No. 15-4019

In TheUnited 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 COURTFOR THE EASTERN DISTRICT OF VIRGINIA, RICHMOND DIVISION

(THE HONORABLE JAMES R. SPENCER, DISTRICT JUDGE)

BRIEF OF AMICI CURIAE LAW PROFESSORSIN SUPPORT OF DEFENDANT-APPELLANT’S

MOTION FOR BOND PENDING APPEAL

William W. Taylor, IIIZUCKERMAN SPAEDER LLP1800 M Street, N.W., Ste. 1000Washington, D.C. 20036-5802T: (202) 778-1800wtaylor@zuckerman.com

Counsel for Amici Curiae

10/28/2013 SCC - 1 -

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITDISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS

Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamuscase, except that a disclosure statement is not required from the United States, from an indigentparty, or from a state or local government in a pro se case. In mandamus cases arising from acivil or bankruptcy action, all parties to the action in the district court are considered parties tothe mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici curiae arerequired to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other than therequired disclosure statement, counsel may file the disclosure statement in paper rather thanelectronic form. Counsel has a continuing duty to update this information.

No. __________ Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

______________________________________________________________________________(name of party/amicus)

______________________________________________________________________________

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

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations? YES NOIf yes, identify all parent corporations, including grandparent and great-grandparentcorporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation orother publicly held entity? YES NOIf yes, identify all such owners:

15-4019 United States v. Robert F. McDonnell

Judge Nancy Gertner (Ret.)

Amicus

4

4

4

- 2 -

4. Is there any other publicly held corporation or other publicly held entity that has a directfinancial interest in the outcome of the litigation (Local Rule 26.1(b))? YES NOIf yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question) YES NOIf yes, identify any publicly held member whose stock or equity value could be affectedsubstantially by the outcome of the proceeding or whose claims the trade association ispursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? YES NOIf yes, identify any trustee and the members of any creditors’ committee:

Signature: ____________________________________ Date: ___________________

Counsel for: __________________________________

CERTIFICATE OF SERVICE**************************

I certify that on _________________ the foregoing document was served on all parties or theircounsel of record through the CM/ECF system if they are registered users or, if they are not, byserving a true and correct copy at the addresses listed below:

_______________________________ ________________________(signature) (date)

4

4

4

/s/ William W. Taylor, III January 19, 2015

Amicus - Judge Nancy Gertner (Ret.)

January 19, 2015

/s/ William W. Taylor, III January 19, 2015

10/28/2013 SCC - 1 -

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITDISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS

Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamuscase, except that a disclosure statement is not required from the United States, from an indigentparty, or from a state or local government in a pro se case. In mandamus cases arising from acivil or bankruptcy action, all parties to the action in the district court are considered parties tothe mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici curiae arerequired to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other than therequired disclosure statement, counsel may file the disclosure statement in paper rather thanelectronic form. Counsel has a continuing duty to update this information.

No. __________ Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

______________________________________________________________________________(name of party/amicus)

______________________________________________________________________________

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

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations? YES NOIf yes, identify all parent corporations, including grandparent and great-grandparentcorporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation orother publicly held entity? YES NOIf yes, identify all such owners:

15-4019 United States v. Robert F. McDonnell

Charles J. Ogletree, Jr.

Amicus

4

4

4

- 2 -

4. Is there any other publicly held corporation or other publicly held entity that has a directfinancial interest in the outcome of the litigation (Local Rule 26.1(b))? YES NOIf yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question) YES NOIf yes, identify any publicly held member whose stock or equity value could be affectedsubstantially by the outcome of the proceeding or whose claims the trade association ispursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? YES NOIf yes, identify any trustee and the members of any creditors’ committee:

Signature: ____________________________________ Date: ___________________

Counsel for: __________________________________

CERTIFICATE OF SERVICE**************************

I certify that on _________________ the foregoing document was served on all parties or theircounsel of record through the CM/ECF system if they are registered users or, if they are not, byserving a true and correct copy at the addresses listed below:

_______________________________ ________________________(signature) (date)

4

4

4

/s/ William W. Taylor, III January 19, 2015

Amicus-Charles J. Ogletree, Jr.

January 19, 2015

/s/ William W. Taylor, III January 19, 2015

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

ii

TABLE OF AUTHORITIES

CASES

Citizens United v. Fed. Election Comm’n,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

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 Appellant’s conviction. They understand

that on Appellant’s 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 court’s 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,

1 No counsel for a party authored this brief in whole or in part, and nocounsel or party made a monetary contribution intended to fund the preparation orsubmission of this brief. No person other than the amici curiae or their counselmade a monetary contribution to its preparation or submission. Both parties haveconsented to the submission of this brief.

2

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 court’s 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 court’s 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,

3

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

matter . . . pending . . . before any public official, in such official’s 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 anti-

bribery statutes.

Amici have reviewed the district court’s 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 actionsthat have been clearly established by settled practice aspart of a public official’s position, even if the action wasnot taken pursuant to responsibilities explicitly assigned

4

by law. In other words, official actions may include actsthat a public official customarily performs, even if thoseactions are not described in any law, rule, or jobdescription. And a public official need not have actual orfinal authority over the end result sought by a bribepayor so long as the alleged bribe payor reasonablybelieves that the public official had influence, power orauthority over a means to the end sought by the bribepayor. In addition, official action can include actionstaken in furtherance of longer-term goals, and an officialaction is no less official because it is one in a series ofsteps 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 Court’s statement that “[i]ngratiation and access . . . are not

5

corruption.” Citizens United v. Fed. Election Comm’n, 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. A

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

court’s 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.

04/13/2012SCC

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. _______ Caption: __________________________________________________

CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a)Type-Volume Limitation, Typeface Requirements, and Type Style Requirements

1. Type-Volume Limitation: 5SSJOOFQW]V >SJQNQL 6UNJK& 5SSJOOJJ]V @JVSRQVJ 6UNJK& FQI

5SSJOOFQW]V @JVSRQVJ)@JSO\ 6UNJK PF\ QRW J[HJJI +4,000 words or 1,300 lines. 5SSJOOJJ]V

Opening/Response Brief may not exceed 16,500 words or 1,500 lines. Any Reply or AmicusBrief may not exceed 7,000 words or 650 lines. Counsel may rely on the word or line countof the word processing program used to prepare the document. The word-processing programmust be set to include footnotes in the count. Line count is used only with monospaced type.

This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2) or32(a)(7)(B) because:

[ ] this brief contains [state number of] words, excluding the parts ofthe brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or

[ ] this brief uses a monospaced typeface and contains [state numberof] lines of text, excluding the parts of the brief exempted by Fed. R. App. P.32(a)(7)(B)(iii).

2. Typeface and Type Style Requirements: A proportionally spaced typeface (such as TimesNew Roman) must include serifs and must be 14-point or larger. A monospaced typeface(such as Courier New) must be 12-point or larger (at least 10½ characters per inch).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because:

[ ] this brief has been prepared in a proportionally spaced typeface using[identify word processing program] in[identify font size and type style]; or

[ ] this brief has been prepared in a monospaced typeface using[identify word processing program] in[identify font size and type style].

(s)

Attorney for

Dated:

15-4019 United States v. Robert F. McDonnell

1,204

Microsoft Word

4

4

14pt Font - Times New Roman

/s/ William W. Taylor, III

Amici Curiae

January 19, 2015

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-Appellant’s 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, IIIWilliam W. Taylor, III