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No.

15-4019

In The
United States Court of Appeals
for the Fourth Circuit

UNITED STATES OF AMERICA,


Appellee,
v.
ROBERT F. MCDONNELL,
Defendant-Appellant.
_____________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA, RICHMOND DIVISION
(THE HONORABLE JAMES R. SPENCER, DISTRICT JUDGE)
BRIEF OF AMICI CURIAE LAW PROFESSORS
IN SUPPORT OF DEFENDANT-APPELLANTS
MOTION FOR BOND PENDING APPEAL
William W. Taylor, III
ZUCKERMAN SPAEDER LLP
1800 M Street, N.W., Ste. 1000
Washington, D.C. 20036-5802
T: (202) 778-1800
wtaylor@zuckerman.com
Counsel for Amici Curiae

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT


DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus
case, except that a disclosure statement is not required from the United States, from an indigent
party, or from a state or local government in a pro se case. In mandamus cases arising from a
civil or bankruptcy action, all parties to the action in the district court are considered parties to
the mandamus case.
Corporate defendants in a criminal or post-conviction case and corporate amici curiae are
required to file disclosure statements.
If counsel is not a registered ECF filer and does not intend to file documents other than the
required disclosure statement, counsel may file the disclosure statement in paper rather than
electronic form. Counsel has a continuing duty to update this information.
15-4019
No. __________

United States v. Robert F. McDonnell


Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,


Judge Nancy Gertner (Ret.)
______________________________________________________________________________
(name of party/amicus)

______________________________________________________________________________
Amicus
who is _______________________,
makes the following disclosure:
(appellant/appellee/petitioner/respondent/amicus/intervenor)

Is party/amicus a publicly held corporation or other publicly held entity?

2.

Does party/amicus have any parent corporations?


YES 4 NO
If yes, identify all parent corporations, including grandparent and great-grandparent
corporations:

3.

Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or


other publicly held entity?
YES 4 NO
If yes, identify all such owners:

10/28/2013 SCC

-1-

YES

1.

NO

4.

Is there any other publicly held corporation or other publicly held entity that has a direct
financial interest in the outcome of the litigation (Local Rule 26.1(b))?
YES 4 NO
If yes, identify entity and nature of interest:

5.

Is party a trade association? (amici curiae do not complete this question)


YES 4 NO
If yes, identify any publicly held member whose stock or equity value could be affected
substantially by the outcome of the proceeding or whose claims the trade association is
pursuing in a representative capacity, or state that there is no such member:

6.

Does this case arise out of a bankruptcy proceeding?


If yes, identify any trustee and the members of any creditors committee:

/s/ William W. Taylor, III


Signature: ____________________________________

YES

NO

January 19, 2015


Date: ___________________

Amicus - Judge Nancy Gertner (Ret.)


Counsel for: __________________________________

CERTIFICATE OF SERVICE
**************************
January 19, 2015
I certify that on _________________
the foregoing document was served on all parties or their
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:

/s/ William W. Taylor, III


_______________________________
(signature)

January 19, 2015


________________________
(date)
-2-

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT


DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus
case, except that a disclosure statement is not required from the United States, from an indigent
party, or from a state or local government in a pro se case. In mandamus cases arising from a
civil or bankruptcy action, all parties to the action in the district court are considered parties to
the mandamus case.
Corporate defendants in a criminal or post-conviction case and corporate amici curiae are
required to file disclosure statements.
If counsel is not a registered ECF filer and does not intend to file documents other than the
required disclosure statement, counsel may file the disclosure statement in paper rather than
electronic form. Counsel has a continuing duty to update this information.
15-4019
No. __________

United States v. Robert F. McDonnell


Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,


Charles J. Ogletree, Jr.
______________________________________________________________________________
(name of party/amicus)

______________________________________________________________________________
Amicus
who is _______________________,
makes the following disclosure:
(appellant/appellee/petitioner/respondent/amicus/intervenor)

Is party/amicus a publicly held corporation or other publicly held entity?

2.

Does party/amicus have any parent corporations?


YES 4 NO
If yes, identify all parent corporations, including grandparent and great-grandparent
corporations:

3.

Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or


other publicly held entity?
YES 4 NO
If yes, identify all such owners:

10/28/2013 SCC

-1-

YES

1.

NO

4.

Is there any other publicly held corporation or other publicly held entity that has a direct
financial interest in the outcome of the litigation (Local Rule 26.1(b))?
YES 4 NO
If yes, identify entity and nature of interest:

5.

