FOURTH CIRCUIT AFFIRMS McDONNELL’S CONVICTION

 [Posted July 10, 2015] This morning, a three-judge panel of the Fourth Circuit hands down a unanimous opinion that affirms the convictions of former Governor Bob McDonnell. The slip opinion is very long – 89 pages – and I’ve read it so you don’t have to.

If you do set out to read the facts section in the opinion, you’ll likely come out thinking that the government’s case was stronger than you remember reading in the news accounts of the trial. There are three reasons for that. First, of course, an appellate court has to set out the facts in the light most favorable to the lower-court winner. So if today’s factual recitation seems slanted in favor of the government, that’s both understandable and completely normal.

The second reason is that the government’s case came out in drips and drabs at trial, over the course of several weeks. Hearing one or two snippets of evidence at a time isn’t anywhere near as compelling as having it condensed, in the format that’s perfectly familiar to appellate lawyers and jurists. This recitation is nothing but the most damning parts of the government’s case, set out in its most persuasive telling.

Third, I learned almost 25 years ago, when I handled a high-profile trial, that news reporting of a trial is often not a good indicator of how the case is actually going. You may have seen skeptical views of the evidence from this news story or that opinion writer, but trust me: you cannot evaluate the evidence in a case unless you watch the evidence and listen to the testimony, just as the jurors do. News reports sometimes don’t convey the main thrust of the evidence or the nuances of the testimony.

On to the legal discussion. The court takes up several ancillary issues first, ruling that the district court properly excluded expert testimony on the government’s grant of transactional immunity to the government’s primary witness, Jonnie Williams. The court notes that you can’t adduce expert evidence solely to impeach a witness, and holds that the trial court properly excluded another expert who would only have offered testimony about what would already have been clear to the jury.

The court next agrees with the decision to admit the McDonnells’ financial disclosures, since they could furnish evidence of concealment. Similarly, evidence of unrelated gifts —from persons other than Williams – was admissible to show the Governor’s knowledge of the “friendship exclusion” for reporting requirements.

In the last of these issues, the court evaluates a claim that an inculpatory e-mail from a former member of the Governor’s staff – who later became a current member of the Governor’s family by marrying his daughter – should have been excluded as hearsay. It looks like it might well be hearsay, but here the trial team made a mistake that seriously impairs appellate review. When the evidence was offered, the defense team objected that it was irrelevant and prejudicial, saying nothing about hearsay.

That omission constrains the appellate court to apply plain-error analysis. As appellate lawyers know, that’s a terrible row to have to hoe, and the court upholds the district court’s decision to admit the evidence, since it was at least somewhat relevant.

Enough of these preliminary issues; the court next dives into the heart of the McDonnell appeal, which is the challenge to the district court’s interpretation of the bribery statutes under which the Governor was prosecuted. The two most important of these challenges, at least in my view, are that the Governor didn’t perform an “official act” and that Williams got nothing of value for his loans and gifts.

The former issue is what has left Virginia’s elected and appointed officials looking over their shoulders or seeing ghosts. But today’s opinion brings them what I view as relieving news, in the form of this sentence: “[W]hen 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.” I added the emphasis there.

That sentence means that gifts, great or small, that are not directed to a particular official act are probably not within the purview of the bribery statutes. I’ll leave others to parse the words differently if they will, but in my view, the receipt of small honoraria by officials for speaking engagements, unrelated to any specific legislation, litigation, administrative approval, or other official act aren’t the kind of things that will get you in hot water with the feds.

Returning to the quoted text, the court goes on to say that “the consummation of an ‘official act’ is ‘not an element of the offense.’” That means that the official is in hot water by taking a bribe even if he doesn’t follow through with the political favor.

The next key quote I saw was a short one: “With power comes influence.” No argument there; but today’s opinion follows this observation with this damning conclusion: “The evidence at trial made clear that Star [Scientific] executives wanted [the Governor] to use his prominence and influence to the company’s benefit.” And finally,

What the Government had to show was that the allegedly corrupt agreement between Appellant and Williams carried with it an expectation that some type of official action would be taken. … Here, the Government exceeded its burden. 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.

This finding is bad news indeed for the defense team. It leads to this conclusion, which is the dagger to the heart of the appeal:

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.

What are the Governor’s options? He can, of course, seek en banc rehearing – panel rehearing is a notoriously rough road in the face of a 3-0 decision – or he can petition for cert. The odds against a private petitioner in SCOTUS are more than 99 to 1, but perhaps the public significance of this prosecution might enhance those odds somewhat.

Finally, depending on your political views, you may view this ruling as a travesty. I encourage you, if you see it that way, to read the facts section of today’s opinion before you judge the panel harshly. It may or may not be a travesty, but it unquestionably is a tragedy; it always has been, from the opening days of testimony, when prosecutors called the McDonnells’ daughter to testify against them – I can envision few things more personally horrifying for a family – all the way to the reading of the verdict, when the Governor covered his face with his hands and wept. Following this case has been a painful experience for me – nowhere near as painful as for the McDonnells, of course, but still awful to contemplate.

The federal prosecutors who secured this conviction and this affirmance may justifiably feel good about the results of their labors. Although I fully understand how today’s panel decided to affirm the convictions given the proper standard of review, I will never contemplate this case with anything but sadness.