4th Circuit Court of Appeals Motion For Release Pending Appeal

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ORAL ARGUMENT REQUESTED

No. 15-4019
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

__________
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT F. MCDONNELL,
Defendant-Appellant.
_____________
On Appeal from the United States District Court for the Eastern District of Virginia,
Richmond Division, James R. Spencer, District Judge
_____________
DEFENDANT-APPELLANTS MOTION FOR RELEASE PENDING APPEAL
_____________
Noel J. Francisco
Counsel of Record
Henry W. Asbill
Charlotte H. Taylor
James M. Burnham
JONES DAY
51 Louisiana Avenue N.W.
Washington, DC 20001
Telephone: (202) 879-3939
Facsimile: (202) 626-1700
njfrancisco@jonesday.com
John L. Brownlee
HOLLAND & KNIGHT LLP
800 17th Street N.W.
Suite 1100
Washington, DC 20006
Telephone: (202) 828-1854
Facsimile: (202) 955-5564
Counsel for Defendant-Appellant
Robert F. McDonnell
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Defendant-Appellant Robert F. McDonnell moves for release pending appeal pursuant to

18 U.S.C. 3143(b). He has been ordered to report to the Bureau of Prisons by February 9, 2015
and therefore requests expedited briefing and disposition of this matter prior to that date. Should
the Court desire additional time to consider the issue, he respectfully requests a brief
administrative stay of his reporting date pending this Courts disposition of this motion.1
This case presents the substantial issue of whether this Court is prepared to become the
first court in history (besides the district court) to hold that actions not attempting to exercise any
governmental power nonetheless constitute official actions so long as they are things that
officials customarily doa decision that would create a conflict with decisions of the Supreme
Court, the D.C., First, and Eighth Circuits, as well as this Courts prior decisions, and that would
revolutionize politics by dramatically expanding the general federal corruption laws to make
every political fundraiser that exchanges access or credibility for campaign contributions
into a federal felony. That risk is particularly acute where, as here, the district court instructed
that [t]here has been no suggestion in this case that Mr. McDonnell violated Virginia law. Tr.
Vol. XXVI, at 6125. To date, the Government has not cited any in any jurisdiction with facts
remotely resembling the facts here.
Nor has the district court ever citedlet alone
distinguishedany of the well-reasoned out-of-circuit decisions Mr. McDonnell has repeatedly

invoked that show that the facts proved were not a crime and, regardless, that the jury
instructions were prejudicially overbroad. Indeed, the district court agreed with Mr. McDonnell
about several legal limits on official action, yet never explained why it declined to tell the jury
about any of those limits in its instructionsan omission that invited the jury to convict Mr.
McDonnell for conduct that is lawful under the district courts own post-trial opinions.
1
Mr. McDonnell notes for the Courts convenience that he believes one or more amici
curiae may seek to file briefs in support of this motion for bond pending appeal.
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The district court has, however, recognized that the Governments case against Mr.
McDonnell falls well outside the heartland of public corruption cases. As the district court put it
at sentencing: Imagine if these Guidelines were mandatory and the Court had no choice but to
sentence Governor McDonnell to seven or eight years in prison. That would be unfair. It would
be ridiculous under these facts. Sent. Tr. at 175, Ex. C (emphasis added). While the district
court declined to grant bond, its recognition that this case is atypical underscores the fact that Mr.
McDonnells appeal, at a minimum, presents a close question or one that very well could be
decided the other way, United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991) (granting
bond pending appeal), which is all Mr. McDonnell need show here. Should this Court agree that
Mr. McDonnell has made that low showing, the statute establishes a right to liberty that is not
simply discretionary but mandatory. United States v. Abuhamra, 389 F.3d 309, 319 (2d Cir.
2004). Mr. McDonnells appeal will raise several questions that easily satisfy this standard. 2
First, to convict Mr. McDonnell, a properly instructed jury had to find that he performed
or promised to perform official acts in exchange for gifts and loans. There are substantial
questions whether (1) the Government proved this critical element, and (2) the district court
properly instructed the jury on it. The Governments theory was not that Mr. McDonnell
exercised (or pressured others to exercise) actual governmental power. Instead, it alleged that
Mr. McDonnells official acts consisted of sending an email asking his in-house counsel to
see me about an issue, attending two events, arranging one meeting, and suggesting one other
meeting. No federal or state judicial decision has ever upheld a bribery conviction on such facts
or approved instructions permitting a conviction for such customary actions that do not make (or
pressure someone else to make) actual governmental decisions. To the contrary, opinions from
2
Mr. McDonnells appeal will raise additional substantial issues and he in no way
concedes here that his other appellate issues are any less substantial.
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the Supreme Court and the First, Eighth, and D.C. Circuits all make clear that providing a
referral, sending an informational inquiry, or appearing in public are notwithout more
official acts. This issue thus obviously presents a substantial question.
Second, there is also a substantial question whether the district court conducted sufficient
voir dire of the jurors on pretrial publicityan issue of first impression in this Court postSkilling. During the months leading up to Mr. McDonnells trial, there was massive negative and
inaccurate publicity surrounding the case. The district court, however, rejected Mr. McDonnells
request for individualized voir dire of potential jurors who had been exposed to such publicity,
despite longstanding precedent holding that jurors in high-publicity cases should be examined,
individually and outside the presence of the other jurors, to determine the effect of [pretrial]
publicity, United States v. Hankish, 502 F.2d 71, 77 (4th Cir. 1974).
Finally, bond pending appeal is particularly appropriate given that the district court
imposed a twenty-four month sentence. The appellate process takes time, particularly in a
complex case following a five-week jury trial. In such circumstances, requiring Mr. McDonnell
to serve most or all of his sentence before his appeal has been decided and [i]ncarcerating
[him] immediately upon conviction would substantially diminish the benefit he would
ordinarily receive from an appeal. United States v. Garcia, 340 F.3d 1013, 1019 (9th Cir.
2003). 3 The possibility of this grave injustice provides another compelling reason to grant bond.
FACTUAL BACKGROUND
The Governments case below focused on Mr. McDonnells interactions with Jonnie R.
3
See also, e.g., United States v. Jackson, 32 F.3d 1101, 1104 (7th Cir. 1994) ([W]e
would encourage defendants facing relatively short sentences to seek release pending appeal or
move for an expedited appeal because it is often difficult to file an appeal, docket it, set a
briefing schedule, hear oral argument, and draft an opinion before a very short sentence has been
served.); United States v. McManus, 651 F. Supp. 382, 383-84 (D. Md. 1987) (There seems
little point to an appeal if the defendant will serve his time before a decision is rendered.).
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Williams, Sr., the CEO of a Virginia public company, while Mr. McDonnell was Governor of
Virginia. The Indictment charged that, in exchange for golf and loans, Mr. McDonnell took
official action to assist Mr. Williams and his company, Star Scientific (Star).
1.
The
Governments
case
hinged
on
five
specific
actions
taken
by
McDonnell . . . . New Trial Op. at 6, Dkt. 567; see also Tr. Vol. XXV at 6040-42. They were:
(1)
Mr. McDonnell sent an email to his chief counsel asking the counsel to see me
about an issue related to Mr. Williams. (The counsel never actually saw him.)
See Tr. Vol. VII, at 1665-68.
(2)
Mr. McDonnells wife invited Mr. Williams, some of Mr. Williams associates,
and private doctors recommended by Mr. Williams to a reception for Healthcare
Leaders. (Nothing else happened.) See Tr. Vol. IV, at 761-63, 783-85; Tr. Vol.
IX, at 2121, 2165.
(3)
Mr. McDonnell possibly suggested to two subordinates that they meet with Star.
(The subordinates disagreed about whether Mr. McDonnell made the request, they
never met with anyone, and they never heard about it again from Mr. McDonnell
or anyone else.) See Tr. Vol. XI, at 2654-55, 2675-76; 2679-80, 2668-69.
(4)
Mr. McDonnell asked a subordinate to send a staffer to a meeting with Mr.

