted in concert through a criminal conspiracy to corruptly accept gifts and loans in exchange for Mr. McDonnell using his office to benefit Williams and his company. Second, her testimony would refute the Government’s allegation that Mr. McDonnell agreed or promised to use his office to improperly “promote” Star’s products or to “obtain research studies for Star Scientific’s products.” Third, Mrs. McDonnell would refute the Government’s allegation that she solicited certain gifts and loans identified in the Indictment. Finally, Mrs. McDonnell would refute the Government’s allegation that the McDonnells “took steps . . . to conceal” their supposed scheme. J.A. 296 Presented (alternation with only in these original) unadorned (citations statements omitted). regarding the substance of Mrs. McDonnell’s potential testimony, the district 25 court appropriately exercised its discretion when it denied the motion to sever. 2. Appellant claimed he could provide a more detailed account of the substance of Mrs. McDonnell’s potential testimony -- an account he offered to share with the district court on the condition that the district court review the evidence ex parte. The district court denied this invitation, finding an ex parte proceeding would be inappropriate. Ex parte proceedings and communications are disfavored because they are “fundamentally at variance with our conceptions of due process.” Doe v. Hampton, 566 F.2d 265, 276 (D.C. Cir. 1977), quoted in Thompson v. Greene, 427 F.3d 263, 269 n.7 (4th Cir. 2005). However, such proceedings and communications may be permissible in limited circumstances. “[O]ur analysis should focus, first, on the parties’ opportunity to participate in the court’s decision and, second, on proceedings were unfairly prejudicial.” whether the ex parte RZS Holdings AVV, 506 F.3d at 357. Ex parte proceedings were not justified in this case. Appellant sought to withhold from the Government all of the information necessary to establish the necessity of severance. This proposal would have barred the Government from challenging whether Appellant actually satisfied 26 the initial showing required by Parodi. If the district court proceeded as Appellant requested, it would have been the only entity in a position court to was challenge reluctant to motion Appellant’s assume evaluating “a to intensive, multi-factored the contentions. role of sever[, which] analysis for The an advocate requires which heightened need for well-informed advocacy.” district when a there factis J.A. 351. 10 a It 10 In United States v. Napue, the Seventh Circuit elaborated on the problems presented by ex parte communications between a court and the Government: Ex parte communications between the government and the court deprive the defendant of notice of the precise content of the communications and an opportunity to respond. These communications thereby can create both the appearance of impropriety and the possibility of actual misconduct. Even where the government acts in good faith and diligently attempts to present information fairly during an ex parte proceeding, the government’s information is likely to be less reliable and the court’s ultimate findings less accurate than if the defendant had been permitted to participate. However impartial a prosecutor may mean to be, he is an advocate, accustomed to stating only one side of the case. An ex parte proceeding places a substantial burden upon the trial judge to perform what is naturally and properly the function of an advocate. 834 F.2d 1311, 1318–19 (7th Cir. 1987) (emphasis omitted) (citations omitted) (internal quotation marks omitted). The reversal of roles in this case does not change the equation. See Alderman v. United States, 394 U.S. 165, 184 (1969) (“As the need for adversary inquiry is increased by the complexity of the issues presented for adjudication, and by the consequent (Continued) 27 properly exercised its discretion by denying Appellant’s 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. The district court was not obligated to consider this request because Appellant waited until his reply to argue this issue. Cf. U.S. S.E.C. v. Pirate Investor LLC, 580 F.3d 233, 255 n.23 (4th Cir. 2009) (“Ordinarily we do not consider arguments brief . . . .”); raised Mike’s for Train the first House, Inc. time v. in a 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 justification for his claim that a severance was warranted. He was not entitled to an ex parte examination of his evidence; he was not entitled to deferral of the district court’s ruling. Accordingly, we affirm the denial of Appellant’s motion to sever. inadequacy of ex parte procedures as a means for their accurate resolution, the displacement of well-informed advocacy necessarily becomes less justifiable.” (emphasis omitted)). 28 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 He complains that, during the voir dire court this declined topic. his request Instead, the for court individual polled the members of the venire as a group, asking whether any of them believed themselves to be incapable of “put[ting] aside whatever it is that [they had] heard.” eight prospective jurors J.A. 1692. to the The court did call 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 a jury selection “perfunctory” questionnaire. questioning violated his Sixth Amendment right to an impartial jury. Appellant’s Br. 65. necessarily Because “[t]he conduct of voir dire is committed to the sound discretion of the trial court,” United States v. Lancaster, 96 F.3d 734, 738 (4th Cir. 1996) (en banc), we also review this contention for abuse of discretion, see United States v. Caro, 597 F.3d 608, 613 (4th Cir. 2010). Appellant’s assertion United argument begins that the Supreme Court’s States, 130 S. 2896 Ct. inauspiciously, decision (2010), in with an Skilling v. establishes minimum requirements for voir dire in “publicity-saturated” cases like 29 this one. Appellant’s Br. 22. In Skilling, he claims, the Court approved the voir dire procedure “only because” the trial court asked prospective jurors to indicate whether they had formed an opinion about the defendant’s guilt or innocence and later examined them individually about pretrial publicity. Id. Appellant then reasons that, because the trial court in this case took ‘provide neither a of those reasonable discovered if present.’” steps, assurance it necessarily that prejudice “failed to would be Id. (quoting Lancaster, 96 F.3d at 740). Skilling, however, does not purport to hand down commandments for the proper conduct of voir dire proceedings. See 130 S. Ct. at 2918 (explaining that the legal issue under review was, narrowly, “the adequacy of Skilling’s case” (emphasis supplied)). jury selection in On the contrary, the Court in Skilling recommitted itself to the principle that jury selection is unsusceptible to any “hard-and-fast formula”; as always, it remains trial judge.” “particularly within the province of the Id. at 2917 (internal quotation marks omitted); 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 States v. Jeffery, 631 F.3d 669, 673 (4th Cir. 2011), both as a general matter and in the area of pretrial publicity, specifically, see, e.g., United States v. Bailey, 112 F.3d 758, 770 (4th Cir. 1997); United States v. Bakker, 925 F.2d 728, 73334 (4th Cir. 1991). “wide discretion” The Supreme Court has itself emphasized the that trial courts enjoy in questioning prospective jurors about pretrial publicity: Particularly with respect to pretrial publicity, we think this primary reliance on the judgment of the trial court makes good sense. The judge of that court sits in the locale where the publicity is said to have had its effect and brings to his evaluation of any such claim his own perception of the depth and extent of news stories that might influence a juror. The trial court, of course, does not impute his own perceptions to the jurors who are being examined, but these perceptions should be of assistance to it in deciding how detailed an inquiry to make of the members of the jury venire. Mu’Min v. Virginia, 500 U.S. 415, 427 (1991). In his opening brief, Appellant accuses the district court of “limit[ing] voir dire on this issue to asking the prospective jurors en masse to sit down if they felt they could be fair.” Appellant’s Br. 65. The court, though, did a good deal more than that. Jury selection in this case commenced with a courtapproved jury questionnaire spanning 99 questions, four of which pressed prospective jurors for information about their exposure 31 to pretrial publicity. 11 The questionnaire -- by and large, a condensed version of a slightly longer proposed questionnaire that the parties submitted jointly -- asked respondents to state whether they had “seen, heard or read anything” about the case; “[h]ow closely” they had followed news about the case; and from which types of media they had heard about it. J.A. 592-93. It then asked whether each respondent had “expressed an opinion about this case or about those involved to anyone,” and if so, to 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 “expressed” an opinion about the case, rather than whether they had formed an opinion about it. Appellant, however, bears much of the responsibility for the wording and scope of questions on that document. And while the jointly proposed jury questionnaire from which the final questionnaire was culled did, indeed, ask whether prospective jurors had “formed” an opinion about the suspect. case, the wording of this proposed question was It asked: “Based on what you have read, heard, seen, 11 Another section of the questionnaire asked prospective jurors to discuss their news consumption more generally. Respondents were instructed to list, among other things, the print and online news sources they read most often and any websites they visit regularly. 