579 U.S. __, 136 S. Ct. 2355 (2016)
In November 2009 Robert McDonnell was elected the 71st Governor of Virginia.1 His campaign focused on promoting business in the state.2 He spoke about economic development on a daily basis while attending numerous events and referring constituents to meetings with staff and other officials.3
Shortly after the election Williams had dinner with Governor and Mrs. McDonnell.4 Williams was the CEO of Star Scientific, a Virginia-based company that developed and marketed Anatabloc, a nutritional supplement made from anatabine.5 Star Scientific hoped Virginia's public universities would undertake research studies on anatabine pursuant to a grant from Virginia's Tobacco Commission.6
Over the next two years Williams provided the McDonnells with more than $175,000 in gifts and loans.7 McDonnell arranged meetings for Williams with state health officials including Dr. Hazel.8 He hosted a lunch event for Star Scientific at the Governor's Mansion in August 2011.9 He also directed staff to forward materials and emails regarding Anatabloc research issues at state universities.10
Additional interactions included a March 2012 meeting with administration officials where McDonnell discussed Anatabloc.11 In January 2014 the Federal Government indicted McDonnell and his wife Maureen on one count of conspiracy to commit honest services fraud, three counts of honest services fraud, one count of conspiracy to commit Hobbs Act extortion, six counts of Hobbs Act extortion, and two counts of making a false statement.12 The indictment alleged that McDonnell accepted the benefits in exchange for performing official actions on an as-needed basis to promote Star Scientific's products.13 Mrs. McDonnell faced similar charges plus one count of obstructing official proceedings.14
The case proceeded to a five-week jury trial in the Eastern District of Virginia.15 At trial Williams testified under an immunity agreement that he provided the benefits to obtain help with testing Anatabloc.16 McDonnell acknowledged requesting loans and accepting gifts but testified that arranging meetings was routine and that he expected staff only to meet with Williams.17 Several state officials testified they discussed Anatabloc but took no further action.18 The district court instructed the jury that official acts include acts a public official customarily performs, including those in furtherance of longer-term goals.19 McDonnell requested but was denied an instruction that merely arranging meetings or hosting events does not alone constitute an official act.20 The jury convicted Governor McDonnell on the honest services fraud and Hobbs Act extortion charges, but acquitted him on the false statement charges.21 The District Court sentenced him to two years in prison.22
Following the verdict McDonnell moved to vacate the convictions, arguing the jury instructions were erroneous.23 He also moved for acquittal on grounds of insufficient evidence and unconstitutional vagueness.24 The district court denied both motions.25 McDonnell appealed to the Fourth Circuit.26 The Supreme Court granted certiorari to review the meaning of official act under the federal bribery statute.27
Whether the term "official act" in 18 U.S.C. § 201(a)(3) requires a decision or action on a specific pending question or matter that involves a formal exercise of governmental power?28
An official act under 18 U.S.C. § 201(a)(3) is a decision or action on a question, matter, cause, suit, proceeding or controversy. That question or matter must involve a formal exercise of governmental power. It must also be something specific and focused that is pending or may by law be brought before a public official. To qualify as an official act, the public official must make a decision or take an action on that question or matter, or agree to do so. Setting up a meeting, talking to another official, or organizing an event without more does not fit that definition.29
Yes. The Supreme Court interpreted the statute to require identification of a focused question or matter such as whether state universities would initiate a study of Anatabloc, whether the Tobacco Commission would allocate grant money, or whether the state health plan would cover Anatabloc.30 Applying this rule to the established facts, Governor McDonnell arranged meetings with Dr. Hazel and other officials.31 He hosted a lunch event at the Governor's Mansion where researchers received samples and checks.32 He sent emails directing staff to address Anatabloc issues.33 These actions did not constitute decisions or actions on the identified questions or matters because subordinates were instructed only to attend meetings without further expectation of action.34 The Court further held that merely setting up meetings or hosting events does not qualify even when related to a pending matter, as confirmed by the precedent in Sun-Diamond that routine constituent services fall outside the definition.35
The established facts show that state officials discussed Anatabloc but took no further action.36 This confirms that McDonnell's conduct involved only arranging contacts rather than exerting pressure or providing advice intended to form the basis for an official act by another official.37
The term official act requires a decision or action on a specific pending question or matter that involves a formal exercise of governmental power.38