Williams, immediately after which the staffer sent Mr. Williams a blow-off
email. (Nothing else happened.) See Tr. Vol. VII, at 1492-93, 1507-08, 1517-18
(the email was No with a smile), 1522, 1507:8-22; id. at 1517:22-1518:2.
(5)
Mr. McDonnell appeared at a luncheon held at the Executive Mansion and paid
for by his PAC, featuring Mr. Williams and researchers from the University of
Virginia (UVA) and Virginia Commonwealth University (VCU), at which
Mr. Williams presented a portion of $200,000 from Star to those researchers as
planning grants to prepare Tobacco Commission research proposals. (No
proposals were ever submitted, nobody from the McDonnell Administration ever
mentioned them again, nor did anyone ever contact the Commission.) See Tr.
Vol. IV, at 727-28, 733-34; Tr. Vol. VIII, at 1793-95, 1810-12.
Mr. McDonnell repeatedly argued that none of these actions qualify as official acts
because in none of them did he make, nor pressure someone else to make, any actual decision or
take any other action on any pending governmental matter. 4 He requested numerous instructions
In addition to moving to dismiss the indictment on this basis, see Mem. Def. Mot. to
Dismiss Counts 1-11 of the Indictment, Dkt. 106, at 7-19, he moved for a new trial on this
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reflecting that legal principle, including ones specifying that merely arranging a meeting,
attending an event, hosting a reception, or making a speech are not, standing alone, official
acts, even if they are settled practices of the official, Robert F. McDonnells Prop. Jury
Instructions, Dkt. 287, at 79; that [t]he questions you must decide are both whether the charged
conduct constitutes a settled practice and whether that conduct was intended to or did in fact
influence a specific official decision the government actually makes, id. at 79-80; and that
mere ingratiation and access are not corruption, id. at 79.
The district court refused these requests and declined to provide a definition of official
act that limited it in any relevant way, even though this legal issue went to the heart of Mr.
McDonnells defense. Instead, after quoting the statutory definition of official action from 18
U.S.C. 201(a)(3), 5 the district court stated (Tr. Vol. XXVI, at 6102:23-6103:14):
Official action as I just defined it includes those actions that have been clearly
established by settled practice as part of a public officials position, even if the
action was not taken pursuant to responsibilities explicitly assigned by law. In
other words, official actions may include acts that a public official customarily
performs, even if those actions are not described in any law, rule, or job
description. And a public official need not have actual or final authority over the
end result sought by a bribe payor so long as the alleged bribe payor reasonably
believes that the public official had influence, power or authority over a means to
the end sought by the bribe payor. In addition, official action can include actions
taken in furtherance of longer-term goals, and an official action is no less official
because it is one in a series of steps to exercise influence or achieve an end.
2. Seizing on the unqualified statement that the statutory definition of official action
includes those actions that have been clearly established by settled practice as part of a public
(continued)
ground, see Mem. Def. Mot. for New Trial, Dkt. 548, at 2-11, and three times moved for an
acquittal on it, see Dkt. 409, at 12-17; Trial Tr. Vol. XXIV, at 5731-33; Dkt. 510, at 3-15.
5
The statute prohibiting bribery for federal officials defines official act as follows:
[A]ny 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. . . . 18 U.S.C. 201(a)(3).
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officials positionand the expansion of itthe Government opened its rebuttal argument by
telling the jury: Mr. Asbill talked about defining quo. . . . But what he failed to mention is that
official action . . . includes those actions that have been clearly established by settled practice as
part of a public officials position . . . . In other words, official actions may include acts that a
public official customarily performs, even if those actions are not described in any law, rule or
job description. Id. at 6039. Given that the status of Mr. McDonnells actions as settled
practices was not disputedsince governors unthinkingly make dozens of meeting referrals and
send thousands of emails every weekthe only purpose of that argument was encouraging the
jury to convict Mr. McDonnell solely for engaging in settled practices. The jury obliged,
convicting Mr. McDonnell on eleven counts for committing, and conspiring to commit, honest
services wire fraud and Hobbs Act extortion, while acquitting him of the non-corruption charges.
3. The district court denied Mr. McDonnells post-trial motions for a judgment of
acquittal and a new trial. It conceded that mere [i]ngratiation and access may not alone create
a quid pro quo agreement within the meaning of the bribery statutes, New Trial Op., Dkt. 567,
at 5 (quoting Citizens United, 558 U.S. 310, 360 (2010)), but nonetheless upheld Mr.
McDonnells convictions, invoking an (inapposite) Sixth Circuit dissent to hold that to
distinguish between mere access and federal corruption, the Court should look to McDonnells
subjective intent in receiving the money. Id. (citing United States v. Dimora, 750 F.3d 619, 632
(6th Cir. 2014) (Merritt, J., dissenting)). On this basis, the district court ruled that such actions
as emailing his chief counsel, or suggesting a meeting with Star representatives, qualify as
official acts because Mr. McDonnell supposedly had the overarching intent of doing things to
legitimize, promote, and obtain research studies for Star Scientific products, id. at 5-7an
alleged overarching intent that the district courts instructions did not require the jury to find.
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On January 13, 2015, the district court denied bond pending appeal. See Ex. A.
ARGUMENT
The standard for granting bond pending appealwhere, as here, there is no risk of flight,
no danger to the community, and the appeal is not taken solely for purposes of delayis merely
whether the appeal presents a substantial question of law or fact that, if successful, is likely to
result in reversal or an order for a new trial of all counts on which imprisonment has been
imposed. United States v. Miller, 753 F.2d 19, 24 (3d Cir. 1985). Mr. McDonnell need not
show he is likely to succeed on the merits; rather, he need show only that his appeal presents a
close question or one that very well could be decided the other way. Steinhorn, 927 F.2d at
196 (emphasis added). Appellate courts thus routinely grant defendants like Mr. McDonnell
bond pending appeal in light of the substantial questions that arise when the vague federal
corruption laws are applied to novel facts 6even where, as in Jefferson and other complex
cases, they ultimately affirm the convictions.7 Indeed, just last Friday, the First Circuit granted
bond in a similar pending public corruption case. See Order, United States v. OBrien, Case No.
14-2312, Ex. D. It is thus no surprise this Court regularly grants bond pending appeal where, as
here, the defendant satisfies 3143(b). Mr. McDonnells appeal likewise clears this low hurdle.
6
See, e.g., Order, United States v. Jefferson, No. 07-CR-209 (E.D. Va. Nov. 18, 2009),
Dkt. 619 (granting bond pending appeal on question whether certain actions constituted
official actions under federal law); Order, United States v. Ring, No. 08-CR-274 (D.D.C. Oct.
26, 2011), Dkt. 297, at 3 (challenging and novel questions of law regarding the application of
the federal bribery laws in the lobbying context); Order, United States v. Siegelman, No. 0713163-BB (11th Cir. Mar. 27, 2008), Ex. D to Mem. in Support of Def. Robert F. McDonnells
Mot. for Release Pending Appeal, Dkt. 602 (adequacy of the jury instructions governing Hobbs
Act conviction of former Alabama governor); Order, United States v. Ryan, No. 06-3528 (7th
Cir. Nov. 28, 2006) (former Illinois governor).
7
See United States v. Gupta, 747 F.3d 111, 122, 140 (2d Cir. 2014); United States v.
Siegelman, 640 F.3d 1159, 1190 (11th Cir. 2011); United States v. Nacchio, 555 F.3d 1234, 1259
(10th Cir. 2009); United States v. Warner, 498 F.3d 666, 704-05 (7th Cir. 2007); see also, e.g.,
United States v. Taft, No. 04-05130 (Feb. 28, 2005), Dkt. 31; United States v. Elliot, No. 0204836 (Nov. 1, 2002), Dkt. 14; United States v. Parker, No. 01-04109 (Feb. 21, 2001), Dkt. 10;
United States v. Robinson, No. 95-07620 (April 17, 1996), Dkt. 17.
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There Is A Substantial Question Whether Mr. McDonnell Performed Or Promised

To Perform An Official Act.
Mr. McDonnells appeal presents the substantial question whether a public official takes
official action when he asks an aide a question, encourages a staffer to attend a meeting, or
appears at a private, closed-press event, without taking the additional step of asking anyone to
take any particular action on the governments behalf. This case is the first in history to find that
these sorts of actions are official ones under federal law. Decisions of the Supreme Court, the
Eighth, First, and D.C. Circuits, and this Court all support Mr. McDonnells position that his
actions were not official ones. Those decisions make this a paradigmatic substantial question.
A.
The Supreme Court Has Held That Official Action Does Not Include
Everything A Public Official Does In His Official Capacity.
The Supreme Court has long been hostile to expansive constructions of the federal
corruption laws. In an area where precisely targeted prohibitionslike ethics regulations
are commonplace, a corruption statute that can linguistically be interpreted to be either a meat
axe or a scalpel should reasonably be taken to be the latter. United States v. Sun-Diamond
Growers of Cal., 526 U.S. 398, 412 (1999). Courts ought not expand [the bribery] piece of the
regulatory puzzle so dramatically as to make many other pieces misfits. Id. Or in rejecting the
old honest-services theory: Rather than construe the statute in a manner that leaves its outer
boundaries ambiguous and involves the Federal Government in setting standards of disclosure
and good government for local and state officials, we read 1341 as limited in scope to the
protection of property rights. McNally v. United States, 483 U.S. 350, 359 (1987).
The Courts most recent review of these statutes in Skilling v. United States, 561 U.S. 358
(2010), unanimously rejected the Governments attempt to exploit the vagaries of honest services
fraud, holding it criminalizes only the bribe-and-kickback core of the pre-McNally case law.
Id. at 409. Notably, the debate was not about whether the Governments theory was correctall
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agreed it was not. It was, instead, between justices who believed the statute could be construed
narrowly, id., and those who thought it unconstitutionally vague, id. at 425 (Scalia, Thomas,
Kennedy, JJ., concurring in the judgment). Either approach supports Mr. McDonnell here.
The Supreme Courts decision in Sun-Diamond further supports Mr. McDonnells
position. There, the Government argued that the gratuities statute requires only a showing that
a gift was motivated, at least in part, by the recipients capacity to exercise governmental power
or influence in the donors favor without necessarily showing that it was connected to a
particular official act.
526 U.S. at 405-06.
The Court rejected that broad construction,
explaining that when interpreting corruption provisions which are merely one strand of an
intricate web of regulations, both administrative and criminal, governing the acceptance of gifts
and other self-enriching actions by public officials, courts should give those provisions a
narrow, rather than a sweeping, interpretation. Id. at 409. Consistent with that guidance, the
Court explained that under the statutory definition of official act, many of a public officials
actionssuch as receiving [] sports teams at the White House, visiting [a] high school, and
speaking to [] farmers about USDA policywhile they are assuredly official acts in some
senseare not official acts within the meaning of the statute. Id. at 407.
Here, the Governments legal theory and the district courts jury instructions ignore the
basic teaching of these decisions. Rather than restrain itself to prosecuting conduct in the bribeand-kickback core of the pre-McNally case law, id. at 409, the Government has taken the
position that bribery captures routine political conduct that virtually every public official
undertakes on a regular basis. [C]ampaign contributions no less than any other payments,
can be the quid in a quid pro quo bribery scheme. United States v. Derrick, 163 F.3d 799, 81617 (4th Cir. 1998). That means that if providing referrals to other government officials or
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conferring credibility constitute official acts, then virtually every political fundraiser violates
the federal bribery laws, freeing prosecutors to choose targets at will. 8 That theory is incorrect,
particularly in light of the Supreme Courts recognition that the First Amendment protects this
sphere of political activity, such that government regulation may not target the general gratitude
a candidate may feel toward those who support him or his allies, or the political access such
support may afford. McCutcheon v. Fed. Election Commn, 134 S. Ct. 1434, 1441 (2014). At
the very least, the correctness of that theory presents a substantial question under 3143(b).
B.
Mr. McDonnells Position Is Supported By Decisions From Three Other

