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No. 15-4019

In The
United States Court of Appeals
for the Fourth Circuit
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT F. MCDONNELL,
Defendant-Appellant.
_____________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA, RICHMOND DIVISION
(THE HONORABLE JAMES R. SPENCER, DISTRICT JUDGE)
BRIEF OF AMICI CURIAE LAW PROFESSORS
IN SUPPORT OF DEFENDANT-APPELLANT
William W. Taylor, III
ZUCKERMAN SPAEDER LLP
1800 M Street, N.W., Ste. 1000
Washington, D.C. 20036-5802
T: (202) 778-1800
wtaylor@zuckerman.com
Counsel for Amici Curiae

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus
case, except that a disclosure statement is not required from the United States, from an indigent
party, or from a state or local government in a pro se case. In mandamus cases arising from a
civil or bankruptcy action, all parties to the action in the district court are considered parties to
the mandamus case.
Corporate defendants in a criminal or post-conviction case and corporate amici curiae are
required to file disclosure statements.
If counsel is not a registered ECF filer and does not intend to file documents other than the
required disclosure statement, counsel may file the disclosure statement in paper rather than
electronic form. Counsel has a continuing duty to update this information.
15-4019
No. __________

United States v. Robert F. McDonnell

Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

Judge Nancy Gertner (Ret.)
______________________________________________________________________________
(name of party/amicus)

______________________________________________________________________________
Amicus
who is _______________________,
makes the following disclosure:
(appellant/appellee/petitioner/respondent/amicus/intervenor)

1.

Is party/amicus a publicly held corporation or other publicly held entity?

2.

Does party/amicus have any parent corporations?

YES 4 NO
If yes, identify all parent corporations, including grandparent and great-grandparent
corporations:

3.

Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity?
YES 4 NO
If yes, identify all such owners:

10/28/2013 SCC

-1-

YES

NO

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4.

Is there any other publicly held corporation or other publicly held entity that has a direct
financial interest in the outcome of the litigation (Local Rule 26.1(b))?
YES 4 NO
If yes, identify entity and nature of interest:

5.

Is party a trade association? (amici curiae do not complete this question)

YES 4 NO
If yes, identify any publicly held member whose stock or equity value could be affected
substantially by the outcome of the proceeding or whose claims the trade association is
pursuing in a representative capacity, or state that there is no such member:

6.

Does this case arise out of a bankruptcy proceeding?

If yes, identify any trustee and the members of any creditors committee:

/s/ William W. Taylor, III

Signature: ____________________________________

YES

NO

March 9, 2015
Date: ___________________

Amicus - Judge Nancy Gertner (Ret.)

Counsel for: __________________________________

CERTIFICATE OF SERVICE
**************************
March 9, 2015
I certify that on _________________
the foregoing document was served on all parties or their
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:

/s/ William W. Taylor, III

_______________________________
(signature)

March 9, 2015
________________________
(date)
-2-

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus
case, except that a disclosure statement is not required from the United States, from an indigent
party, or from a state or local government in a pro se case. In mandamus cases arising from a
civil or bankruptcy action, all parties to the action in the district court are considered parties to
the mandamus case.
Corporate defendants in a criminal or post-conviction case and corporate amici curiae are
required to file disclosure statements.
If counsel is not a registered ECF filer and does not intend to file documents other than the
required disclosure statement, counsel may file the disclosure statement in paper rather than
electronic form. Counsel has a continuing duty to update this information.
15-4019
No. __________

United States v. Robert F. McDonnell

Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

Charles J. Ogletree, Jr.
______________________________________________________________________________
(name of party/amicus)

______________________________________________________________________________
Amicus
who is _______________________,
makes the following disclosure:
(appellant/appellee/petitioner/respondent/amicus/intervenor)

1.

Is party/amicus a publicly held corporation or other publicly held entity?

2.

Does party/amicus have any parent corporations?