32 and/or overheard in conversations, please tell us what opinions, if any, you have formed about the guilt or innocence of Robert F. McDonnell.” J.A. 527. So worded, this question invites respondents to deliberate on the defendant’s guilt or innocence and to stake out a position before even a single juror has been seated. The court was justified in rejecting it. 12 Later, question the the court prospective did exercise jurors as a its discretion group, individually, on the subject of pretrial publicity. to instead of See Bakker, 925 F.2d at 734 (“[I]t is well established that a trial judge may question prospective jurors collectively rather than individually.”). During this portion of the in-court voir dire, the the court asked members of the venire, collectively, to stand up if they had read, heard, or seen any media reports about the case. The court then asked the prospective jurors to 12 Indeed, the court’s decision not to pose Appellant’s suggested question finds support in the Supreme Court’s guidance on matters of pretrial publicity. See Mu’Min, 500 U.S. at 430 (explaining that the question for voir dire is “whether the jurors . . . had such fixed opinions that they could not judge impartially the guilt of the defendant” (alteration in original) (emphasis supplied) (internal quotation marks omitted)); Irvin v. Dowd, 366 U.S. 717, 723 (1961) (“To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”). 33 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 specific veniremen it would like to question further on this subject. In response, Appellant’s counsel brought forward the names of eight prospective jurors, and the court proceeded to summon each individual of those prospective questioning. The jurors court to the struck bench one of for these individuals, without objection, based on her responses to its questions. When this process was complete, the court asked Appellant’s counsel whether there was “[a]nybody else” he wished to question. J.A. 1706. “Not on publicity,” counsel said. Id. Appellant, relying on our decision in United States v. Hankish, 502 F.2d 71 (4th Cir. 1974), argues that the prospective jurors’ acknowledgment that they had been exposed to pretrial publicity obligated the trial court to question every single one of them -- not merely one at a time, but outside of the others’ presence. however, is inapplicable. court’s refusal to poll See Appellant’s Br. 65. Hankish, The error in that case was a district jurors, after they had already been seated, to discern whether any of them had read a particular, “highly prejudicial” article that ran in the local newspaper on the second day of the trial. 502 F.2d at 76. 34 We did not hold 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. On the contrary, we have held that merely asking for a show of hands was not an abuse of discretion. See Bailey, 112 F.3d at 769-70 (finding no abuse of discretion where a court asked prospective jurors to raise their hands if they had heard or read about the case and, separately, if “anything they had heard would predispose them to favor one side or the other”). We are satisfied that the trial court’s questioning in this case was adequate to “provide a reasonable assurance that prejudice would be discovered if present.” at 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 abuse its discretion. C. Evidentiary Rulings Appellant erroneous evidentiary asserts evidentiary rulings for the district rulings. an abuse In of court general, discretion, substantial deference to the district court. review affording See United States v. Medford, 661 F.3d 746, 751 (4th Cir. 2011). 35 we “A district court abuses its discretion if its conclusion is guided by erroneous legal principles or rests upon a clearly erroneous factual finding.” 261 (4th Westberry v. Gislaved Gummi AB, 178 F.3d 257, Cir. 1999) (citations omitted). Reversal is appropriate if we have “a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Id. (internal quotation marks omitted). 1. Exclusion of Expert Testimony Appellant objects to the exclusion of his proposed expert testimony about Williams’s cooperation agreement with the Government as well as expert testimony about the Statements of Economic Interest. decisions to We reject these claims, as the trial court’s 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 Williams’s Government, Williams with transactional immunity. which provided In a letter dated May 30, 2014, the Government outlined the immunized conduct: (1) conduct involving his agreement to provide, and his provision of, things of value to former Virginia Governor Robert F. 36 been McDonnell, former First Lady of Virginia Maureen P. McDonnell, and their family members; (2) conduct related to loans Williams received from 2009 to 2012 in exchange for his pledge of Star Scientific stock; and (3) conduct related to Williams’ gifts of Star Scientific stock to certain trusts from 2009 to 2012. J.A. 7918. White -- a Appellant partner at offered the Schulte expert Roth & testimony Zabel LLP of and Peter former Assistant United States Attorney -- to “explain[] transactional immunity, its value, and its uniqueness” and to “help[] the jury understand Williams’s deal so it could assess his credibility.” Appellant’s Br. 78. Expert testimony cannot be used for the sole purpose of undermining a witness’s credibility. See United States v. Allen, 716 F.3d 98, 105–06 (4th Cir. 2013). Here, the defense wished to present White’s testimony in order to emphasize the rarity of Williams’s agreement and to imply, as a result, that Williams had more reason to provide false or greatly exaggerated testimony. In other words, the sole purpose testimony was to undermine Williams’s credibility. matter best left to cross examination. conclude that the district court’s evidence was an abuse of discretion. of White’s This is a Accordingly, we cannot decision to exclude this See Allen, 716 F.3d at 106 (“A juror can connect the dots and understand the implications that a plea agreement might have on a codefendant’s testimony -- 37 it is certainly within the realm of common sense that certain witnesses would have an incentive to incriminate the defendant in exchange for a lower sentence.” (internal quotation marks omitted)). 13 b. Second, Appellant argues that he should have been permitted to present expert testimony about the Statements of Economic Interest. Appellant offered the expert testimony of Norman A. Thomas -- a private attorney who formerly worked in 13 Appellant also contests the exclusion of his proposed lay witness testimony about the rarity of Williams’s agreement. At trial, the court sustained the Government’s objection after defense counsel asked Williams whether he understood “how unusual it is . . . to get transactional immunity” and again after defense counsel asked an FBI special agent whether he had “ever seen a cooperating witness get the kind of deal that Mr. Williams got.” J.A. 2778, 5064. Appellant claims this testimony would have helped the jury assess Williams’s credibility. In relevant part, Rule 701 of the Federal Rules of Evidence requires that opinion testimony from a lay witness must be “helpful to clearly understanding the witness’s testimony.” Fed. R. Evid. 701(b); see also United States v. Hassan, 742 F.3d 104, 136 (4th Cir. 2014) (“Lay opinion testimony is particularly useful when . . . the terms and concepts being discussed . . . are likely to be unfamiliar to the jury.”). Juries are familiar with the general import and effect of immunity agreements. Cf. Allen, 716 F.3d at 106 (discussing jurors’ ability to understand the implications of a plea agreement). Here, the jury was informed of the contents of Williams’s agreement, and Williams testified about the agreement and his understanding of the immunities from prosecution it afforded him. The jury did not need additional testimony regarding what types of agreements are more common than others to assess Williams’s credibility. In other words, the district court reasonably concluded that the testimony would not have been helpful. 38 the Office of the Attorney General of Virginia and served as a judge -- to explain the vagueness Statements of Economic Interest. also would have explained and complexity of the According to Appellant, Thomas that Appellant’s Statements of Economic Interest evidenced a reasonable understanding of the disclosure requirements. Expert testimony must “help the trier of fact understand the evidence or to determine a fact in issue.” R. Evid. 702(a). to Fed. “The helpfulness requirement of Rule 702 thus prohibits the use of expert testimony related to matters which are obviously . . . within the common knowledge of jurors.” United States v. Lespier, 725 F.3d 437, 449 (4th Cir. 2013) (alteration in original) (internal quotations marks omitted). The district court excluded the testimony of Thomas because it would not be helpful to the jury. As the court observed, the jurors were “capable of reading and assessing the complexity Generally of the speaking, [Statements] one does for not themselves.” need any special expertise to recognize that something is complex. this matter jurors. was plainly within the common J.A. 719. skills or Accordingly, knowledge of the Similarly, the jurors did not need expert assistance to assess the reasonableness of Appellant’s opinions about what he did and did not have to disclose. The district court reasonably concluded that Thomas’s testimony would not have been helpful. 39 As a result, we cannot conclude that the district court’s decision to exclude this evidence was an abuse of discretion. 2. Admission of Statements of Economic Interest Appellant objects to the admission of the Statements of Economic office. Interest filed by Appellant during his time in Appellant moved in limine to exclude evidence relating to the Statements of Economic Interest, arguing the Statements of Economic Interest would have little to no probative value and their admission would confuse the issues and mislead the jury. The Government, on the other hand, characterized the Statements of Economic concealment evidence, Interest which would and reveal intent and consciousness of guilt.” related evidence Appellant’s J.A. 723. as “corrupt In support of this proposition, the Government offered four examples of how the Statements of Economic Interest amounted to concealment evidence: [F]irst, because of [Appellant’s] deliberate omission of his golf-related gifts paid by Jonnie Williams; second, because of [Appellant’s] deliberate omission of the $15,000 check from Mr. Williams to pay the remainder of the catering bill the McDonnells owed for their daughter’s 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 [Appellant’s] 2011 [Statement of Economic Interest], and why the next year, she similarly unloaded Star 40 stock to [Appellant’s] children on December 26, 2012, such that less than $10,000 worth of Star stock remained in her account at year-end; and fourth, as the reason why [Appellant] had Mr. Williams direct $70,000 in loan proceeds to [Mobo]. Id. at 723–24 (citations omitted). Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Fed. R. Evid. 401(a)–(b). Relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Id. 403. The district court admitted the Statements of Economic Interest because they were relevant “to concealment and may be probative of intent to defraud” and because “admission . . . will not unfairly prejudice [Appellant] because there is no suggestion, and there will be none at trial, that [Appellant] violated J.A. 760. individual Virginia’s ethics laws reporting requirements.” Indeed, an attempt to conceal actions may indicate an has a guilty conscience unlawfulness of the actions. Interest did not or is aware of the See United States v. Zayyad, 741 F.3d 452, 463 (4th Cir. 2014). Economic or Because the Statements of include 41 various gifts, stock transactions, and loans from Williams to Appellant -- omissions Appellant sought to explain during trial 14 -- the structuring of the loans and gifts and failures to report could be seen as efforts to conceal Appellant’s dealings with district court correctly observed as much. Williams. The And the district court weighed the probative value of this evidence against any dangers that would accompanying its admission. Accordingly, we cannot conclude that the district court’s decision to admit this evidence was an abuse of discretion. 3. Admission of Other Gifts Evidence Appellant objects to the admission of evidence that he accepted a gift of the Kiawah vacation from Goodwin and that he 14 Appellant testified that he should have reported -- but did not report -- golf outings provided by Williams in 2011. He did not report Williams’s $15,000 check for catering at Appellant’s daughter’s wedding, characterizing the check as a wedding gift to his daughter. Appellant instructed Williams to write loan checks to Mobo, circumventing disclosure requirements. In both 2011 and 2012, Mrs. McDonnell unloaded shares of Star stock prior to the filing dates for the Statements of Economic Interest so her ownership did not have to be reported. But after the 2011 Statement of Economic Interest was filed, Mrs. McDonnell repurchased shares of Star stock. Appellant testified that “it was not a big deal” if he had to report ownership of Star stock. J.A. 6276. He claimed that he encouraged his wife to sell the stock in 2011 because it was a risky investment. He also claimed that Mrs. McDonnell repurchased and again transferred Star stock in 2012 because she wanted to give the stock to their children as a Christmas present. 42 did not disclose this gift pursuant to the “personal friend” exception to Virginia’s reporting requirements. in limine to exclude this evidence as Appellant moved extrinsic evidence of unrelated alleged acts with no probative value of his intent. The Government responded that this evidence showed Appellant’s knowledge of the requirements. “personal This friend” evidence, the exception Government to reporting further noted, would be “competent evidence of absence of mistake or lack of accident failing when to it comes disclose the to assessing gifts and [Appellant’s] 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 person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). However, such evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id. 404(b)(2). The district court admitted the evidence of the Kiawah vacation omission because it was used to show knowledge and lack of mistake. The omission of the gift from Goodwin, the district court determined, “is similar to the act the Government seeks to prove -- omission of gifts from 43 Williams pursuant to the personal friend established that exception.” J.A. Appellant about knew 761. the This evidence “personal friend” exception and omitted certain gifts pursuant to this exception. Thus, Appellant’s knowledge and the absence of mistake was “relevant to, and probative of, his alleged intent to defraud.” Id. Rule 404 permits the admission of evidence of intent and knowledge, and in our view, the district court could conclude that the Goodwin evidence was admissible for these purposes. Therefore, we cannot conclude that the district court’s decision to admit this evidence was an abuse of discretion. 4. Admission of Email Exchange Regarding Free Golf Appellant objects to the admission exchange about obtaining free rounds of golf. 2013, Emily Rabbitt -- Appellant’s travel of an email On January 4, aide and deputy director of scheduling -- asked Adam Zubowsky for advice about planning golf trips for Appellant. Zubowsky -- once Appellant’s travel aide and later Appellant’s son-in-law -- responded in an email dated January 4, 2013: Yes basically this means find out who we know in these cities, that owns golf courses and will let me and my family play for free, or at a reduced cost. Also finding out where to stay for free / or reduced cost. So this means . . . find out about pac donors, and rga donors, who will host rfm. J.A. 7921. 44 During trial, Appellant objected to the admission of this email, asserting that this evidence was not relevant and was extraordinarily prejudicial. appeal, however, inadmissible Appellant hearsay and In post-trial motions and on has claimed inadmissible the exchange character was evidence. Because Appellant did not object at trial on these grounds, our review is for plain error. See United States v. Bennett, 698 F.3d 194, 200 (4th Cir. 2012). On plain error review, an appellant “bears the burden of establishing (1) that the district court erred; (2) that the error was plain; substantial rights.” and (3) that the error affect[ed his] Bennett, 698 F.3d at 200 (alteration in original) (internal quotation marks omitted). An error affects an individual’s substantial rights if it was prejudicial, “which means that there must be a reasonable probability that the error affected the outcome of the trial.” United States v. Marcus, 130 S. Ct. 2159, 2164 (2010). The mere possibility that the error the affected prejudice. the See id. outcome of trial does not establish “Even then, this court retain[s] discretion to deny relief, and denial is particularly warranted where it would not result in a miscarriage of justice.” Bennett, 698 F.3d at 200 (alteration in original) (internal quotation marks omitted). 45 At discussion first, of the the district particular court email refused exchange mentioned during the testimony of Rabbitt. to when permit it was Later in the trial, during cross examination of Appellant, the email exchange was admitted over Appellant’s relevancy objection. of the exchange focused on whether The discussion Appellant received information about golf courses where he could play for free or at a reduced cost. Upon review of the record, it does not appear that this exchange was mentioned again, and the parties have not identified any other discussion of the exchange. The use of the email exchange was quite limited, especially in light of the voluminous evidence presented during the course of the five weeks of trial. We cannot say there is a reasonable probability that its admission affected the outcome of the trial. The indictment, we note, did not seek to prosecute Appellant for this conduct; indeed, the district court instructed the jury that Appellant was “not on trial for any act or conduct or offense not alleged in the indictment.” 7695. We presume instruction. (2000). the jurors followed the district J.A. court’s See, e.g., Weeks v. Angelone, 528 U.S. 225, 234 Accordingly, the claim that evidence of the email exchange affected the outcome of the trial is beyond the realm of reasonable probability. The admission of this evidence was not plainly erroneous. 46 5. Return of Forensic Image of Williams’s iPhone Appellant also asserts the district court erroneously ordered him Williams’s to return iPhone, all which copies the of a forensic Government of produced had image to Appellant pursuant to Rule 16 of the Federal Rules of Criminal Procedure. Appellant’s chief complaint is that the forensic image may contain evidence to which he is entitled pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). However, Appellant waives treatment of it is conclusory. [Appellant] evidence, which material. its receives almost new claim because his Appellant merely argues: “If trial, certainly he is entitled contains Brady to and this Giglio Likewise, if any of that evidence proves material, confiscation (citations citations a this requires omitted). to two a new trial.” Appellant’s decisions of little Appellant’s argument Br. 85 includes obvious bare relevance from other courts of appeals. Furthermore, Appellant does not make any the effort violation. to establish elements of a Brady or Giglio See Strickler v. Greene, 527 U.S. 263, 281–82 (1999) (“The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that 47 evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”). Summary raise the treatment claim. See, of a 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 pertinent legal authority supporting . . . a claim” waives the claim). Although Appellant raised this issue in an interlocutory appeal in a related case -- an appeal we dismissed for want of jurisdiction -- this does not preserve the issue and is not sufficient to raise the issue now. To avoid waiver, a party over must exercise brief the issue jurisdiction. in an Thus, appeal because which Appellant we may fails to sufficiently raise this issue and has, therefore, effectively waived it, we do not further address it. III. With arguments at these the matters core of resolved, this appeal. we turn First to and the two foremost, Appellant asserts that the district court’s jury instructions misstated Second, fundamental he asserts principles that the of federal Government’s 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 A. Jury Instructions Appellant’s 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 a 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.” United States v. Woods, 710 F.3d 195, 207 (4th Cir. 2013) (internal quotation marks omitted). Even if, upon review, we find that the court misinstructed the jury on an element of an offense, we may disregard the error as harmless. See United States v. Cloud, 680 F.3d 396, 408 n.5 (4th Cir. 2012); United States v. Ramos-Cruz, 667 F.3d 487, 496 (4th Cir. 2012). “We find an error in instructing the jury harmless if it is ‘clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.’” 