Courts of Appeals And Is Distinguishable From Jefferson.
Numerous federal appellate court decisions support Mr. McDonnells position. The
district courts opinions do not even citemuch less attempt to distinguishthese rulings. And
Jefferson, the case that the district court and the Government do rely on, is not on point. These
decisions establish a paradigmatic substantial question under 3143(b).
1.
Eighth Circuit.
United States v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978),
abrogated on other grounds by 483 U.S. 350 (1987), superseded by statute, 18 U.S.C. 1346, an
honest services fraud and Hobbs Act case, directly supports Mr. McDonnells position. There,
the Eighth Circuit reversed the Hobbs Act conviction of Missouris Speaker of the House who
offered, for a fee . . . , to introduce [an architectural] firm to [state officials] who might be able
to secure architectural contracts for it. Id. at 1020. The court held that was not enough to
Government officials routinely confer increased access and credibility on their

supporters. See, e.g., Jim Kuhnhenn, Barack Obama Goes to DreamWorks, Talks Banjo with
Steve Martin, Huffington Post (Nov. 26, 2013) ([President] Obama toured the DreamWorks
Animation studio of one of his top political benefactors, Jeffrey Katzenberg . . . Cant wait to
see your next movie, Obama added with a grin.), http://tinyurl.com/oov9z73. That includes
officials who accept personal benefits like free travelthe gravamen of most convictions here.
See, e.g., Maddy Sauer, Crackdown Proposed on Judges Free Trips, Lavish Gifts, ABC News
(Feb. 4, 2008) ([C]ritics say many of these trips are little more than judicial junkets which often
cause serious conflicts of interest.), available at http://goo.gl/7cHydk.
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support a conviction: [W]hile Rabbitts influence obviously helped these architects obtain state
jobs, no testimony established that any state contracting officer awarded any contract to BergerField because of Rabbitts influence or that Berger-Field believed Rabbitts introduction was
enough to secure the work. Id. at 1028. As the Eighth Circuit has subsequently explained, it
reversed Mr. Rabbitts conviction because he promised only to introduce the firm to influential
persons and did not promise to use his official position to influence those persons. United
States v. Loftus, 992 F.2d 793, 796 (8th Cir. 1993).
Rabbitt supports Mr. McDonnells argument that taking an official act requires more than
arranging meetings so that the benefactor can discuss a matter he is concerned about. The Eighth
Circuit held that it was not enough for Mr. Rabbitt to recommend bribe payors to state
contractors as qualified architects and thereby gain them a friendly ear in pursuit of their goal of
obtain[ing] state jobs. 583 F.2d at 1028. To take official action, the official had take the
next step of us[ing] his official position to influence those persons. Loftus, 992 F.2d at 796.
2.
First Circuit. The First Circuits decision in United States v. Urciuoli, 513 F.3d
290, 295-96 (1st Cir. 2008), an honest-services fraud case, also strongly supports Mr.
McDonnells position. There, the court reversed the conviction of a state senator who took
payments in exchange for contacting mayors and other local officials urging them to comply
with Rhode Island law in a way that benefited the alleged bribe-payors hospital. Id. at 294.
Judge Boudins opinion for the court held that there was no indication that [the senator] invoked
any purported oversight authority or threatened to use official powers in support of his
advocacy. Id. at 296. It specifically rejected the notion that trad[ing] . . . on the reputation,
network and influence that comes with political office or using the access and attention that
comes with a government title, or even the (possibly improper) use of senate letterhead were
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sufficientstanding aloneto qualify as improper official action. Id. at 296.

That decision conflicts with the Governments position. Here, too, there is no evidence
(or jury instruction requiring a finding) that Mr. McDonnell ever invoked any purported
oversight authority or threatened to use official powers. Id. Moreover, the evidence in Urciuoli
made clear that the defendant made payments to the public official specifically in exchange for
obtaining access as part of a broader plan to convince mayors to increase ambulance service to
the defendants hospital. See id. at 292, 295.
Despite a clear quid pro quo and larger plan, it
was not honest services fraud because the Government had not shown by context or threat that
[the official] sought deliberately to exploit the leverage of his public office. Id. at 296.
3.
D.C. Circuit. The leading D.C. Circuit decision on this issue is its en banc
opinion in Valdes. There, a policeman was convicted of taking payments in exchange for using
an official police database to perform searches for license plates, ostensibly to get contact
information on individuals who owed [the bribe-payor] money. Valdes v. United States, 475
F.3d 1319, 1321-22 (D.C. Cir. 2007) (en banc). The D.C. Circuit held that conducting these
searches for the alleged bribe-payor was not official action. In so holding, the court rejected
the Governments argument that the bribery and gratuity statute should be construed broadly, to
encompass essentially any action which implicates the duties and powers of a public official.
Id. at 1322. The meaning of official act did not subsume officials moonlighting, or their
misuse of government resources, or the two in combination; rather, the Government must prove
that the defendant exerted inappropriate influence on decisions that the government actually
makes. Id. at 1324-25; see also, e.g., United States v. Muntain, 610 F.2d 964, 967-68 (D.C. Cir.
1979) (vacating convictions and explaining [t]o the extent that [defendants] use of his official
position to promote a purely private venture created an appearance of impropriety, his conduct is
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reprehensible, but it is not criminal.); United States v. Ring, 706 F.3d 460, 470 (D.C. Cir. 2013)
(explaining the crucial difference between making a purely informational inquiry and acting in
ones official capacity to influence a governmental decision).
The contrast between the D.C. Circuits rule and the rule applied below is vividly
illustrated by comparing the jury instructions here to the instructions Judge Ellen Huvelle gave in
Ring. There, Judge Huvelle instructed: Standing alone, providing gifts of meals and tickets to
public officials are not crimes, even if they are provided by someone seeking to curry favor or
influence with those officials. Trial Tr. Day 12, United States v. Ring, No. CR 08-274 (D.D.C.
Nov. 3, 2010), Dkt. 270, at 36:8-39:21, Ex. E. She also instructed that [t]he fact that gifts or
hospitality might make a public official willing to take a lobbyists phone call or might provide
the lobbyist greater access to the officials appointment schedule is not enough by itself to
demonstrate the lobbyists intent to . . . deprive the public of the government officials honest
services, id., and that the six terms, question, matter, cause, suit, proceeding, or controversy,
refer to a class of questions or matters whose answer or disposition is determined by the
Government. Id. And most importantly: Mere favoritism, as evidenced by a public officials
willingness to take a lobbyists telephone call or to meet with a lobbyist is not an official act.
Id. Here, the district court refused to instruct on these limits, even though they were central to
the defense, and even though the district courts post-trial opinions themselves endorsed and
relied on many of them.
4.
United States v. Jefferson. The district court has never addressed the foregoing
decisions. Instead, it relied on United States v. Jefferson, 674 F.3d 332 (4th Cir. 2012). See New
Trial Op., Dkt. 567, at 9-11. Jefferson, however, is both factually and legally distinguishable. 9
If it were not, Jefferson would conflict with Rabbitt, Urciuoli, and the other cases
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On the facts, Congressman Jefferson engaged in official acts even under Mr.
McDonnells definition. Congressman Jefferson plainly used his status as a Congressman with
oversight authority over domestic government agencies and foreign aid as a tool in support of
his advocacy to, among other things, (1) pressure Export-Import Bank officials to award
financing to the bribe-payor; (2) persuade the U.S. Army to award military contracts to the bribepayor; and (3) pressure Nigerian government officials to award government contracts to the
bribe-payor. Take, for example, his efforts on African trade issues. Among other things, [i]n
return [for payments], Jefferson sent letters on official letterhead, conducted official travel to
Ghana, and met Ghanaian government officials to promote the interests of the bribe-payor, 674
F.3d at 342; he attended meetings in which he urged Nigerias support for [the bribe-payors]
venture, id. at 343; and he assured [the bribe-payor] that he could secure the necessary
cooperation of the Nigerian government, id. at 344. This list goes on. See, e.g., id. at 341-51.
Jefferson thus was a textbook case of a legislator invok[ing his] purported oversight authority
[and] threaten[ing] to use official powers in support of his advocacy. Urciuoli, 513 F.3d at 296.
And on the law, these factual differences underscore how Jefferson resolved an entirely
different legal issue than the ones Mr. McDonnell will raise. As this Court explained there, Mr.
Jefferson was making the broad assertion that Sun-Diamond supersedes Birdsall and,
therefore, that official acts were limited only to formal legislative duties. Jefferson, 674 F.3d
at 356. Here, by contrast, Mr. McDonnell has never questioned the vitality of Birdsall or, more
specifically, that settled practices can be official acts if they otherwise involve invok[ing]
purported oversight authority or threaten[ing] to use official powers in support of advocacy,
(continued)
discussed abovea traditional ground for en banc and Supreme Court review, see Fed. R. App.
P. 35(b)(1)(B); Sup. Ct. R. 10(a), that would itself raise a substantial question.
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Urciuoli, 513 F.3d at 296. Instead, Mr. McDonnell challenges only whether his actions satisfy
the statutory definition of official actioni.e., whether they are decisions or actions on
any pending matter. That issue finds support in the out-of-circuit cases Mr. McDonnell has
cited, was not addressed in Jefferson, and will thus present a substantial question of law.
C.
It Is, In Turn, A Substantial Question Whether The Verdict Was Sound.
Decisions of the Supreme Court, three other circuits (which the district court never
addressed), and this Court thus all support Mr. McDonnells understanding of the law. And if
that understanding is correct, an acquittal or new trial is necessary. The Government did not
prove, and the jury instructions did not require finding, that in the five specific actions taken by
McDonnell, D. Ct. New Trial Op. at 6, he invoked any purported oversight authority or
threatened to use official powers in support of Mr. Williams. Urciuoli, 513 F.3d at 296. At the
very least, both of these issues present substantial questions under 3143(b).
1.
There Is A Substantial Question Whether The Jurys Verdict Was