YES 4 NO
If yes, identify all parent corporations, including grandparent and great-grandparent
corporations:

3.

Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity?
YES 4 NO
If yes, identify all such owners:

10/28/2013 SCC

-1-

YES

NO

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4.

Is there any other publicly held corporation or other publicly held entity that has a direct
financial interest in the outcome of the litigation (Local Rule 26.1(b))?
YES 4 NO
If yes, identify entity and nature of interest:

5.

Is party a trade association? (amici curiae do not complete this question)

YES 4 NO
If yes, identify any publicly held member whose stock or equity value could be affected
substantially by the outcome of the proceeding or whose claims the trade association is
pursuing in a representative capacity, or state that there is no such member:

6.

Does this case arise out of a bankruptcy proceeding?

If yes, identify any trustee and the members of any creditors committee:

/s/ William W. Taylor, III

Signature: ____________________________________

YES

NO

March 9, 2015
Date: ___________________

Amicus - Charles J. Ogletree, Jr.

Counsel for: __________________________________

CERTIFICATE OF SERVICE
**************************
March 9, 2015
I certify that on _________________
the foregoing document was served on all parties or their
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:

/s/ William W. Taylor, III

_______________________________
(signature)

March 9, 2015
________________________
(date)
-2-

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus
case, except that a disclosure statement is not required from the United States, from an indigent
party, or from a state or local government in a pro se case. In mandamus cases arising from a
civil or bankruptcy action, all parties to the action in the district court are considered parties to
the mandamus case.
Corporate defendants in a criminal or post-conviction case and corporate amici curiae are
required to file disclosure statements.
If counsel is not a registered ECF filer and does not intend to file documents other than the
required disclosure statement, counsel may file the disclosure statement in paper rather than
electronic form. Counsel has a continuing duty to update this information.
15-4019
No. __________

United States v. Robert F. McDonnell

Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

John C. Jeffries, Jr.
______________________________________________________________________________
(name of party/amicus)

______________________________________________________________________________
Amicus
who is _______________________,
makes the following disclosure:
(appellant/appellee/petitioner/respondent/amicus/intervenor)

1.

Is party/amicus a publicly held corporation or other publicly held entity?

2.

Does party/amicus have any parent corporations?

YES 4 NO
If yes, identify all parent corporations, including grandparent and great-grandparent
corporations:

3.

Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity?
YES 4 NO
If yes, identify all such owners:

10/28/2013 SCC

-1-

YES

NO

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4.

Is there any other publicly held corporation or other publicly held entity that has a direct
financial interest in the outcome of the litigation (Local Rule 26.1(b))?
YES 4 NO
If yes, identify entity and nature of interest:

5.

Is party a trade association? (amici curiae do not complete this question)

YES 4 NO
If yes, identify any publicly held member whose stock or equity value could be affected
substantially by the outcome of the proceeding or whose claims the trade association is
pursuing in a representative capacity, or state that there is no such member:

6.

Does this case arise out of a bankruptcy proceeding?

If yes, identify any trustee and the members of any creditors committee:

/s/ William W. Taylor, III

Signature: ____________________________________

YES

NO

March 9, 2015
Date: ___________________

Amicus - John C. Jeffries, Jr.

Counsel for: __________________________________

CERTIFICATE OF SERVICE
**************************
March 9, 2015
I certify that on _________________
the foregoing document was served on all parties or their
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:

/s/ William W. Taylor, III

_______________________________
(signature)

March 9, 2015
________________________
(date)
-2-

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TABLE OF CONTENTS
Disclosures of Corporate Affiliations and Other Interests
Table of Contents ....................................................................................................... i
Table to Authorities .................................................................................................. ii
Interest of Amici Curiae............................................................................................ 1
Summary ................................................................................................................... 2
Argument................................................................................................................... 4
I.

Citizens United and Its Progeny ................................................................ 7

II.

Skilling, Honest Services Wire Fraud and the Hobbs Act ...................... 11

III.