15 15 Ramos- Prior to closing arguments in this case, the trial court conducted a lengthy charge conference, during which Appellant’s counsel vigorously challenged many of the Government’s proposed instructions, including instructions that the court ultimately gave. The court did not invite the parties to object to the instructions after the court gave them to the jury -- nor did either party request to do so. We remind the district courts (Continued) 49 Cruz, 667 F.3d at 496 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). 1. We statutes begin our of conviction. analysis The with first of an examination these is the of honest- services wire fraud statute, 18 U.S.C. §§ 1343, 1346. 16 statute requires the Government to prove that the the This defendant sought to “carry out a ‘scheme or artifice to defraud’ another of ‘the intangible right of honest services.’” 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 and counsel that the proper time for cementing objections to instructions is after they are given but “before the jury retires to deliberate.” Fed. R. Crim. P. 30(d); see United States v. Taglianetti, 456 F.2d 1055, 1056-57 (1st Cir. 1972) (rejecting the “improper practice” of taking objections to the jury charge “in chambers before delivery, rather than afterwards”). 16 The wire fraud statute provides, in pertinent part: Whoever, having devised or intending to devise any scheme or artifice to defraud, . . . transmits or causes to be transmitted by means of wire . . . communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined . . . or imprisoned . . . or both. 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 recognized that § 1346 proscribes two, and only two, types of activities: bribery and kickback schemes. See United States, 130 S. Ct. 2896, 2907 (2010). Skilling v. To the extent that the statute prohibits acts of bribery, the prohibition “draws content . . . from federal statutes proscribing -- and defining -- similar crimes,” including the general federal bribery statute, 18 U.S.C. § 201(b), and the statute prohibiting theft and bribery involving federal funds, 18 U.S.C. § 666(a)(2). Skilling, 130 S. Ct. at 2933. Here, wire services in their fraud, proposed both instructions parties sought for to honest- import definition of bribery set forth in 18 U.S.C. § 201(b)(2). statute provides demand, seek, that or public receive officials anything may of not the This “corruptly” value “in return for . . . being influenced in the performance of any official act.” 18 U.S.C. § 201(b)(2). The statute defines an “official act” as “any decision or action on any question, matter, cause, suit, proceeding pending, official, or in which such or controversy, may by law official’s be which may brought official court provided a near-verbatim any before capacity, official’s place of trust or profit.” district at time any or public in such Id. § 201(a)(3). The recitation of provisions in its honest-services wire fraud instructions. 51 be these A second statute of conviction in Appellant’s case, the Hobbs Act, prohibits acts of extortion which “in any way or degree obstruct[], delay[], or affect[] commerce or the movement of any article or commodity in commerce.” Though a defendant may commit 18 U.S.C. § 1951(a). extortion through threats or violence, it is also possible to commit extortion by obtaining property “under color of official right.” Id. § 1951(b)(2). In Evans v. United States, the Supreme Court explained that its construction of § 1951 “is informed by the common-law tradition,” under which “[e]xtortion by [a] public official was the rough equivalent of what we would now describe as ‘taking a bribe.’” concluded official 504 U.S. 255, 260, 268 (1992). that right, prosecutions like for prosecutions Accordingly, we have extortion under statutes, require proof of a quid pro quo. other under color of bribery-related See United States v. Hairston, 46 F.3d 361, 365 (4th Cir. 1995). Here, the parties agreed that a charge of extortion under color of official right has four elements. The trial court accordingly instructed the jury that the Government must prove beyond a reasonable doubt that the defendant (1) was a public official; (2) “obtained a thing of value not due him or his [office]”; (3) “did so knowing that the thing of value was given in return for official action”; and (4) “did or attempted 52 in any way or degree to delay, obstruct, or affect interstate commerce, or an item moving in interstate commerce.” J.A. 7681. 2. Official Acts Appellant instructions on first the challenges meaning of alternatively, “official action.” the district “official court’s act,” or, Appellant argues the court’s definition was overbroad, to the point that it would seem to encompass virtually any action a 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 official’s 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 official’s 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 official action can include actions taken in furtherance of longer-term goals, and an official action is no less official because it is one in a series of steps to exercise influence or achieve an end. J.A. 7671-72. The court later explained to the jury that these instructions “apply equally to the definition of official action for the purposes of” the Hobbs Act counts. In broad strokes, Id. at 7683. Appellant’s argument is that the court’s definition of “official action” is overinclusive. By his account, the court’s instructions would deem virtually all of a public servant’s activities “official,” no matter how minor or innocuous. For public figures such as a governor, who interact with constituents, donors, and business leaders as a matter of custom and necessity, these activities might include such routine meeting, or functions posing for as attending a a photograph. luncheon, arranging Appellant argues a that activities of this nature can never constitute an official act. See Appellant’s Br. 28. We have recognized that the term “official act” “does not encompass every action taken in one’s official capacity.” Jefferson, 674 F.3d at 356. that. We are satisfied, Its meaning is more limited than though, that the district court adequately delineated those limits when it informed the jury that the term “official act” covers only “decision[s] or action[s] on any question, matter, cause, suit, proceeding, or 54 controversy, which may at any time be pending, or which may by law be brought official’s 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.” It first did so a little more than a century ago, in United States v. Birdsall, 233 U.S. 223 (1914). There, two federal officers responsible for suppressing liquor traffic in Indian communities challenged their indictments for accepting bribes in violation of section 117 of the Criminal Code, the predecessor statute to 18 U.S.C. § 201(b). 17 17 See Birdsall, 233 Section 117 provided: Whoever, being an officer of the United States, or a person acting for or on behalf of the United States, in any official capacity, under or by virtue of the authority of any department or office of the Government thereof[,] . . . shall ask, accept, or receive any money, . . . with intent to have his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, influenced thereby, shall be [penalized by fine, imprisonment, and disqualification from office]. Act of March 4, 1909, ch. 321, § 117, 35 Stat. 1088, 1109-10. We have observed that “there is simply no distinction in substance between an official act as defined by Birdsall” and an (Continued) 55 U.S. at 227. The indictments alleged that attorney Birdsall bribed the officers to advise the Commissioner of Indian Affairs to recommend leniency for individuals trafficking offenses involving Indians. convicted of liquor See id. at 229-30. The district court sustained the officers’ demurrers, holding that their actions were not within the scope of the bribery statute because “there [was] no act of Congress conferring upon the Interior Department, or the Bureau of Indian Affairs, any duty whatever in regard to recommending to the executive or judicial departments judicial of the clemency government shall be whether or extended.” not executive United States or v. Birdsall, 206 F. 818, 821 (N.D. Iowa 1913), rev’d, 233 U.S. 223 (1914). The Supreme Court, however, reversed. In doing so, it declared that an action may be “official” for purposes of a bribery charge even if it is not prescribed by statute, written rule, or regulation. See Birdsall, 233 U.S. at 230-31. Indeed, as the Court explained, an official act: might also be found in an established usage which constituted the common law of the department and fixed the duties of those engaged in its activities. In numerous instances, duties not completely defined by written rules are clearly established by settled practice, and action taken in the “official act” under the current bribery § 201(a)(3). Jefferson, 674 F.3d at 353. 56 statute, 18 U.S.C. course of their performance must be regarded as within the provisions of the abovementioned statutes against bribery. Id. at 231 (citation omitted). Birdsall continues to stand for the proposition that an “official act” “may include acts that a [public servant] customarily performs, even if the act falls outside the formal legislative 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.” To constitute an “official act” under federal bribery law, a settled practice “must yet adhere to the definition confining an official act to a pending ‘question, matter, cause, suit, proceeding or controversy.’” Jefferson, 674 F.3d at 356 (quoting 18 U.S.C. § 201(a)(3)). By way of dicta in United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999), the Supreme Court has clarified this point. not a bribery case. Sun-Diamond, it must be noted, was Its focus, rather, was the federal gratuity statute, 18 U.S.C. § 201(c), which criminalizes gifts given to a public official “for or because of any official act.” § 201(c)(1)(A). 