Supported By The Evidence Under The Proper Legal Standard.
The Government called no witness who testified that Mr. McDonnell tried to influence
him or her to make any decision on the Commonwealths behalf, much less that he threatened
to use official powers in support of his advocacy, Urciuoli, 513 F.3d at 296. In fact, every
relevant witness testified to the contrary:
Mr. Eige, the recipient of the email, testified that Mr. McDonnell never followed
back up with me or never pushed back or never directed me to actually go forward
and try to make something happen with the universities. Tr. Vol. VII, at 1668.
No witness testified that Mr. McDonnell did anything at the Healthcare Leaders
Reception to encourage anyonepublic official or private physicianto do anything
whatsoever with respect to Star or Anatabloc, or that he even mentioned Star.
The staffer who thought Mr. McDonnell asked her to meet with Star testified that she
did not think he wanted her to do anything besides meet with Mr. Williams and make
her own decision about what (if anything) to do. See Tr. Vol. XI, at 2680 (Ms. HicksThomas) (Q: Governor McDonnell never came back to you and said Did you meet
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with them? Did you take care of that? A: Never.).

The staffer who actually did meet with Mr. Williams sent him a blow off email
within hours of the meeting and had no doubt that she was free to do precisely that.
Tr. Vol. VII, at 1517:10-25 (Ms. Huffstetler); id. at 1524:10-14.
The university researchers who attended the mansion lunch testified they did not
think Mr. McDonnell wanted them to do anything in particular. See Tr. Vol. VIII, at
1795 (Dr. Lazo) (I think the Governors position was more of an interrogative type
of a sort of questioning rather than Isnt this great? or Isnt it this awful?); Tr.
Vol. VII, at 1582 (Dr. Clore) ([T]he gist of the conversation was the Governor spoke
at a high level about health and wellness in Virginia and the compound, I suppose.).
The evidence thus showed only that Mr. McDonnell wanted people to make independent
judgments about what to do. As Molly Huffstetler, the only staffer to actually meet with Mr.
Williams during the alleged conspiracy, testified: She was empowered to make [her] own
decision about what to do going forward if at all here with Mr. Williams. Tr. Vol. VII, at 1517.
2.
There Is Also A Substantial Question Whether The Jury

Instructions Were Prejudicially Overbroad.
Separate and apart from whether a jury could have found sufficient evidence to convict
Mr. McDonnell under the correct legal standard, the district court failed to require this jury to
make any such finding. The instructions declined to inform the jury of its obligation to find that
Mr. McDonnell crossed the line drawn in Urciuoli, Rabbitt, Valdes, etc. The district court
declined to inform the jury about such limitations even though it relied directly on them in its
post-trial opinions, agreeing with Mr. McDonnell that mere [i]ngratiation and access may not
alone create a quid pro quo agreement within the meaning of the bribery statutes. New Trial
Op., Dkt. 567, at 5. Though the district court repeatedly endorsed this principle post-trial, it has
never explained why it rejected Mr. McDonnells proposed instruction making the same point
during the trial. See McDonnell Prop. Instr. No. 58 ([M]ere ingratiation and access are not
corruption.), Dkt. 287. Same for the district courts post-trial recognition that the Government
needed to prove that Mr. McDonnell attempted to use his gubernatorial position to influence
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governmental decisions, Trial Op., Dkt. 567, at 7; the court rejected an instruction conveying
that precise rule. See McDonnell Prop. Instr. No. 58 (The questions you must decide are both
whether the charged conduct constitutes a settled practice and whether that conduct was
intended to or did in fact influence a specific official decision the government actually makes.).
The district court even declined to tell the jury that the fact that an activity is a routine activity,
or a settled practice, of an office-holder does not alone make it an official act, id.an
omission the Government aggressively exploited, see supra 5-6that conflicts with Jeffersons
holding that the jury could not rely exclusively on [ ] settled practices. 674 F.3d at 357. 10
This instructional error went to the heart of Mr. McDonnells defense. Mr. McDonnell
never disputed that his actions were settled practices, since referring people for meetings, asking
aides questions, and attending events are things governors reflexively do hundreds of times a
week. His central argument, rather, was that his actions were not official because none sought
to inappropriately influence any governmental decision. The Government capitalized fully on
the instructional error to circumvent this defensearguing to the jury that it need not find any
effort to influence any governmental decision. See Tr. Vol. XXV, at 6042 ([Y]ou look for the
word pressure. It doesnt appear anywhere.). It argued that Mr. McDonnell didnt have to say
a single thing at the Mansion event because his mere presence conferred credibility on Star.
Id. at 5843-44, 5845. Similarly, the Government argued it was irrelevant that no request for
action followed from Mr. McDonnells suggested meeting. [Defense counsel] said that nothing
came out of it. But, ladies and gentlemen, thats not the point. The Governor of Virginia is . . .
10
The district court reiterated its agreement with these legal principles in its recent Order
denying bond. That Order repeats that Mr. McDonnell attempted to use his gubernatorial office
to influence governmental decisions in favor of Star Scientific and asserts that Mr. McDonnell
assuredly did more than provide mere access to Williams. Ex. A at 2. Mr. McDonnell
disagrees with these conclusions, of course, but once again the district court did not even attempt
to explain why it declined to communicate these critical limitations on official action to the
jury in its jury instructions.
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saying, You should meet with them. Id. at 6042:6-11. The Government argued it was enough
that Mr. McDonnells involvement with every single one of these things was in his official
capacity as Governor. Id. at 5870:2-3. It argued that even the email to Mr. Eige counted as an
official act because: Hes emailing. Hes doing something. Id. at 6041:8.
Not only that, but the district court gave an unwieldy instruction that no other court has
given, which improperly expanded and modified the settled practice instruction. The court
instructed that official actions may include acts that a public official customarily performs, even
if those actions are not described in any law, rule, or job description, that a public official need
not have actual or final authority over the end result sought by a bribe payor so long as the
alleged bribe payor reasonably believes that the public official had influence, power or authority
over a means to the end, and official action can include actions taken in furtherance of longerterm goals, and an official action is no less official because it is one in a series of steps to
exercise influence or achieve an end. Tr. Vol. XXVI, at 6103. These instructions thus invited
the jury to conclude that any customary action, any act in a series of steps to exercise influence
or achieve an end, or even any act that Mr. Williams claimed he reasonably believe[d] was a
means to some unspecified end (whatever that means) was automatically an official act.
At the very least, however, whether the broad official act instructionunaccompanied
by any limitations remotely akin to Ring or the principles in Urciuoli, Rabbitt, and Valdeswas
error is plainly a substantial question of law. 11 The instructions thus present a second substantial
11
The Government has argued that the instruction here is the same as in Jefferson. False:
Jefferson never approved anything like these expansions. See 674 F.3d at 357 (quoting the
pertinent instruction). But regardless, it is black letter law that [j]ury instructions should be
drawn with reference to the particular facts of the case on trial, United States v. Holley, 502
F.2d 273, 276 (4th Cir. 1974), because [a]bstract propositions of law stated to the jury without
regard to the factual circumstances are potentially confusing. Duke v. Uniroyal, Inc., 928 F.2d
1413, 1421 (4th Cir. 1991). Appellate courts thus routinely reverse trial courts for relying on
instructions that the court of appeals has previously approved in cases with different facts. See,
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legal question which, if decided in Mr. McDonnells favor, warrants a new trial on all counts.
II.
There Is A Substantial Question Whether This Courts Voir Dire Of The Jury On
Pretrial Publicity Was Adequate.
Trial courts abuse their discretion in conducting voir dire on pretrial publicity if (1) the
pretrial publicity about the case raised a significant possibility of prejudice and (2) the district
courts voir dire procedure failed to provide a reasonable assurance that prejudice would be
discovered if present. United States v. Pratt, 728 F.3d 463, 470 (5th Cir. 2013). Here, it is
undisputed that there was a great deal of negative publicity during the run-up to Mr.
McDonnells trial. See Mem. in Supp. Mot. Voir Dire Relief, at pp. 2-12, Dkt. 110 (gathering
examples). Both sides thus suggested individualized voir dire for jurors who admitted exposure
to publicity, to ensure discovery of prejudice. 12 The district court declined. Tr. Vol. I, at 139.
Instead, the district court limited its voir dire on pretrial publicity to two questions. After
acknowledging that the case has generated a lot of media interest the court asked the room full
of prospective jurors to stand up if you have read, heard or seen something in the media. Id. at
140. Almost everyone stood. The district court then said: Based on what you have heard or
read or seen relating to this case, if you are, in your mind, able to put aside whatever it is that
youve heard, listen to the evidence in this case and be fair to both sides, then I want you to sit
down. Id. at 141. Everyone sat. See id. The court then stated that it was satisfied with . . . the
responses, id. at 141, and rejected repeated requests for individualized inquiry, see id. at 139
(continued)
e.g., United States v. Regan, 937 F.2d 823, 828 (2d Cir. 1991) ([A] charge that is adequate and
proper in one case may not play the same role in another case involving a different set of facts.);
United States v. Lung Fong Chen, 393 F.3d 139 (2d Cir. 2004) (instructions regarding intent in
bank funds case not appropriate for cases involving more complex transactions). And this case
presents starkly different facts and legal arguments than Jefferson.
12
See Tr. Vol I, at 137 ([I]t might be advisable for us to do some limited inquiry or
bring them up or something . . . .) (Government); id. at 138-39 (same) (defense).
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([I]f somebody is exposed to pretrial publicity, they have to be individually voir dired.). 13
It is a substantial question whether that was enough. This Court has endorsed the
following procedure: [T]he court must ascertain if any jurors who had been exposed to such
publicity had read or heard the same. Such jurors who respond affirmatively must then be
examined, individually and outside the presence of the other jurors, to determine the effect of the
publicity. United States v. Hankish, 502 F.2d 71, 77 (4th Cir. 1974). That is why, in United
States v. Bakker, 925 F.2d 728, 733-34 (4th Cir. 1991), the trial court questioned potential
jurors about exposure to pre-trial publicity including specific media reports, about exposure to
the opinions of others, about the jurors personal opinions about the case, and about whether
media attention during the trial would influence a jurors decisions and this Court held that such
careful voir dire was proper. Courts have thus set aside convictions where trial judges relied
solely on a jurors assertion of impartiality. Pratt, 728 F.3d at 470. Should this Court agree
with Mr. McDonnell, he will be entitled to a new trial. See, e.g., United States v. Beckner, 69
F.3d 1209, 1293-94 (5th Cir. 1995); Skilling, 561 U.S. at 438 (Sotomayor, J., dissenting) (The
majority [ ] envisions a fixed point at which public passions become so intense that prejudice to a
defendant's fair-trial rights must be presumed.). This issue thus provides another basis for bond.
CONCLUSION
Mr. McDonnell respectfully requests that the Court grant him bond pending appeal.
13
The final jury questionnaire, from which the court excluded many of the requested
questions, did not cure this problem because the court declined to ask prospective jurors whether
their exposure to pretrial publicity had caused them to form an opinion about guilt or innocence.
See, e.g., Ex. C to New Trial Mem., Dkt. 548, at 31. Instead, it simply asked whether they had
expressed an opinion to a third party. Ex. B to New Trial Mem., Dkt. 548, at 23. The
questionnaire thus did not identify those prospective jurors who kept their opinions to
themselves. Defense counsel accordingly objected that the court had no basis for determining
which jurors were biased by pre-trial publicity save those who had expressed their bias to third
parties. See Tr. Vol. I, at 139, 141 (I cant make any judgments or arguments to you without
any further inquiry.). Thus, nobody ever asked about the impact that both past and future
media attention would have upon potential jurors. Bakker, 925 F.2d at 733.
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Respectfully submitted,
/s/ Noel J. Francisco