Whether the district court's jury instructions on the definition of "official act" were erroneous because they permitted conviction for conduct that does not qualify as an official act?39
Jury instructions on official act are erroneous if they fail to require the jury to identify a specific focused question or matter involving formal governmental power.40 They must also limit the matter to something more concrete than a broad policy objective such as economic development.41 Finally, they must require a finding that the official made a decision or took an action or agreed to do so on that matter.42
Yes. The district court instructed the jury that official acts encompass acts a public official customarily performs, including those in furtherance of longer-term goals or in a series of steps to exercise influence.43 Applying this rule to the established facts, the instructions allowed the jury to convict based on McDonnell arranging meetings for Williams with state health officials.44 They also allowed conviction based on hosting the August 2011 lunch event at the Governor's Mansion.45 They further allowed conviction based on contacting officials about research studies.46 This occurred without requiring a finding that these actions constituted decisions on the specific matters of initiating university studies, allocating Tobacco Commission grants, or adding Anatabloc to the state health plan.47 The jury could have convicted on the theory that routine activities such as referring constituents to meetings or hosting events at the Mansion were themselves official acts.48 The jury could also have convicted on the theory that Virginia business and economic development constituted the matter.49 Both of these theories the Supreme Court rejected as overinclusive.50
Because the errors permitted conviction for conduct that does not qualify as an official act under the proper definition, the instructions were not harmless beyond a reasonable doubt.51
The district court's jury instructions on the definition of official act were erroneous because they permitted conviction for conduct that does not qualify as an official act.52
Whether the honest services fraud statute and the Hobbs Act are unconstitutionally vague as applied to the acceptance of loans and gifts by a public official?53
A criminal statute is unconstitutionally vague if it fails to define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited or in a manner that encourages arbitrary and discriminatory enforcement.54 When the parties define honest services fraud and Hobbs Act extortion with reference to the official act element of 18 U.S.C. § 201, a narrowed construction of that element avoids vagueness concerns.55
No. The parties agreed to define the honest services fraud and Hobbs Act charges with reference to the official act element of the federal bribery statute.56 Applying this rule to the established facts, the Supreme Court adopted a bounded interpretation of official act that requires a decision or action on a specific pending question or matter involving formal governmental power.57 This interpretation thereby provided fair notice and avoided the standardless sweep that would criminalize routine constituent services such as arranging meetings or hosting events.58 The established facts involve over $175,000 in loans and gifts from Williams in connection with efforts to promote Anatabloc research.59
Yet the narrowed definition ensures that public officials receive clear guidance on the line between permissible interactions and criminal quid pro quo arrangements.60 Because the interpretation avoids the vagueness concerns raised by Governor McDonnell, the statutes are not unconstitutionally vague as applied here.61
The honest services fraud statute and the Hobbs Act are not unconstitutionally vague as applied to the acceptance of loans and gifts by a public official.62
Whether the evidence presented at trial was sufficient to prove that the defendant committed or agreed to commit an official act in exchange for the loans and gifts?63
Sufficiency of the evidence to prove that a public official committed or agreed to commit an official act is evaluated under the proper definition of official act requiring a decision or action on a specific pending question or matter.64 When the jury was instructed under an erroneous broader definition, the appellate court must determine sufficiency in the first instance under the correct standard.65
No. The Supreme Court did not resolve this issue. The parties have not had an opportunity to address sufficiency under the Court's interpretation. This leaves the question for the Court of Appeals to resolve in the first instance.66 The established facts show that Williams provided over $175,000 in loans and gifts, including a $50,000 loan, a Rolex, and clothing, while McDonnell arranged meetings with Dr. Hazel, hosted the Governor's Mansion lunch event, and directed staff emails regarding Anatabloc issues at state universities.67
Under the proper definition, these actions may or may not constitute an agreement to make a decision or take an action on the specific matters of initiating research studies, allocating grant money, or covering Anatabloc under the state health plan, depending on whether McDonnell agreed to exert pressure or provide advice intended to form the basis for official action by subordinates.68
The question whether the evidence is sufficient under the proper definition of official act is remanded for resolution by the Court of Appeals in the first instance.69