18 U.S.C. Notably, though, the definition of an “official act” supplied in § 201(a)(3) applies to the entirety of § 201, including the dual prohibitions 57 on bribery and illegal gratuities. See 18 U.S.C. § 201(a) (providing a definition of “official act” “[f]or the purpose of this section”). The Sun-Diamond Court explained that the illegal gratuity statute requires the Government to demonstrate a link between the gift and “some particular official act of whatever identity.” In the 526 U.S. at 406 (internal quotation marks omitted). course of its explanation, the Court stated that an alternative reading would criminalize, for example, “token gifts to the President based on his official position and not linked to any identifiable act -- such as the replica jerseys given by championship House sports visits”; “a teams high each school year during principal’s ceremonial gift of a White school baseball cap to the Secretary of Education, by reason of his office, on the occasion of the latter’s visit to the school”; or a “complimentary Agriculture “in lunch” connection provided with his for the speech concerning various matters of USDA policy.” Secretary to the of farmers Id. at 406-07. The Court proceeded to explain why it would not do to argue that these three visiting the acts high -- that school, is, or receiving speaking to the sports farmers “official acts” in their own right: The answer to this objection is that those actions -while they are assuredly “official acts” in some sense -- are not “official acts” within the meaning of the statute, which, as we have noted, defines 58 -- teams, were “official act” to mean “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 official’s official capacity, or in such official’s place of trust or profit.” 18 U.S.C. § 201(a)(3). Thus, when the violation is linked to a particular “official act,” it is possible to eliminate the absurdities through the definition of that term. Id. at 407-08 (emphasis omitted). We have previously declined to read Sun-Diamond to exclude “all settled practices by a public official from the bribery statute’s definition of an official act.” 674 F.3d at 356 (emphasis supplied). point, acknowledging official acts.” that “some Appellant’s Br. Appellant concedes the settled 37 Jefferson, practices (emphasis can omitted). be He argues, though, that under the logic of Sun-Diamond, the kinds of activities he is accused of -- e.g., speaking with aides and arranging because meetings they -- can “implicate (emphasis omitted). no never constitute official “official power.” 18 Id. acts” at 31 Appellant simply misreads Sun-Diamond. 18 In further support of his argument that an “official act” necessitates a deployment of “official powers,” Appellant calls our attention to the First Circuit’s decision in United States v. Urciuoli, 513 F.3d 290 (1st Cir. 2008). The appellants in Urciuoli were hospital executives who allegedly employed a state senator in a “sham job” in exchange for various efforts to advance the hospital’s financial interests. 513 F.3d at 292. In pertinent part, the Government alleged that the senator (Continued) 59 The Sun-Diamond Court did not rule that receptions, public appearances, and speeches can never constitute “official acts” within the meaning of § 201(a)(3); the Court’s point was that job functions of a strictly ceremonial or educational nature will rarely, if ever, fall within this definition. The reason is not that these functions cannot relate, in some way, lobbied municipal officials to comply with Rhode Island law governing ambulance runs. See id. As a result of this act, among various other actions, the executives were convicted of honest-services mail fraud pursuant to 18 U.S.C. §§ 1341 and 1346. See id. at 293. There, as in this case, the chief issue on appeal was whether the court’s instructions were overbroad. It must be noted, though, that the instructions in that case were decidedly different than the instructions here. Instead of borrowing the bribery definition from § 201(a)(3), as the court here did, the trial court in Urciuoli instructed the jury to decide whether the object of the scheme was a deprivation of “honest services,” defined as follows: The honest services that an elected official owes to citizens is not limited to the official’s formal votes on legislation. It includes the official’s behind-the-scenes activities and influence in the legislation, and it also includes other actions that the official takes in an official capacity, not what he does as a private individual but what he does under the cloak of his office. Urciuoli, 513 F.3d at 295 n.2 (internal quotation marks omitted). The First Circuit ruled that the phrase “under the cloak of his office” was overbroad under the circumstances because lobbying mayors to obey state law cannot constitute a deprivation of honest services. See id. at 295. While Appellant reads Urciuoli to proclaim that acts like lobbying can never be official acts, the First Circuit made no such pronouncement. 60 to a “question, matter, cause, suit, proceeding or controversy.” 18 U.S.C. § 201(a)(3). Frequently, they will. When, as in the Court's example, the Secretary of Education visits a local high school, he may proceed to discuss matters of education policy with the student body. Surely, though, this discussion does not have the purpose or effect of exerting some influence on those policies. Its function, rather, is to educate an audience of students. Under these circumstances, it cannot be said that the Secretary’s visit is a “‘decision or action on’” the question, matter, cause, suit, proceeding, or controversy. 526 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 a influence a “question, matter, cause, suit, proceeding or controversy” that may be brought before the government. 18 U.S.C. § 201(a)(3). It is with this principle in mind that we assess Appellant’s contentions about the jury instructions in this case. 19 19 Appellant invokes a number of canons of statutory interpretation that favor a narrow construction of “official act.” As for his argument that the bribery laws should be void for vagueness, the Supreme Court has already rejected a challenge that the honest-services statute is unconstitutionally (Continued) 61 b. Appellant jury an accuses “unprecedented the and district court misleading” of giving instruction on the the “official act” element. Appellant’s Br. 51. We disagree with these characterizations. First, the court’s instruction was not unprecedented. To a large extent, the instruction echoed the “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 “official action” “includes those actions that have been clearly established by settled practice as part of a public official’s position, even responsibilities if the action explicitly was assigned not by taken law.” pursuant J.A. to 7671-72. vague as applied to bribery. See Skilling, 130 S. Ct. at 2928. And because Appellant has “engage[d] in some conduct that is clearly proscribed” by the Hobbs Act, he “cannot complain of the vagueness of the law as applied to the conduct of others.” Holder v. Humanitarian Law Project, 561 U.S. 1, 18-19 (2010) (internal quotation marks omitted). Appellant’s remaining narrowing arguments -- which invoke federalism concerns, the rule of lenity, and dicta in Sun-Diamond -- all presuppose inherent ambiguity in the statutory term “official act.” However, as we have explained, the term is sufficiently definite as to make recourse to those canons unnecessary. 20 In Jefferson, we held that the following jury instruction was not erroneous: “An act may be official even if it was not taken pursuant to responsibilities explicitly assigned by law. Rather, official acts include those activities that have been clearly established by settled practice as part of a public official’s position.” 674 F.3d at 353 (alteration omitted). 62 The court then explained that the meaning of “official action” is tethered to decisions or actions on a “question, matter, cause, suit, proceeding, or controversy” that may come before the government. See id. at 7671. i. Appellant that an takes official issue action with “‘can include furtherance of longer-term goals.’” J.A. 7672). the court’s instruction actions taken in Appellant’s Br. 56 (quoting He argues that this instruction is too sweeping, as “virtually anything could be in ‘furtherance’ of some goal.” Id. For similar instruction that reasons, “‘an Appellant official challenges action is no the less court’s official because it is one in a series of steps to exercise influence or achieve an end.’” Id. (emphasis omitted) (quoting J.A. 7672). We find no error in either of the court’s statements. We observe, first, that the federal bribery statute, 18 U.S.C. § 201(b), from which the honest-services wire fraud statute draws meaning, criminalizes the act of “corruptly demand[ing], seek[ing], receiv[ing], accept[ing], or agree[ing] to receive or accept” a thing of value in return for influence. 18 U.S.C. § 201(b)(2). The solicitation or acceptance of the bribe completes the crime, regardless of whether the recipient completes, or even commences, the “official act” the bribe payor sought to influence. See Howard v. United States, 345 F.2d 126, 63 128 (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.”). The same is true of a Hobbs Act extortion charge. See Evans, whether 504 U.S. or at not improper 268 action (recognizing is that thereafter the crime of extortion under color of official right is “completed at the time when the public official receives a payment in return for his agreement to perform specific official acts”); United States v. Loftus, 992 F.2d 793, 797 (8th Cir. 1993). In either case, when prosecuting a bribe recipient, the Government need only prove that he or she solicited or accepted the bribe in return for performing, or being influenced in, some particular official act. Of importance, the consummation of an “official act” is “not an element of the offense.” Evans, 504 U.S. at 268. We further observe that an “official act” may pertain to matters outside of the bribe recipient’s control. See 18 U.S.C. § 201(a)(3) (providing that an act may be “official” so long as the matter to be decided or acted upon “may by law be brought before any public official” (emphasis supplied)). Indeed, in Birdsall, the defendant-officers lacked any authority to grant clemency; all they could provide was advice. at 229-30. indictments. 233 U.S. Nevertheless, the Supreme Court upheld their bribery See id. at 236. Likewise, in Sears v. United States, the First Circuit recognized that government inspectors 64 were performing an “official” function, for purposes of two shoemakers’ federal bribery charges, when they accepted payoffs to disregard inadequacies in leather shoes destined for sale to the Army. 264 F. 257, 261-62 (1st Cir. 1920). 