Henry W. Asbill
Noel J. Francisco
Charlotte H. Taylor
James M. Burnham
JONES DAY
51 Louisiana Avenue, N.W.
Washington, D.C. 20001
Telephone: (202) 879-3939
Facsimile: (202) 626-1700
John L. Brownlee (VSB No. 37358)
HOLLAND & KNIGHT LLP
800 17th Street, N.W.
Suite 1100
Telephone: (202) 828-1854
Facsimile: (202) 955-5564
Counsel for Robert F. McDonnell
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STATEMENT REGARDING ORAL ARGUMENT

Mr. McDonnell respectfully requests oral argument. Allowing counsel to present oral
argument would permit the Court to inquire about whatever issues in this cases voluminous
record it may deem critical to deciding this motion. Given the vital importance of this issue to
protecting Mr. McDonnells legal right to an effective appeal, in light of his twenty-four-month
sentence, he respectfully submits that oral argument would be appropriate.
Mr. McDonnell and his counsel note that the Court has an upcoming argument calendar
on January 27-29. Mr. McDonnells counsel can be available to present argument on any day at
any time during that calendar, at the Courts convenience.
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CERTIFICATE OF SERVICE
I certify that on January 14, 2015, the foregoing Motion for Release Pending Appeal was
served on counsel of record for all parties through the CM/ECF system
Dated: January 14, 2015

/s/ Noel J. Francisco
Noel J. Francisco
Counsel for Robert F. McDonnell
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EXHIBIT A
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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

v.
Action No. 3:14-CR-12
ROBERT F. MCDONNELL,
and
MAUREEN G. MCDONNELL,
Defendants.
MEMORANDUM ORDER
THIS MATTER is before the Court on Defendant Robert F. McDonnell's Motion #51 -
Motion for Release PendingAppeal ("Motion") (ECF No. 601). Pursuant to 18 U.S.C. 3143(b),
the Court
(1) . . . shall order that a person who has been found guilty of an offense and
sentenced to a term of imprisonment, and who has filed an appeal or a petition
for writ of certiorari, be detained, unless the judicial officerfinds(A) by clear and convincing evidence that the person is not likely to flee or pose a
danger to the safety of any other person or the community if released...; and
(B) that the appeal is not for the purpose of delay and raises a substantial
question of law or fact likely to result in(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or

(iv) a reduced sentence to a term of imprisonment less than the total of
the time already served plus the expected duration ofthe appeal process.
18 U.S.C. 3143(b). Here, there is no dispute as to the first prong, that being Mr. McDonnell is
notlikely to flee and does notpose a danger to the safety ofany other person or the community.
18 U.S.C. 3143(b)(1)(A). In analyzing the second prong, 18 U.S.C. 3143(b)(1)(B), the Court
must make two inquires after finding that the appeal is not taken for the purpose of delay: (1)
"whether the question presented on appeal is a 'substantial' one;" and (2) "if decided in favor of
the accused, whether the substantial question is important enough to warrant reversal or a new
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trial on all counts for which the district court imprisoned the defendant." United States v.
Steinhorn, 927 F.2d 195,196 (4th Cir. 1991) (citing United States v. Miller, 753 F.2d 19, 23-24
(3d Cir. 1985)). A substantial question has been defined as '"a 'close' question or one that very
well could be decided the other way.'" Id. (quoting United States v. Giancola, 754 F.2d 898, 901
(nth Cir. 1985)).
Mr. McDonnell presents three issues that he contends are "substantial questions"
important enough to warrant reversal or new trial: (1) whether the five actions the Government
alleged in its Indictment and argued to the jury qualify as "official acts" under federal law; (2)
whether this Court conducted sufficient voir dire on pretrial publicity; and (3) whether this
Court erred by declining to follow the procedures outlined in United States v. Resko, 3 F. 3d
684, 688 (3d Cir. 1993),given evidence of alleged premature jury deliberations. (Mem. in Supp.
of Mot. at 2, 23.) However, as the Court has fully explained in its memorandum opinions
denying Mr. McDonnell's Motion for New Trial and Renewed Motion for Judgment of Acquittal
(see ECF Nos. 567, 571) the above-mentioned issues do not present a "close" call justifying bail
pending appeal.
With respect to the first issue, this Court previously found that "[t]he Government
provided substantial evidence for the jury to conclude that McDonnell knew what [Jonnie]
Williams was seeking, specifically, research studies for Star Scientific's Anatabloc product."
(Mem. Op. at 5, Dec. 1, 2014, ECF No. 567.) The Court additionally found that Mr. McDonnell
attempted to use his gubernatorial office to influence governmental decisions in favor of Star
Scientific. (Mem. Op. at 7, Dec. 1, 2014, ECF No. 571.) The Court concluded that "[substantial
evidence supports the jury's finding of a quid and fairly specific, related quo." (Id. at 8.) Mr.
McDonnell assuredly did more than provide mere access to Williams-he performed "official
acts" as that term is defined under federal bribery laws. Therefore, for the foregoing reasons,
and for all the reasons stated in this Court's prior memorandum opinions, this is not a "close
question" that justifies release pending appeal.
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As to the second issue, the voir dire process is essentially committed to the sound
discretion of the district court "because the determination of impartiality, in which demeanor
plays such an important part, is particularly within the province of the trial judge." United
States v. Lancaster, 96 F.3d 734, 738 (4th Cir. 1996) (citations and internal quotation marks
omitted). As explained in its memorandum opinion denying Mr. McDonnell's Motion for New
Trial, this Court found that the procedures employed in managing voir dire and the effects of
any pretrial publicity were adequate and Mr. McDonnell's claims were "unfounded." (Mem. Op.
at 15, Dec. 1, 2014, ECFNo. 567.) It is not a "close call" whether this Court properly acted within
its discretion as to this issue.
Likewise, with regards to alleged premature jury deliberations, "the Court was entitled to
exercise its discretion and assess the situation presented." (Id. at 17.) The Court found that Louis
DeNitto's statements to attorney Jim Watson "did not provide sufficient indicia of premature
deliberations." (Id.) Although Mr. McDonnell continues to rely on Resko, 3 F. 3d 684 to support
his argument, for the reasons stated in this Court's memorandum opinion denying his Motion
for New Trial (see ECF No. 567 at 18-19), Mr. McDonnell's argument remains unpersuasive.
Thus, this too does not constitute a "substantial question."
For the foregoing reasons, the Motion is hereby DENIED.
Let the Clerk send a copy of this Order to all counsel of record.
It is SO ORDERED.
/s/
James R. Spencer
Senior U. S. District Judse
ENTERED this
fi day of January 2015.
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EXHIBIT B
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AO 245B (Rev. I2/03XVAED rev. 2) Sheet 1 - Judgment in a Criminal Case
Eastern District of Virginia

