ROBERT F. MCDONNELL, PETITIONER
April 27, 2016
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
former Virginia Governor Robert McDonnell, and his wife,
Maureen McDonnell, were indicted by the Federal Government on
honest services fraud and Hobbs Act extortion charges related
to their acceptance of $175, 000 in loans, gifts, and other
benefits from Virginia businessman Jonnie Williams, while
Governor McDonnell was in office. Williams was the chief
executive officer of Star Scientific, a Virginia-based
company that had developed Anatabloc, a nutritional
supplement made from anatabine, a compound found in tobacco.
Star Scientific hoped that Virginia's public universities
would perform research studies on anatabine, and Williams
wanted Governor McDonnell's assistance in obtaining those
convict the McDonnells, the Government was required to show
that Governor McDonnell committed (or agreed to commit) an
"official act" in exchange for the loans and gifts.
An "official act" is defined as "any decision
or action on any question, matter, cause, suit, proceeding or
controversy, which may at any time be pending, or which may
by law be brought before any public official, in such
official's official capacity, or in such official's
place of trust or profit." 18 U.S.C. §201(a)(3).
According to the Government, Governor McDonnell committed at
least five "official acts, " including
"arranging meetings" for Williams with other
Virginia officials to discuss Star Scientific's product,
"hosting" events for Star Scientific at the
Governor's Mansion, and "contacting other government
officials" concerning the research studies.
case was tried before a jury. The District Court instructed
the jury that "official act" encompasses "acts
that a public official customarily performs, " including
acts "in furtherance of longer-term goals" or
"in a series of steps to exercise influence or achieve
an end." Supp. App. 69-70. Governor McDonnell requested
that the court further instruct the jury that "merely
arranging a meeting, attending an event, hosting a reception,
or making a speech are not, standing alone, 'official
acts, '" but the District Court declined to give
that instruction. 792 F.3d 478, 513 (internal quotation marks
omitted). The jury convicted Governor McDonnell.
McDonnell moved to vacate his convictions on the ground that
the definition of "official act" in the jury
instructions was erroneous. He also moved for acquittal,
arguing that there was insufficient evidence to convict him,
and that the Hobbs Act and honest services statute were
unconstitutionally vague. The District Court denied the
motions, and the Fourth Circuit affirmed.
1. An "official act" is a decision or action on a
"question, matter, cause, suit, proceeding or
controversy." That question or matter must involve a
formal exercise of governmental power, and must also be
something specific and focused that is "pending" or
"may by law be brought" before a public official.
To qualify as an "official act, " the public
official must make a decision or take an action on that
question or matter, or agree to do so. Setting up a meeting,
talking to another official, or organizing an event-without
more-does not fit that definition of "official
act." Pp. 13-24.
(a) The Government argues that the term "official
act" encompasses nearly any activity by a public
official concerning any subject, including a broad policy
issue such as Virginia economic development. Governor
McDonnell, in contrast, contends that statutory context
compels a more circumscribed reading. Taking into account
text, precedent, and constitutional concerns, the Court
rejects the Government's reading and adopts a more
bounded interpretation of "official act." Pp.
(b) Section 201(a)(3) sets forth two requirements for an
"official act." First, the Government must identify
a "question, matter, cause, suit, proceeding or
controversy" that "may at any time be pending"
or "may by law be brought" before a public
official. Second, the Government must prove that the public
official made a decision or took an action "on"
that "question, matter, cause, suit, proceeding or
controversy, " or agreed to do so. Pp. 14-22.
(1) The first inquiry is whether a typical meeting, call, or
event is itself a "question, matter, cause, suit,
proceeding or controversy." The terms "cause,
" "suit, " "proceeding, " and
"controversy" connote a formal exercise of
governmental power, such as a lawsuit, hearing, or
administrative determination. Although it may be difficult to
define the precise reach of those terms, a typical meeting,
call, or event does not qualify. "Question" and
"matter" could be defined more broadly, but under
the familiar interpretive canon noscitur a sociis, a
"word is known by the company it keeps."
Jarecki v. G. D. Searle & Co., 367 U.S. 303,
307. Because a typical meeting, call, or event is not of the
same stripe as a lawsuit before a court, a determination
before an agency, or a hearing before a committee, it does
not count as a "question" or "matter"
under §201(a)(3). That more limited reading also
comports with the presumption "that statutory language
is not superfluous." Arlington Central School Dist.
Bd. of Ed. v. Murphy, 548 U.S. 291, 299, n. 1. Pp.
(2) Because a typical meeting, call, or event is not itself a
question or matter, the next step is to determine whether
arranging a meeting, contacting another official, or hosting
an event may qualify as a "decision or action"
on a different question or matter. That first
requires the Court to establish what counts as a question or
matter in this case.
