Opposition Brief — McDonnell v. United States, 136 S. Ct. 891 (2016) (No. 15-474)

No. 15-474

In the Supreme Court of the Anited States

ROBERT F. MCDONNELL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

LESLIE R. CALDWELL

Assistant Attorney General

SONJA M, RALSTON

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCt Briefs usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly upheld

the jury’s finding that the petitioner’s quid pro quo

bribery scheme violated the honest-services statute,

18 U.S.C. 1346, and the Hobbs Act, 18 U.S.C. 1951,

beeause the things petitioner agreed to do in exchange

for payoffs were “official actions.”

2. Whether the court of appeals correctly found no

abuse of discretion in the district court’s voir dire on

pretrial publicity, where all potential jurors answered

written questions about the nature and extent of their

exposure to publicity and where the court individually

questioned each juror petitioner identified as cause

for concern.

(I)

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TABLE OF CONTENTS

Page

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EIN icsicicscteosiiceihersiteesicieniheseiicheiinialanntcnsteieidaatcat aaiaiansttiaaaiineasiald 33

TABLE OF AUTHORITIES

Cases:

Citizens United v. FEC, 558 U.S. 310 (2010)................ 25, 26

Eriline Co. v. Johnson, 440 F.3d 648

Le RE ee eae Seer ee 21

Evans v. United States, 504 U.S. 255 (1992)....... 9, 14, 19, 21

Griffin v. United States, 502 U.S. 46 (1991) ............ccecceee 14

Ham v. South Carolina, 409 U.S. 524 (1973)............c.cc0000+ 31

Irvin v. Dowd, 366 U.S. 717 (1961) ............ccccecceseeeeseeneeennes 30

Jordan v. Lippman, 763 F.2d 1265 (11th Cir. 1985).......... 33

McCormick v. United States, 500 U.S. 257 (1991)............. 27

McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ................. 25, 26

Mu’Min v. Virginia, 500 U.S. 415 (1991)................ 30, 31, 32

Patriarca v. United States, 402 F.2d 314 (1st Cir.

1968), cert. denied, 393 U.S. 1022 (1969) .......................... 32

Pruett v. Norris, 153 F.3d 579 (8th Cir. 1998).................... 31

Rosemond v. United States, 134 S. Ct. 1240 (2014) ........... 19

Silverthorne v. United States, 400 F.2d 627

Ee a Sea eT oe 32

Skilling v. United States, 561 U.S. 358 (2010)................ 9, 32

United States v. Biaggi, 853 F.2d 89 (2d Cir. 1988),

cert. denied, 489 U.S. 1052 (1989) ............ccccccccseeseeneeseeees 16

United States v. Biaggi, 909 F.2d 662 (2d Cir. 19990),

cert. denied, 499 U.S. 904 (1991). ..............ccccsccesecceseenseeees 27

(11)

Cases—Continued: Page

United States v. Birdsall, 233 U.S. 223 (1914) ....... 13, 18, 20

United States v. Brewster, 408 U.S. 501 (1972)...... 14, 16, 21

United States v. Carpenter, 961 F.2d 824 (9th Cir.),

cert. denied, 506 U.S. 919 (1992) ..............ccecccceeseeecenees 24, 25

United States v. Carson, 464 F.2d 424 (2d Cir.),

cert. denied, 409 U.S. 949 (1972) .20.........ccceccececeeeeseeeeeeeenees 13

United States v. Dellinger, 472 F.2d 340 (7th Cir.

1972), cert. denied, 410 U.S. 970 (1973) ...................... 31, 33

United States v. Denno, 313 F.2d 364 (2d Cir.),

cert. denied, 372 U.S. 978 (19638) ...........cccccescesseereereeeceeree 33

United States v. Dimora, 750 F.3d 619 (6th Cir.),

cert. denied, 135 S. Ct. 223, and 135 S. Ct. 504

RE IRE a EY ee Ce re 13

United States v. Lawes, 292 F.3d 123 (2d Cir. 2002) ......... 31

United States v. Loftus, 992 F 2d 793 (8th Cir. 1998)........ 24

United States v. Potter, 463 F.3d 9 (1st Cir. 2006)............. 24

United States v. Pratt, 728 F.3d 463 (5th Cir. 2013),

cert. denied, 134 S. Ct. 1328 (2014) ............cccccecceeseeeee 32, 33

United States v. Rabbitt, 583 F.2d 1014 (8th Cir.

1978), cert. denied, 439 U.S. 1116 (1979) .0..........-cccccecceees 23

United States v. Rahman, 189 F.3d 88 (2d Cir.),

cert. denied, 528 U.S. 982 (1999), and 528 U.S. 1094

Ea ensarntansitoninniesinsiniessteeinspiiecniiansbesiisiiiainipbatenibimhinlinmneninimnnane 31

United States v. Rhodes, 556 F.2d 599 (1st Cir. 1977).......33

United States v. Ring, 706 F.3d 460 (D.C. Cir.),

cert. denied, 134 S. Ct. 175 (2013).............. 13, 14, 19, 24, 26

United States v. Sawyer, 85 F.3d 713 (1st Cir. 1996) ........ 25

United States v. Siegelman, 640 F.3d 1159

(11th Cir. 2011), cert. denied, 132 S. Ct. 2711,

EEE ee 26

United States v. Sun-Diamond Growers of Cal.,

ERR REE pT ae we 17, 18

Cases—Continued: Page

United States v. Terry, 707 F.3d 607 (6th Cir. 2013),

cert. denied, 134 S. Ct. 1490 (2014) 0.00.0... eececeneneneeneeeees 26

United States v. Urcinoli, 513 F.3d 290

I iia aca sich conanilindcehtasiallenes conmenesieninnitaneeunbenetans 23

Valdes v. United States, 475 F.3d 1319

a ceil 22, 24

Waldorf v. Shuta, 3 F.3d 705 (3d Cir. 1993)...........ccccc-ceeeees 33

Constitution, statutes and rule:

U.S. Const.:

a esaeaetatesiiniemrmmianaiindl 25, 27

MINIT TT nics hsisacsrorieeinniniepesiiieliineadiniatalmainenteat 11, 28, 31

Hobbs Act:

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LR ener ore i)

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ee TI ns csaaidisetitinnicineiimapinapignnnienindaeinadiiaaidibnls 9, 12

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a, Ge Be I aeecsssericnrnsinsitnienrsnsisanannsassinienianaicvonninnneaantion 12

Jn the Supreme Court of the Cnited States

No. 15-474

ROBERT F MCDONNELL, PETITIONER

?,

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI!

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

la-79a) is reported at 792 F.5d 478. The opinion of

the district court (Pet. App. 80a-l14a) is reported at

64 F Supp. 3d 783.

JURISDICTION

The judgment of the court of appeals was entered

on July 10, 2015. A petition for rehearing was denied

on August 11, 2015 (Pet. App. 155a-136a). The pe-

tition for a writ of certiorari was filed on October 15,

2015. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Virginia, petitioner

was convicted on one count of conspiracy to commit

(1)

2

honest-services wire fraud, in violation of 18 U.S.C.

1349; three counts of honest-services wire fraud, in

violation of 18 U.S.C. 1343; one count of conspiracy to

obtain property under color of official right, in viola-

tion of 18 U.S.C. 1951; and six counts of obtaining

property under color of official right, in violation of 18

U.S.C. 1951. Petitioner was sentenced to 24 months of

imprisonment. The court of appeals affirmed. Pet.

App. 1la-79a.

