4th circuit court of appeals motion for release pending appeal

7/21/2019 4th Circuit Court of Appeals Motion for Release Pending Appeal

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UNITED

STATES DISTRICT COURT

EASTERN DISTRICT

OF

VIRGINIA

RICHMOND

DIVISION

UNITED

STATES OF AMERICA,

ROBERT

F. MCDONNELL,

nd

MAUREEN

G. MCDONNELL,

Defendants .

Action No. 3:14-CR-12

M EMO R N UM O R E R

THIS MATTER is before the Court on Defendant Robert F. McDonnell'sMotion 51 -

Motion for Release PendingAppeal ( Motion ) (ECF No. 601). Pursuant to 18

U.S.C.

3143(b),

the

Court

(1) . . . shall order that a person who has been found guilty of an offense and

sentenced to a term of imprisonment, and who has filed an appeal or a petition

for writ of certiorari, be detained, unless the judicial officerfinds-

(A)

byclear and convincing evidence that the person is not likely to

flee

or pose a

danger to the safetyof anyother person or the community if released...; and

(B) that the appeal is not for the purpose of delay and raises a substantial

question oflaw or fact likely to result in-

(i) reversal,

(ii) an order for a new trial,

(iii) a sentence that does not include a term of imprisonment, or

(iv) a reduced sentence to a term of imprisonment less than the total of

the timealready served plusthe expected durationofthe appeal process.

18

U.S.C.

3143(b).

Here,there is no dispute as to the first prong, that beingMr.McDonnell is

not

likely

to

flee

and

does

not

pose

a

danger

to the

safety

of

any

other person orthe

community.

18 U.S.C. 3143(b)(1)(A). In analyzing the second prong, 18

U.S.C.

3143(b)(1)(B), the Court

mustmake

two

inquires after finding that the appeal is not taken for the purpose of delay:

(1)

whether the question presented on appeal is a 'substantial' one; and (2) if decided in favor of

the accused, whether the substantial question is important enough to warrant reversal or a new

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trial on all counts for which the district court imprisoned the defendant. United States v.

Steinhorn 927 F.2d 195,196 (4th Cir. 1991) (citing United States v.Miller 753 F.2d 19,

23-24

(3d

Cir.

1985)). Asubstantial questionhas been defined as ' a 'close' questionor one that very

wellcouldbe decided the other way.'

Id.

(quoting United

Statesv.Giancola,

754 F.2d 898, 901

nth Cir. 1985)).

Mr. McDonnell presents three issues that he contends are substantial questions

important enough to

warrant

reversal or new trial: (1) whether the five actions

the

Government

allegedin its Indictment and argued to the jury qualify as official acts under federal law; (2)

whether this Court conducted sufficient voir dire on pretrial publicity; and (3) whether this

Court erred by declining to follow the procedures outlined in

UnitedStates v. Resko,

3 F. 3d

684, 688 (3d Cir.1993),givenevidence of allegedpremature jury deliberations. (Mem. in Supp.

of Mot. at 2, 23.) However, as the Court has fully explained in its memorandum opinions

denyingMr.McDonnell's Motion for NewTrial and RenewedMotion for Judgment ofAcquittal

(see ECFNos. 567,

571)

the above-mentioned issues do not present a close call justifying bail

pending appeal.

With respect to the first issue, this Court previously found that [t]he Government

provided substantial evidence for

the jury

to conclude that McDonnell knew what [Jonnie]

Williams was seeking, specifically, research studies for Star Scientific's Anatabloc product.

(Mem. Op. at 5, Dec. 1, 2014, ECFNo. 567.) The Court additionally found that Mr. McDonnell

attempted to use his gubernatorial office to influence governmental decisions in favor of Star

Scientific. (Mem. Op. at 7, Dec. 1, 2014, ECF No. 571.) The Court concluded that [substantial

evidence supports the jury's finding of a quid and fairly specific, related quo.

Id.

at 8.) Mr.

McDonnell assuredly did more than provide mere access to Williams-he performed official

acts as that term is defined under federal bribery laws. Therefore, for the foregoing reasons,

and for all the reasons stated in this Court's prior memorandum opinions, this is not a close

question that justifies release pending appeal.

