Maureen McDonnell Prosecution Appeal Response

8/20/2019 Maureen McDonnell Prosecution Appeal Response

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I N THE U NITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4116

U NITED STATES OF AMERICA ,

Appellee,

v.

MAUREEN G. MCDONNELL,

Appellant .

Appeal from the United States District Courtfor the Eastern District of Virginia

at RichmondThe Honorable James R. Spencer, Senior United States District Judge

SUPPLEMENTAL BRIEF OF THE U NITED STATES

Dana J. BoenteUnited States Attorney

Richard D. CookeRyan S. FaulconerMichael S. Dry

Jessica D. AberAssistant United States Attorneys600 East Main Street, Suite 1800Richmond Virginia 23219804-819-5400

Raymond HulserChief, Public Integrity Section

David V. Harbach, IIU.S. Department of JusticeCriminal Division

Public Integrity Section1400 New York Ave., N.W.,Ste. 12100Washington, D.C. 20005202-514-1412

Attorneys for the United States of America

Appeal: 15-4116 Doc: 47 Filed: 09/09/2015 Pg: 1 of 39


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Table of Contents Page

Introduction………………………………………………………………………...1

Statement of the Case…………………………………………………...………….2

Argument…………………………………….……………………………………11

I. Defendant’s vagueness argument fails for the samereasons her husband’s did…..........………………………………….11

II. Defendant’s conspiracy convictions do not require proof that she knew her conduct violated the law……….…………..18

III. Defendant incorrectly claims that this Court’s opinionin her husband’s appeal did not discuss the evidencesurrounding the healthcare leaders reception, and defendant’srelated attempt to import a unanimity requirement intothe official act standard is misplaced…..…………………………....23

IV. Defendant’s federalism arguments are meritless and addnothing new to the issues addressed in her husband’s appeal…….…28

V. Defendant has waived any reliance on her midtrialseverance motion as an independent basis for relief,and defendant’s severance arguments are weaker thanher husband’s now-rejected ones in any event………………………31

Conclusion………………………………………………………………………...33

Certificate of Compliance…………………………………………………………34

Certificate of Service……………………………………………………………...35



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Table of Authorities

Page

United States Supreme Court Bryan v. United States, 524 U.S. 184 (1998)……………………………………..16Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010)……………...14, 30

Evans v. United States, 504 U.S. 255 (1992)……………………………………..16Gregory v. Ashcroft , 501 U.S. 452 (1991)………………………………………...28Griffin v. United States, 502 U.S. 46 (1991)…………………………………..….27

Holder v. Humanitarian Law Project , 561 U.S. 1 (2010)……………..………….11 Ingram v. United States, 360 U.S. 672 (1959)………………………..…………..18 McFadden v. United States, 135 S. Ct. 2298 (2015)………..…………….15, 16, 19 Puckett v. United States, 556 U.S. 129 (2009)……………………………………22

Skilling v. United States, 561 U.S. 358 (2010)…………………………..……11, 15Turner v. United States, 396 U.S. 398 (1970)…………………………………….27United States v. Feola, 420 U.S. 671 (1975)………………………….……....18, 19United States v. Williams, 553 U.S. 285 (2008)…………………………………..16

United States Courts of Appeals Hedrick v. True, 443 F.3d 342, 356 (4th Cir. 2006)……………………...……….27United States v. Blagojevich, 794 F.3d 729 (7th Cir. 2015)…………...………….27 United States v. Brooks, 681 F.3d 678 (5th Cir. 2012)……………………..…….18United States v. Burgos, 94 F.3d 849 (4th Cir. 1996)……………………...…19, 20United States v. Carmichael, 232 F.3d 510 (6th Cir. 2000)………………………16United States v. Deffenbaugh, 709 F.3d 266 (4th Cir. 2013)……………………..18 United States v. Lam, 677 F.3d 190, 200 (4th Cir. 2012)…………………….….. 22United States v. Lewis, 780 F.2d 1140 (4th Cir. 1986)…………………………....21United States v. McDonnell, 792 F.3d 478 (4th Cir. 2015)…………..……… passimUnited States v. Parker , 790 F.3d 550 (4th Cir. 2015)………………………..…..27United States v. Parodi, 703 F.2d 768 (4th Cir. 1983)……...…………………….32United States v. Ramos-Cruz, 667 F.3d 487 (4th Cir. 2012)……………………...23United States v. Robinson, 627 F.3d 941 (4th Cir. 2010)………………...……….27

United States v. Rosen, 716 F.3d 691 (2d Cir. 2013)………………….………….11United States v. Royal, 731 F.3d 333 (4th Cir. 2013)……………………………..21United States v. Urciuoli, 513 F.3d 290 (1st Cir. 2008)………………….……….27

State CasesFord v. Commonweath, 177 Va. 889 (1941)…………………………………..….29



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Secondary Sources2A Federal Practice & Procedure (4th ed. 2015)………………………………….22Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law (2d ed. 1986)………….19

Statutes18 U.S.C. § 201……………………………………………………………….17, 29Va. Code § 18.2-439………………………………………………………………29Va. Code § 2.2-3103(9)………………………………………………..………….30



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Introduction

Following a joint trial at which they presented a unified defense, defendant

Maureen G. McDonnell and her husband, the former governor of Virginia, were

convicted for carrying out a years-long bribery conspiracy together. After this

Court affirmed Mr. McDonnell’s convictions, see United States v. McDonnell, 792

F.3d 478 (4th Cir. 2015), this Court ordered the parties in this appeal to file

supplemental briefs addressing the impact of the McDonnell opinion on

defendant’s case. See Doc. No. 41.

In her supplemental brief, defendant concedes that this Court’s opinion

rejecting her husband’s appeal controls her challenges to the jury instructions’

definition of official act and quid pro quo, the district court’s voir dire, the pretrial

motion to sever the McDonnells’ trials, and the district court’s evidentiary rulings.

See Def. Supp’l Br. (“DSB”) at 7-9.