1. In 2011 and 2012, while petitioner was the Gov-

ernor of Virginia, he and his wife Maureen McDonnell

solicited and secretly accepted more than $175,000 in

money and luxury goods from Jonnie Williams, a Vir-

ginia businessman. In exchange, petitioner agreed to

use the power of his office to help Williams seek fa-

vorable actions from the Virginia government.

a. In January 2010, when petitioner became Gov-

ernor, he and his family were in considerable financial

distress. Petitioner and Mrs. McDonnell had nearly

$75,000 in credit-card debt, which later grew to

$90,000. Petitioner and his sister were also losing

$40,000 each year on two heavily mortgaged rental

properties and had been forced to borrow $160,000 to

meet expenses. Pet. App. 5a; C.A. App. 6504-6506,

6510-6512.

Williams was the CEO of Star Scientific (Star), a

Virginia company that made a dietary supplement

called Anatabloc. Anatabloc contained anatabine, a

purportedly anti-inflammatory compound found in

tobacco. Star wanted to ask the Food and Drug Ad-

ministration (FDA) to approve Anatabloc as a phar-

maceutical, which would have allowed Star to adver-

tise its ostensible therapeutic effect. But Star could

not afford the clinical tests required for an FDA ap-

3

plication. Williams therefore wanted Virginia’s state

medical schools to conduct some of the necessary

studies. Pet. App. 5a-6a; C.A. App. 3894-3897

b. In December 2009, petitioner and Mrs. McDon-

nell had dinner with Williams to thank him for donat-

ing the use of his private jet to petitioner’s gubernato-

rial campaign. Petitioner barely knew Williams, and

Mrs. McDonnell was meeting him for the first time.

Nevertheless, Williams offered to buy Mrs. McDon-

nell a designer dress for petitioner’s inauguration.

She accepted, but petitioner’s staff later told Williams

he could not make the gift. Pet. App. 6a-7a & n.3.

In October 2010, petitioner used Williams’s plane

to travel to California and Williams arranged to ac-

company him on the return trip. During the flight,

Williams “extolled the virtues of Anatabloc” and “ex-

plained that he needed [petitioner’s] help.” Pet. App.

7a. Williams then told petitioner “what [he] needed”

from him: Williams “needed testing and [he] wanted

to have [it] done in Virginia.” C.A. App. 2211. Peti-

tioner referred Williams to Dr. William Hazel, Virgin-

ia’s Secretary of Health and Human Resources, but

took no further action at that time. Pet. App. 7a.

In April 2011, Mrs. McDonnell called Williams and

told him that she would seat him next to petitioner at

a political event if Williams took her shopping. Wil-

liams agreed. He spent approximately $20,000 on

luxury clothing for Mrs. McDonnell during a Manhat-

tan shopping spree and sat with the couple at the

event that evening. Days later, petitioner and Mrs.

McDonnell invited Williams to a private dinner at the

Governor’s Mansion. Their discussion at the dinner

“centered on Anatabloc and [Star’s] need for inde-

pendent testing.” Pet. App. 7a-8a.

4

Three days later, Williams returned to the Mansion

to see Mrs. McDonnell. The night before, petitioner

had contacted his sister for information about their

rental properties and asked his daughter about bills

for her upcoming wedding. Pet. App. 8a-9a. When

Mrs. McDonnell saw Williams, she described the fami-

ly’s financial troubles, including the rental properties.

Id. at 9a. She then proposed an exchange, telling

Williams: “I have a background in nutritional sup-

plements and I can be helpful to you with this project,

with your company. The Governor says it’s okay for

me to help you * * * but I need you to help me. |

need you to help me with this financial situation.”

C.A. App. 2231. Mrs. McDonnell asked Williams for a

$50,000 loan and added that she and petitioner owed

$15,000 for their daughter’s wedding. Pet. App. 9a.

Williams agreed to provide the loan and make the

$15,000 payment. Before doing so, he spoke to peti-

tioner to “make sure {he] knew about it”; petitioner

thanked him for his help. C.A. App. 2233. Williams

testified that he agreed to Mrs. McDonnell’s request

for money because “[petitioner] control{led} the medi-

cal schools” in Virginia and he “needed [petitioner’s]

help with the testing.” Jd. at 2234.

c. Over the next 18 months, Williams provided pe-

titioner and his family with another $80,000 and tens

of thousands of dollars’ worth of luxury goods and

services. For example:

e On three occasions, Williams paid for petitioner

and his family to golf, eat, and shop at a private

club. The outings, which Williams did not join,

cost more than $5000. Pet. App. 10a, 13a, 15a.

5

e In July 2011, Williams allowed petitioner’s fam-

ily to use his vacation home. Williams spent

$2000 to rent a boat for the family and—at Mrs.

McDonnell’s request—paid $600 to have his

Ferrari delivered to the home for petitioner’s

use. Pet. App. 1la-12a.

e In August 2011, again at Mrs. McDonnell’s re-

quest, Williams bought a $6000 Rolex watch for

petitioner. Pet. App. 13a.

e Between January and March 2012, petitioner

arranged for Williams to make a second loan of

$50,000. Pet. App. 15a-16a.

e In May 2012, petitioner texted Williams seeking

“another 20k loan.” Minutes later, Williams

responded: “Done.” Gov’t C.A. Supp. App.

166-167.

e In July 2012, Williams texted petitioner: “If

you need cash let me know” and suggested a

vacation at a Massachusetts resort. Williams

spent more than $7300 on petitioner and Mrs.

McDonnell during the trip. Pet. App. 19a.

e In December 2012, Williams gave another one

of petitioner’s daughters a $10,000 wedding

gift. Pet. App. 20a.

The loans were not documented, and petitioner made

no payments before learning he was under investiga-

tion. C.A. App. 4276, 6829. With the exception of

some small-dollar items he could not have concealed,

petitioner did not disclose the gifts and loans to his

6

staff or to the public. Gov’t C.A. Br. 34-35. Williams

hid them too, believing that they were “wrong” and

that he “could be violating laws.” C.A. App. 2322.

d. While petitioner was soliciting and receiving

those personal benefits from Williams, he used the

power of his office to influence Virginia officials to

accord Williams favorable treatment.

In May 2011, three days after Williams agreed to

provide the initial $65,000, petitioner brought up Ana-

tabloc in a meeting with Secretary Hazel and directed

his assistant to send Hazel an article praising Star.

Pet. App. 9a. In June 2011, in response to Mrs.

McDonnell’s request that he “put in writing what it

was that [he] wanted,” Williams sent petitioner a

formal protocol for a clinical trial. C.A. App. 2252; see

id. at 3423. The cover letter “suggest{ed] that [peti-

tioner] use the attached protocol to initiate the ‘Vir-

ginia study’ of Anatabloc at the Medical College of

Virginia [(MCV), the medical school at Virginia Com-

monwealth University (VCU)] and the University of

Virginia” (UVA). Gov’t C.A. Supp. App. 29. Petition-

er forwarded the letter to Hazel. Pet. App. 11a.

In July 2011, the night after he drove Williams’s

Ferrari back to Richmond from Williams’s vacation

home, petitioner directed Hazel to have a deputy meet

with Williams and Mrs. McDonnell the next morning

“on the Star Scientific [AJjnatabloc[] trials” at UVA

and VCU. Gov't C.A. Supp. App. 80. During the

meeting, Williams reiterated his desire to have the

universities study Anatabloc. Pet. App. 12a. The

same day, Williams and Mrs. McDonnell met with a

VCU researcher who “could cause studies to happen.”