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As to the second issue, the voir dire process is essentially committed to the sound

discretionof the district court because the determination of impartiality, in which demeanor

plays such an important part, is particularly within the province of the trial judge. United

States v. Lancaster

96 F.3d 734, 738 (4th Cir. 1996) (citations and internal quotation marks

omitted). As explained in its memorandum opinion denying Mr. McDonnell's Motion for New

Trial, this Court found that the procedures employed in managing voir dire and the effects of

anypretrial publicity were adequateandMr.McDonnell s claims were unfounded. (Mem.

Op.

at

15,

Dec. 1,2014, ECFNo. 567.) It is not a closecall whether this Court properly acted within

i ts d i sc r et ion as

to

this issue.

Likewise,with regards to alleged premature jury deliberations, the Court was entitled to

exercise its discretion

and

assess

the

situation presented.

Id.

at 17.)The Court found that Louis

DeNitto's statements to attorney Jim Watson did not provide sufficient indicia of premature

deliberations. Id. Although Mr.McDonnell continues to relyon Resko, 3 F. 3d 684 to support

his argument, for the reasons stated in this Court's memorandum opinion denying his Motion

for NewTrial (see

ECF

No. 567 at 18-19), Mr. McDonnell's argument remains unpersuasive.

Thus, this too does not constitute a substantial question.

For the foregoing reasons, the Motion is hereby DENIED.

Let

the

Clerk send a copy of this Order to all counsel of record.

t

is

SO ORDERED.

ENTERED

this

day of January 2015.

James

R.

Spencer

Senior U. S. District Judse

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AO 245B Rev. I2/03XVAED rev.2 Sheet 1- Judgment ina CriminalCase

UNITED STATES

DISTRICT

COURT

Eastern District of Virginia

Richmond Div is ion

UNITED STATES

OF AMERICA

V.

o ert

f . M cD o n n e ll

Defendant.

Case Number : 3:14cr00012-001

USM

Number:

83758-083

Defendant s Attorney:

JOHN

BROWNLEE, ESQ.,

HENRY

ASBILL, ESQ.

MENDED

JUDGMENT IN A

R IM IN L

SE

ONLY

CHANGE

Corrected

Offense End date on

Count 10

The defendant was found guilty on Count s) after a plea

of

not guilty to C ou nts 1, 2, 3, L 5, 6, 7, 8, 9, IC a nd

11 o f th e Indictment.

The defendant is adjudicated guilty

of

these offenses.

Title

and Sect ion

18U.S.C. 1349

8U S C 343

8U S C 343

8U S C 343

8U S C 95

18U.S.C.

1951 AND 2

18U.S .C . 1951 AND

2

18U.S.C.

1951

AND

2

I8U.S .C . 1951 AND 2

18U.S .C . 1951 AND

2

Nature o f Offense

CONSPIRACY TO COMMIT

HONEST SERVICES WIRE FRAUD

HONEST SERVICES

WIRE FRAUD

HONEST SERVICES WIRE FRAUD

HONEST-SERVICES

WIRE

FRAUD

CONSPIRACY TO OBTAIN

PROPERTY UNDER COLOR OF

OFFICIAL RIGHT

OBTAINING PROPERTY UNDER

C O LO R O F OFFICIAL RIGHT

OBTA IN ING PROPERTY UNDER

COLOR

OF OFFICIAL

RIGHT

OBTAIN ING PROPERTY UNDER

C OL O R O F

OFFICIAL

RIGHT

OBTAINING PROPERTY UNDER

C OL OR O F

OFFICIAL

RIGHT

OBTA IN ING PROPERTY UNDER

C OL OR O F OFFIC IAL RIGHT

Offense

C la ss O ff en se End ed

Couii t

Felony

3/2013

1

Felony

Felony

Felony

Felony

5/26/2011

3/12 /2012

5/22/2012

3/2013

2

3

4

5

Felony 5/23/20; 1

6

Felony 5/29/20:1

8

Felony

1/7/201:: 9

Felony 3/6/201:: 10

Felony 5/22/20

2 11

The defendant

has b ee n fou nd not g ui lt y on Count s 12 and 13

of

the Indictment.