But defendant argues that this Court’s McDonnell opinion does not foreclose

her arguments on five points. First, she claims that her constitutional vagueness

argument is different from her husband’s because she was not a public official and

did not know her conduct was unlawful. Id. at 10-19. Second, she claims that her

conspiracy convictions required proof that she knew the illegality of her conduct

even if vagueness doctrine does not require such proof. Id. at 19-25. Third, she

contends that the Court failed to address one of the official actions her husband



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allegedly took on Williams’s behalf. Id. at 25-29. Fourth, she claims that her

federalism arguments are different from those her husband previously raised

unsuccessfully. Id. at 29-32. And fifth, she argues that she has a separate, still-

viable severance argument. Id. at 8-9.

Each of these arguments fails. They either repackage claims that this Court

already properly rejected or rely on new claims that lack merit or have been

waived. Defendant’s arguments depict her as an unwitting and hapless participant

in the bribery scheme, but overwhelming evidence showed she was a full player in

it. Like her husband, defendant knew exactly what Williams wanted—state

government assistance for his product; like her husband, defendant directly

benefitted from Williams’s payoffs that were closely timed with the McDonnells’

giving him that assistance; and like her husband, defendant helped conceal the

scheme. Although the United States set forth a full recitation of the evidence at

trial in its response brief, Doc. No. 28 at 2-33, we briefly recap here key evidence

showing defendant’s full knowledge and participation in the bribery scheme.

Statement of the Case

In the opinion affirming Mr. McDonnell’s convictions, this Court explained

that “since at least their shared cross-country flight in October 2010, [Mr.

McDonnell] knew what [Jonnie] Williams wanted for his company [Star

Scientific]: independent studies of Anatabloc conducted by Virginia universities.”



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McDonnell, 792 F.3d at 519. Defendant knew what Williams wanted too. After

Williams spent approximately $20,000 on defendant during a New York shopping

spree, she invited Williams to join her and her husband at a dinner at the

governor’s mansion. A2226; McDonnell, 792 F.3d at 487-88. During that dinner,

like the October 2010 flight, “the discussion . . . centered on Anatabloc and the

need for independent testing and studies.” McDonnell, 792 F.3d at 488. In

defendant’s presence, Mr. McDonnell told Williams that “he wanted to have

Anatabloc studies conducted within the Commonwealth’s borders.” Id.

Three days later, defendant solicited $65,000 from Williams, and three days

after that, Mr. McDonnell directed his assistant to forward an article about

Williams’s company to Dr. William Hazel, Mr. McDonnell’s secretary for health

and human services. Id. Less than a month after that, defendant traveled at

Williams’s expense to the Roskamp Institute in Florida, where she addressed the

audience at a Star-sponsored event and “invited the audience to the launch for

Anatabloc, which would be held at the Governor’s Mansion.” Id. at 489.

Less than three weeks after the Florida event, defendant received a letter

from Williams that once again reiterated his desire for state government assistance

from her husband. In that letter, Williams asked defendant’s husband “to initiate

the ‘Virginia study’ of Anatabloc at the Medical College of Virginia [at Virginia

Commonwealth University] and the University of Virginia School of Medicine.”



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Id. (quoting SA29). After she received the letter, defendant gave it to her husband,

who then gave it to Secretary Hazel. Id.; A6120-21.

Less than six weeks later, after driving Williams’s Ferrari home from a

weekend vacation at Williams’s lakehouse, defendant’s husband emailed Secretary

Hazel at 11:29 p.m. and directed him to send a deputy to a “briefing” the next

morning with defendant “on the Star Scientific anatablock [sic] trials planned in va

at vcu and uva.” SA80. Defendant attended that briefing the next day, as did one

of Secretary Hazel’s deputies. Defendant heard Williams reiterate his desires for

state government assistance; specifically, defendant heard Williams express his

desires for UVA and VCU to study Anatabloc, for state funding to pay for those

studies “by request of Gov.” through the Virginia Tobacco Commission, and for

Anatabloc to be included in state employees’ health plans. A2271, 3048-54;

McDonnell, 792 F.3d at 489-90. Immediately after that meeting and another one

that same day where Williams used defendant’s presence to try to help persuade a

VCU researcher to perform the studies, defendant asked Williams to purchase a

Rolex for her husband. A2272-73; McDonnell, 792 F.3d at 490. Before Williams

left, defendant scheduled the Anatabloc launch at the governor’s mansion on her

calendar for August 30, 2011. SA185.

As her husband’s staff—state employees—prepared for the Anatabloc

launch, defendant explained to one of them, the mansion director, that the event



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“was an event for Jonnie and for Anatabloc,” that its purpose “was to launch

Anatabloc,” and that it was designed to “encourag[e] universities to do research on

the product.” A3608; McDonnell, 792 F.3d at 516-17. Defendant’s understanding

was consistent with that of her husband, who had handwritten asterisks next to the

names of the UVA and VCU doctors, as well as key state officials, on the briefing

sheet for the event. SA107-08; A4123-24, 6649-50.

Both defendant and her husband attended the Anatabloc launch, which was

indeed designed to convince the university researchers to study Anatabloc. Each

place setting featured a sample of Anatabloc, the researchers received planning

grants from Star to prepare applications for funding to the Tobacco Commission,

and Mr. McDonnell “talked about his interest in a Virginia company doing this,

and his interest in the product,”—comments that were “generally supportive” of

Williams’s sought-after goals of receiving state assistance. McDonnell, 792 F.3d

at 490 (quoting A2284, 3927).

In early 2012, when Williams informed defendant that the studies with state

universities were proceeding slowly, defendant was “furious” and relayed her

husband’s message to Williams that the McDonnells “want[ed] the contact

information of the people that [Star] [was] dealing with at [UVA].” Id. at 491

(quoting A2308-09). Soon after that conversation, Mr. McDonnell called Williams



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on February 3, 2012, to discuss an ongoing negotiation for a $50,000 loan from

Williams to the McDonnells. Id.

That same day, one of Williams’s employees emailed defendant a list of

doctors whom Williams wanted to invite to a healthcare leaders reception at the

governor’s mansion scheduled for February 29, 2012. Id. Four days later, on

February 7, 2012, defendant emailed a revised list of invitees for the event to the

mansion director. Id. According to the mansion director, many of the names on

that list matched both the list sent by Star to defendant on February 3 and a

printout of attendees from the Anatabloc launch at the mansion the prior August.