Is party a trade association? (amici curiae do not complete this question)


YES 4 NO
If yes, identify any publicly held member whose stock or equity value could be affected
substantially by the outcome of the proceeding or whose claims the trade association is
pursuing in a representative capacity, or state that there is no such member:

6.

Does this case arise out of a bankruptcy proceeding?


If yes, identify any trustee and the members of any creditors committee:

/s/ William W. Taylor, III


Signature: ____________________________________

YES

NO

January 19, 2015


Date: ___________________

Amicus-Charles J. Ogletree, Jr.


Counsel for: __________________________________

CERTIFICATE OF SERVICE
**************************
January 19, 2015
I certify that on _________________
the foregoing document was served on all parties or their
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:

/s/ William W. Taylor, III


_______________________________
(signature)

January 19, 2015


________________________
(date)
-2-

TABLE OF CONTENTS

Disclosures of Corporate Affiliations and Other Interests


Table of Contents ................................................................................................... i
Table of Authorities .............................................................................................. ii
Interest of Amici Curiae.........................................................................................1
Summary ................................................................................................................2
Argument................................................................................................................2
Certificate of Compliance
Certificate of Service

TABLE OF AUTHORITIES

CASES
Citizens United v. Fed. Election Commn,
558 U.S. 310 (2010).........................................................................................5
McNally v. United States,
483 U.S. 350 (1987).........................................................................................5
Skilling v. United States,
561 U.S. 358 (2010).........................................................................................5
United States v. Jefferson,
674 F.3d 332 (4th Cir. 2012) ...........................................................................4
United States v. Muntain,
610 F.2d 964 (D.C. Cir. 1979).........................................................................3
United States v. Rabbitt,
583 F.2d 1014 (8th Cir. 1978) .........................................................................3
United States v. Sun-Diamond Growers,
526 U.S. 398 (1999)..................................................................................... 2-3
United States v. Urciuoli,
513 F.3d 290 (1st Cir. 2008).............................................................................3
Valdes v. United States,
475 F.3d 1319 (D.C. Cir. 2007)...................................................................3, 4

STATUTES
18 U.S.C. 201(a)(3).............................................................................................3
18 U.S.C. 3143(b) ...........................................................................................2, 5

ii

INTEREST OF AMICI CURIAE


Amici are professors who teach, study, and write about criminal law.1 They
intend to file a brief urging reversal of Appellants conviction. They understand
that on Appellants application for bond pending appeal, the Court will consider
whether the appeal presents a substantial question of law . . . likely resulting in
reversal. 18 U.S.C. 3143(b).

Amici believe this case does present such a

question. Indeed, they believe the district courts instructions concerning bribery
of a state official, if affirmed, would expand the elements of that crime beyond its
current boundaries.

This appeal will require the Court to decide substantial

questions as to, first, what constitutes an official action in the context of bribery
and, second, whether the jury was appropriately instructed as to that concept.
Amici respectfully believe their views will assist the Court in making those
decisions.
The Honorable Nancy Gertner is a former United States District Judge for
the District of Massachusetts, where she served for seventeen years.

She is

currently a Senior Lecturer on Law at the Harvard Law School. She has written,

No counsel for a party authored this brief in whole or in part, and no


counsel or party made a monetary contribution intended to fund the preparation or
submission of this brief. No person other than the amici curiae or their counsel
made a monetary contribution to its preparation or submission. Both parties have
consented to the submission of this brief.

taught, and spoken extensively on a wide variety of criminal law issues,


particularly on issues of white collar crime and sentencing.
Charles J. Ogletree, Jr. is the Harvard Law School Jesse Climenko Professor
of Law, and Founding and Executive Director of the Charles Hamilton Houston
Institute for Race and Justice. He is a respected legal theorist with particular
prominence in the area of criminal law and issues of criminal justice.
SUMMARY
To convict Governor McDonnell, the jury was required to find that he
performed, or promised to perform, official acts in exchange for loans or gifts.
The district courts instruction to the jury on the definition of official act
broadened that definition beyond that approved in any existing precedent. We
believe that definition to be error. If it is approved as given, it will raise critical
questions as to whether potential defendants here government officials had fair
notice that their behavior was criminal. Thus, for purposes of the issue before the
Court at this time, the district courts instruction raises a substantial question of
law . . . likely to result in . . . reversal under 18 U.S.C. 3143(b).
ARGUMENT
Some actions [taken by government officials]--while they are assuredly
official acts in some sense--are not official acts within the meaning of the
federal anti-bribery laws. United States v. Sun-Diamond Growers, 526 U.S. 398,

407 (1999). By statute, an official act constitutes a decision or action on [a]


matter . . . pending . . . before any public official, in such officials official
capacity. 18 U.S.C. 201(a)(3).