Due Process, Notice and Prosecutorial Discretion.................................. 14

IV.

Conclusion ............................................................................................... 16

Certificate of Compliance
Certificate of Service

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TABLE OF AUTHORITIES
CASES
Buckley v. Valeo,
424 U.S. 1 (1976) ...............................................................................................7, 8
Citizens United v. Federal Election Commn,
558 U.S. 310 (2010) ..................................................................................... passim
McCormick v. United States,
500 U.S. 257 (1991) ........................................................................................ 5, 11
McCutcheon v. Federal Election Commn,
134 S. Ct. 1434 (2014) ................................................................................. passim
McNally v. United States,
483 U.S. 350 (1987) .......................................................................... 11, 12, 14, 15
Skilling v. United States,
561 U.S. 358 (2010) ..................................................................................... passim
United States v. Anzalone,
766 F.2d 676 (1st Cir. 1985) ................................................................................14
United States v. Czubinski,
106 F.3d 1069 (1st Cir. 1997) ..............................................................................15
United States v. Jefferson,
674 F.3d 332 (4th Cir. 2012) ................................................................................13
United States v. Muntain,
610 F.2d 964 (D.C. Cir. 1979) .............................................................................12
United States v. Rabbitt,
583 F.2d 1014 (8th Cir. 1978)..............................................................................12
United States v. Sun-Diamond Growers,
526 U.S. 398 (1999) ...................................................................................... 13, 15
United States v. Urciuoli,
513 F.3d 290 (1st Cir. 2008) ................................................................................12

ii

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Valdes v. United States,

475 F.3d 1319 (D.C. Cir. 2007) ...........................................................................12
Yates v. United States,
574 U.S. ___ (2015) ...............................................................................................4
STATUTES
18 U.S.C. 201(a) .....................................................................................................6
18 U.S.C. 201(a)(3)...............................................................................................13
18 U.S.C. 1343................................................................................................. 2, 11
18 U.S.C. 1951(b)(2)...............................................................................................2
Article 16, Criminal Code of 1926, U.S.S.R. ..........................................................14
Va. Code 2.2-3103(8)-(9) .....................................................................................10
Va. Code 2.2-3117 ................................................................................................10
Va. Code 3120.......................................................................................................10
Va. Code 2.2-3114 ..............................................................................................10
OTHER
Albert W. Alschuler, Criminal Corruption: Why Broad Definitions of Bribery
Make Things Worse, U. of Chicago, Public Law Working Paper No. 502,
at 9 (January 2015) ...............................................................................................13
Criminal Law: Cases and Materials (with Richard J. Bonnie,
Anne M. Coughlin, and Peter W. Low) .................................................................2
E. L. Johnson, An Introduction to the Soviet Legal System, 39040 (1972) .............14
Robert H. Jackson, The Federal Prosecutor,
24 J. AM. JUD. SOC'Y 18 (1940) ............................................................................15

iii

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INTEREST OF AMICI CURIAE

Amici are professors who teach, study, and write about criminal law.1 They
believe the district courts instructions defining official action under the Hobbs
Act and the honest services wire fraud statute, if affirmed, would expand the scope
of those criminal prohibitions beyond any predictable boundaries and should not be
affirmed on appeal. The expansion would raise constitutional concerns about
notice to the defendant and create the potential for unguided prosecutorial
overreaching. Amici respectfully believe their views will assist the Court in
deciding this appeal.
Nancy Gertner is a former United States District Judge for the District of
Massachusetts, where she served for seventeen years. She is currently a Senior
Lecturer on Law at the Harvard Law School. She has written, taught, and spoken
extensively on a wide variety of criminal law issues, including issues of white
collar crime and sentencing.
Charles J. Ogletree, Jr. is the Harvard Law School Jesse Climenko Professor
of Law, and Founding and Executive Director of the Charles Hamilton Houston

No counsel for a party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund the preparation or
submission of this brief. No person other than the amici curiae or their counsel
made a monetary contribution to its preparation or submission. All parties have
consented to the submission of this brief.