Section 201(a)(3) states that the question or matter must be
"pending" or "may by law be brought"
before "any public official." "Pending"
and "may by law be brought" suggest something that
is relatively circumscribed-the kind of thing that can be put
on an agenda, tracked for progress, and then checked off as
complete. "May by law be brought" conveys
something within the specific duties of an official's
position. Although the District Court determined that the
relevant matter in this case could be considered at a much
higher level of generality as "Virginia business and
economic development, " Supp. App. 88, the pertinent
matter must instead be more focused and concrete.
The Fourth Circuit identified at least three such questions
or matters: (1) whether researchers at Virginia's state
universities would initiate a study of Anatabloc; (2) whether
Virginia's Tobacco Commission would allocate grant money
for studying anatabine; and (3) whether Virginia's health
plan for state employees would cover Anatabloc. The Court
agrees that those qualify as questions or matters under
§201(a)(3). Pp. 16-18.
(3)The question remains whether merely setting up a meeting,
hosting an event, or calling another official qualifies as a
decision or action on any of those three questions or
matters. It is apparent from United States v. Sun-Diamond
Growers of Col., 526 U.S. 398, that the answer is no.
Something more is required: §201(a)(3) specifies that
the public official must make a decision or take an action
on the question or matter, or agree to do so.
For example, a decision or action to initiate a research
study would qualify as an "official act." A public
official may also make a decision or take an action by using
his official position to exert pressure on another
official to perform an "official act, " or by using
his official position to provide advice to another official,
knowing or intending that such advice will form the basis for
an "official act" by another official. A public
official is not required to actually make a decision or take
an action on a "question, matter, cause, suit,
proceeding or controversy"; it is enough that he agree
to do so. Setting up a meeting, hosting an event, or calling
an official (or agreeing to do so) merely to talk about a
research study or to gather additional information, however,
does not qualify as a decision or action on the pending
question of whether to initiate the study. Pp. 18-22.
(c) The Government's expansive interpretation of
"official act" would raise significant
constitutional concerns. Conscientious public officials
arrange meetings for constituents, contact other officials on
their behalf, and include them in events all the time.
Representative government assumes that public officials will
hear from their constituents and act appropriately on their
concerns. The Government's position could cast a pall of
potential prosecution over these relationships. This concern
is substantial, as recognized by White House counsel from
every administration from that of President Reagan to
President Obama, as well as two bipartisan groups of former
state attorneys general. The Government's interpretation
also raises due process and federalism concerns. Pp. 22-24.
2. Given the Court's interpretation of "official
act, " the District Court's jury instructions were
erroneous, and the jury may have convicted Governor McDonnell
for conduct that is not unlawful. Because the errors in the
jury instructions are not harmless beyond a reasonable doubt,
the Court vacates Governor McDonnell's convictions. Pp.
(a) The jury instructions lacked important qualifications,
rendering them significantly overinclusive. First, they did
not adequately explain to the jury how to identify the
pertinent "question, matter, cause, suit, proceeding or
controversy." It is possible the jury thought that a
typical meeting, call, or event was itself a "question,
matter, cause, suit, proceeding or controversy." If so,
the jury could have convicted Governor McDonnell without
finding that he committed or agreed to commit an
"official act, " as properly defined.
Second, the instructions did not inform the jury that the
"question, matter, cause, suit, proceeding or
controversy" must be more specific and focused than a
broad policy objective. As a result, the jury could have
thought that the relevant "question, matter, cause,
suit, proceeding or controversy" was something as
nebulous as Virginia economic development, and convicted
Governor McDonnell on that basis.
Third, the District Court did not instruct the jury that to
convict Governor McDonnell, it had to find that he made a
decision or took an action-or agreed to do so-on the
identified "question, matter, cause, suit, proceeding or
controversy, " as properly defined. At trial, several of
Governor McDonnell's subordinates testified that he asked
them to attend a meeting, not that he expected them to do
anything other than that. If that testimony reflects what
Governor McDonnell agreed to do at the time he accepted the
loans and gifts from Williams, then he did not agree to make
a decision or take an action on any of the three questions or
matters described by the Fourth Circuit. Pp. 24-27.
(b) Governor McDonnell raises two additional claims. First,
he argues that the honest services statute and the Hobbs Act
are unconstitutionally vague. The Court rejects that claim.
For purposes of this case, the parties defined those statutes
with reference to §201 of the federal bribery statute.
Because the Court interprets the term "official
act" in §201(a)(3) in a way that avoids the
vagueness concerns raised by Governor McDonnell, it declines
to invalidate those statutes under the facts here. Second,
Governor McDonnell argues that there is insufficient evidence
that he committed an "official act, " or agreed to
do so. Because the parties have not had an opportunity to
address that question in light of the Court's
interpretation of "official act, " the Court leaves
it for the Court of Appeals to resolve in the first instance.