A3620-26; SA139-45, 200-237. That printout was part of a longer list of doctors

in defendant’s possession that had both her and her husband’s handwriting on it,

including immediately adjacent to one another on a page referencing top UVA and

VCU officials. A3623-26; SA220.

The next morning, on February 8, 2012, the mansion director relayed to

another state official that the “First Lady and Governor were going over the list last

night for the healthcare industry event. The Governor wants to make sure ” that

“[h]ead officers at VCU/MCV, UVA” are invited. A3626-27; SA146; McDonnell,

792 F.3d at 492. The ultimate invitees to the event included Virginia state

university researchers whom Williams wanted to study Anatabloc. A2312-14,

3635-36, 3756. As this Court noted, “[t]he list of invitees for the event was revised



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to include Williams’ guests at the direction of [Mr. McDonnell] and [defendant].”

McDonnell, 792 F.3d at 518.

The next day—February 9, 2012—defendant forwarded an email with the

names of the UVA officials Star was trying to convince to initiate the studies to

Mr. McDonnell and Jacob Jasen Eige, Mr. McDonnell’s senior policy advisor.

McDonnell, 792 F.3d at 492. The subject line of the email was “FW: Anatabine

clinical studies—UVA, VCU, JHU.” Id. at 517. The day after that, defendant,

while riding with Mr. McDonnell, emailed Eige and stated, “Gov wants to know

why nothing has developed w studies” and “Gov wants to get this going w VCU

MCV.” Id. at 492, 517 (quoting SA154). Eige testified that he understood the

email to be a direction to “elicit some type of response from these two

universities.” Id. at 517 (quoting A3214). Six days later, Mr. McDonnell emailed

Eige in a similar fashion, asking him to “see me about anatabloc issues at VCU and

UVA.” Id. at 492 (quoting SA157). Eige described the circumstances surrounding

this email to Jerry Kilgore, Star’s lawyer, telling Kilgore: “I’ve been asked by the

Governor to call and put—you know, show support for this research, and I’m

just—I just don’t think we should be doing it.” Id. at 517 (quoting A4374).

Twelve days later, on the afternoon of the February 29 healthcare leaders

reception, Williams and Mr. McDonnell met privately to discuss a potential loan of

Star shares worth $187,000. Id. at 518. That evening, defendant and Mr.



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McDonnell attended the healthcare leaders event, and so did doctors Williams was

trying to convince to study his product. A2312-14, 3635-36, 3756. Taxpayers

funded the event. A3638-41; SA160-61. And Williams again made his pitch to

Secretary Hazel, who testified that he recalled Williams “talk[ing] about getting his

product tested.” A3763. As Hazel recounted, “I just said, ‘Jonnie, what do you

want from us?’” Id. According to Hazel, Williams responded, “I want help getting

my product tested.” Id. Put differently, “he wanted us to contact and get MCV

and UVA to do the studies.” A3764. Williams also spoke with a VCU researcher

at the event, who recalled that he and Williams “talked about potential studies with

the drug. He [Williams] was still saying, ‘Are you’ – ‘are you interested in doing

some studies?’” A4460.

At the healthcare leaders reception, while Mr. McDonnell was speaking to

the attendees, Williams also asked defendant to have Mr. McDonnell recognize Dr.

Paul Ladenson, a Star-affiliated doctor who had previously contacted a VCU

researcher to relay that “the Governor would like to sponsor these trials as

evidence of Virginia’s commitment to research and entrepreneurship.” A2336-37,

3096-97; SA51. After Williams asked defendant to have Mr. McDonnell

recognize Dr. Ladenson, defendant walked up to Mr. McDonnell and did so; the

jury saw a photo of defendant making this request at the reception. A2336-37.

After the event, Williams took defendant, Mr. McDonnell, Dr. Ladenson, and



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another doctor to dinner, where they discussed Anatabloc. McDonnell, 792 F.3d at

492, 518.

In the opinion affirming Mr. McDonnell’s convictions, this Court described

the events on and around the day of the February 29 healthcare leaders reception as

an example of “a close relationship between [Mr. McDonnell’s] official acts and

the money, loans, gifts, and favors provided by Williams” to the McDonnells—or,

put differently by this Court, an example of “a ‘quo’ [that] came on the heels of [a]

‘quid.’” Id. at 518.

Throughout the scheme, defendant, like her husband, concealed her

activities from the state researchers involved. See, e.g., A3120, 3356, 4322, 4462.

And like her husband, defendant structured her dealings with Williams to conceal

the scheme from voters. For example, defendant and her husband intentionally

structured the sale and repurchase of the Star Scientific stock they held in

defendant’s name to avoid SOEI reporting requirements—twice. SA190-91;

A3188-89.

Similarly, in February 2013, law enforcement interviewed defendant about

the money she and her husband had received from Williams; defendant falsely

stated that she had signed a written contract for the money loaned by Williams and

that she was making periodic payments on the loan. A4506, 4571. When asked

about the $15,000 check that the McDonnells had received from Williams and used



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to pay for their daughter Cailin’s wedding catering, she asked if law enforcement

had interviewed her children yet. A4506. Two hours after that interview was

scheduled to begin, Mr. McDonnell made a three-minute phone call to defendant’s

office line, then called the mansion residence phone. A4992-94. After those calls,

defendant exchanged phone calls and had an 11-minute conversation with her

daughter Cailin. A4994. After completing that call, defendant called but did not

speak to Williams. Id. The McDonnells had no phone contact with Williams after

that date. A4994-95.

In March 2013, within weeks of her false statements to law enforcement,

defendant packaged the dresses that Williams had given her in a box and returned

them to Williams with a note that attempted to make it appear the clothing had

been loaned rather than given to her. A2387-90. Williams testified that when he

saw the note, he had “a sinking feeling” and described the letter as “a fabrication.”

A2388. Williams explained that “these clothes were never intended to be returned

to me. I purchased these clothes for Maureen McDonnell. . . . These dresses were

never intended to be given back to my daughters.” A2573. After reading the

letter, Williams called an attorney, who sent someone to pick up the box. A2390.



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Argument

I. Defendant’s vagueness argument fails for the same reasons her

husband’s did.