C.A. App. 2273. Williams told the researcher that

‘a

i

“clinical testing of Anatabloc in Virginia was im-

portant to [petitioner].” Pet. App. 12a.

In August 2011, petitioner and Mrs. McDonnell

hosted an event at the Mansion marking Anatabloc’s

launch for public sale. Pet. App. 13a. Although peti-

tioner’s political action committee paid for the event,

state employees planned it. C.A. App. 3592. Williams

and Star set the guest list, which included the UVA

and VCU researchers who would decide whether to

conduct the studies Williams sought. Pet. App. 13a.

Mrs. McDonnell explained to the Mansion staff that

the purpose of the event was to “encouragie] [the]

universities to do research on [Anatabloc].” C.A. App.

3608. During the event, which petitioner and Mrs.

McDonnell attended, Williams gave $25,000 checks to

the state researchers to help them apply for grants to

fund the studies. Pet. App. 13a. The grants were to

come from the Virginia Tobacco Indemnification and

Community Revitalization Commission (Tobacco

Commission), a state entity that petitioner told Wil-

liams “would be a good source of funding.” C.A. App.

2260.

In late 2011, Star’s plans hit a stumbling block

when UVA and VCU seemed to lose interest. C.A.

App. 2305-2306. Williams was “furious,” telling col-

leagues that he could not understand the universities’

reluctance because “[petitioner] and his wife [we]re so

supportive.” /d. at 3934; see Pet. App. 14a.

In January 2012, while he was arranging to loan

petitioner another $50,000, Williams told Mrs.

McDonnell that UVA was dragging its feet. Pet. App.

15a. Mrs. McDonnell, who was also “furious,” later

reported to Williams that petitioner “wantied] the

contact information” of the UVA officials Star was

8

dealing with. C.A. App. 2308-2309. Mrs. McDonnell

forwarded that information to petitioner and his chief

counsel, Jacob Jasen Eige, on February 9. Pet. App.

17a. A day later, while sitting next to petitioner, Mrs.

McDonnell emailed Eige that petitioner “want{ed] to

know why nothing has developed w{ith the] studies”

and “wantied] to get this going w{ith] VCU MCV”

Gov’t C.A. Supp. App. 154. Six days after that—and

minutes after checking with Williams about the pend-

ing loan—petitioner himself emailed Eige to follow up:

“Pliease}] see me about [A]natabloc issues at VCU and

UVA.” Id. at 157; see Pet. App. 17a.

Around the same time, the Mansion staff was plan-

ning a reception for leaders in Virginia’s healthcare

industry. Petitioner and Mrs. McDonnell invited

Williams and other Star employees. At Williams’s

request, they also invited the state researchers Star

was lobbying to conduct studies. Pet. App. 16a-17a.

In addition to seeking clinical tests at UVA and

VCU, Williams had told state officials and Mrs.

McDonnell that he wanted Virginia’s employee health

pian to encourage state employees to take Anatabloc.

C.A. App. 2271, 3054, 3692-3693. In March 2012, peti-

tioner met with the Virginia Secretary of Administra-

tion, who oversaw the plan. Pet. App. 18a. During a

discussion about the plan’s coverage, petitioner

“reached into his pocket, retrieving a bottle of Anata-

bloc.” Jbid. He stated that Anatabloec was “working

well for him, and that he thought it would be good for

* * * state employees.” C.A. App. 4227. He then

asked the Secretary to meet with Star. /bid.

2. A jury convicted petitioner on 11 counts of

honest-services fraud, Hobbs Act extortion, and con-

9

spiracy, but acquitted on two counts of making false

statements to a bank. Pet. App. 21a & n.9.'

3. The court of appeals affirmed. Pet. App. la-79a.

a. Petitioner’s principal arguments on appeal cen-

tered on the “official action” requirement of the cor-

ruption charges. The parties agreed that the Hobbs

Act and honest-services counts required proof that

petitioner accepted something of value in exchange for

agreeing to perform “official actions” (or “official

acts”) as defined in the federal bribery statute, 18

U.S.C. 201. Pet. App. 46a." Under Section 201, an

“official act” includes “any decision or action on any

question, matter, cause, suit, proceeding or controver-

sy, which may at any time be pending, or which may

by law be brought before any public official, in such

official’s official capacity.” 18 U.S.C. 201(a)(3).

The district court instructed the jury using the

Section 201 definition. Pet. App. 275a. It added that

official actions can include actions that a public official

“customarily performs” in addition to duties assigned

' The jury convicted Mrs. McDonnell on 8 of the 11 corruption

charges and a separate obstruction-of-justice count. C.A. App.

7710-7713. Her appeal remains pending. No. 15-4116 (filed Feb.

27, 2015).

* The honest-services statute clarifies that mail and wire fraud

include schemes to defraud others of the “intangible right of

honest services.” 18 U.S.C. 1346. This Court has limited the

statute to “bribery and kickback schemes” and held that, in the

bribery context, the statute “draws content” from Section 201.

Skilling v. United States, 561 U.S. 358, 368, 412 (2010). The Hobbs

Act prohibits obtaining property from another “under color of

official right.” 18 U.S.C. 1951(b)(2). A public official violates the

Hobbs Act if he “obtain[s] a payment to which he was not entitled,

knowing that the payment was made in return for official acts.”

Evans v. United States, 504 U.S. 255, 268 (1992).

10

by law; that the official need not “have actual or final

authority over the end result sought by a bribe payor”

if the payor “reasonably believes that the public offi-

cial had influence, power or authority” over a means

to that end; and that an official action can include “one

in a series of steps to exercise influence or achieve an

end.” J/bid. The court of appeals held that those in-

structions were consistent with Section 201 and with

this Court’s relevant decisions. /d. at 47a-65a.

The court of appeals also held that the evidence

“was more than sufficient to support the jury’s ver-

dict.” Pet. App. 74a; see id. at 69a-74a. The court

emphasized that the government was not required “to

prove that [petitioner] actually took [an] official ac-

tion.” Jd. at Tla. Instead, all that was necessary was

proof that petitioner’s corrupt agreement with Wil-

liams “carried with it an expectation that some type of

official action would be taken.” Jbid. But the court

concluded that “the Government exceeded its burden”

by proving that petitioner “did, in fact, use the power

of his office to influence governmental decisions.”

Ibid. In particular, the court held that petitioner

encouraged state researchers to study Anatabloc and

urged the relevant officials to cover Anatabloc under

the state health plan. /d. at 7la-74a.

b. Finally, the court of appeals rejected petition-

er’s challenge to the district judge’s voir dire on pre-

trial publicity. Pet. App. 26a-32a. The court noted

that all prospective jurors completed written ques-

tionnaires describing their exposure to publicity. /d.

at 28a-29a. The court also emphasized that, after

asking the jurors collectively whether they could put

aside anything they had heard and render a verdict

based on the evidence, the judge “invited defense

11

counsel to identify any specific veniremen it would like

to question further.” /d. at 30a. The judge individual-

ly questioned each juror identified by the defense,

concluding the process only when petitioner’s counsel

stated that he did not wish to question “{a]nybody

else.” Jd. at 172a; see id. at 30a-32a. That approach,

the court held, was within the judge’s “wide discre-

tion” over voir dire. /d. at 28a (citation omitted).

