McDonnell Motion for Increased Words

No. 15-4019

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

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UNITED STATES OF AMERICA, Appellee,

v.

ROBERT F. MCDONNELL, Defendant-Appellant.

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On Appeal from the United States District Court for the Eastern District of Virginia, Richmond Division, James R. Spencer, District Judge

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DEFENDANT-APPELLANT ROBERT F. MCDONNELLS MOTION FOR EXPANDED WORD LIMITS AND ARGUMENT TIME

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Appeal: 15-4019 Doc: 42 Filed: 01/28/2015 Pg: 1 of 7

This appeal arises from a factually and legally complex prosecution

spanning a nearly six-week jury trial and will present multiple novel and important

legal issues. Defendant-Appellant Robert F. McDonnell thus respectfully moves

the Court to expand briefing and oral argument time by half the default allotment

in Fed. R. App. P. 32(a)(7)(B)(i) and 4th Cir. Loc. R. 34(d), to accommodate these

complex issues.1

In light of the expedited briefing schedule the Court has adopted, Mr.

McDonnell respectfully requests expedited disposition of this motion.

1. This Courts Rule 32(b) provides that no brief may exceed the length

limitations [set forth in FRAP 32(a)(7)] without the Courts advance permission,

which will be given for exceptional reasons. Such reasons exist here.

2. The trial below was lengthy and detailed. It spanned nearly six weeks,

including 69 witnesses and 799 exhibits, and generated over 6,000 pages of

transcripts. The parties also briefed and argued dozens of motions and countless

objections. Increased briefing and argument time will ensure that the Court has the

proper factual context for the numerous legal and factual issues that will be

1 Mr. McDonnells counsel approached the Government on this motion and the Government has stated as follows: (1) The Government takes no position on the request for expanded oral argument. (2) The Government does not oppose Mr. McDonnells request for 21,000 words for the Opening Brief. (3) The Government prefers to address the length of its Answering Brief and Mr. McDonnells Reply Brief after the Opening Brief and any Amicus Briefs are filed.


presented.

3. In light of the length and complexity of the trial, Mr. McDonnell

anticipates raising numerous issues in his appeal, including but not limited to the

following:

a. The central issue in Mr. McDonnells appeal is also the most

fact-intensive, namely, whether five specific actions taken by McDonnell, New

Trial Op. at 6, Dkt. 567, each qualify as official actions under the honest services

fraud statute and Hobbs Act. See generally Mot. for Release Pending Appeal, Dkt.

2. To prevail on this issue, Mr. McDonnell will need to provide the factual context

for each alleged official act, as well as address, in detail, the various precedents

that have addressed this issue in the past.

b. Separately, Mr. McDonnell will also challenge the district

courts jury instructions on the official acts issue, which Mr. McDonnell

maintains were legally inadequate to support a guilty verdict. This too will require

a lengthy discussion of law and fact.

c. Standing alone, these two official action issues could easily

exceed the standard allotments for briefing and oral argument. But Mr. McDonnell

also intends to raise several other issues, which may include but are not limited to:

(i) whether the district courts voir dire of the jury on pretrial publicity was

adequate, given that both sides requested individualized questioning on this issue


and given that media coverage of Mr. McDonnells case was overwhelmingly (and

undisputedly) negative; (ii) whether the district court, when presented with credible

evidence of premature jury deliberations midtrial, erred by refusing to conduct

individualized voir dire at that point as well; (iii) whether the district court erred in

refusing to sever Mr. McDonnells trial from that of his wife; (iv) whether various

evidentiary rulings were erroneous; and (v) other possible issues, as enumerated in

Mr. McDonnells docketing statement. All of these issues, too, are factually and

legally intensive, further warranting extended briefing and argument time.

4. Mr. McDonnell therefore respectfully requests that all word limits on

briefs be increased by 50% and that 30 minutes be allotted per side for oral

argument. For briefing, that would mean:

Opening Brief 21,000 words

Answering Brief 21,000 words

Reply Brief 10,500 words

This schedule would provide equivalent increases to both parties, thus ensuring at

the outset that neither party is unfairly advantaged or disadvantaged by the word

limits.

5. This Court routinely grants similar increases in complex cases

comparable to this one, including in United States v. Jefferson, wherein this Court

granted the Government 21,000 words for its Answering Brief over the objection


of the defendant. See No. 09-5130 (4th Cir. February 11, 2011) (noting that

appellant never requested an enlargement of his opening brief).2 Mr. McDonnell

submits that the additional space and time will allow the parties to properly and

thoroughly address the complex issues in this appeal and thus be of maximum

assistance to the Court in adjudicating it.

2 On page limits, see also, e.g., United States v. Fields, No. 13-04711 (4th Cir. August 4, 2014) (order granting 21,000 words in factually and legally complex bank fraud conspiracy case); United States v. Umaa, No. 10-00006 (4th Cir. Aug 21, 2013) (order granting 35,000 words in death penalty appeal from murder & conspiracy trial generating fewer than 4,000 pages of transcripts); United States v. Jordan, No. 12-04825 (4th Cir. June 21, 2013) (order granting 27,005 words in appeal presenting issue of first impression in factually complex case); United States v. McLean, No. 11-05130 (4th Cir. May 22, 2012) (order granting 18,000 words in appeal of health care fraud prosecution spanning two weeks and generating 3,000 pages of transcripts); United States v. Sterling, No. 11-05028 (4th Cir. Jan. 10, 2012) (order granting 21,000 words in interlocutory appeal on complex national-security and privilege issues); United States v. Jones, No. 10-04915 (4th Cir. Dec. 30, 2010) (motion to exceed page limit by 20 pages for brief involving numerous, complex issues, apparently granted when clerk accepted oversized filing on Jan. 7, 2011). On argument time, see, e.g., United States v. Umaa, No. 10-00006 (4th Cir. Jan. 3, 2014) (order granting 30 minutes/side argument time in death penalty appeal from murder & conspiracy trial generating fewer than 4,000 pages of transcripts); United States v. Sherifi, No. 12-04067 (4th Cir. July 10, 2013) (order granting 30 minutes/side argument time in terrorism case taking two and a half weeks of trial, with 43 witnesses); United States v. Basham, No. 05-00005 (4th Cir. Oct. 10, 2008) (order granting 30 minutes/side argument time in death penalty appeal raising six separate, complex issues); United States v. Whorley, No. 06-04288 (4th Cir. Dec. 3, 2007) (order granting 30 minutes/side argument time in case presenting questions of first impression under obscenity law).


Dated: January 28, 2015

Respectfully submitted,

/s/ Noel J. Francisco Noel J. Francisco Counsel of Record Henry W. Asbill Charlotte H. Taylor James M. Burnham JONES DAY 51 Louisiana Avenue, N.W. Washington, D.C. 20001 Telephone: (202) 879-3939 Facsimile: (202) 626-1700 John L. Brownlee HOLLAND & KNIGHT LLP 800 17th Street, N.W. Suite 1100 Washington, D.C. 20006 Telephone: (202) 828-1854 Facsimile: (202) 955-5564 Counsel for Defendant-Appellant Robert F. McDonnell


CERTIFICATE OF SERVICE

I certify that on January 28, 2015, the foregoing motion was served on

counsel of record for all parties through the CM/ECF system.

Dated: January 28, 2015

/s/ Noel J. Francisco Noel J. Francisco Counsel for Robert F. McDonnell


DEFENDANT-APPELLANT ROBERT F. MCDONNELLS MOTION FOR EXPANDED WORD LIMITS AND ARGUMENT TIME

McDonnell Motion for Increased Words

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