Defendant argues that her vagueness challenge remains viable after this

Court’s decision in Mr. McDonnell’s appeal. She is wrong. Her vagueness

challenge is no different from her husband’s, which this Court already rejected

based on Supreme Court precedent that is binding for both cases. As the Supreme

Court has held, “A criminal defendant who participated in a bribery or kickback

scheme . . . cannot tenably complain about prosecution under [18 U.S.C.] § 1346

on vagueness grounds.” Skilling v. United States, 561 U.S. 358, 413 (2010).

Applying this ruling, this Court concluded in Mr. McDonnell’s appeal that, “[a]s

for his argument that the bribery laws should be void for vagueness, the Supreme

Court already rejected a challenge that the honest-services statute is

unconstitutionally vague as applied to bribery.” McDonnell, 792 F.3d at 509 n.19.

See also United States v. Rosen, 716 F.3d 691, 699-702 (2d Cir. 2013). This Court

also rejected the same vagueness challenge to the Hobbs Act counts: “[B]ecause

[Mr. McDonnell] has ‘engage[d] in some conduct that is clearly proscribed’ by the

Hobbs Act, he ‘cannot complain of the vagueness of the law as applied to the

conduct of others.’” McDonnell, 792 F.3d at 509 n.19 (quoting Holder v.

Humanitarian Law Project , 561 U.S. 1, 18-19 (2010) (internal quotation marks

omitted)).



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Defendant offers a series of arguments in which she seeks to distinguish this

Court’s ruling in McDonnell, but her arguments lack merit. Defendant’s main,

overarching contention is that her vagueness challenge is distinguishable from Mr.

McDonnell’s because she is bringing an as-applied vagueness challenge, focused

on the facts of her offense conduct, not Mr. McDonnell’s. Her argument continues

that she is not a public official and is less knowledgeable about the law than her

husband and coconspirator, a governor and former attorney general.

Defendant’s argument fails for multiple reasons. As an initial matter, her

vagueness argument, like her husband’s, is premised on the definition of “official

action” being unconstitutionally vague. But the official-action standard and the

facts satisfying it do not differ in the McDonnells’ cases, and hence this Court’s

rejection of the vagueness challenge in Mr. McDonnell’s case applies equally to

defendant’s. It has been uncontested throughout this case that both the substantive

counts and the conspiracy counts for both defendants depended on a quid pro quo

that exchanged Mr. McDonnell’s official acts for the cash and luxury goods from

Williams. Thus, the conspiracy jury instructions made clear that the conspiracy

involved Mr. McDonnell’s official acts, given that he (and not defendant) was a

public official:

Count One of the indictment … charges that a purpose ofthe conspiracy was for the defendants to secretly use

Robert McDonnell’s official position as Governor ofVirginia to enrich the defendants and their family



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members by soliciting and accepting payments, loans,gifts, and other things of value from Jonnie Williams, Sr.,and Star Scientific in exchange for Robert McDonnelland the Office of the Governor of Virginia performing

official actions on an as-needed basis as opportunitiesarose to legitimize, promote, and obtain research studiesfor Star Scientific products.

A7658 (emphases added); see also A7678. The jury instructions likewise required

the jury to rely on the McDonnells’ agreement to exchange Mr. McDonnell’s

official actions to find defendant guilty of the substantive counts. A7674-75.

Once this Court settled that the official-action standard was properly

satisfied in Mr. McDonnell’s case, without triggering a vagueness problem, it

follows necessarily that defendant’s case passes muster as well. Moreover,

although the law does not require a coconspirator’s participation in all aspects of a

conspiracy, A7663-64, as recounted above, defendant shared her husband’s corrupt

intent and bad faith, knew about the goal of the conspiracy, and knew about,

helped carry out, and pushed for many of the official acts in this case—all acts that

were closely timed around defendant and her husband corruptly and in bad faith

receiving cash and luxury goods from Williams in exchange. In short, there was

overwhelming evidence at trial that defendant and her husband both knew that

what Williams wanted—and what they agreed to exchange for Williams’

largesse—were government benefits (state university studies, state funding for

those studies, and inclusion of a product in a state benefit plan, as well as actions to



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further those ends) that satisfy any reasonable definition of official action. Cf.

Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 359 (2010) (“The

hallmark of corruption is the financial quid pro quo: dollars for political favors.”

(quotation omitted)), quoted in McDonnell, 792 F.3d at 513.

Defendant now points to her mens rea to avoid the conclusion that this Court

has already held that the official-action standard is not unconstitutionally vague as

applied to this case. In effect, defendant argues that bribery laws are

unconstitutionally vague when applied to non-officials like her unless those laws

are also interpreted to require that such non-officials knew their conduct was

unlawful. In other words, it is not enough in her view that the jury instructions in

this case defined “corruptly” as “having an improper motive or purpose” and that

“[a]n act is done corruptly if it is performed knowingly and dishonestly for a

wrongful purpose.” A7670. Likewise, it is not enough, defendant claims, that

defendant received the benefit of a good-faith instruction that “if a defendant

believed in good faith that he or she was acting properly, even if he or she was

mistaken in that belief, and even if others were injured by his or her conduct, there

would be no crime.” A7692. Nor is it enough, in defendant’s view, that her

honest-services convictions required proof of an “intent to defraud,” defined for

the jury as “the specific intent to deceive, for the purpose of depriving the public

and government of their right to a public official’s honest services.” A7672.



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Notably, neither Mr. McDonnell nor defendant challenged on appeal the

sufficiency of the evidence establishing their corrupt intent and bad faith, and the

evidence easily met those standards. Cf. McFadden v. United States, 135 S. Ct.

2298, 2304 n.1 (2015) (“concealment” and “evasive behavior” provide

circumstantial evidence of mens rea). But notwithstanding the mens rea

instructions given in this case and the evidence meeting them, defendant argues

that vagueness doctrine compels the even higher standard of proof that she had

knowledge of the law. This argument misconstrues the role of vagueness doctrine

and the mens rea governing the offenses in this case.

Vagueness doctrine “addresses concerns about (1) fair notice and (2)

arbitrary and discriminatory prosecutions.” Skilling, 561 U.S. at 412. This Court

has already held that the standards for defining an official act provide sufficient

notice as applied to the official action that formed the basis of the quid pro quo in

this case. No further, heightened mens rea is necessary to avert a vagueness

problem. Moreover, when the Supreme Court rejected a vagueness challenge for

bribery under honest-services law, the Supreme Court observed that “the statute’s

mens rea requirement further blunts any notice concern.” Id . (emphasis added).