ARGUMENT

Petitioner renews his contentions (Pet. 11-36) that

the actions Williams paid him to take were not “offi-

cial” and that the district court’s voir dire violated the

Sixth Amendment. Those claims lack merit. The

court of appeals upheld petitioner’s convictions based

on the unexceptionable proposition that a public offi-

cial violates federal corruption statutes where, as

here, he accepts personal benefits in exchange for his

agreement to influence government matters. That

standard is well-established, administrable, and en-

tirely consistent with the decisions of this Court and

other courts of appeals. Nor did the district court

abuse its broad discretion in structuring voir dire:

petitioner cites no decision supporting his assertion

that the Sixth Amendment mandated his preferred

procedures. The petition should be denied.

1. Petitioner principally contends (Pet. 11-29) that

the court of appeals adopted an overbroad interpreta-

tion of “official action.” His essential premise—and

the basis for nearly every argument in the petition

and supporting amicus briefs—is that the court held

that he was properly convicted even though he “never

agree|d] to put a thumb on the scales of any govern-

ment decision.” Pet. 2; see, e.g., Pet. i, 1, 11, 16, 18, 21.

That premise is wrong. As the court repeatedly ex-

12

plained, it upheld petitioner’s convictions because the

evidence showed that he agreed to “use the power of

his office to influence governmental decisions.” Pet.

App. 71a; accord td. at 54a-55a, 73a-74a.

Petitioner concedes (Pet. 22) that the quoted hold-

ing correctly states the law. Despite its sweeping

rhetoric, therefore, the petition largely reduces to a

claim that the court of appeals misapplied that

“properly stated rule of law,” Sup. Ct. R. 10, to the

particular circumstances of this case. That claim is

both factbound and incorrect. The evidence at trial

amply supported the jury’s finding that Williams lav-

ished gifts on petitioner not to obtain the sort of gen-

eral “access” commonly provided to campaign donors,

but rather in exchange for petitioner’s agreement to

use his position to influence state officials to dispose of

government matters in a manner favorable to Wil-

liams. Reaffirming that such quid pro quo agreements

are unlawful poses no threat to legitimate political

activity.

a. Petitioner no longer challenges the jury’s find-

ings that he solicited and accepted payments from

Williams as part of a quid pro quo exchange, and that

he did so corruptly, in bad faith, and with intent to

defraud. Pet. App. 65a-69a, 74a-79a. The evidence

was likewise sufficient to support the jury’s finding

that the actions petitioner agreed to take in return

were “official.”

i. Under Secti 01, an “official act” is “[1] any

decision or action on {2] any question, matter, cause,

suit, proceeding or controversy” that may be brought

before a public official in his official capacity. 18

U.S.C. 201(a)(3). Only the first element is disputed

here. As to the second, the court of appeals identified

i3

three relevant “questions or matters”: whether state

universities would study Anatabloc; whether the state

Tobacco Commission would fund the studies; and

whether the state health plan would cover Anatabloc.

Pet. App. 69a-70a. Petitioner does not deny that those

matters satisfy Section 201. The only question is thus

whether he agreed to make a “decision” or take “ac-

tion” “on” any of them. /d. at 7la.

As the court of appeals explained, a public official

need not dictate the disposition of a matter to take

official action. Pet. App. 54a-58a. That has been clear

since this Court’s seminal decision in United States v.

Birdsall, 233 U.S. 223 (1914). There, the Court held

that officers appointed by the Commissioner of Indian

Affairs could be charged under Section 201’s material-

ly identical predecessor statute for accepting bribes in

connection with sentencing and clemency. /d. at 227-

228. The officers had no formal authority over those

matters; instead, they made recommendations to the

Commissioner, who, in turn, was customarily consult-

ed by judges and the President. /d. at 228-229. This

Court nonetheless held that the officers were properly

charged with bribery because their twice-removed

recommendations were “official actions.” /bid.

It has thus been settled for more than a century

that the federal bribery statute “cover[s] any situation

in which the advice or recommendation of a Govern-

ment employee would be influential,” even if the em-

ployee does not “make a binding decision.” United

States v. Carson, 464 F.2d 424, 433 (2d Cir.), cert.

denied, 409 U.S. 949 (1972); see, e.g., United States v.

Dimora, 750 F.3d 619, 627 (6th Cir.), cert. denied, 135

S. Ct. 223, and 135 S. Ct. 504 (2014); United States v.

14

Ring, 706 F.3d 460, 470 (D.C. Cir.), cert. denied, 134

S. Ct. 175 (2013).

ii. Petitioner maintains (Pet. 11-12, 22-25) that he

did not seek to influence any of the matters identified

by the court of appeals. That is wrong. See pp. 16-21,

infra. But it is also irrelevant. As the court held, and

as the jury was instructed, “it was not necessary for

the Government to prove that [petitioner] actually

took [an] official action.” Pet. App. 7la. Instead, the

government only had to establish that petitioner’s

agreement with Williams carried “an expectation that

some type of official action would be taken.” /bid.; see

C.A. App. 7669, 7682 (instructions). Honest-services

fraud and Hobbs Act extortion, like bribery, are

“eompleted at the time when the public official re-

ceives a payment in return for his agreement to per-

form specific official acts; fulfillment of the quid pro

quo is not an element of the offense.” Evans v. United

States, 504 U.S. 255, 268 (1992) (Hobbs Act); see Unit-

ed States v. Brewster, 408 U.S. 501, 526 (1972) (brib-

ery); Ring, 706 F.3d at 467 (honest-services fraud).*

Ample evidence established that petitioner’s quid

pro quo arrangement with Williams carried an expec-

tation that petitioner would influence government

* Petitioner asserts—without citation or explanation—that “[b}y

affirming the jury’s general verdict, the panel necessarily held that

all five” of the types of action described in the indictment “were

‘official.’” Pet. 8. But because taking an official action was not an

element of the charged offenses, neither the jury nor the court of

appeals was required to find that any of those acts satisfied Sec-

tion 201’s standard. And in any event, “|wjhen a jury returns a

guilty verdict on an indictment charging several acts in the con-

junctive, * * * the verdict stands if the evidence is sufficient with

respect to any one of the acts charged.” Griffin v. United States,

502 U.S. 46, 56-57 (1991) (citation omitted).

15

matters. Williams was clear about what he wanted

from the start. In October 2010, he told petitioner

that “what [he) needed from [petitioner] was that [he]

needed testing” at state medical schools. C.A. App.

9911. That need was a constant refrain in Williams’s

interactions with petitioner over the next two years.

E.g., Pet. App. 8a; C.A. App. 2259-2260. And in June

2011, at Mrs. McDonnell’s request, Williams spelled it

out in writing, asking petitioner to “initiate the ‘Vir-

ginia Study’ of Anatabloc at [VCU and UVAI.” Gov't

C.A. Supp. App. 29.

Williams testified that he provided petitioner with

loans and gifts because “(petitioner] controlled} the

medical schools” and he “needed [petitioner’s] help

with the testing.” C.A. App. 2234; see, e.g., id. at 2360.

Williams explained that in return for his continued

payoffs, he “expected” petitioner to continue “assist-

ing with the universities” and “help[{ing] with govern-

ment employees.” Jd. at 2355. During the scheme,

Williams told a Star lobbyist that petitioner wanted to

have studies performed by UVA and VCU and funded

by the Tobacco Commission. Id. at 4373; see id. at

3912-3919. And when the universities got cold feet,

Williams told colleagues that he “c[ould]}n’t under-

stand it” because “[petitioner] and his wife [we]re so

supportive.” Jd. at 3934.

At trial, petitioner disputed Williams’ version of

their arrangement, adamantly insisting that he never

promised Williams anything.‘ But “the jury was free

to infer that [petitioner] was not requesting gifts of

thousands of dollars without offering something more

‘ Petitioner also maintained, implausibly, that Williams “really

never asked [him] for anything” and that he did not even know

what Williams wanted. C.A. App. 6253; see, e.g., td. at 6231, 6973.