The d ef en dant is s en tenced as p ro vi ded in p ag es 2 t hr ou gh 7

of

this Judgment.

The

sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

------------------------------------------

UNITED STATES OF AMERICA,

Plaintiff;

v. Criminal Action

3:14CR12

ROBERT F. McDONNELL

Defendant.

-------------------------------------------

January 6, 2015

Richmond, Virginia

10:00 a.m.

SENTENCING PROCEEDINGS

BEFORE: HONORABLE JAMES R. SPENCER

United States District Judge

APPEARANCES: MICHAEL S. DRY, ESQ.

DAVID V. HARBACH, II, ESQ.JESSICA D. ABER, ESQ.

RYAN S. FAULCONER, ESQ.

RICHARD D. COOKE, ESQ.

Counsel for Government;

JOHN L. BROWNLEE, ESQ.

HENRY W. ASBILL, ESQ.

TIMOTHY J. TAYLOR, ESQ.

JAMES M. BURNHAM, ESQ.NOEL J. FRANCISCO, ESQ.

THOMAS B. SHUTTLEWORTH, II, ESQ.

Counsel for Robert F. McDonnell;

JEFFREY B. KULL

OFFICIAL COURT REPORTER

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Your Honor, I am now 60 years old. Whatever

days the Lord will yet provide me on this earth, I

dedicate anew to the service of others. I ask Your Honor

to permit me to employ my experience and my energy to

serve people in need in our state or in other countries

over these next few years, working in one of the myriad

community service programs that my counsel has submitted

to the Court.

And I ask that whatever mercy the Court may

extend in this case, I ask that you consider granting it

first to my wife, Maureen.

Throughout my life, Judge Spencer, I have placed

great confidence in our system of justice, and even

greater confidence in the providence and protection of the

Lord Jesus Christ. So Your Honor, with that, I submit

myself to the judgment of the Court and I thank you for

considering my words.

THE COURT: All right, thank you. You can have

a seat.

(The defendant was seated.)

We come once again to what is indeed our most

difficult task, deciding what is an appropriate sentence

for another human being; appropriate for the crime

committed, appropriate in light of the history,

characteristics, the humanity of the offender, acceptance

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40/59

of responsibility, deterrence general and specific, the

public good, protection, and retribution. Sentencing is

an awesome responsibility and we take it seriously.

This case requires some comment, some out loud

analysis before sentence is imposed.

Now, there has been a lot of blame assessed to

account for the defendant's predicament during the course

of the trial and in the public arena. First, the finger

is pointed at the Justice Department, the U.S. Attorneys.

The assertion was made that they have been too zealous in

pursuing their prosecution. And what about the FBI or the

Virginia State Police? Were they unfair or too vigorous

in their investigations? Maybe it was the jury, who just

didn't understand. Maybe it is the Judge. Maybe it is

Jonnie Williams, who snaked his way into the Governor's

household. Maybe it is his co-defendant, his wife, now,

according to some, dangerously delusional. Maybe she was

the one who roped the Governor into this predicament.

Acceptance of responsibility, a demonstration of

remorse, these are factors that I am told to consider when

discerning an appropriate sentence.

Now, there has been some suggestion that perhaps

this trial was not fair. We have certain metrics by which

we measure a fair trial. They are not secret or hidden.

They are written down in rules, statutes, and a

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Constitution. A grand jury returned an indictment and the

defendants were placed on notice of the precise charges

against them. The defendants were brought before the

Court, advised of their rights, arraigned, released on

personal recognizance, and given a trial date, a trial

date that allowed them more than adequate time to prepare.

Six to seven weeks of trial time was made available so

everyone would have an opportunity to make their case.

The defendants exercised their right to counsel,

absolutely. The defendants were represented by able,

experienced, highly motivated counsel. And counsel put on

a rigorous, multi-pronged defense and challenged the

Government's case at every turn. There were dozens and

dozens and dozens of motions and briefs. The defendants

aggressively exercised their right to confront any

witnesses called against them. Cross-examination was

thorough and relentless.