By relying on the “statute’s” mens rea requirement—not a heightened mens rea

requirement imported as a supposed constitutional command via vagueness

doctrine—the Supreme Court has rejected defendant’s argument.



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At bottom, defendant’s fair-notice argument is that even though she acted in

bad faith and with corrupt intent, she did not know the details of the Hobbs Act and

honest-services law that this Court has held were violated in this case. But a

bribery defendant who acts in bad faith and with corrupt intent cannot claim as a

valid defense that she did not understand the law—just as a fraudster or bank

robber could not claim ignorance of the law as a defense after defrauding victims

or stealing from a bank. See, e.g., McFadden, 135 S. Ct. at 2304 (“ignorance of

the law is typically no defense to criminal prosecution” (citing Bryan v. United

States, 524 U.S. 184, 196 (1998))); Evans v. United States, 504 U.S. 255, 268

(1992) (“We hold today that the Government need only show that a public official

has obtained a payment to which he was not entitled, knowing that the payment

was made in return for official acts.”); United States v. Carmichael, 232 F.3d 510,

522 (6th Cir. 2000) (“To the extent [the defendant] is arguing that the district court

was required to instruct the jury that, in order to convict [him], it had to conclude

that [he] intended to violate the Hobbs Act, we reject that argument as unsupported

by the law.”).

In analyzing vagueness doctrine, the Supreme Court has observed that

“[c]lose cases can be imagined under virtually any statute. The problem that poses

is addressed, not by the doctrine of vagueness, but by the requirement of proof

beyond a reasonable doubt.” United States v. Williams, 553 U.S. 285, 306 (2008).



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But as this Court’s opinion rejecting Mr. McDonnell’s appeal made clear, this was

not a close case. And the requirement of proof beyond a reasonable doubt was

readily exceeded by overwhelming evidence at trial. See McDonnell, 792 F.3d at

516 (“Here, the Government exceeded its burden. It showed that [Mr. McDonnell]

did, in fact, use the power of his office to influence governmental decisions on

each of the three questions and matters” shown at trial—state university research

on Anatabloc, state funding for that research, and inclusion of Anatabloc in the

state employee health plan.). Likewise, the jury instructions readily enabled

defendants to argue what they described as their “critical defense” of good faith,

but the jury rejected that defense. Id. at 513-15 (noting Mr. McDonnell “was thus

free to argue that any ingratiation or access he provided Williams was entirely

proper. If the jury believed that, it would have had no choice but to acquit him.”).

In sum, the passages from this Court’s opinion in McDonnell and from the

Supreme Court’s opinion in Skilling quoted above establish that this Court and the

Supreme Court have rejected vagueness challenges to honest-services bribery

charges that satisfy 18 U.S.C. § 201(a)(3)’s standards, and by extension the same

applies to violations of the Hobbs Act that satisfy § 201(a)(3) as well. This Court

held that § 201(a)(3)’s standards were met in the McDonnells’ bribery scheme, and

defendant’s vagueness argument cannot be reconciled with those holdings.



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II. Defendant’s conspiracy convictions do not require proof that she knew

her conduct violated the law.

Defendant’s next contention is that even if vagueness doctrine does not

require proof that she knew her conduct was unlawful, the conspiracy counts

against her do impose such a higher mens rea. She notes that the United States

responded to this argument in one paragraph of its response brief, seemingly

arguing that a concise response must be an incorrect one. See DSB20. But as set

forth below, defendant fails to address the authority cited in that paragraph and the

other supporting arguments in the United States’ initial response brief.

First, defendant is mistaken that conspiracy law increases the mens rea for

an offense. As the United States noted in its response brief—while quoting the

Supreme Court—under conspiracy law, “[t]here need not, of course, be proof that

the conspirators were aware of the criminality of their objective”; they need only

know of and agree to the conspiratorial goal that is unlawful. Ingram v. United

States, 360 U.S. 672, 678 (1959); United States v. Feola, 420 U.S. 671, 686-87

(1975). See also United States v. Brooks, 681 F.3d 678, 699-700 (5th Cir. 2012)

(relying on Ingram and Feola to reject argument like defendant’s that conspiracy

charge increased mens rea required). Cf. United States v. Deffenbaugh, 709 F.3d

266, 272 (4th Cir. 2013) (“[T]he intent needed to violate [18 U.S.C.] § 371 does

not require the government to show that the conspirators knew that their conduct

would violate federal law, unless the underlying crime included such specific



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intent.” (citing Feola, 420 U.S. at 686)). Neither defendant’s reply brief nor her

supplemental brief mentions the Supreme Court’s controlling precedent in Ingram

and Feola.

Defendant appears to suggest that this Court adopted a rule at odds with

Ingram and Feola in an opinion addressing the standards governing drug

conspiracies, United States v. Burgos, 94 F.3d 849 (4th Cir. 1996) (en banc). But

despite Burgos’s detailed review of both conspiracy law and the evidence

establishing a conspiracy in that case, the opinion never said that drug conspiracies

require proof that the conspirators knew their conduct violated the law and did not

purport to find evidence establishing such a mens rea in the record in that case.

And in a crack cocaine conspiracy like that the one considered in Burgos, just as in

a bribery conspiracy, ignorance of the law is not a defense. McFadden, 135 S. Ct.

at 2304.

In claiming that conspiracy law requires proof that the conspirators know

that they are violating the law, defendant relies on this Court’s observation that

“black letter conspiracy law requires the Government to prove: ‘(1) an agreement

between two or more persons, which constitutes the act; and (2) an intent thereby

to achieve a certain objective which, under the common law definition, is the doing

of either an unlawful act or a lawful act by unlawful means.’” Burgos, 94 F.3d at

860 (quoting Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law Ch. 6, § 6.4



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at 525 (2d ed. 1986)). But all that this passage establishes is that the goal of the

conspiratorial agreement must involve acts that constitute crimes, not that the

conspirators know the laws that make those acts criminal. Burgos is not at odds

with Ingram and Feola.