Richmond Division
UNITED STATES OF AMERICA
V.
Case Number:
3:14cr00012-001
USM Number:
83758-083
Robert f. McDonnell
Defendant's Attorney:
JOHN BROWNLEE, ESQ.,
HENRY ASBILL, ESQ.
Defendant.
AMENDED JUDGMENT IN A CRIMINAL CASE
(ONLY CHANGE: Corrected Offense End date on Count 10)

The defendant was found guilty on Count(s) after a plea of not guilty to Counts 1, 2, 3, L, 5, 6, 7, 8, 9, IC and
11 of the Indictment.
The defendant is adjudicated guilty of these offenses.

Title and Section
18U.S.C. 1349
Nature of Offense
Offense Class Offense Ended
Couiit
CONSPIRACY TO COMMIT
Felony
3/2013
Felony
Felony
Felony
Felony
5/26/2011
HONEST-SERVICES WIRE FRAUD

18U.S.C. 1343
18U.S.C. 1343
18U.S.C. 1343
18U.S.C. 1951
CONSPIRACY TO OBTAIN
3/12/2012
5/22/2012
3/2013
Felony
5/23/20; 1
6& 1
Felony
5/29/20:1
Felony
1/7/201::
Felony
3/6/201::
10
Felony
5/22/20 2
11
PROPERTY UNDER COLOR OF

OFFICIAL RIGHT
18U.S.C. 1951 AND 2
OBTAINING PROPERTY UNDER

COLOR OF OFFICIAL RIGHT
18U.S.C. 1951 AND 2

18U.S.C. 1951 AND 2

I8U.S.C. 1951 AND 2

18U.S.C. 1951 AND 2
The defendant has been found not guilty on Count(s) 12 and 13 of the Indictment.
The defendant is sentenced as provided in pages 2 through 7 of this Judgment. The sentence is imposed
pursuant to the Sentencing Reform Act of 1984.
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EXHIBIT C
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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
2
3
------------------------------------------
Plaintiff;
v.
ROBERT F. McDONNELL
8
9
Defendant.
-------------------------------------------
10
11
January 6, 2015
Richmond, Virginia
10:00 a.m.
12
SENTENCING PROCEEDINGS
13
BEFORE:
HONORABLE JAMES R. SPENCER

United States District Judge
APPEARANCES:
MICHAEL S. DRY, ESQ.

DAVID V. HARBACH, II, ESQ.
JESSICA D. ABER, ESQ.
RYAN S. FAULCONER, ESQ.
RICHARD D. COOKE, ESQ.
14
15
16
17
18
Criminal Action
3:14CR12
Counsel for Government;
19
20
21
22
23
24
25
JOHN L. BROWNLEE, ESQ.

HENRY W. ASBILL, ESQ.
TIMOTHY J. TAYLOR, ESQ.
JAMES M. BURNHAM, ESQ.
NOEL J. FRANCISCO, ESQ.
THOMAS B. SHUTTLEWORTH, II, ESQ.
Counsel for Robert F. McDonnell;
JEFFREY B. KULL
OFFICIAL COURT REPORTER
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Your Honor, I am now 60 years old.
Whatever
days the Lord will yet provide me on this earth, I
dedicate anew to the service of others.
to permit me to employ my experience and my energy to
serve people in need in our state or in other countries
over these next few years, working in one of the myriad
community service programs that my counsel has submitted
to the Court.
I ask Your Honor
And I ask that whatever mercy the Court may
10
extend in this case, I ask that you consider granting it
11
first to my wife, Maureen.
12
Throughout my life, Judge Spencer, I have placed
13
great confidence in our system of justice, and even
14
greater confidence in the providence and protection of the
15
Lord Jesus Christ.
16
myself to the judgment of the Court and I thank you for
17
considering my words.
18
19
So Your Honor, with that, I submit
THE COURT:
All right, thank you.
You can have
a seat.
20
(The defendant was seated.)
21
We come once again to what is indeed our most
22
difficult task, deciding what is an appropriate sentence
23
for another human being; appropriate for the crime
24
committed, appropriate in light of the history,
25
characteristics, the humanity of the offender, acceptance
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of responsibility, deterrence general and specific, the
public good, protection, and retribution.
an awesome responsibility and we take it seriously.
4
5
Sentencing is
This case requires some comment, some out loud

analysis before sentence is imposed.
Now, there has been a lot of blame assessed to
account for the defendant's predicament during the course
of the trial and in the public arena.
is pointed at the Justice Department, the U.S. Attorneys.
10
The assertion was made that they have been too zealous in
11
pursuing their prosecution.
12
Virginia State Police?
13
in their investigations?
14
didn't understand.
15
Jonnie Williams, who snaked his way into the Governor's
16
household.
17
according to some, dangerously delusional.
18
the one who roped the Governor into this predicament.
First, the finger
And what about the FBI or the
Were they unfair or too vigorous

Maybe it was the jury, who just
Maybe it is the Judge.
Maybe it is
Maybe it is his co-defendant, his wife, now,

Maybe she was
19
Acceptance of responsibility, a demonstration of
20
remorse, these are factors that I am told to consider when
21
discerning an appropriate sentence.
22
Now, there has been some suggestion that perhaps
23
this trial was not fair.
We have certain metrics by which
24
we measure a fair trial.
They are not secret or hidden.
25
They are written down in rules, statutes, and a
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Constitution.
defendants were placed on notice of the precise charges
against them.
Court, advised of their rights, arraigned, released on
personal recognizance, and given a trial date, a trial
date that allowed them more than adequate time to prepare.
Six to seven weeks of trial time was made available so
everyone would have an opportunity to make their case.
A grand jury returned an indictment and the
The defendants were brought before the
The defendants exercised their right to counsel,
10
absolutely.
11
experienced, highly motivated counsel.
12
a rigorous, multi-pronged defense and challenged the
13
Government's case at every turn.
14
dozens and dozens of motions and briefs.
15
aggressively exercised their right to confront any
16
witnesses called against them.
17
thorough and relentless.
18
The defendants were represented by able,

And counsel put on
There were dozens and

The defendants
Cross-examination was
Did the defendants have a full opportunity to
19
put on a case?
The defendant took the stand and testified
20
for days.
21
expansive direct examination, even when I heard the same
22
testimony for the third and fourth time.
23
give the defendant a full and fair opportunity to be
24
heard.
25
counsel, their final opportunity to persuade the jury to
The Court was beyond generous in allowing the
But we wanted to
And then when we had the closing arguments of
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their point of view, there was no time limit.
arguments were passionate and well done.
Was this a public trial?
These
You betcha.
Unprecedented media involvement and access.
I can tell, no one was shy about using that media to get
their message out.
So my conclusion, based on all of the metrics
that matter:
due him.
10
11
And as far as
Mr. McDonnell got all the process that was
Whether or not you prevailed is not how you
determine if a trial was fair.