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 that mere steps in furtherance of a final action or decision may constitute an “official act.” former Trade Louisiana and congressman Investment Nigeria, was Africa. 674 F.3d at 357. bribery and “largely Caucus The defendant in that case was a who, and responsible honest-services as the for co-chair of the Congressional promoting Africa Caucus trade” on with A jury convicted Jefferson of both wire fraud, based in part on allegations that he asked a telecommunications company to hire 65 his family’s consulting firm in return for his promote the company’s technology in Africa. efforts to See id. at 338. Jefferson’s efforts on the company’s behalf involved a series of trips and performed meetings. by In in Jefferson particular, exchange we for explained, the “acts various bribe payments included, inter alia”: “corresponding and visiting with foreign officials”; certain business “[a]ttempting ventures; to facilitate “[s]cheduling and and promote” conducting meetings”; and “seeking to secure construction contracts.” at 356. Id. We were satisfied that these activities were in keeping with Jefferson’s settled practice of serving constituents and promoting trade in Africa and that, accordingly, the jury was “entitled to conclude” that his actions “fall under the umbrella of his ‘official acts.’” Id. at 357-58. ii. Appellant instruction that next a public challenges official the “need district not have court’s 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.” J.A. 7672. argues law: that subjective this belief is a cannot misstatement convert 66 a of a non-official Appellant bribe act payor’s into an official one. See Appellant’s Br. 55. Again, we are unpersuaded. The first part indisputably correct. 21 of the court’s instruction is In Wilson v. United States, we held that a bribery conviction will stand regardless of whether the bribe recipient “had actual authority to carry out his commitments under the bribery scheme.” 230 F.2d 521, 526 (4th Cir. 1956). There, a jury convicted an adjutant general of soliciting bribes from an insurance salesman in exchange for the right to sell insurance at Fort Jackson -- even though the solicitations occurred while the adjutant general was temporarily relieved of his post. 22 lack of See id. at 523. actual authority We deemed the adjutant general’s “immaterial”: “Regardless of his actual authority, it was still within his practical power to influence the regulation of insurance sales as it had formerly 21 Appellant’s own proposed jury instructions concede the point, stating that a public official “can perform an ‘official act’ when it is a settled practice as part of the official’s position for him to exercise influence over a government decision even if he does not have authority to make the final decision himself.” J.A. 753. 22 The statute of conviction in Wilson was 18 U.S.C. § 202, which authorized penalties for any federal officer or employee who “asks [for], accepts, or receives” a thing of value “with intent to have his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, influenced thereby.” 18 U.S.C. § 202 (1952) (current version at 18 U.S.C. § 201(b) (2012)). 67 been . . . .” Id. at 526; cf. United States v. Ring, 706 F.3d 460, 470 (D.C. Cir. 2013) (holding that a Department of Justice attorney committed an “official act” pursuant to § 201(c) when he forwarded an email to another government official in an effort to expedite a foreign student’s visa application, even though the attorney “lacked independent authority to expedite visa applications”). As to the second part of the court’s instruction, we have no difficulty recognizing that proof of a bribe payor’s subjective belief in the recipient’s power or influence over a matter will support a conviction for extortion under color of official right. See United States v. Bencivengo, 749 F.3d 205, 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 official’s powers.”). As the First Circuit explained in United States v. Hathaway, the phrase “under color of official right” “includes the misuse of office to induce payments not due.” 534 F.2d 386, 394 (1st Cir. 1976). Accordingly, the “relevant question” when contemplating a prosecution under this statute is simply whether the government official “imparted and 68 exploited a reasonable belief that he had effective influence over” the subject of the bribe. Plainly, court’s Hobbs instruction that Act a Id. principles bribe support recipient’s the lack district of actual authority over a matter does not preclude “official act” status, “so long as the alleged bribe payor reasonably believes” that the recipient had “influence, power or authority over a means to the end sought.” J.A. 7672. We are satisfied, therefore, that this instruction was not erroneous with respect to the Hobbs Act extortion charges. It is less certain that a bribe payor’s subjective belief in the recipient’s power or influence will suffice to demonstrate an “official act” for purposes of an honest-services wire fraud charge. The “intangible right of honest services,” after all, is a right held by the public. See United States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). When a government official agrees to influence a matter in exchange for money, that official deprives the public of his “honest, faithful, and disinterested omitted). services.” Id. (internal quotation marks The third party who pays the government official may be a constituent of the official, but he is no victim, and the honest-services wire fraud statute does not seek to protect him. Appellant’s argument, therefore, that the subjective beliefs of a third party in an honest-services wire fraud case 69 cannot “convert debatable. non-official Appellant’s Br. acts 55 into official (emphasis omitted). however, is not an issue that we need to decide. court’s would 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 Governor of Virginia, Appellant most certainly had power and influence over the results Williams was seeking. We have no doubt that the jury’s verdict on the honest-services wire fraud charge would have been the same even if the instructions required a finding that Appellant had the power to influence a means to the end being sought. Appellant has thus failed to show that the court’s “official act” instructions, taken as a whole, were anything less than a “fair and accurate statement of law.” v. Smoot, 690 F.3d 215, 223 (4th Cir. 2012). of reversible error with respect to the United States Appellant’s claim “official act” instructions is therefore rejected. c. We likewise reject Appellant’s argument that the court erred in refusing to give meaning of “official act.” his proposed instructions on the We review a district court’s refusal to give a specific jury instruction for abuse of discretion, “and reverse only when the rejected instruction (1) was correct; (2) was not substantially covered by the court’s charge to the 70 jury; and (3) dealt with some point in the trial so important . . . that failure to give the requested instruction seriously impaired the defendant’s ability to conduct his defense.” United States v. Smith, 701 F.3d 1002, 1011 (4th Cir. 2012) (internal quotation marks omitted). Appellant’s 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 official’s 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 a number of ways. First, it is hardly evident that “[m]any” settled practices do not qualify as “official acts.” J.A. 753. so, it is not a statement of law. Even if this were Rather, it seems to us a thinly veiled attempt to argue the defense’s case. 71 Given the risk of misleading the jury, we cannot fault the justified court in for declining to give this instruction. The Appellant’s court was assertion likewise that “merely arranging rejecting a meeting, attending an event, hosting a reception, or making a speech” cannot constitute an “official act.” As detailed above, neither Sun-Diamond nor any other precedent sweeps so broadly. Moving on, Appellant has also failed to explain why the court should have instructed the jury that “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.” J.A. 753. Even if we assume that most such decisions would not qualify as official acts, never do so. we cannot accept the assertion that they may Here, again, the proposed instruction goes too far. Finally, refusing to we hold that the the jury, in instruct court did language not err borrowed in from Citizens United v. Federal Election Commission, 558 U.S. 310, 361 (2010), corruption.” that “mere J.A. 753. ingratiation and access are not Affording the talismanic significance Appellant assigns to this language ignores its context; Citizens United, a campaign-finance case, involved neither the honestservices statute nor the Hobbs 72 Act. Moreover, the Citizens United Court employed the “ingratiation” language only after providing a much broader definition of corruption: “The hallmark of corruption is the political favors.” financial quid pro quo: dollars for Citizens United, 558 U.S. at 359 (internal quotation marks omitted). In the case at hand, this broader definition was “substantially covered by the court’s charge to the jury.” Smith, 701 F.3d at 1011 (internal quotation marks omitted). Thus, the court’s failure to include this language did not “impair[]” Appellant’s “ability to conduct his defense.” Id. (internal quotation marks omitted). The district court instructed the jury that “there would be no crime” as long as Appellant “believed in good faith that he . . . was properly, even if he . . . was mistaken in that belief.” 7692. acting J.A. Appellant was thus free to argue that he believed in good faith that any ingratiation or access he provided Williams was entirely proper. If the jury believed that, it would have had no choice but to acquit him. Taken as a whole, Appellant’s proposed instruction on the meaning of “official act” failed to present the district court with a correct statement of law. He cannot now argue that the court’s refusal to give that instruction was an abuse of discretion. 