Did the defendants have a full opportunity to

put on a case? The defendant took the stand and testified

for days. The Court was beyond generous in allowing the

expansive direct examination, even when I heard the same

testimony for the third and fourth time. But we wanted to

give the defendant a full and fair opportunity to be

heard. And then when we had the closing arguments of

counsel, their final opportunity to persuade the jury to

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42/59

their point of view, there was no time limit. These

arguments were passionate and well done.

Was this a public trial? You betcha.

Unprecedented media involvement and access. And as far as

I can tell, no one was shy about using that media to get

their message out.

So my conclusion, based on all of the metrics

that matter: Mr. McDonnell got all the process that was

due him. Whether or not you prevailed is not how you

determine if a trial was fair.

Let me say a few words about the jurors in this

case, because they are not here to speak for themselves.

How many citizens do you think would gleefully give up six

or seven weeks of their lives to sit on a jury? It is a

tremendous sacrifice: social, educational, family,

employment, financial sacrifice. Other than military

service, jury duty is the pinnacle of public service for

the average citizen. These twelve jurors who deliberated

in this case and came to a verdict were a group of very

fine people who persevered and fulfilled the difficult

task they were called to do.

I also need to say this, because there is no

record on this issue that has been bandied about: The

name and personality of Robert F. McDonnell didn't

register on my radar screen until he ran for Attorney

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General. He didn't fully register with me until he ran

for Governor. And like all my fellow Virginia citizens, I

had to decide between competing candidates. And even

then, the only thing I knew about him was what I could

glean from political advertisements. The bottom line: I

don't know him, and he doesn't know me.

Now, let's get to the job I have this morning:

Finding a sentence that is fair and appropriate

considering all of the factors that I am required to

consider in 3553(a).

The starting point in the analysis is, of

course, the Sentencing Guidelines Range. A brief history

lesson so that we can all understand where these

Sentencing Guidelines came from: When I first came to

this job in 1986, there were no Sentencing Guidelines.

There was a certain political orthodoxy that pushed the

notion that sentencing discretion should be taken away

from judges, and that discretion would be replaced by a

system where you plug in the numbers and a factual matrix

and out would pop a Sentencing Guidelines Range. There

would be no discretion. The Guideline was mandatory.

That is, the sentence would have to be within the

Guidelines Range. It didn't matter if there were

exceptional, extreme, or extenuating circumstances,

youthful offender or not, physical health issues, mental

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health issues, family hardship, aberrant behavior. There

was no place for grace or mercy.

But some of us judges, and I certainly was

included in that number, pushed back at this notion that

our discretion could be taken away by another co-equal

branch of government. We battled for decades until the

U.S. Supreme Court finally said that the Sentencing

Guidelines, to be constitutional, must be discretionary.

Imagine if these Guidelines were mandatory and

the Court had no choice but to sentence Governor McDonnell

to seven or eight years in prison. That would be unfair.

It would be ridiculous under these facts. But somebody

somewhere thought that was fair. Maybe it is fair when it

is somebody else's husband, or brother, or father. But it

never seemed fair to me.

Hundreds of letters were filed in this case, and

I have read every single one of them. Most of them were

thoughtful and moving, personal recollections of good

deeds, good character, and ultimately a request for a

lenient sentence. Among these were particularly moving

and honest letters from Reverend Wayne Ball and Thomas

Farrell, Linda Hassell, Janet Kelly, an especially

thoughtful letter that she wrote, as well as one from

Clovia Lawrence, who testified here today.

Then there were a few other letters that were

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not quite as helpful. They either continued to blame,

cast blame on others, or see conspirators behind every

tree. But the overall view of the defendant that I got

from these letters: That he is a good and decent man, has

done a lot of good during his time in the public arena. I

have no reason to doubt this. And I will certainly give

him credit for that in my assessment in coming to an

appropriate verdict.

I also have great respect for those who've

provided military service to this nation. Anybody who

knows me knows that's one of my weak spots, and he

deserves credit and will receive credit for that. I

believe that honorable military service means something

and should mean something in every assessment of a citizen

in this country.

This entire case has been tragic from beginning

to end. I reviewed letters from some of the Governor's

closest staff members, most of whom also testified during

the trial. And they are very loyal to the Governor, a

loyalty that in the end amounts to devotion. And they

clearly have his best interest at heart. They have his

best interest at heart now; they had his best interest at

heart when they were working for him. And they saw Jonnie

Williams for what he was, and they sounded the alarm.