Let me say a few words about the jurors in this
12
case, because they are not here to speak for themselves.
13
How many citizens do you think would gleefully give up six
14
or seven weeks of their lives to sit on a jury?
15
tremendous sacrifice: social, educational, family,
16
employment, financial sacrifice.
17
service, jury duty is the pinnacle of public service for
18
the average citizen.
19
in this case and came to a verdict were a group of very
20
fine people who persevered and fulfilled the difficult
21
task they were called to do.
22
It is a
Other than military
These twelve jurors who deliberated
I also need to say this, because there is no
23
record on this issue that has been bandied about:
The
24
name and personality of Robert F. McDonnell didn't
25
register on my radar screen until he ran for Attorney
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General.
for Governor.
had to decide between competing candidates.
then, the only thing I knew about him was what I could
glean from political advertisements.
don't know him, and he doesn't know me.
He didn't fully register with me until he ran

And like all my fellow Virginia citizens, I
And even
The bottom line:
Now, let's get to the job I have this morning:
Finding a sentence that is fair and appropriate
considering all of the factors that I am required to
10
11
consider in 3553(a).
The starting point in the analysis is, of
12
course, the Sentencing Guidelines Range.
A brief history
13
lesson so that we can all understand where these
14
Sentencing Guidelines came from:
15
this job in 1986, there were no Sentencing Guidelines.
16
There was a certain political orthodoxy that pushed the
17
notion that sentencing discretion should be taken away
18
from judges, and that discretion would be replaced by a
19
system where you plug in the numbers and a factual matrix
20
and out would pop a Sentencing Guidelines Range.
21
would be no discretion.
22
That is, the sentence would have to be within the
23
Guidelines Range.
24
exceptional, extreme, or extenuating circumstances,
25
youthful offender or not, physical health issues, mental
When I first came to
There
The Guideline was mandatory.
It didn't matter if there were
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health issues, family hardship, aberrant behavior.
was no place for grace or mercy.
There
But some of us judges, and I certainly was
included in that number, pushed back at this notion that
our discretion could be taken away by another co-equal
branch of government.
U.S. Supreme Court finally said that the Sentencing
Guidelines, to be constitutional, must be discretionary.
Imagine if these Guidelines were mandatory and
We battled for decades until the
10
the Court had no choice but to sentence Governor McDonnell
11
to seven or eight years in prison.
12
It would be ridiculous under these facts.
13
somewhere thought that was fair.
14
is somebody else's husband, or brother, or father.
15
never seemed fair to me.
16
That would be unfair.

But somebody
Maybe it is fair when it

But it
Hundreds of letters were filed in this case, and
17
I have read every single one of them.
18
thoughtful and moving, personal recollections of good
19
deeds, good character, and ultimately a request for a
20
lenient sentence.
21
and honest letters from Reverend Wayne Ball and Thomas
22
Farrell, Linda Hassell, Janet Kelly, an especially
23
thoughtful letter that she wrote, as well as one from
24
Clovia Lawrence, who testified here today.
25
Most of them were
Among these were particularly moving
Then there were a few other letters that were
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not quite as helpful.
They either continued to blame,
cast blame on others, or see conspirators behind every
tree.
from these letters:
done a lot of good during his time in the public arena.
have no reason to doubt this.
him credit for that in my assessment in coming to an
appropriate verdict.
But the overall view of the defendant that I got
That he is a good and decent man, has

I
And I will certainly give
I also have great respect for those who've
10
provided military service to this nation.
11
knows me knows that's one of my weak spots, and he
12
deserves credit and will receive credit for that.
13
believe that honorable military service means something
14
and should mean something in every assessment of a citizen
15
in this country.
16
Anybody who
This entire case has been tragic from beginning
17
to end.
I reviewed letters from some of the Governor's
18
closest staff members, most of whom also testified during
19
the trial.
20
loyalty that in the end amounts to devotion.
21
clearly have his best interest at heart.
22
best interest at heart now; they had his best interest at
23
heart when they were working for him.
24
Williams for what he was, and they sounded the alarm.
25
There was good advice and counsel all over the place.
And they are very loyal to the Governor, a

And they
They have his
And they saw Jonnie
But
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it went unheeded.
While Ms. McDonnell may have allowed
the serpent into the Mansion, the Governor knowingly
brought him into his business and financial affairs, and
thus the seeds of this case were planted.
I have great sympathy for this family.
could, I would turn back the hands of time and change this
situation completely.
8
9
And if I
But obviously, I can't do that.
No one wants to see a former Governor of this

great Commonwealth in this kind of trouble.
But the facts
10
of this case could not be ignored by the investigators, or
11
the prosecutors, or by the jury, or by the Court for that
12
matter.
13
defraud.
14
mercy that I can muster, it cannot cover it all.
15
must be paid, and that is some level of punishment.
16
breaks my heart, but I have a duty and responsibility
17
which I cannot avoid.
18
my hands of it all.
19
imposed.
The jury, by its verdict, found an intent to

This is a serious offense that all the grace and
A price
It
Unlike Pontius Pilate, I can't wash

A meaningful sentence must be
20
Now, in the twenty-eight, almost twenty-nine
21
years that I have been doing this, I have asked myself
22
this question over and over again at sentencings at
23
various times during the years:
24
in this courtroom, good people end up being found guilty
25
of doing bad things?
Why do good people end up
I don't have the answer yet, and I
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may never get it on this side of the Jordan.
continue to be perplexed by it.
could engender this kind of support, his friends adore
him, his family, they love him.
kinds of chances?
went before this jury, they had an opportunity to accept
the Governor's position.
it.
the conclusion that he committed an offense.
10
13
Obviously, a man that
Why would you take these

But on these facts that
His case was made.
They heard
They rejected it and accepted that the facts led to

And I simply
cannot ignore it.
11
12
I don't know.
But I
All right, Mr. McDonnell, would you please stand

where you are along with your counsel.
(Defendant and counsel stood.)
14
It is the judgment of the Court that the
15
defendant, Robert F. McDonnell, is hereby committed to the
16
custody of the U.S. Bureau of Prisons to be imprisoned for
17
a term of 24 months.
18
each of Counts One through Eleven, all to be served
19
concurrently.
20
of the sentence at the institution designated by the
21
Bureau of Prisons before two p.m. on February 9th, 2015 as
22
notified by the U.S. Marshal.
The term consists of 24 months on
The defendant shall surrender for service
23
Upon release from imprisonment, the defendant
24
shall be placed on supervised release for a term of two
25
years.
This term consists of two years on each of Counts
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One through Eleven, all to run concurrently.
hours of release from the custody of the Bureau of
Prisons, the defendant shall report in person to the
Probation Office in the district to which he is released.
Within 72
While on supervision, the defendant shall not
commit another federal, state, or local crime, and he
shall not unlawfully possess a controlled substance, and
he shall not possess a firearm or other destructive
device.
10
The defendant shall comply with the standard
conditions that have been adopted by this Court.
11
The defendant shall also comply with the
12
following special conditions:
13
incur new credit charges or open additional lines of
14
credit without the approval of the Probation Officer.
15
defendant shall provide the Probation Officer access to
16
any requested financial information.
17
Presentence Report, the defendant presents a low risk of
18
future substance abuse, and therefore, the Court hereby
19
suspends the mandatory condition for substance abuse
20
testing.
21
Probation Office from administering drug tests as they
22
deem appropriate.
23
The defendant shall not
The
As reflected in the
However, this does not preclude the U.S.
The Court has considered the defendant's
24
financial situation in its totality, and the Court finds
25
that the defendant is not capable of paying a fine, and
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therefore, none will be imposed.
As to Counts One through Eleven, the defendant
shall pay a special assessment in the amount of $100 for
each count, for a total of $1,100.
assessments shall be due in full immediately.
special assessments are not paid immediately, any balance
remaining unpaid on the special assessments at the
beginning of supervision shall be paid by the defendant in
installments of not less than $100 per month until paid in
The special
If the
10
full.
11
defendant's supervision begins.
12
balance shall become a special condition of supervised
13
release.
14
Said payments shall commence 60 days after the

Payment of any unpaid
Nothing in the Court's order shall prohibit the
15
collection of any judgment or assessment by the United
16
States.
17
Mr. McDonnell, you have a right to appeal any
18
finding of the jury as well as the sentence of the Court,
19
and if you were going to do that you would have to file a
20
Notice of Appeal within fourteen days of today's date.
21
That completes this matter.
22
MR. BROWNLEE:
Your Honor, we request that he be
23
designated to a place closest to his home, which I believe
24
is Petersburg, if that's appropriate to the Court.
25
THE COURT:
I will recommend to the Bureau of
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Prisons that he be housed at the closest appropriate
facility to his home.
MR. BROWNLEE:
THE COURT:
MR. BROWNLEE:
Thank you, Your Honor.
Thank you all very much.