Defendant next invokes the following jury instruction that was read to the

jury in this case:

The government must prove that the defendant you areconsidering, and at least one other person, knowingly and

deliberately arrived at an agreement or understanding thatthey, and perhaps others, would violate some laws bymeans of some common plan or course of action asalleged in the indictment. It is proof of this consciousunderstanding and deliberate agreement by the allegedmembers that should be central to your consideration ofthe charge of conspiracy.

A7662.

Defendant is correct that the jury instructions on conspiracy in this case are

consistent with Burgos; like the rule described in Burgos, all that was required was

that defendant and Mr. McDonnell enter into an agreement to perform acts that

would violate the honest-services and Hobbs Act laws. Had the defense ever

contended at trial that the government had to prove that defendant knew her

conduct was illegal, the jury instructions could have elaborated on that point and

dispelled that false premise. But that clarification was unnecessary because



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defendant’s legally flawed argument made now on appeal was never put in issue in

the district court.

If jury instructions were required exhaustively to dispel all legally erroneous

theories that were never put in issue at trial, jury instructions would be endless, for

lawyers have vast powers after a trial to conjure up legally erroneous arguments

that could have been, but were not, raised at trial. Cf. United States v. Royal, 731

F.3d 333, 340 (4th Cir. 2013) (whether ammunition was designed exclusively for

antique firearm was not a required element of criminal offense, and thus, district

court did not err “by failing to mention it in its jury instructions”). “A trial judge

has the discretion to focus the jury’s deliberations on those issues legally relevant

to the case.” United States v. Lewis, 780 F.2d 1140, 1143 (4th Cir. 1986).

Sometimes that is done by telling the jury that a particular issue is not in issue in a

case, as in Lewis; other times, that is accomplished by not lengthening already

detailed instructions with further discussion of possible legal errors that a jury

might draw—in the defendant’s favor—from some passage in the jury instructions.

This last point leads to the applicable standard of review. Defendant fails to

offer any citation that shows where she made this argument in the district court.

After the United States rested, defendant informed the district court that she

“join[ed] Governor McDonnell or Mr. McDonnell’s reasoning in his Rule 29

motion on [counts] One through Eleven.” A5143. But Mr. McDonnell never



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made this argument, which is why defendant is able to argue that the McDonnell

opinion did not resolve this issue. Defendant renewed her same arguments at the

close of the case—without raising this point. A7303. And in the extensive post-

trial briefing, she again adopted Mr. McDonnell’s reasoning as to the counts

relevant here. A8132. This Court has held, “When a defendant raises specific

grounds in a Rule 29 motion, grounds that are not specifically raised are waived on

appeal.” United States v. Lam, 677 F.3d 190, 200 (4th Cir. 2012). Wright and

Miller, cited in Lam, similarly observes, “[I]f the defendant has asserted specific

grounds in the trial court as the basis for a motion for acquittal, he or she cannot

assert other grounds on appeal.” 2A Federal Practice & Procedure § 469 (4th ed.

2015).

The combination of Lam, the numerous specific arguments for acquittal that

the McDonnells made, and defendant’s failure to raise below the argument about

the mens rea for conspiracy ought to preclude de novo review now of the argument

in the context of this very heavily litigated case. Regardless of whether

defendant’s argument is viewed as waived, subject only to an exception for

“manifest miscarriage of justice,” Lam, 677 F.3d at 200 n.10, or as forfeited by the

failure to make a sufficiently specific objection, triggering the standard four prongs

of plain error, Puckett v. United States, 556 U.S. 129, 135 (2009), the argument

fails.



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There is neither manifest miscarriage of justice nor plain error in holding

defendant to a mens rea that required corrupt intent and proof of bad faith. Corrupt

intent here required proof that defendant acted with an “improper motive” and

“dishonestly for a wrongful purpose,” A7670, and the government likewise had to

disprove that “defendant believed in good faith that . . . she was acting properly,”

even if “she was mistaken in that belief, and even if others were injured by . . . her

conduct,” A7692. The law recited above readily establishes that these mens rea

standards met (and indeed may even exceed) the necessary mens rea for all counts

of defendant’s convictions.

To the extent defendant maintains that she may take advantage of 33 pages

of additional supplemental briefing and simultaneously object to the United States

responding to her now supplemented arguments, see DSB3-4, that contention is

unsupportable. See, e.g., United States v. Ramos-Cruz, 667 F.3d 487, 496 n.5 (4th

Cir. 2012). In any event, the United States did not waive any arguments in its

original response brief in this case, as that brief provided sufficient argument on

the applicable legal standards and the evidence establishing defendant’s guilt.

III.

Defendant incorrectly claims that this Court’s opinion in her husband’s

appeal did not discuss the evidence surrounding the healthcare leadersreception, and defendant’s related attempt to import a unanimity

requirement into the official act standard is misplaced.

Defendant’s third contention in her supplemental brief is that this Court’s

opinion, “when discussing the specific ways in which Governor McDonnell ‘used



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the power of his office to influence governmental decisions,’ did not include the

[February 29, 2012] healthcare leaders’ reception.” DSB4 (quoting McDonnell,

792 F.3d at 516). As a result, defendant argues, “it is impossible to know whether

or not the jury premised its verdict on that event,” and she is entitled to a new trial.

Id.

The problems with this argument are numerous. First and foremost, it

mischaracterizes this Court’s opinion rejecting her husband’s appeal. The opinion

describes the factual background of the healthcare leaders reception, including the

reception’s importance to Williams’s sought-after goal of securing studies at UVA

and VCU. See McDonnell, 792 F.3d at 491-92 (referencing process by which

defendant and her husband added doctors Williams sought to research his product

to the invitation list, including defendant’s efforts with her husband to ensure top

UVA and VCU officials would be present). And critically, when describing the

evidence of the quid pro quo proven at trial, the Court’s opinion specifically did

include the healthcare leaders reception in a bulleted list of examples of the “close

relationship between [Mr. McDonnell’s] official acts and the money, loans, gifts,

and favors provided by Williams” to the McDonnells—or, as described by this

Court, an example of “a ‘quo’ [that] came on the heels of [a] ‘quid.’” Id. at 518

(noting that on the day of the healthcare leaders reception, Mr. McDonnell met

with Williams to discuss a loan of $187,000 in Star Scientific shares).