There was good advice and counsel all over the place. But

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it went unheeded. While Ms. McDonnell may have allowed

the serpent into the Mansion, the Governor knowingly

brought him into his business and financial affairs, and

thus the seeds of this case were planted.

I have great sympathy for this family. And if I

could, I would turn back the hands of time and change this

situation completely. But obviously, I can't do that.

No one wants to see a former Governor of this

great Commonwealth in this kind of trouble. But the facts

of this case could not be ignored by the investigators, or

the prosecutors, or by the jury, or by the Court for that

matter. The jury, by its verdict, found an intent to

defraud. This is a serious offense that all the grace and

mercy that I can muster, it cannot cover it all. A price

must be paid, and that is some level of punishment. It

breaks my heart, but I have a duty and responsibility

which I cannot avoid. Unlike Pontius Pilate, I can't wash

my hands of it all. A meaningful sentence must be

imposed.

Now, in the twenty-eight, almost twenty-nine

years that I have been doing this, I have asked myself

this question over and over again at sentencings at

various times during the years: Why do good people end up

in this courtroom, good people end up being found guilty

of doing bad things? I don't have the answer yet, and I

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may never get it on this side of the Jordan. But I

continue to be perplexed by it. Obviously, a man that

could engender this kind of support, his friends adore

him, his family, they love him. Why would you take these

kinds of chances? I don't know. But on these facts that

went before this jury, they had an opportunity to accept

the Governor's position. His case was made. They heard

it. They rejected it and accepted that the facts led to

the conclusion that he committed an offense. And I simply

cannot ignore it.

All right, Mr. McDonnell, would you please stand

where you are along with your counsel.

(Defendant and counsel stood.)

It is the judgment of the Court that the

defendant, Robert F. McDonnell, is hereby committed to the

custody of the U.S. Bureau of Prisons to be imprisoned for

a term of 24 months. The term consists of 24 months on

each of Counts One through Eleven, all to be served

concurrently. The defendant shall surrender for service

of the sentence at the institution designated by the

Bureau of Prisons before two p.m. on February 9th, 2015 as

notified by the U.S. Marshal.

Upon release from imprisonment, the defendant

shall be placed on supervised release for a term of two

years. This term consists of two years on each of Counts

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One through Eleven, all to run concurrently. Within 72

hours of release from the custody of the Bureau of

Prisons, the defendant shall report in person to the

Probation Office in the district to which he is released.

While on supervision, the defendant shall not

commit another federal, state, or local crime, and he

shall not unlawfully possess a controlled substance, and

he shall not possess a firearm or other destructive

device. The defendant shall comply with the standard

conditions that have been adopted by this Court.

The defendant shall also comply with the

following special conditions: The defendant shall not

incur new credit charges or open additional lines of

credit without the approval of the Probation Officer. The

defendant shall provide the Probation Officer access to

any requested financial information. As reflected in the

Presentence Report, the defendant presents a low risk of

future substance abuse, and therefore, the Court hereby

suspends the mandatory condition for substance abuse

testing. However, this does not preclude the U.S.

Probation Office from administering drug tests as they

deem appropriate.

The Court has considered the defendant's

financial situation in its totality, and the Court finds

that the defendant is not capable of paying a fine, and

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therefore, none will be imposed.

As to Counts One through Eleven, the defendant

shall pay a special assessment in the amount of $100 for

each count, for a total of $1,100. The special

assessments shall be due in full immediately. If the

special assessments are not paid immediately, any balance

remaining unpaid on the special assessments at the

beginning of supervision shall be paid by the defendant in

installments of not less than $100 per month until paid in

full. Said payments shall commence 60 days after the

defendant's supervision begins. Payment of any unpaid

balance shall become a special condition of supervised

release.

Nothing in the Court's order shall prohibit the

collection of any judgment or assessment by the United

States.

Mr. McDonnell, you have a right to appeal any

finding of the jury as well as the sentence of the Court,

and if you were going to do that you would have to file a

Notice of Appeal within fourteen days of today's date.