The courts of appeal have examined what

constitutes an official act in a number of decisions. See, e.g., United States v.


Urciuoli, 513 F.3d 290, 295-96 (1st Cir. 2008) (holding that public official did not
commit honest services mail fraud, where senator did not invoke any purported
oversight authority or threaten to use official powers); Valdes v. United States, 475
F.3d 1319, 1322-25 (D.C. Cir. 2007) (en banc) (holding that the federal bribery
and gratuity statute should not encompass essentially any action which implicates
the duties and powers of a public official); United States v. Rabbitt, 583 F.2d
1014, 1028 (8th Cir. 1978) (reversing a conviction where public official did not use
his official position to influence persons); United States v. Muntain, 610 F.2d 964,
967-68 (D.C. Cir. 1979) (use of an official position to promote a private venture
was reprehensible, but it is not criminal). All of these authorities make clear that
there are limits to what can be considered an official act under the federal antibribery statutes.
Amici have reviewed the district courts jury instruction defining for the jury
what constitutes an official action in this case. The district court said:
Official action as I just defined it includes those actions
that have been clearly established by settled practice as
part of a public officials position, even if the action was
not taken pursuant to responsibilities explicitly assigned
3

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, 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.
Tr. Vol. XXVI, at 6102:18-6103:14 (emphases added).
This jury instruction fails to prescribe limits to what the jury could consider
an official act and went beyond what has previously been sanctioned by the
courts. Of particular note:
The instruction permitted the jury to view an official act as any
settled practice, disregarding the accepted view that while a settled
practice may be an official act, not all settled practices are official
acts. Valdes v. United States, 475 F.3d 1319, 1323 (D.C. Cir. 2007)
(en banc); see also United States v. Jefferson, 674 F.3d 332, 356 (4th
Cir. 2012).
The instruction also permitted the jury to view the provision of access
to the government and its officials as an official act, despite the
Supreme Courts statement that [i]ngratiation and access . . . are not

corruption. Citizens United v. Fed. Election Commn, 558 U.S. 310,


360 (2010).
Unless this Court authorizes such an expansion of the definition, amici
believe the conviction must be reversed.
Affirming the instruction would raise critical questions of notice.

criminal statute must be construed narrowly and in such a manner that does not
leave[] its outer boundaries ambiguous. McNally v. United States, 483 U.S. 350,
359 (1987).

Since the given instruction sweeps within it ordinary activities

undertaken by political officials on a regular basis, it plainly leaves uncertain the


outer boundaries of what constitutes an official act. In Skilling v. United
States, the Supreme Court made clear that potential defendants should not have to
guess whether their conduct is illegal. 561 U.S. 358, 403 (2010). The district
courts jury instructions endorse a definition of official act, which if allowed to
stand is so broad and unbridled that it utterly fails to provide the notice required
by Skilling.
In our opinion, this unprecedented jury instruction given by the district court
defining official act at the very least raise a substantial question of law as that
term is intended in 18 U.S.C. 3143(b).

We believe that, in fact, the jury

instruction constitutes reversible error as we expect to develop more fully in a brief


addressed to the merits of this appeal.
5

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT


No. 15-4019
_______

United States v. Robert F. McDonnell


Caption: __________________________________________________

CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a)


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type-volume limitation of Fed. R. App. P. 28.1(e)(2) or

[4]

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(s) /s/ William W. Taylor, III


Attorney for Amici Curiae
Dated: January 19, 2015

04/13/2012
SCC

CERTIFICATE OF SERVICE

I hereby certify on this 19th day of January, 2015 the foregoing Brief of
Amici Curiae Law Professors in Support of Defendant-Appellants Motion for
Bond Pending Appeal was served on all parties or their counsel of record through
the CM/ECF system if they are registered users or, if they are not, by serving a true
and correct copy by e-mail and/or first-class mail, postage prepaid.

/s/ William W. Taylor, III


William W. Taylor, III