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But even more importantly, defendant’s arguments about the healthcare

leaders reception evince the same fundamental misunderstanding of bribery law

that doomed her husband’s appeal. As this Court held, “it was not necessary for

the Government to prove that [Mr. McDonnell] actually took any . . . official

action. What the Government had to show was that the allegedly corrupt

agreement between [Mr. McDonnell] and Williams carried with it an expectation

that some type of official action would be taken.” Id . at 516.

Thus, the United States did not have to prove that any official action was

actually taken, much less that every possible official action contemplated was in

fact taken. Whether Mr. McDonnell’s actions surrounding the healthcare leaders

reception were themselves official actions or were merely evidence of his

agreement to perform such official actions on an as-needed basis is beside the

point; either way, they were evidence of the corrupt agreement to exchange things

of value for official actions on the pending matters proven and alleged. Defendant

and her husband knew that Williams wanted university studies of his product, they

knew the Anatabloc launch was part of an effort to convince those university

researchers to perform the studies, and they knew the purpose of Williams’s

healthcare leaders reception invitations was to convince those researchers to

perform the studies after the prior efforts to convince them had been unsuccessful.

That is, after all, why the list of doctors that Williams’s company sent to



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defendant—and that she reviewed with her husband, highlighting UVA and VCU

personnel—included many of the same personnel who attended the launch. It is

why Williams lobbied Hazel about the university studies at the event, and it is why

Williams lobbied a VCU researcher at the event. And it is why defendant and her

husband discussed Anatabloc with Williams and Star-affiliated researchers at a

$1,400 dinner that night.

Indeed, the healthcare leaders reception was an undisputed example of Mr.

McDonnell and defendant causing Williams to benefit from the use of taxpayer

dollars. See, e.g., A3640-41 (mansion director testifying that “state funds” paid for

Williams and his invitees).

For her part, in arguing that using taxpayer funds to help Williams obtain the

state university studies was not an official act, defendant—like her husband—

tacitly admits that categorical distinctions like the use of state funds (or not) are not

outcome-determinative of whether a particular action is an official act— i.e., action

on a pending matter. After all, some uses of taxpayer funds may be ceremonial

and thus not action on a pending matter, see McDonnell, 792 F.3d at 508-09. But

others indisputably are. What separates official actions from ceremonial ones is

not whether they are funded by taxpayer dollars (or not), whether they occur in

meetings (or not), whether they occur via email (or not), or whether they occur on



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state property (or not). What separates official actions from ceremonial ones is

whether they are actions on pending matters.

Finally, as the United States explained in its initial response brief,

defendant—like her husband—has abandoned on appeal any argument that the jury

should have been instructed that they must be unanimous on a particular official

act, and neither defendant ever requested such an instruction on the conspiracy

counts. Doc. No. 28, at 40 n.7. Moreover, defendant’s argument contradicts long-

settled Supreme Court precedent that “when a jury returns a guilty verdict on an

indictment charging several acts in the conjunctive, . . . the verdict stands if the

evidence is sufficient with respect to any one of the acts charged.” Turner v.

United States, 396 U.S. 398, 420 (1970). See also Griffin v. United States, 502

U.S. 46, 56-57 (1991); United States v. Robinson, 627 F.3d 941, 956 (4th Cir.

2010). Again, “unanimity as to the means of commission of a crime is not

constitutionally required for a conviction.” Hedrick v. True, 443 F.3d 342, 356

(4th Cir. 2006). See also United States v. Parker , 790 F.3d 550, 562-63 (4th Cir.

2015).1

1 Defendant attempts to undercut this well-settled law by citing the FirstCircuit’s opinion in United States v. Urciuoli, 513 F.3d 290 (1st Cir. 2008), and theSeventh Circuit’s opinion in United States v. Blagojevich, 794 F.3d 729 (7th Cir.2015). See DSB27-29. But as the United States noted in its initial response brief,Urciuoli turned on an instructional error not present here, and the same is true of

Blagojevich. See DSB28 (quoting passage from Blagojevich regarding “problemin the way the instructions told the jury to consider the evidence”). Defendant has



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IV. Defendant’s federalism arguments are meritless and add nothing new to

the issues addressed in her husband’s appeal.

Defendant next argues that although this Court’s opinion in her husband’s

case “addressed the argument that federalism concerns required the district court to

adopt a narrow construction of the federal bribery statutes,” her federalism

arguments remain because they have “followed a different tact.” DSB29. But

defendant’s arguments are indistinguishable from her husband’s. Compare

DSB30-32 (citing Gregory v. Ashcroft , 501 U.S. 452 (1991)) with United States v.

Robert. F. McDonnell, No. 15-4019, Doc. No. 55 (opening brief) at 42-43 (citing

Gregory). At their core, both defendant’s and her husband’s arguments are that

because they say their conduct was legal under state law, federalism demands that

it must be excluded from federal bribery laws.

But there is no conflict between state gift laws and federal bribery

prohibitions; the two prohibitions are distinct because gift laws do not require a

quid pro quo while bribery does. And under the Supremacy Clause, a state also

could not draft gift laws that displace federal bribery laws.

It is true, as defendant and her husband have consistently claimed, that

Virginia law did not prohibit the acceptance of gifts or place a limit on the amount

of gifts a public official could receive from an individual at the time the

conceded that all properly raised instruction challenges are controlled by thisCourt’s opinion in her husband’s case. Blagojevich thus changes nothing.



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McDonnells accepted more than $177,000 in personal payoffs from Williams. The

only criminal penalties in Virginia law regarding gifts were certain disclosure

provisions.

But defendant and her husband were not convicted of accepting gifts; they

were convicted of accepting bribes. And bribes are unquestionably prohibited by

Virginia law. See Va. Code § 18.2-439 (prohibiting acceptance of things of value

by state officials “under an agreement, or with an understanding, that his vote,

opinion or judgment shall be given on any particular side of any question, cause or

proceeding which is or may be by law brought before him in his official capacity or

that in such capacity he shall make any particular nomination or appointment or

take or fail to take any particular action or perform any duty required by law”).