That completes this matter.

MR. BROWNLEE: Your Honor, we request that he be

designated to a place closest to his home, which I believe

is Petersburg, if that's appropriate to the Court.

THE COURT: I will recommend to the Bureau of

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Prisons that he be housed at the closest appropriate

facility to his home.

MR. BROWNLEE: Thank you, Your Honor.

THE COURT: Thank you all very much.

MR. BROWNLEE: We had filed a motion regarding

bond pending appeal, Your Honor. I don't know what the

Court --

THE COURT: I just got that yesterday. I don't

have a response. At least I haven't seen the response.

But I will deal with it in order.

(Proceedings adjourned at 2:51 p.m.)

CERTIFICATE OF REPORTER

I, Jeffrey B. Kull, Official Reporter, certify that

the foregoing is a correct transcript from the record of

proceedings in the above-entitled matter.

__________/s/_________________

Jeffrey B. Kull,Official Federal Reporter

__________/s/_________________

Date

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United States Court of AppealsFor the First Circuit

__________________

No. 14-2312

UNITED STATES,

Appellee,

v.

JOHN O'BRIEN,

DefendantAppellant,

__________________

__________________

No. 14-2313

UNITED STATES,

Appellee,

v.

ELIZABETH V. TAVARES,

DefendantAppellant,

__________________

Before

Lynch, Chief Judge,Kayatta and Barron, Circuit judges.

__________________

ORDER OF COURT

Entered: January 9, 2015

Based on the material presented by the parties, the court is persuaded of a sufficient

probability that the appeals present a "substantial question" within the meaning of 18 U.S.C. 3143(b)(1)(B). Appellants' motions for release pending appeal under the same conditions imposed

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53/59

for release pending trial and pending the self-reporting date are granted. The pending motions for

leave to file oversized documents are also granted.

By the Court:

/s/ Margaret Carter, Clerk

cc:

Hon. William G. Young

Robert Farrell, Clerk, United States District Court for the District of MassachusettsJudith H. Mizner

Stylianus Sinnis

William W. Fick

Christine DeMasoMartin G. Weinberg

Kimberly Homan

Jeffrey Alan DennerRichard Bradford Bailey

Adamo L. Lanza

Dina Michael Chaitowitz

Karin Marie BellRobert Averill Fisher

Fred M. Wyshak Jr.

Michael O. JenningsHelene Kazanjian

Daniel P. Sullivan

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54/59

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1

1 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

2 --------------------------X

UNITED STATES OF AMERICA, Docket No. CR 08-274

3 Plaintiff,

4 v. Washington, D.C.

November 3, 2010

5 2:00 p.m.

6 KEVIN A. RING, AFTERNOON SESSION

Defendant.

7 ---------------------------X

8 JURY TRIAL - DAY 12

BEFORE THE HONORABLE ELLEN SEGAL HUVELLE

9 UNITED STATES DISTRICT JUDGE

10 APPEARANCES:

11 For the Plaintiff: UNITED STATES DEPARTMENT OF JUSTICE

Criminal Division - Fraud Section

12 By: Mr. Nathaniel B. Edmonds

Mr. Peter Koski

13 1400 New York Avenue, N.W.

Washington, D.C. 20005

14 202.307.0629

[email protected]

15 [email protected]

16 For the Defendant: MILLER & CHEVALIER CHARTERED

By: Mr. Andrew T. Wise

17 Mr. Timothy P. O'Toole

655 Fifteenth St., N.W.

18 Suite 900


19 202.626.5552

[email protected]

20 [email protected]

21 Court Reporter: Catalina Kerr, RPR, CRR

U.S. District Courthouse

22 Room 6509


23 202.354.3258

[email protected]

24

Proceedings recorded by mechanical stenography, transcript

25 produced by computer.

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36

1 officials.

2 Now, as I just instructed, the legality of any

3 campaign contributions in this case is not an issue before

4 you. But you are not to infer from this instruction that the

5 meals, tickets and other gifts described in this trial were

6 necessarily illegal or criminal. These things may also be

7 perfectly proper and legal as well.