We had filed a motion regarding
bond pending appeal, Your Honor.
Court --
8
9
10
THE COURT:
have a response.
I don't know what the
I just got that yesterday.
I don't
At least I haven't seen the response.
But I will deal with it in order.
11
(Proceedings adjourned at 2:51 p.m.)
12
CERTIFICATE OF REPORTER
13
I, Jeffrey B. Kull, Official Reporter, certify that
14
the foregoing is a correct transcript from the record of
15
proceedings in the above-entitled matter.
16
17
18
__________/s/_________________
19
Jeffrey B. Kull,
Official Federal Reporter
20
21
__________/s/_________________
22
Date
23
24
25
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EXHIBIT D
Appeal:
Case:15-4019
14-2312
Doc:
2-5 00116785282
Filed: 01/14/2015
2 of Filed:
3
Pages:(52
of 59)
Document:
Page: 1 Pg:Date
01/09/2015 Total
Entry
ID: 5878770
United States Court of Appeals

For the First Circuit
__________________
No. 14-2312
UNITED STATES,
Appellee,
v.
JOHN O'BRIEN,
Defendant Appellant,
__________________
__________________
No. 14-2313
UNITED STATES,
Appellee,
v.
ELIZABETH V. TAVARES,
Defendant Appellant,
__________________
Before
Lynch, Chief Judge,
Kayatta and Barron, Circuit judges.
__________________
ORDER OF COURT
Entered: January 9, 2015
Based on the material presented by the parties, the court is persuaded of a sufficient
probability that the appeals present a "substantial question" within the meaning of 18 U.S.C.
3143(b)(1)(B). Appellants' motions for release pending appeal under the same conditions imposed
Appeal:
Case:15-4019
14-2312
Doc:
2-5 00116785282
Filed: 01/14/2015
3 of Filed:
3
Pages:(53
of 59)
Document:
Page: 2 Pg:Date
01/09/2015 Total
Entry
ID: 5878770
for release pending trial and pending the self-reporting date are granted. The pending motions for
leave to file oversized documents are also granted.
By the Court:
/s/ Margaret Carter, Clerk
cc:
Hon. William G. Young
Robert Farrell, Clerk, United States District Court for the District of Massachusetts
Judith H. Mizner
Stylianus Sinnis
William W. Fick
Christine DeMaso
Martin G. Weinberg
Kimberly Homan
Jeffrey Alan Denner
Richard Bradford Bailey
Adamo L. Lanza
Dina Michael Chaitowitz
Karin Marie Bell
Robert Averill Fisher
Fred M. Wyshak Jr.
Michael O. Jennings
Helene Kazanjian
Daniel P. Sullivan
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EXHIBIT E
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84 Pages:(55 of 59)
1
1
2
3
4

FOR THE DISTRICT OF COLUMBIA
--------------------------X
Docket No. CR 08-274
Plaintiff,
v.
Washington, D.C.
November 3, 2010
2:00 p.m.
5
6
KEVIN A. RING,
Defendant.
---------------------------X
8
9
AFTERNOON SESSION
JURY TRIAL - DAY 12

BEFORE THE HONORABLE ELLEN SEGAL HUVELLE
UNITED STATES DISTRICT JUDGE
10
APPEARANCES:
11
For the Plaintiff:
UNITED STATES DEPARTMENT OF JUSTICE

Criminal Division - Fraud Section
By: Mr. Nathaniel B. Edmonds
Mr. Peter Koski
1400 New York Avenue, N.W.
202.307.0629
nathaniel.edmonds@usdoj.gov
peter.koski@usdoj.gov
For the Defendant:
MILLER & CHEVALIER CHARTERED

By: Mr. Andrew T. Wise
Mr. Timothy P. O'Toole
655 Fifteenth St., N.W.
Suite 900
202.626.5552
awise@milchev.com
totoole@milchev.com
Court Reporter:
Catalina Kerr, RPR, CRR

U.S. District Courthouse
Room 6509
202.354.3258
catykerr@msn.com
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Proceedings recorded by mechanical stenography, transcript

produced by computer.

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36
officials.
Now, as I just instructed, the legality of any
campaign contributions in this case is not an issue before
you.
meals, tickets and other gifts described in this trial were
necessarily illegal or criminal.
perfectly proper and legal as well.
8
9
But you are not to infer from this instruction that the
These things may also be
Standing alone, providing gifts of meals and tickets

to public officials are not crimes, even if they are provided
10
by someone seeking to curry favor or influence with those
11
officials.
12
public official merely to build a reservoir of good will that
13
might ultimately affect one or more unspecified acts now or in
14
the future.
15
payments for entertainment, sports events and the like would
16
not constitute violations of the illegal gratuities or honest
17
services wire fraud statutes if the intent of the Defendant
18
was simply to cultivate a personal, professional, business or
19
political -- I'm sorry -- cultivate a personal, business, or
20
political friendship.
21
It is not illegal to give a thing of value to a
Offering hospitality to a public official through
A lobbyist is a person who, for compensation on
22
behalf of a client, engages in direct communication with
23
public officials for the purpose of influencing legislative or
24
administrative actions.
25
cultivate personal and political relationships with public
Lobbyists often use hospitality to

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37
officials.
As I said, there is nothing illegal about this
practice.
The fact that gifts or hospitality might make a
public official willing to take a lobbyist's phone call or
might provide the lobbyist greater access to the official's
appointment schedule is not enough by itself to demonstrate
the lobbyist's intent to provide illegal gratuities or to
deprive the public of the government official's honest
services.
provided illegal gratuities or committed honest services wire
Therefore, you cannot find that the Defendant has
10
fraud if you find that his intent was limited only to the
11
cultivation of business or political friendship.
12
Such gifts become criminal only if you find beyond a
13
reasonable doubt that they were given in violation of either
14
the illegal gratuities or honest services wire fraud statutes,
15
as will be described below.
16
doubt that gifts were given in violation of these statutes, it
17
makes no difference that the giver also had a lawful reason or
18
motivation for giving the gift.
19
If you find beyond a reasonable
Now, we talked a lot about thing of value.
I will
20
be instructing you in a moment about the offenses charged in
21
the indictment.
22
of value, end of quote, includes things possessing intrinsic
23
value, whether tangible or intangible, that the person giving
24
or offering, or the person soliciting or receiving considers
25
to be worth something.
For purposes of these charges, a quote, thing

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This would include a sum of money, tickets, meals,
drinks, golf outings, trips and jobs or the offer of jobs, but
it does not, as I previously instructed you, include campaign
contributions.
the public official but to a family member or third party for
the benefit of the public official and at the public -- and at
the public official's knowing direction.
8
9
It also includes things of value given not to
A public official is defined as an officer or

employee or person acting for or on the behalf of the United
10
States or any department, agency or branch of government
11
thereof, including the District of Columbia, in any official
12
function, under or by authority of any such department, agency
13
or branch of government.
14
of Congress, their employees, and employees of the executive
15
branch are public employees.
16
Official act.
It is undisputed here that members
In general, an official act, and
17
that's in quote, means any decision or action on any question,
18
matter, cause, suit, proceeding or controversy which may at
19
any time be pending or which may, by law, be brought before
20
any public official in such official's official capacity or in
21
such official's place of trust or proffer.
22
question, matter, cause, suit, proceeding, or controversy,
23
refer to a class of questions or matters whose answer or
24
disposition is determined by the Government.
25
The six terms,
An act may be official even if it was not taken

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39
pursuant to responsibilities explicitly assigned by law.
Rather, official acts include those activities that have been
clearly established by settled practice as part of an
official -- public official's position.
act includes the exercise of both formal official influence
such as a legislator's vote on legislation and informal
official influence such as the legislator's behind-the-scenes
influence on other public officials in the legislative or
executive branches.
10
Therefore, official
Official act also includes a public official
11
altering his or her official acts, changing a position which
12
he or she would have otherwise taken, or taking actions in his
13
or her official capacity that he or she would not have taken
14
but for the scheme or artifice to deprive the United States
15
and its citizens of their intangible right to the honest
16
services of certain government officials.
17
Mere favoritism, as evidenced by a public official's
18
willingness to take a lobbyist's telephone call or to meet
19
with a lobbyist is not an official act.
20
information with the lobbyist or helping to develop a lobbying
21
strategy does not constitute an official act.
22
In addition, sharing
Kevin Ring denies all of the charges against him and
23
maintains his innocence.
His position is that the evidence
24
shows that he only used the legitimate tools at his disposal,
25
including his past experience on Capitol Hill, policy

4th Circuit Court of Appeals Motion For Release Pending Appeal

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4th Circuit Court of Appeals Motion For Release Pending Appeal

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Appeal: 15-4019

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ORAL ARGUMENT REQUESTED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

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Defendant-Appellant Robert F. McDonnell moves for release pending appeal pursuant to

Nor has the district court ever citedlet alone

distinguishedany of the well-reasoned out-of-circuit decisions Mr. McDonnell has repeatedly

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Mr. McDonnell asked a subordinate to send a staffer to a meeting with Mr.

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There Is A Substantial Question Whether Mr. McDonnell Performed Or Promised

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526 U.S. at 405-06.

The Court rejected that broad construction,

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Mr. McDonnells Position Is Supported By Decisions From Three Other

United States v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978),

Government officials routinely confer increased access and credibility on their

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sufficientstanding aloneto qualify as improper official action. Id. at 296.

Despite a clear quid pro quo and larger plan, it

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It Is, In Turn, A Substantial Question Whether The Verdict Was Sound.

There Is A Substantial Question Whether The Jurys Verdict Was

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with them? Did you take care of that? A: Never.).

There Is Also A Substantial Question Whether The Jury

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Dated: January 14, 2015

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/s/ Noel J. Francisco

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STATEMENT REGARDING ORAL ARGUMENT

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Dated: January 14, 2015

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UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

Action No. 3:14-CR-12

(iii) a sentence that does not include a term of imprisonment, or

fi day of January 2015.

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UNITED STATES DISTRICT COURT

Eastern District of Virginia

AMENDED JUDGMENT IN A CRIMINAL CASE

(ONLY CHANGE: Corrected Offense End date on Count 10)

The defendant is adjudicated guilty of these offenses.

Offense Class Offense Ended

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