16

than his friendship in return.” United States v. Biag-

gi, 853 F.2d 89, 100 (2d Cir. 1988), cert. denied, 489

U.S. 1052 (1989). And petitioner’s contemporaneous

statements confirmed that he shared Williams’ under-

standing of their bargain. After Williams reported

that the universities were moving slowly, petitioner

assured Williams “that he was following up with UVA”

about the delay and then immediately requested

“more money.” C.A. App. 2697; see id. at 2325-2326.

iii. Petitioner’s claim that he did not actually help

Williams is thus beside the point. A public official who

secures a bribe by agreeing to exercise influence is

guilty even if he later “defaults on his illegal bargain.”

Brewster, 408 U.S. at 526. Here, however, petitioner

followed through on the quid pro quo.

First, petitioner “exploited the power of his office”

in an “ongoing effort to influence the work of state

university researchers.” Pet. App. 73a. For example,

he directed Hazel to send a deputy to a meeting at the

Governor’s Mansion “on” the proposed Anatabloc

tests—the only time the official attended such a meet-

ing. C.A. App. 3055. Petitioner and Mrs. McDonnell

hosted an event at the Mansion designed to “encour-

ag(e] [the] universities to do research on [Anatabloc].”

1d. at 3608.° And after Williams complained that the

universities were moving slowly, Mrs. McDonnell

wrote to Eige, petitioner’s chief counsel, that petition-

er “wantfed] to get this going w(ith] VCU MCV”

Gov't C.A. Supp. App. 154. Later, petitioner himself

* Petitioner's briefing materials for the event show that he un-

derstood its purpose: He starred the names of the state research-

ers Williams was trying to persuade to conduct the studies. Gov't

C.A. Supp. App. 107-108; C.A. App. 4123-4124.

17

followed up on that directive, telling Eige to “see

[him]” about the studies. /d. at 157.

Second, during a meeting about the state employee

health plan, which petitioner had ultimate power to

approve, Pet. App. 70a, petitioner told the senior offi-

cials with immediate authority over the plan that

Anatabloc “would be good for * * * state employees”

and asked them to meet with Star. C.A. App. 4227. In

so doing, petitioner “used his position as Governor to

influence” the health plan’s coverage. Pet. App. 74a.

iv. The court of appeals’ holding is entirely con-

sistent with United States v. Sun-Diamond Growers

of California, 526 U.S. 398 (1999) (Sun-Diamonda).

There, the Court held that an illegal-gratuity convic-

tion under Section 201 requires proof that a thing of

value was given to an official because of a specific

official act. /d. at 414. The Court observed that read-

ing the statute to reach gifts given merely “by reason

of the donee’s office” could criminalize de minimis

gifts, such as the President’s receipt of a jersey from a

visiting sports team, “a high school principal’s gift of a

school baseball cap to the Secretary of Education,”

during a school visit, or “a group of farmers * * *

providing a complimentary lunch for the Secretary of

Agriculture in conjunction with [a] speech.” /d. at

406-407.

In the portion of Sun-Diamond on which petitioner

relies (Pet. 12-14), the Court acknowledged that even

its “more narrow interpretation,” requiring a connec-

tion to a “specific” official act, would yield “peculiar

results” if those hypothetical gifts could be viewed as

having been given “‘for or because of’ the official acts

of receiving the sports teams at the White House,

visiting the high school, and speaking to the farmers.”

18

526 U.S. at 407 (citation omitted). But the Court ex-

plained that “those actions—while they are assuredly

‘official acts’ in some sense—are not ‘official acts’

within the meaning of the statute, which * * * de-

fines ‘official act’ to mean ‘any decision or action on

any question, matter, cause, suit, proceeding or con-

troversy.’” /bid. (citation omitted).

As the court of appeals explained, the activities de-

scribed in Sun-Diamond are not decisions or actions

“on” a government matter because they do not “have

the purpose or effect of exerting * * * influence on”

any matter. Pet. App. 54a. But nothing in Sun-

Diamond calls into question Birdsall’s teaching that

an official does take official action if he seeks to influ-

ence the disposition of government matters by other

officials. 233 U.S. at 228-229.°

Here, petitioner’s conduct was far removed from

the activities contemplated in Sun-Diamond. Contra-

ry to petitioner’s assertion (Pet. 24), the court of ap-

peals did not hold that merely “arranging a meeting”

or “inquiring about an issue” supports an inference

that an official sought to influence the underlying

" Petitioner errs in asserting (Pet. 13) that the court of appeals’

reasoning would mean that the Secretary of Agriculture takes

official action if he “participate[s] in a ‘roundtable’ to listen to the[)

policy views” of farmers. The question is whether the official

seeks to influence a government matter. The farmers may hope to

persuade the Secretary to dispose of policy matters in a particular

way. But by listening to their views, the Secretary neither acts on

any policy matter himself nor seeks to influence the disposition of

such a matter by other officials. If, in contrast, the Secretary

directed a subordinate to meet with the farmers under circum-

stances that made clear that he wanted the subordinate to dispose

of a pending matter according to the farmers’ wishes, he would

unquestionably have taken official action. That is this case.

19

matter. Petitioner did far more than that. Before

asking a member of his cabinet to meet with Star

about including Anatabloc in the state health plan, for

example, petitioner told her that Anatabloc “would be

good for * * * state employees.” C.A. App. 4227. In

so doing, he recommended a particular substantive

result. Petitioner also gave over the Governor’s Man-

sion and its staff to an event crafted to “encourag{e|

[the] universities to do research on [Anatabloc].” /d.

at 3608. And petitioner did not merely ask Eige to

“see [him] about [AJnatabloc issues at VCU and

UVA.” Gov’t C.A. Supp. App. 157. He did so days

after his wife and co-conspirator directed Eige to

follow up with VCU and UVA because “Gov wants to

get this going wlith] [the universities].” Jd. at 154.

Petitioner characterizes his actions as providing mere

“procedural access” (Pet. 24) only by stripping them

of all context.

v. Petitioner's remaining challenges to the suffi-

ciency of the evidence lack merit. He asserts (Pet.

22-25) that he never expressly ordered state employ-

ees to initiate clinical studies or to include Anatabloc

in the state health plan. But a corrupt official can

exercise influence without telling subordinates, in so

many words, “I am directing you to give my benefac-

tor what he wants.” In this context as in others, “[t]he

criminal law * * * concerns itself with motives and

consequences, not formalities. And the trier of fact is

quite capable of deciding the intent with which words

were spoken or actions taken.” Evans, 504 U.S. at 274

(Kennedy, J., concurring in part and concurring in the

judgment); see Rosemond v. United States, 134 S. Ct.

1240, 1250 n.9 (2014).

20

Relatedly, petitioner asserts more than a dozen

times that he never “pressured” state employees.

E..g., Pet. i, 1-5, 11, 18, 22-23, 25. But “pressure” is not

required. The officers in Birdsall, for example, did

not “pressure” sentencing judges or the President.

233 U.S. at 228-229; see, e.g., Ring, 706 F.3d at 470.

The question is whether petitioner sought to influence

the relevant matters. And the power of a State’s chief

executive to influence his subordinates does not re-

quire overt “pressure.”

The jury heard from a Star lobbyist that “it’s al-

ways helpful” to have the Governor’s support when

seeking action from state agencies. C.A. App. 4373.