8 Standing alone, providing gifts of meals and tickets

9 to public officials are not crimes, even if they are provided

10 by someone seeking to curry favor or influence with those

11 officials. It is not illegal to give a thing of value to a

12 public official merely to build a reservoir of good will that

13 might ultimately affect one or more unspecified acts now or in

14 the future. Offering hospitality to a public official through

15 payments for entertainment, sports events and the like would

16 not constitute violations of the illegal gratuities or honest

17 services wire fraud statutes if the intent of the Defendant

18 was simply to cultivate a personal, professional, business or

19 political -- I'm sorry -- cultivate a personal, business, or

20 political friendship.

21 A lobbyist is a person who, for compensation on

22 behalf of a client, engages in direct communication with

23 public officials for the purpose of influencing legislative or

24 administrative actions. Lobbyists often use hospitality to

25 cultivate personal and political relationships with public

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37

1 officials. As I said, there is nothing illegal about this

2 practice. The fact that gifts or hospitality might make a

3 public official willing to take a lobbyist's phone call or

4 might provide the lobbyist greater access to the official's

5 appointment schedule is not enough by itself to demonstrate

6 the lobbyist's intent to provide illegal gratuities or to

7 deprive the public of the government official's honest

8 services. Therefore, you cannot find that the Defendant has

9 provided illegal gratuities or committed honest services wire

10 fraud if you find that his intent was limited only to the

11 cultivation of business or political friendship.

12 Such gifts become criminal only if you find beyond a

13 reasonable doubt that they were given in violation of either

14 the illegal gratuities or honest services wire fraud statutes,

15 as will be described below. If you find beyond a reasonable

16 doubt that gifts were given in violation of these statutes, it

17 makes no difference that the giver also had a lawful reason or

18 motivation for giving the gift.

19 Now, we talked a lot about thing of value. I will

20 be instructing you in a moment about the offenses charged in

21 the indictment. For purposes of these charges, a quote, thing

22 of value, end of quote, includes things possessing intrinsic

23 value, whether tangible or intangible, that the person giving

24 or offering, or the person soliciting or receiving considers

25 to be worth something.

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38

1 This would include a sum of money, tickets, meals,

2 drinks, golf outings, trips and jobs or the offer of jobs, but

3 it does not, as I previously instructed you, include campaign

4 contributions. It also includes things of value given not to

5 the public official but to a family member or third party for

6 the benefit of the public official and at the public -- and at

7 the public official's knowing direction.

8 A public official is defined as an officer or

9 employee or person acting for or on the behalf of the United

10 States or any department, agency or branch of government

11 thereof, including the District of Columbia, in any official

12 function, under or by authority of any such department, agency

13 or branch of government. It is undisputed here that members

14 of Congress, their employees, and employees of the executive

15 branch are public employees.

16 Official act. In general, an official act, and

17 that's in quote, means any decision or action on any question,

18 matter, cause, suit, proceeding or controversy which may at

19 any time be pending or which may, by law, be brought before

20 any public official in such official's official capacity or in

21 such official's place of trust or proffer. The six terms,

22 question, matter, cause, suit, proceeding, or controversy,

23 refer to a class of questions or matters whose answer or

24 disposition is determined by the Government.

25 An act may be official even if it was not taken

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39

1 pursuant to responsibilities explicitly assigned by law.

2 Rather, official acts include those activities that have been

3 clearly established by settled practice as part of an

4 official -- public official's position. Therefore, official

5 act includes the exercise of both formal official influence

6 such as a legislator's vote on legislation and informal

7 official influence such as the legislator's behind-the-scenes

8 influence on other public officials in the legislative or

9 executive branches.

10 Official act also includes a public official

11 altering his or her official acts, changing a position which

12 he or she would have otherwise taken, or taking actions in his

13 or her official capacity that he or she would not have taken

14 but for the scheme or artifice to deprive the United States

15 and its citizens of their intangible right to the honest

16 services of certain government officials.

17 Mere favoritism, as evidenced by a public official's

18 willingness to take a lobbyist's telephone call or to meet

19 with a lobbyist is not an official act. In addition, sharing

20 information with the lobbyist or helping to develop a lobbying

21 strategy does not constitute an official act.

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4th circuit court of appeals motion for release pending appeal

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