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Institute for Race and Justice. He is a respected legal theorist with particular
prominence in the area of criminal law and issues of criminal justice.
John C. Jeffries, Jr., is the David and Mary Harrison Distinguished Professor
of Law, of the University of Virginia, has taught criminal law for forty years. He is
also the co-author of a well-regarded casebook, Criminal Law: Cases and
Materials (with Richard J. Bonnie, Anne M. Coughlin, and Peter W. Low).
SUMMARY
To convict Governor McDonnell under either 18 U.S.C. 1951(b)(2)
(Hobbs Act) or 18 U.S.C. 1343 (honest services wire fraud), the jury was
required to find that he performed or promised to perform official acts in
exchange for gifts or loans. The district courts instructions to the jury extended the
definition of official acts to cover not only the official duties which can be the
subject of illegal quid pro quo agreements but acts that the Supreme Court in dicta
has suggested cannot be.
In a series of decisions we discuss below, the Supreme Court has both
narrowed the reach of the criminal statutes at issue here and, at the same time, in
dicta, broadened the arena of lawful, non-corrupt political activities. In Skilling v.
United States, 561 U.S. 358, 409 (2010), the Court restricted the reach of the
honest services statute to a solid core of traditional bribery and kickbacks,
money in exchange for the exercise of government power to perform specific acts.

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It expressly rejected intangible right theories, covering inchoate frauds like

undisclosed self-dealing or hidden conflicts of interest. Id. at 410. And it did so
because anything outside that core was so ill defined as to make the statute
unconstitutionally vague.
During the same term, in Citizens United v. Federal Election Commn, 558
U.S. 310 (2010), the Court broadened the category of campaign contributions
beyond the reach of government regulation. The Court held that the governments
compelling interest in regulating campaign contributions to prevent corruption is
limited to contributions in exchange for official actstraditional quid pro quo
corruption and its appearance. Significantly, dicta in Citizens United suggests that
one kind of quid pro quo, namely donations or gifts given in exchange for access
or ingratiation are not only not corrupt and surely not criminal; they are part and
parcel of the political process. Id. at 359-60; see also McCutcheon v. Federal
Election Commn, 134 S. Ct. 1434, 1441 (2014).
Read together these cases show the erroneous breadth of the district courts
instructions. While donations or gifts in exchange for access or ingratiation, not
part of a political campaign, may surely be regulated in ways that First
Amendment protected campaign speech may notand, indeed, perhaps they
should beSkilling, Citizens United and their progeny raise serious questions
concerning whether they have been so regulated under federal law. Indeed, the
3

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only relevant regulation here is Virginias under which such gifts and donations are
lawful if disclosed.
The law must provide notice to citizens of what is or is not criminal, and
through that notice, cabin a prosecutors discretion to charge. If there is ambiguity
as to whether the Hobbs Act and honest services wire fraud statute cover the
conduct alleged hereand there plainly isdue process bars this prosecution.
Yates v. United States, 574 U.S. ___ (2015) (slip op., at 18).
We urge the Court to reverse the conviction.
ARGUMENT
No government official would have had notice that the acts for which
Governor Robert F. McDonnell was convicted violated the honest services statute
or the Hobbs Act. No government official would have anticipated that the criminal
quid pro quo prohibitions of those laws would have applied to private payments in
exchange for access and ingratiation.2
Indeed, in a post-Citizens United and post-Skilling world, officials like
Governor McDonnell would have reasonably believed precisely the opposite. Prior
to Citizens United, money given to government officials was broadly regulated in
two spheres: criminal bribery statutes in one sphere and campaign regulations and
2

According to the Indictment, what Governor McDonnell did in exchange for the money given to him
was arranging meetings; hosting and attending events; allowing Jonnie Williams, the payor, to invite
individuals important to his business to exclusive events at the Governors mansion; recommending that
officials meet with Williams; and contacting officials to encourage studies of Williams product.
Indictment at 33-38.