Petitioner’s chief of staff confirmed that if petitioner

“encouraged somebody else in state government to do

something,” it would “[dJefinitely help[].” Jd. at 4104.

Here, the target officials got the message. Eige told

Star’s lobbyist that he had “been asked by the Gover-

nor to call [the universities}” to “show support for this

research,” but that Eige himself “dfid]n’t think [the

Governor’s office} should be pressuring UVA and

VCU.” Id. at 4374. Secretary Hazel described peti-

tioner’s “level of support” for Star as “unique.” /d. at

3766-3767. And when a UVA official wrote a pro/con

list about possible studies of Anatabloc, the first “pro”

was “[p]Jerception to Governor” and the first “con” was

“{pjolitical pressure from Governor.” Gov't C.A.

Supp. App. 109; see C.A. App. 3355 (UVA researcher

left the Mansion event thinking that petitioner had

“extol[led] [studies on Anatabloc] as something that

would be a good thing for the Commonwealth”).

Petitioner also emphasizes (Pet. 23-25) that Wil-

liams did not ultimately get what he wanted. But the

failure of a bribery scheme does not make it lawful.

21

See Evans, 504 U.S. at 268; Brewster, 408 U.S. at 526.

And here, the scheme failed only because other

officials resisted petitioner’s influence. Eige refused

to pressure the universities because he thought it

was inappropriate. C.A. App. 3215-3216. Hazel was

“very skeptical of Mr. Williams and his product” de-

spite petitioner’s unprecedented support. /d. at 3745-

3746. And the officials responsible for the state health

plan did not add Anatabloc because the plan did not

cover dietary supplements. /d. at 4204. Williams was

thwarted in spite of petitioner’s efforts, not because

petitioner failed to try.

b. Although petitioner principally challenges the

sufficiency of the evidence, he also asserts (Pet. i,

25-26) that the district court erred by failing to in-

struct the jury that an official action must be “intend-

ed to * * * influence a specific official decision the

government actually makes.” Pet. App. 147a. That

argument is unsound for three reasons.

First, petitioner’s brief in the court of appeals fo-

cused on other asserted instructional errors and de-

voted only a single sentence to the “influence” lan-

guage on which he now relies. Pet. C.A. Br. 53. Un-

derstandably, therefore, the court did not specifically

address that language. Cf. Friline Co. v. Johnson,

440 F.3d 648, 653 n.7 (4th Cir. 2006) (argument raised

in a “single sentence” is forfeited).

Second, petitioner requested the quoted language

as part of much longer instructions on “official action.”

Pet. App. 146a-149a, 253a-254a. The court of appeals

correctly held that, “[t]Jaken as a whole,” those in-

structions “failed to present the district court with a

correct statement of law,” and thus that the district

court did not abuse its discretion in refusing to give

22

them. /d. at 65a; see id. at 63a (portions of petition-

er’s proposed instruction were “a thinly veiled attempt

to argue the defense’s case”).

Third, the substance of petitioner’s proposed lan-

guage was captured by the instructions as given. That

language was drawn from Valdes v. United States, 475

F.3d 1319 (D.C. Cir. 2007) (en banc), which described

official action as “inappropriate influence on decisions

that the government actually makes.” /d. at 1325.

But Valdes was merely paraphrasing the statutory

definition of “official act.” In the very next paragraph,

it explained that the instructional error in that case

would have been cured by “includ{ing] either the stat-

utory language on which [Valdes] focused—the defini-

tion of ‘official act’—or anything comparable.” /bid.

Consistent with Valdes, the instruction given here

began with a verbatim recitation of Section 201’s “def-

inition of ‘official act.” 475 F.3d at 1325; see Pet.

App. 275a. That language made clear that official

action includes only decisions or actions “on” govern-

ment matters. Pet. App. 275a. And the remainder of

the instruction reiterated that official action entails an

effort to wield “influence, power or authority” or to

“exercise influence or achieve an end.” Ibid. Peti-

tioner relied on that instruction to argue that none of

his actions sought to influence any government mat-

ter. C.A. App. 7543-7551. The jury simply disagreed.’

* Petitioner is wrong to suggest (Pet. 25-26) that the government

argued to the jury that influence on a matter was unnecessary.

The government emphasized, correctly, that the jury need not find

that petitioner “pressured” government employees. Pet. App.

268a; see p. 20, supra. But the next sentence of the government’s

argument explained that petitioner did exercise influence. Pet.

App. 268a (“[W]hen your boss is telling you to do something * * *

23

c. Petitioner and his amici err in asserting (Pet.

17-26) that the decision below conflicts with decisions

of the First, Eighth, and D.C. Circuits.

United States v. Urciuoli, 513 F.3d 290 (ist Cir.

2008), held that the honest-services statute did not

reach a part-time state legislator’s conduct in “urging

local officials to obey state law.” Jd. at 295. The court

noted that the legislator had no direct authority over

the officials and that his actions did not involve any

“matter before him.” J/bid. Here, by contrast, the

matters in question were within petitioner’s authority

and the officials he sought to influence were his sub-

ordinates. Pet. App. 70a-71a.°

United States v. Rabbitt, 583 F.2d 1014 (8th Cir.

1978), cert. denied, 439 U.S. 1116 (1979), involved a

legislator who accepted payments from an architec-

tural firm in exchange for introducing it to the state

officials responsible for architectural contracts. /d. at

1028. As the Eighth Circuit later explained, it re-

versed the legislator’s convictions because he “prom-

ised only to introduce the firm to influential persons;

he doesn’t need to yell.”). From the beginning of the trial, the

government emphasized that petitioner’s duty of honest services

was “a duty not to sell the power and the influence of his office”

and that petitioner had “influence over the very government

officials” Williams was lobbying for favorable treatment. C.A.

App. 1748, 1754-1755.

* Petitioner asserts (Pet. 25) that Urcinoli disapproved jury

instructions like those given here. But the instructions in Urciuoli

were “decidedly different.” Pet. App. 53a n.18. They did not

include anything like Section 201’s definition of “official act” and

instead required only a finding that the legislator acted “under the

cloak of his office.” Urciwoli, 513 F.3d at 295 n.2. And Urciuoli

did not mandate any particular formulation, leaving that issue to

the district court on remand. /d. at 297.

24

he did not promise to use his official position to influ-

ence those persons.” United States v. Loftus, 992

F.2d 793, 796 (1993). Here, by contrast, the court of

appeals held that petitioner agreed to—and then did—

“use the power of his office to influence governmental

decisions.” Pet. App. 71a.

The D.C. Circuit’s decision in Valdes held that a po-

lice officer did not take official action when he accept-

ed gratuities for retrieving information from a police

database. 475 F.3d at 1320-1322. The court concluded

that the officer’s conduct did not implicate any

“question, matter, cause, suit, proceeding or contro-

versy’” because those terms include only “questions or

matters whose answer or disposition is determined by

the government.” /d. at 1323-1324 (citation omitted).

Here, the matters identified by the court of appeals—

whether state universities would perform studies,

whether a state commission would provide funding,

and whether the state health plan would cover Anata-

bloc—plainly satisfied that standard. Pet. App. 69a-

70a. Petitioner has not argued otherwise.

The decision below is thus consistent with Urciuoli,

Rabbitt, and Valdes. And other decisions by the First,

Fighth, and D.C. Circuits confirm that an official

takes official action where, as here, he “acti{s] in his

official capacity to influence” the disposition of a gov-

ernment matter by others. Ring, 706 F.3d at 470; see

United States v. Potter, 463 F.3d 9, 18 (ist Cir. 2006)

(“informal and behind-the-scenes influence on legisla-

tion”); Loftus, 992 F.2d at 796 (“influence”).”

