McDonnell v. United States

          Argued April 27, 2016

         ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

         Petitioner, 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 studies.

         To 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.

         The 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.

         Governor 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.

         Held:

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. 13-14.

(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. 14-16.

(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. 24-28.

(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. Pp. 27-28.

792 F.3d 478, vacated and remanded.

          OPINION

          Roberts Chief Justice

         In 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.

         To 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 act."

         At 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 "official act."

         I

         A

         On 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.

         This 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.

         Governor 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 2203-2209.

         In 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 2211-2217, 3738-3749.

         Six 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.

         Two 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 Beach. ...