This statute’s equivalent of the “official act” requirement is strikingly similar to—

and arguably broader than—§ 201(a)(3). Both statutes refer to “question, cause or

proceeding,” and both refer to such matters that are “or may be by law brought

before [public officials] in [their] official capacity.”2

2

See also Ford v. Commonwealth, 177 Va. 889, 893 (1941) (citing“comprehensive and inclusive language” of predecessor statute applicable to bribe

payors and noting that intent to influence “on any ‘matter, question, cause, or proceeding,’ which may be pending, or on any ‘matter, question, cause, or proceeding’ which ‘may by law come or be brought before’ him in his officialcapacity . . . applies to present causes or proceedings and to causes or proceedingswhich may arise in the future”).



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Defendant misleadingly cites portions of Virginia state disclosure laws out

of context to suggest that “if the timing and nature of a state official’s acceptance

of gifts prompted questions regarding the official’s impartiality, state law provided

that the state official should ‘not be subject to criminal law penalties.’” DB31

(quoting Va. Code § 2.2-3103(9)). Of course, what defendant does not quote is

that Virginia law actually prohibits the acceptance of such gifts in such contexts

but merely does not provide a criminal penalty for them.

But more importantly, defendant and her husband were not merely alleged to

have accepted “gifts” in contexts that “prompted questions” about Mr.

McDonnell’s “impartiality.” Defendant and her husband were convicted of

accepting bribes in bad faith, with corrupt intent, in exchange for official action,

and as part of a conspiratorial agreement. The McDonnells’ conduct did far more

than “prompt[] questions”; it corrupted the Office of the Governor of Virginia.

Such conduct violates any reasonable definition of bribery, whether reflected in

state or federal law. Cf. Citizens United , 558 U.S. at 359 (“The hallmark of

corruption is the financial quid pro quo: dollars for political favors.” (quotation

omitted)).



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V. Defendant has waived any reliance on her midtrial severance motion as

an independent basis for relief, and defendant’s severance arguments

are weaker than her husband’s now-rejected ones in any event.

Defendant contends that this Court’s opinion in McDonnell does not control

her midtrial severance motion and appears to argue in a footnote that the United

waived legal argument on this point in its initial response brief. See DSB8-9 n.3.

But critically, defendant never identified the denial of her midtrial motion to sever

as independent grounds for reversible error. In her statement of the issues, she

failed to even mention denial of the mid-trial severance motion and merely framed

the issue as:

Whether this Court should vacate Mrs. McDonnell’sconvictions because the district court failed to sever hertrial from her husband’s, where Mrs. McDonnell’scriminal liability was premised on that of her husband,and the refusal to sever the trials deprived GovernorMcDonnell of the opportunity to call Mrs. McDonnell asa critical exculpatory witness.

Principal Br. 5. While defendant did briefly mention the denial of her midtrial

motion to sever, she merely claimed that denial of the mid-trial severance motion

exacerbated the supposed error of denial of the pretrial motion, stating that “the

refusal to grant severance mid-trial compounded the refusal to severe [sic] pre-

trial, resulting in prejudicial error that requires a new trial for Mrs. McDonnell.”

Id. at 81 (emphasis added). At no point did defendant even attempt to claim that

the denial of the midtrial severance motion in and of itself “result[ed] in a



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miscarriage of justice” that was reversible error. See United States v. Parodi, 703

F.2d 768, 780 (4th Cir. 1983).

Closer examination of her actual midtrial motion to sever makes this

omission understandable and shows why it was not error to deny that motion.

Specifically, during trial, Mr. McDonnell’s attorneys elicited testimony from

witnesses that was unflattering to Mrs. McDonnell. See A5286, 5301.

Defendant’s counsel then made a motion to sever the trial or, alternatively, sever

the obstruction count, and explained the basis for the motion as follows:

And the reasoning is that the evidence that is coming intoday from our co-defendant tends to go to Ms.McDonnell’s veracity or appearance of her veracity byvarious witnesses. The evidence as it is coming in ishelpful to certain counts from our perspective, which

goes to the conspiracy counts, and the alleged conspiracy

between Mr. McDonnell and Ms. McDonnell; but at the

same time, it is harmful, we believe, to Count Fourteen,which is the obstruction and her truthfulness. So, YourHonor, we would move to have her severed at this point,or in the alternative, to have the obstruction countsevered.

JA 5312 (emphasis added). Simply put, the midtrial motion to sever was based

entirely on defense counsel’s claim that Mrs. McDonnell was being prejudiced on

Count 14, an obstruction charge that was later dismissed and thus is not a count of

conviction. As even defendant’s own counsel conceded in the passage above, the

McDonnells’ joint defense strategy of painting defendant in an unflattering light

was “helpful” (in her view) to the counts of conviction actually at issue in this



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appeal. As such, she cannot claim that she was actually prejudiced by the denial of

the midtrial motion to sever.

Conclusion

For the foregoing reasons, this Court’s opinion affirming Mr. McDonnell’s

convictions is controlling here, and this Court should likewise affirm defendant’s

convictions for the reasons stated in that opinion.

Respectfully submitted,

Dana J. BoenteUnited States Attorney

Raymond HulserChief, Public Integrity Section

Criminal DivisionU.S. Department of Justice

By: /s/ . Richard D. CookeRyan S. FaulconerMichael S. DryJessica D. AberDavid V. Harbach, IICounsel for the United StatesU.S. Attorney’s Office600 E. Main Street, Suite 1800Richmond, VA 23219

Phone: 804-819-5400Fax: 804-771-2316

Email: [email protected]@[email protected]

[email protected]



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Certificate of Compliance

I certify that I wrote this brief using 14-point Times New Roman typeface

and Microsoft Word 2010.

By: ________/s/____________Richard D. CookeAssistant United States AttorneyEastern District of Virginia

600 East Main Street, Suite 1800Richmond, Virginia 23219(804) [email protected]



39/39

Certificate of Service

I certify that on September 9, 2015, I filed electronically the foregoing briefwith the Clerk of the Court using the CM/ECF system, which will send notice ofthe filing to all counsel of record.

By: ________/s/____________Richard D. CookeAssistant United States AttorneyEastern District of Virginia600 East Main Street, Suite 1800

Richmond, Virginia 23219(804) [email protected]


Documents

Maureen McDonnell Prosecution Appeal Response