73 3. Quid Pro Quo Appellant also contests the court’s instructions on the “quid pro quo” elements of honest-services wire fraud and Hobbs Act extortion, maintaining that the court’s gloss on this term would criminalize the lawful receipt of “goodwill” gifts to lawmakers. In this context, the term “quid pro quo” refers to “an intent on the part of the public official to perform acts on his payor’s behalf.” Diamond, 526 specific intent Jefferson, 674 F.3d at 358; see also Sun- U.S. at to 404-05 give (defining or receive “quid pro something quo exchange for an official act” (emphasis omitted)). “a value of as in Accordingly, in its instructions on the honest-services wire fraud charge, the 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 J.A. 7669-70; see 674 18 (4th Cir. U.S.C. 2004) § 201(b)). Likewise, in its Hobbs Act instruction, the court stated that Appellant must have “obtained a thing of value to which he was not entitled, knowing that return for official action.” the thing of value was given in J.A. 7682; see Evans, 504 U.S. at 268. 74 Appellant’s contention that In particular, Appellant asserts that the court the jury aware of a that court’s incomplete. make rather, the were to but, not instructions failed incorrect is critical they were limitation on bribery liability when it neglected to state, per his proposed instructions, that “[a] gift or payment given with the generalized hope of some unspecified future benefit is not a bribe.” J.A. 751; accord id. at 756. Appellant claims that this omission seriously impaired his defense because “a central defense theory was that Governor McDonnell believed Williams was simply trying to cultivate goodwill.” Appellant’s Br. 59-60. Appellant’s statement of the law is correct, so far as it goes. See United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998). “It is universally recognized that bribery occurs only if the gift is coupled with a particular criminal intent. That intent is not supplied merely by the fact that the gift was motivated by some generalized hope or expectation of ultimate benefit on the part of the donor.” United States v. Arthur, 544 F.2d 730, 734 (4th Cir. 1976) (citations omitted) (reversing a conviction for pursuant to 18 U.S.C. § 656). misapplication of bank funds The bribe payor must have more than a “‘[v]ague expectation[]’” that the public official will reward his kindness, somehow or other. Jennings, 160 F.3d at 1013 (quoting United States v. Allen, 10 F.3d 405, 411 (7th Cir. 75 1993)). He must harbor an intent to secure a “specific type of official action or favor in return” for his largesse. Id. at 1014 (emphasis omitted). The Government never disputed these points. there is little reason to doubt that if the Indeed, defense had submitted a written instruction relating to goodwill gifts, the court would have accepted it. thing. Instead, its However, the defense did no such proposed “goodwill gift” language was tucked into the penultimate sentence of the defense’s proposed instructions on the definition of “corruptly,” see J.A. 751, 756, a term the court took care to explicate, see id. at 7670 (explaining that bribery requires a corrupt intent -- meaning, here, that the public official must demand, seek, or receive the item of purpose”). value “knowingly As outlined and above, dishonestly the for court a wrongful emphasized the essentiality of the prosecution’s burden to prove corrupt intent when it instructed the jury on Appellant’s “good faith” defense. See J.A. 7692 (charging the jury that “if a defendant believed in good faith that he or she was acting properly, even if he or she was mistaken in that belief, and even if others were injured by his or her conduct, there would be no crime”). Appellant was adamant, during the trial conference, about the importance of his “good faith” defense in this case, referring to it as “our critical defense.” Id. at 7360. 76 It is not enough, in any event, for Appellant to show that his proposed instructions contained a correct statement of law. If, as it happens, the rejected instruction was “substantially covered by the court’s charge to the jury,” there is no reversible error. United States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009) (internal quotation marks omitted). Put succinctly, we are satisfied that the court’s “quid pro quo” instructions were adequate. In its Hobbs Act instruction, the court made clear that extortion under color of official right requires an intent to have the public official “take specific official action on the payor’s behalf.” supplied). Similarly, in its J.A. 7682-83 (emphasis 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 instructed the jury on the “quid pro quo” requirement of the charged offenses. Accordingly, we reject Appellant’s claim of instructional error in that respect. 77 B. Sufficiency of the Evidence This leads us to was Appellant’s claim support the evidence convictions. “We review a challenge to the sufficiency of the 279 (4th Cir. 2015). favorable evidence to to verdict. Cir. the to the Government’s evidence de novo . . . .” insufficient that United States v. Bran, 776 F.3d 276, If, viewing the evidence in the light most Government, support the we find conviction, there we will is substantial affirm the jury See United States v. Hager, 721 F.3d 167, 179 (4th 2013). reasonable “Substantial finder of evidence fact is could such accept evidence as that adequate a and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” To Williams review, and Id. (internal quotation marks omitted). the Appellant Government engaged in set a out corrupt to prove quid that pro Williams, we know, supplied the “quid,” and plenty of it. quo. Among other things, he provided Appellant’s family -- generally at the behest of Appellant or Mrs. McDonnell -- with multiple fivefigure payments and loans, expensive getaways, shopping trips, golf outings, and a Rolex watch. The greater challenge for the Government was persuading the jury that Williams’s payments to Appellant Government and was his family obligated were to “pro prove, 78 quo.” In first, that short, the Williams’s payments came with a corrupt understanding and, second, that the key to that understanding was the expectation that Appellant would perform certain official acts for Williams’s benefit. 1. Evidence of Official Acts In the first place, we reject Appellant’s contention that the Government’s evidence cannot satisfy the “official act” requirement. An “official act,” as defined by statute, requires the existence of some “question, matter, cause, suit, proceeding or controversy.” presented 18 U.S.C. evidence of § 201(a)(3). three questions Appellant’s sphere of influence. researchers initiate a at any study state-created of of or the Government matters within The first of these was whether Virginia’s Anatabloc. Tobacco Here, state The universities second Indemnification was would whether and the Community Revitalization Commission (“Tobacco Commission”) would allocate grant money for the study of anatabine. The third was whether the health insurance plan for state employees in Virginia would include Anatabloc as a covered drug. These were all government matters, and Appellant, as head of the Commonwealth’s government, was in a prime position to affect their disposition. The Constitution of Virginia vests the chief Governor with “[t]he 79 executive power of the Commonwealth.” Va. Const. art. V., § 1. State law provides that the Governor “shall have the authority and responsibility for the formulation and administration of the policies of the executive branch.” include the provided level. Va. Code Ann. § 2.2-103.A. authority to to approve public-sector the employees health at See id. §§ 2.2-1204.A, -2818.A. the These powers insurance state and plans local In addition, among his myriad other powers, the Governor appoints 12 of the 13 members of the State Council of Higher Education for Virginia, see id. § 23-9.3.C.; all members serving on the boards of visitors of Virginia Commonwealth University and the University of Virginia, see id. §§ 23-50.6(a), -70.A; and a majority of commissioners on the Tobacco Commission, see id. § 3.2-3102.A. With power comes influence. As the witness Jerry Kilgore, Star’s lawyer, put it: “[T]he Governor is the Chief Executive of the Commonwealth. will, to go at evidence out and trial talk made He has this bully pulpit, if you about clear issues.” that Star J.A. 4374. executives The wanted Appellant to use his prominence and influence to the company’s advantage. See e.g., id. at 3898 (former Star President Perito testifying that when “the Commonwealth . . . embraces Chief the Executive worthiness of of the the product[,] . . . [i]t gives it a type of credibility”); see also id. at 2314 (Williams testifying 80 that the opportunity to “showcase” a product at the Governor’s Mansion “automatically” imbues the product with “credibility”). To the extent, then, that Appellant made any “decision” or took any “action” on these matters, the federal bribery laws “official.” would hold that decision 18 U.S.C. § 201(a)(3). or action to be As we have explained, it was not necessary for the Government to prove that Appellant actually took any such official action. to show was that the allegedly What the Government had corrupt agreement between Appellant and Williams carried with it an expectation that some type of official action would be taken. See United States v. Giles, 246 F.3d 966, 973 (7th Cir. 2001). exceeded its burden. Here, the Government It showed that Appellant did, in fact, use the power of his office to influence governmental decisions on each of the three questions and matters discussed above. First, in August 2011, Appellant asked his Secretary of Health, Dr. Hazel, to send a deputy to a “short briefing” with Mrs. McDonnell at the Governor’s mansion. In his email to Hazel, Appellant made clear that the subject of the briefing would be “the Star Scientific anatablock trials planned in va at vcu and uva.” one staffer, G.S.A. 80. Molly Naturally, the staff complied. Huffstetler, wrote in an email to As her colleagues: “[W]e will do what we can to carry out the desires of the Governor and First Lady.” 81 Id. at 81. That same month, Appellant and his wife hosted product launch for Anatabloc at the Governor’s Mansion. a Prior to the event, Mrs. McDonnell explained to a staff member that one of the universities purposes to do of the research on event the was to “encourag[e] product.” J.A. 3608. Invitees included Dr. Clore, an associate vice president for clinical research at VCU, and Dr. Lazo, former associate dean for basic research at the UVA School of Medicine. 