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ethical rules in the other. The Hobbs Act and the honest services statute covered
traditional quid pro quo bribery; the quid was a payment for anything of value. The
quo was a promise to exercise government power to assist the bribe-payor in a
specific way. Everything outside that traditional core was in the second sphere
from campaign contributions to donations and gifts to office holdersand was
regulated by a broad array of state and federal laws.
In recent years, the Court has attempted to clarify the content of the
respective spheres. In the criminal sphere, the Court rejected efforts to expand the
honest services wire fraud statute to intangible good government theories. The
due process concerns underlying the vagueness doctrine required a more narrow
definition of the covered conduct, one that would restrict it to traditional bribery
and kickback schemes, Skilling v. United States, 48 U.S. 350, 408409 (2010). See
also McCormick v. United States, 500 U.S. 257 (1991) (quid pro quo necessary for
conviction under Hobbs Act when an official receives a campaign contribution).
But dicta in Citizens United, 558 U.S. at 360, and McCutcheon, 134 S. Ct. at 1441,
suggests that one kind of quid pro quomoney for ingratiation and accesswas
not corrupt at all, but rather part and parcel of American politics.
In effect, these decisions frame the boundaries of any prosecution, outlining
what criminal corruption is (in Skilling) and what it is not (dicta in Citizens
United). It is the traditional quid pro quo, where the quid is money or something
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of value and the quo is a tangible political favor or a promise of one. Skilling,
561 U.S. at 409.3 It is not ingratiation and access in exchange for contributions or
donations. Citizens United, 558 U.S. at 360.
While the quid at issue here were surely not the protected campaign
contributions of Citizens United, and while donations or gifts to officials may well
be subject to regulation in ways that campaign speech is not, it is a leap without
basis in law or fact to characterize them as criminal acts. Indeed, that leap is
precisely what the due process clause precludes.
The district courts instructions, however, made that leap, without any
regard for the due process implications. According to the court, official acts,
ostensibly taken in exchange for gifts, were simply the acts that a public official
customarily performs, whether by law or settled practice. Tr. Vol. XXVI, at
6102:23-6103:14. Moreover, the official acts at issue in the case did not involve
anything tangiblea particular governmental action, a contract, a piece of
legislationthe traditional currency of the Hobbs Act or honest services wire
fraud. Indeed, it was enough of a quo that the payor reasonably believed he was
well on his way to accomplishing his goals simply by gaining access to public
officials at an event at the Governors mansion, or a luncheon or a reception, or by
ingratiating himself to the Governor. Tr. Vol. XXVI, at 6102:18-6103:14. The

See, .e.g., 18 U.S.C. 201(a) (defining official act for the purpose of federal bribery).

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public may reasonably believe that ingratiating themselves to an office holder in

all sorts of ways will make a favorable outcome for their projects more likely. The
public, so dispirited with the political process, may reasonably believe that
money has too great an influence on the agenda of politicians. But those beliefs
need to be channeled into unambiguous laws before they can provide the basis for
criminal prosecutions.
I. Citizens United and Its Progeny
The central question in campaign finance litigation for the past two decades
was whether the states interest in preventing corruption and the appearance of
corruption was sufficiently compelling to justify the restriction of protected
campaign speech. To answer that question in Citizens United, the Court had to
come to grips with the definition of corruption: Where did ordinary politics end
and criminal corruption begin? Was the states interest only defined by the laws
making criminal the giving and taking of bribes . . . the most blatant and specific
attempts of those with money to influence governmental action, Buckley v. Valeo,
424 U.S. 1, 27-28 (1976), or was it broader, including peddling access to federal
candidates . . . in exchange for large soft-money donations?

McConnell v.

Federal Election Comn, 540 U.S. 93, 150 (2003).