* Although petitioner does not cite them, other decisions have

stated that, in some circumstances, “granting or denying access to

lobbyists based on levels of campaign contributions is not an

‘official act.’"” United States v. Carpenter, 961 F.2d 824, 827 (9th

25

d. Petitioner is quite wrong to assert (Pet. 14-15,

27-29) that the decision below turns “nearly every

elected official into a felon” by criminalizing routine

political fundraising. Pet. 27 (capitalization altered).

The court of appeals held that petitioner’s conduct

was criminal because he entered into a quid pro

quo agreement to use his position to influence gov-

ernment matters on behalf of his benefactor. Such

conduct is neither common nor protected by the First

Amendment—and a decision confirming that it is

unlawful breaks no new ground.

“(Cjonstituents support candidates who share their

beliefs and interests, and candidates who are elected

can be expected to be responsive to those concerns.”

McCutcheon v. FEC, 134 S. Ct. 1434, 1441 (2014).

This Court’s campaign-finance decisions have thus

emphasized that the “[iJngratiation and access” com-

monly associated with political contributions “are not

corruption.” bid. (quoting Citizens United v. FEC,

558 U.S. 310, 360 (2010)). But those decisions referred

to “the general gratitude a candidate may feel toward

those who support him or his allies, or the political

access such support may afford.” /bid. The Court has

emphatically distinguished that sort of general grati-

tude and access from specific quid pro quo arrange-

ments, explaining that “[t}he hallmark of corruption is

Cir.), cert. denied, 506 U.S. 919 (1992); cf. United States v. Sawyer,

85 F.3d 713, 731 n.15 (ist Cir. 1996). Those decisions, too, are

consistent with the decision below. Petitioner was not convicted

for giving Williams access to his own time; he was convicted for

agreeing to use his authority to influence the disposition of gov-

ernment matters by others. That is unquestionably official action.

See Carpenter, 961 F.2d at 827 (“{Algreeing to intervene with

one’s colleagues to secure their support for legislation involves an

‘official act.’”).

26

the financial quid pro quo: dollars for political fa-

vors.” Jbid. (citation omitted); see Citizens United,

558 U.S. at 357 (“[F Jew if any contributions to candi-

dates will involve guid pro quo arrangements.”).

The existence of a quid pro quo is thus the key to

distinguishing between lawful campaign contributions

and unlawful bribes. “A donor who gives money in the

hope of unspecified future assistance does not agree to

exchange payments for actions. No bribe thus occurs

if the elected official later does something that bene-

fits the donor.” United States v. Terry, 707 F.3d 607,

613 (6th Cir. 2013), cert. denied, 134 S. Ct. 1490 (2014).

Instead, “{i]t is the corrupt agreement,” made at the

time of the contribution, “that transforms the ex-

change from a First Amendment protected campaign

contribution and a subsequent [action] by a grateful

[official] into an unprotected crime.” United States v.

Siegelman, 640 F.3d 1159, 1173 n.21 (.lth Cir. 2011),

cert. denied, 132 S. Ct. 2711, and 132 S. Ct. 2712

(2012); see Ring, 706 F.3d at 468 (“It is this mens rea

element that distinguishes criminal corruption from

commonplace political and business activities.”).

The presence of a quid pro quo distinguishes un-

lawful bribery from petitioner’s real and hypothetical

examples (Pet. 27-29) of benefits conferred on political

contributors. Petitioner also observes (Pet. 28) that

some fundraising events could be characterized as

explicit exchanges of contributions for “access” to

candidates at the events themselves. But those events

do not involve “official action” because the participat-

ing officials are not acting in their official capacities

and are not seeking to influence the disposition of

government matters. Those distinctions are critical.

It is perfectly appropriate—indeed, protected by the

27

First Amendment—for a candidate to host a fundrais-

er that costs $1000 to attend. But petitioner goes

badly astray when he asserts (Pet. 14) that this

Court’s decisions establish “a fundamental constitu-

tional right” to demand such a contribution as the

price of an official government meeting—much less to

auction off influence over government matters.

In a corruption case involving campaign contribu-

tions, the instructions should “carefully focus the

jury’s attention on the difference between lawful polit-

ical contributions and unlawful extortionate payments

and bribes” to ensure that the jury does not infer a

quid pro quo merely because an elected official took

actions favorable to a contributor. United States v.

Biaggi, 909 F.2d 662, 695 (2d Cir. 1990), cert. denied,

499 U.S. 904 (1991); cf. McCormick v. United States,

500 U.S. 257, 271-273 (1991). But this case raises no

such concern: The charged payoffs were personal

loans and luxury goods, not campaign contributions.

And even more to the point, petitioner no longer chal-

lenges the jury’s finding that his arrangement with

Williams was a quid pro quo, entered into corruptly, in

bad faith, and with intent to defraud. Pet. App. 74a-

79a & n.23. This case is not about “ingratiation and

access.”

e. Petitioner and his amici do not contend that pol-

iticians routinely sell their influence over government

matters. Nor does petitioner suggest that construing

the Hobbs Act and the honest-services statute to cov-

er such conduct raises any concern about the rule of

lenity, federalism, or vagueness. Cf. Pet. 15-17. In-

deed, petitioner has consistently conceded that “the

use of one’s office to make or influence governmental

decisions” is an “official act.” C.A. App. 5136 (empha-

28

sis added); Pet. C.A. Br. 28 (similar). But that is pre-

cisely the rule the court of appeals applied, holding

after a careful review of the record that petitioner was

properly convicted because he “use[d] the power of his

office to influence governmental decisions.” Pet. App.

71a; see id. at 73a (petitioner sought to “influence the

work of state university researchers”); id. at 74a (peti-

tioner “used his position as Governor to influence” the

state health plan). Petitioner’s factbound contention

that the court departed from that standard in apply-

ing it to this case ignores the trial record and the

deference due to the jury’s verdict. It does not war-

rant this Court’s review.

2. Petitioner also contends (Pet. 30-36) that the

district court’s voir dire on pretrial publicity violated

the Sixth Amendment. That argument rests on a

distortion of the jury-selection process.

a. During voir dire, the district court asked pro-

spective jurors to stand if they had “read, heard, or

seen something” about the case. Pet. App. 160a. The

court then asked the standing jurors to sit if they

could put aside what they had heard and decide the

case based on the evidence. /bid. Petitioner attacks

the voir dire as if that exchange were the only meas-

ure the court took to identify jurors biased by pretrial

publicity. But as the court of appeals explained, the

district court “did a good deal more.” /d. at 28a.

The process began with a questionnaire distributed

to 650 prospective jurors. That questionnaire includ-

ed nine questions about media consumption and four

questions about case-specific publicity. C.A. App. 584-

585, 592-593. Among other things, prospective jurors

were asked which news sources they watched or read;

whether they had “seen, heard or read anything about

29

this case”; and “(hjow closely” they had followed news

about the case. /d. at 584, 592. They were also asked

to identify the sources from which they had heard

about the case and to state whether they had “ex-

pressed an opinion about this case or about those

involved.” /d. at 593.

Some potential jurors were eliminated based on

their questionnaires. Petitioner asserted that the

district court was required to individually question

every one of the remaining 142 jurors who had heard

anything about the case. Pet. App. 159a; see id. at

15la-154a (petitioner’s 16 proposed questions). The

court declined to do so. /d. at 159a-160a. But it did

not rely on collective questioning alone. Instead, after

asking the “general question” described above, the

court invited petitioner’s counsel to identify any “spe-

cific folks who we need to look at specific responses”

to additional questions. Jd. at 160a-161a; see id. at

160a (advising the venire that questioning on publicity

“{wa]s going to take a while”).