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. Appellant also asked whether the development of Anatabloc could “be something good for the Commonwealth, particularly economy or job creation.” as it relates to [the] Id. A series of emails exchanged in February 2012 between Appellant, his wife, and chief counsel Eige shows Appellant continuing to push for state university research on Anatabloc. In a February 17 email, Appellant told Eige: “Pls see me about anatabloc issues at VCU and UVA. Thx.” G.S.A. 157. Eige would later express his discomfort with Appellant’s involvement in the issue, telling Kilgore: “I’ve been asked by the Governor to call and put -- you know, show support for this research, and I’m 82 just -- I just don’t think we should be doing it.” J.A. 4374 (internal quotation marks omitted). Just a week before Appellant’s email to Eige, Mrs. McDonnell sent a series of emails of her own asking Eige to get in touch with Williams. The first email bore the subject line: “FW: Anatabine clinical studies – UVA, VCU, JHU.” This email said that Williams “has calls in to VCU & UVA & no one will return his calls.” G.S.A. 147. The next day, while sitting right next to Appellant, Mrs. McDonnell emailed Eige again: Pls call Jonnie today [and] get him to fill u in on where this is at. Gov wants to know why nothing has developed w studies after Jonnie gave $200,000. . . . Gov wants to get this going w VCU MCV. Pls let us know what u find out after we return. Id. at 154. The email included Williams’s cell phone number. Eige later testified that he understood the emails to mean that Mrs. McDonnell wanted him to “[s]omehow reach out and see . . . if we couldn’t elicit some type of response from these two universities.” J.A. 3214. Appellant staffer to attend argues a that these briefing, actions questioning -a asking a university researcher at a product launch, and directing a policy advisor to “see” him about an constitute official acts. issue -- are We disagree. too insignificant to With each of these acts, Appellant exploited the power of his office in furtherance 83 of an ongoing effort to influence the work of state university researchers. a Accordingly, a reasonable juror could find, beyond reasonable doubt, that the actions contemplated under Appellant’s agreement with Williams were “official” in nature. A jury could likewise conclude that Appellant performed an “official” act when he discussed Anatabloc at the March 2012 officials: meeting with Secretary of two high-ranking Administration administration Hicks-Thomas and Department of Human Resource Management Director Sara Wilson. There, amid a discussion about the state employee health insurance plan, Appellant pulled a bottle of Anatabloc from his pocket and showed the pills to Hicks-Thomas and Wilson. As Hicks-Thomas recalled, Appellant “said that he had been taking [the pills] and that they were working well for him, and that he thought it would be good for . . . state employees.” J.A. 4227. Appellant then asked Hicks-Thomas and Wilson if they would be willing to meet with Star. that Appellant used his Here, again, the evidence suggests position matter of importance to Virginia. as Governor to influence a This evidence was more than sufficient to support the jury’s verdict. 2. Evidence of a Quid Pro Quo Next we turn to whether the Government presented evidence sufficient to support a conclusion that there was a 84 corrupt quid pro quo, “a specific intent to give or receive something of value in exchange for an official act.” Diamond, 526 U.S. at 404–05 (emphasis omitted). Sun- To establish the necessary intent, the Government had to present evidence of “an exchange of money (or gifts) for specific official action.” Jennings, 160 F.3d at 1014. not necessary, and “[s]uch circumstantial evidence.” At trial, Direct proof of a corrupt intent is the an intent may be established by Id. Government presented evidence to show Appellant’s corrupt intent. an array of Critically, the Government’s evidence demonstrated a close relationship between Appellant’s official acts and the money, loans, gifts, and favors provided by Williams to Appellant and Mrs. McDonnell. With respect to the official acts alleged by the Government, a “quo” came on the heels of each “quid.” For example: • Between July 28 and July 31, 2011, Williams provided lodging, transportation, and a boat for the McDonnells’ Smith Mountain Lake vacation. Upon returning home on July 31 -- after a three-hour trip home in Williams’s Ferrari -- Appellant directed Hazel to send a deputy to meet with Mrs. McDonnell about Anatabloc. On August 1, Huffstetler, Williams, and Mrs. McDonnell met at the Governor’s Mansion to discuss Anatabloc clinical trials at UVA and VCU. • Later that month, on August 31, 2011, McDonnell hosted the launch of Anatabloc at the Governor’s Mansion. State employees arranged the event, and 85 invitations to the launch bore the Governor’s 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. • Between February and March 2012, Appellant and Williams had a series of discussions regarding a $50,000 so-called loan. On February 16, Appellant checked in with Williams about documents relating to the monies. Six minutes later, Appellant emailed Eige, asking Eige to see him about the Anatabloc studies. • During these payment negotiations, Mrs. McDonnell and Appellant encouraged Williams to “invite all the doctors that [he] want[ed] to invite” to the healthcare industry leaders reception held at the Governor’s Mansion on February 29. J.A. 2312. The list of invitees for the event was revised to include Williams’s guests at the direction of Appellant and Mrs. McDonnell. • On the day of the healthcare leaders event, Appellant met with Williams about a loan of Star Scientific shares worth $187,000. J.A. 6767-72. Less than five hours later, Appellant saw Williams at the event. Appellant’s briefing materials for the evening specifically identified the “[p]ersonal doctors of McDonnells,” which included Williams’s guests, doctors affiliated with Anatabloc. J.A. 6775. Following the event, Williams took Appellant, Mrs. McDonnell, and two of these doctors out to dinner. • On March 6, 2012, as a result of the negotiations, Williams wrote a $50,000 check to Mobo. Then, on March 21, Appellant met with Hicks-Thomas to discuss covering Anatabloc under the state health 86 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 -- constitute compelling evidence of corrupt intent. Throughout the two years during which Appellant was performing the official acts alleged, Williams lavished Appellant with shopping sprees, money, loans, golf outings, and vacations: • In April 2011, Mrs. McDonnell contacted Williams about a political rally and shopping in New York. On April 13, Williams spent approximately $20,000 on Mrs. McDonnell’s New York City shopping spree. That evening, Williams sat next to Appellant and his wife during the political rally. • In May 2011, Williams loaned the McDonnells $50,000 and provided $15,000 to cover the McDonnells’ daughter’s wedding reception. When she requested the loan, Mrs. McDonnell said, “The Governor says it’s 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. • On May 29, 2011, Williams paid $2,380.24 for Appellant and his sons to enjoy golf and amenities at Kinloch Golf Club. • On January 7, Williams paid $1,368.91 for another of Appellant’s golf outings. 87 • During the 2012 Memorial Day weekend, Williams footed the bill for the McDonnells’ vacation, spending more than $7,300. None of these payments were goodwill gifts from one friend to another. until Indeed, Appellant and Williams did not know each other after Appellant was elected Governor. As Williams testified with regard to the money he provided, “I was loaning [Appellant] money so that he would help our company.” 2360. He expected Appellant “to help me move Id. at this product forward in Virginia” by “assisting with the universities, with the testing, or help with supporting the product.” government Id. at 2355. employees, or publicly And since at least their shared cross-country flight in October 2010, Appellant knew what Williams wanted for his company: independent studies of Anatabloc conducted by Virginia universities. This evidence established that Appellant received money, loans, favors, and gifts from Williams in exchange for official acts to help Williams secure independent testing of Anatabloc. In light of the foregoing, the jury could readily infer that there were multiple quid pro quo payments, and that Appellant acted in the necessary corrupt intent. absence of good faith and with the See United States v. Hamilton, 701 88 F.3d 404, 409 (4th Cir. 2012) (“[I]ntent can be implied -- and it is the jury’s role to make such factual inferences.”). 23 In sum, Appellant has thereby failed to sustain his heavy burden inadequate. of showing that the Government’s evidence was See United States v. Engle, 676 F.3d 405, 419 (4th Cir. 2012) (“A defendant bringing a sufficiency challenge must overcome a heavy burden, and reversal for insufficiency must be confined to cases where the prosecution’s failure is clear.” (citations omitted) (internal quotation marks omitted)). Accordingly, the trial evidence was sufficient to support each of Appellant’s convictions. IV. Appellant received a fair trial and was duly convicted by a jury of his fellow Virginians. what has been done. We have no cause to undo The judgment of the district court is AFFIRMED. 23 Significantly, the jury found the necessary corrupt intent despite being instructed extensively on Appellant’s “good faith” defense and hearing from an array of witnesses who testified to Appellant’s honesty, integrity, respect for the law, and good character. The jury was instructed not only that “if a defendant believed in good faith that he or she was acting properly . . . there would be no crime,” but also that “evidence of good character alone may create a reasonable doubt as to a defendant’s guilt.” See J.A. 7692, 7694. Appellant’s character witnesses included cabinet members from his time as Governor of Virginia, as well as longtime friends such as Father Timothy R. Scully, a Catholic priest and University of Notre Dame professor who met Appellant in 1972 when they became college roommates. 89
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