792 F.3d 478, vacated and remanded.
Roberts Chief Justice
2014, the Federal Government indicted former Virginia
Governor Robert McDonnell and his wife, Maureen McDonnell, on
bribery charges. The charges related to the acceptance by the
McDonnells of $175, 000 in loans, gifts, and other benefits
from Virginia businessman Jonnie Williams, while Governor
McDonnell was in office. Williams was the chief executive
officer of Star Scientific, a Virginia-based company that had
developed a nutritional supplement made from anatabine, a
compound found in tobacco. Star Scientific hoped that
Virginia's public universities would perform research
studies on anatabine, and Williams wanted Governor
McDonnell's assistance in obtaining those studies.
convict the McDonnells of bribery, the Government was
required to show that Governor McDonnell committed (or agreed
to commit) an "official act" in exchange for the
loans and gifts. The parties did not agree, however, on what
counts as an "official act." The Government alleged
in the indictment, and maintains on appeal, that Governor
McDonnell committed at least five "official acts."
Those acts included "arranging meetings" for
Williams with other Virginia officials to discuss Star
Scientific's product, "hosting" events for Star
Scientific at the Governor's Mansion, and
"contacting other government officials" concerning
studies of anatabine. Supp. App. 47-48. The Government also
argued more broadly that these activities constituted
"official action" because they related to Virginia
business development, a priority of Governor McDonnell's
administration. Governor McDonnell contends that merely
setting up a meeting, hosting an event, or contacting an
official-without more-does not count as an "official
trial, the District Court instructed the jury according to
the Government's broad understanding of what constitutes
an "official act, " and the jury convicted both
Governor and Mrs. McDonnell on the bribery charges. The
Fourth Circuit affirmed Governor McDonnell's conviction,
and we granted review to clarify the meaning of
November 3, 2009, petitioner Robert McDonnell was elected the
71st Governor of Virginia. His campaign slogan was
"Bob's for Jobs, " and his focus in office was
on promoting business in Virginia. As Governor, McDonnell
spoke about economic development in Virginia "on a daily
basis" and attended numerous "events, ribbon
cuttings, " and "plant facility openings."
App. 4093, 5241. He also referred thousands of constituents
to meetings with members of his staff and other government
officials. According to longtime staffers, Governor McDonnell
likely had more events at the Virginia Governor's Mansion
to promote Virginia business than had occurred in "any
other administration." Id., at 4093.
case concerns Governor McDonnell's interactions with one
of his constituents, Virginia businessman Jonnie Williams.
Williams was the CEO of Star Scientific, a Virginia-based
company that developed and marketed Anatabloc, a nutritional
supplement made from anata-bine, a compound found in tobacco.
Star Scientific hoped to obtain Food and Drug Administration
approval of Anatabloc as an anti-inflammatory drug. An
important step in securing that approval was initiating
independent research studies on the health benefits of
anatabine. Star Scientific hoped Virginia's public
universities would undertake such studies, pursuant to a
grant from Virginia's Tobacco Commission.
McDonnell first met Williams in 2009, when Williams offered
McDonnell transportation on his private airplane to assist
with McDonnell's election campaign. Shortly after the
election, Williams had dinner with Governor and Mrs.
McDonnell at a restaurant in New York. The conversation
turned to Mrs. McDonnell's search for a dress for the
inauguration, which led Williams to offer to purchase a gown
for her. Governor McDonnell's counsel later instructed
Williams not to buy the dress, and Mrs. McDonnell told
Williams that she would take a rain check. Id., at
October 2010, Governor McDonnell and Williams met again on
Williams's plane. During the flight, Williams told
Governor McDonnell that he "needed his help" moving
forward on the research studies at Virginia's public
universities, and he asked to be introduced to the person
that he "needed to talk to." Id., at
2210-2211. Governor McDonnell agreed to introduce Williams to
Dr. William Hazel, Virginia's Secretary of Health and
Human Resources. Williams met with Dr. Hazel the following
month, but the meeting was unfruitful; Dr. Hazel was
skeptical of the science behind Anatabloc and did not assist
Williams in obtaining the studies. Id., at
months later, Governor McDonnell's wife, Maureen
McDonnell, offered to seat Williams next to the Governor at a
political rally. Shortly before the event, Williams took Mrs.
McDonnell on a shopping trip and bought her $20, 000 worth of
designer clothing. The McDonnells later had Williams over for
dinner at the Governor's Mansion, where they discussed
research studies on Anatabloc. Id., at 6560.
days after that dinner, Williams had an article about Star
Scientific's research e-mailed to Mrs. McDonnell, which
she forwarded to her husband. Less than an hour later,
Governor McDonnell texted his sister to discuss the financial
situation of certain rental properties they owned in Virginia