The district court then “brought to the bench each

juror that [petitioner’s] counsel identified as cause for

concern and questioned each about his or her opinion

of the case and ability to remain impartial,” ultimately

excusing two of the eight jurors on its own motion.

Pet. App. 99a-100a; see id. at 160a-170a. When the

court asked whether petitioner’s counsel wished to

question “[aJnybody else,” counsel responded: “Not

on publicity.” Jd. at 172a.

Accordingly, although the district court declined to

individually question every member of the panel who

had heard something about the case, it gave petitioner

the opportunity to identify “any specific veniremen”

for further inquiry based on their questionnaires—

30

which revealed whether and how they had followed

news about the case. Pet. App. 30a."" The court of

appeals correctly concluded that this procedure fell

comfortably within the “wide discretion granted to the

trial court in conducting voir dire in the area of pre-

trial publicity.” Mu’Min v. Virginia, 500 U.S. 415,

427 (1991). And the jurors who were seated had only

limited exposure to publicity: A majority had either

seen nothing about the case or followed it “[nJot at

all”; only one had followed it even “{slomewhat close-

ly.” Pet. C.A. Supp. App. 104, 131, 185, 239, 266, 320,

347, 374, 401, 428, 455, 482.

b. Petitioner contends (Pet. 32) that he is entitled

to a new trial because the district court did not ask all

prospective jurors whether they had formed opinions

about the case. But the Constitution does not require

exclusion of jurors who have such views. Indeed,

“searcely any of those best qualified to serve as jurors

will not have formed some impression or opinion as to

the merits of [a high-profile] case.” Jrvin v. Dowd,

366 U.S. 717, 722 (1961). The relevant question is not

whether the members of the venire have views, but

rather whether they have “such fixed opinions that

they could not judge impartially the guilt of the de-

fendant.” Mu’Min, 500 U.S. at 430 (citation omitted).

” Petitioner erroneously asserts (Pet. 31 n.3) that the district

court “refused to question one juror” identified by his counsel.

Petitioner’s counsel asked that Juror 455 be questioned because of

a particular answer on her questionnaire. Pet. App. 16la. When

Juror 455 came to the bench, the government noted that counsel

had been mistaken about that answer. /d. at 164a. The court did

not refuse to question the juror; instead, it appears that petition-

er’s counsel withdrew the request. Ibid.

31

Asking all jurors whether they have formed any

opinion is one permissible way to inquire into their

impartiality. But the method employed by the district

court—a detailed questionnaire, followed by collective

questioning, followed by the opportunity for individu-

alized questioning of specific jurors identified by the

parties—is another. And the selection of the proce-

dure most appropriate to the circumstances of a par-

ticular case is a matter fur the district court, which is

in a far better position to determine the best ap-

proach. Even in those rare cases where this Court has

held that a particular isswe “must be ‘covered’ by the

questioning of the trial court,” it has been “careful not

to specify the particulars by which this could be done.”

Mu’Min, 500 U.S. at 431; see, e.g., Ham v. South Car-

olina, 409 U.S. 524, 527 (1973). Petitioner’s insistence

that the Sixth Amendment mandates a specific ques-

tion is inconsistent with the broad deference to trial

judges required by this Court’s decisions."

c. Finally, petitioner errs in contending (Pet.

33-35) that the court of appeals departed from deci-

sions by this Court and other circuits by declining to

'' Petitioner errs in asserting (Pet. 32) that other courts have

“required” his preferred question. Two of the three decisions he

cites rejected challenges to voir dire. United States v. Rahman,

189 F.3d 88, 121 (2d Cir.), cert. denied, 528 U.S. 982 (1999), and 528

U.S. 1094 (2000); Pruett v. Norris, 153 F.3d 579, 587 (8th Cir.

1998). In the third, the district court failed to ask any questions

about publicity. United States v. Dellinger, 472 F.2d 340, 374-375

(7th Cir. 1972), cert. denied, 410 U.S. 970 (1973). None of those

decisions held that a particular question is constitutionally re-

quired. Indeed, the Second Circuit “appears never to have re-

versed a conviction for the failure to ask a particular question.”

United States v. Lawes, 292 F.3d 123, 129 (2002).

32

require individual questioning of every prospective

juror who had any exposure to publicity.

This Court has never imposed such a rigid rule.

Mu’Min upheld a voir dire where jurors were ques-

tioned in panels, and the Court rejected an approach

that “would require that each potential juror be inter-

rogated individually.” 500 U.S. at 425. In Skilling v.

United States, 561 U.S. 358 (2010), this Court ap-

proved a voir dire that included individual question-

ing, but it did not imply that such questioning is al-

ways required. Instead, the Court reiterated that

“{njo hard-and-fast formula dictates the necessary

depth or breadth of voir dire.” Id. at 386.

Petitioner’s claim of a circuit split is equally un-

founded. Some of the decisions he cites (Pet. 33-35)

indicated that individualized questioning is preferred,

relying on a guideline promulgated by the American

Bar Association (ABA). Patriarca v. United States,

402 F.2d 314, 318 (1st Cir. 1968), cert. denied, 393 U.S.

1022 (1969); Silverthorne v. United States, 400 F.2d

627, 639-640 & n.13 (9th Cir. 1968). But those deci-

sions did not purport to hoid that such questioning is

constitutionally required. See Mu’Min, 500 U.S. at

427. And any such holding would not have survived

Mu'Min, which emphasized the deference owed to

trial courts and declined to constitutionalize a related

requirement from the ABA guideline. /d. at 430.

Petitioner’s remaining cases involved procedures

far more perfunctory than those employed here. He

relies primarily on United States v. Pratt, 728 F.3d

463, 471 (5th Cir. 2013), cert. denied, 134 S. Ct. 1328

(2014), quoting that decision’s statement that “merely

asking potential jurors to raise their hands if they

could not be impartial was not adequate voir dire in

33

light of significant pretrial publicity.” But Pratt was

describing an earlier case where the district court had

asked only that “single, group question”; the court had

“asked no follow-up questions and made no specific

inquiries of any individual juror.” Jbid. (emphasis

added). The district court here “did a good deal

more,” Pet. App. 28a, and petitioner cites no decision

finding a comparable voir dire inadequate.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DONALD B. VERRILLI, JR.

Solicitor General

LESLIE R. CALDWELL

Assistant Attorney General

SONJA M. RALSTON

Attorney

DECEMBER 2015

2 See Jordan v. Lipprian, 763 F.2d 1265, 128! (11th Cir. 1985)

(no inquiry after the relevant publicity); United States v. Rhodes,

556 F.2d 599, 600-601 (1st Cir. 1977) (single group question about a

highly prejudicial article published the day of trial); Dellinger, 472

F.2d at 367-376 (no inquiry into publicity). Petiticnuer’s other two

cases are even further afield. Waldorf v. Shuta, 3 F.3d 705 (3d Cir.

1993), was a civil case involving jurors who read and discussed a

newspaper article during trial. /d. at 707, 713. And United States

v. Denno, 313 F.2d 364 (2d Cir.) (en banc), cert. denied, 372 U.S

978 (1963), granted relief not because of any defect in voir dire, but

because the bias in the relevant county was so great that “an

impartial jury could not be obtained” by any procedure. /d. at 373.