In McConnell, subsequently overruled by Citizens United, the Court clearly
chose the latter, concluding that a broad scope for the states compelling interest in
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preventing corruption, which then justified certain restrictions on campaign

expenditures. Indeed, the litany of concerns of the McConnell Court could not be
clearer:
o [Concern about] national party committees peddling access to federal
candidates and officeholders in exchange for large soft-money
donations. Id. at 9596.
o So pervasive is this practice [of peddling access] that the six national
party committees actually furnish their own menus of opportunities
for access to would-be soft-money donors, with increased prices
reflecting an increased level of access. Id. at 151.
o Many of the deeply disturbing examples of corruption . . . to justify
FECAs contribution limits were not episodes of vote buying, but
evidence that various corporate interests had given substantial
donations to gain access to high-level government officials. Id. at
150 (citing Buckley v. Valeo, 424 U.S. 1, 27 (1976)).
o [A 1998 Senate Committee on Governmental Affairs report]
concluded that both parties promised and provided special access to
candidates and senior Government officials in exchange for large softmoney contributions. The committee majority described the White
House coffees that rewarded major donors with access to President
Clinton. One fundraising letter recited that the chairman of the
RNC had personally escorted a donor on appointments that turned
out to be very significant in the legislation affecting public utility
holding companies . . . . Id. at 130131.
Justice Kennedy, concurring in the judgment in part and dissenting in part,
criticized the breadth of the McConnell majoritys rationale. The Court . . .
concludes that access, without more, proves influence is undue. Access, in the
Courts view, has the same legal ramifications as actual or apparent corruption of
officeholders. This new definition of corruption sweeps away all protections for
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speech that lie in its path. Id. at 294 (Kennedy J. concurring in judgment in part
and dissenting in part). And in language that could have applied as well to the due
process concerns raised here, Justice Kennedy cautioned that reliance on a generic
favoritism or influence theory . . . is at odds with standard First Amendment
analyses because it is unbounded and susceptible to no limiting principle. Id. at
296 (emphasis added).
By 2010, Justice Kennedys concurrence had become the majority opinion in
Citizens United. Ingratiation and access, the Court noted, are not corruption.
Citizens United, 558 U.S. at 360. The fact that speakers may have influence over
or access to elected officials does not mean that these officials are corrupt[.] Id. at
359. The kind of corruption on which campaign regulations may be based was
quid pro quo corruption, as defined in traditional bribery statutes, id. at 356, which
meant something very different from money for ingratiation and access, see id.
at 35761.
McCutcheon made the Courts position even more clear: [G]overnment
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. Id.
at 1441. The appropriate goal for regulation is to target quid pro quo corruption, a
goal which is not implicated when corporations (or individuals) [s]pend[] large

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sums of money in connection with elections, but not in connection with an effort to
control the exercise of an officeholders official duties. 134 S. Ct. at 1450.
To be sure, the quid in Citizens United, as in McCutcheon, was campaign
contributions not, as in this case, gifts outside of an election. That distinction is
telling: The government may regulate the exchange of money/gifts for access and
ingratiation not in connection with an electoral campaign. But while this conduct is
subject to regulationin ways that campaign speech may not beone thing is
clear: It should not be regulated post hoc, by simply reinterpreting the law of
bribery and kickbacks to cover everyday government actions. That is precisely
what due process forbids.
Significantly, the State of Virginia did regulate such gifts. At the relevant
time, it was not criminal for state officials to accept unlimited gifts, including
gifts from sources on a basis so frequent as to raise an appearance of the use of his
public office for private gain. Va. Code 2.2-3103(8)-(9). The timing, nature,
and frequency of a state officials acceptance of gifts shall not be subject to
criminal law penalties even if they prompt reasonable questions regarding the
officials impartiality or raise an appearance the official has used his public office
for private gain. Id. Instead, the State emphasizes disclosure, criminalizing the
knowing failure to disclose the gifts for public scrutiny. Va. Code 2.2-3114 &
2.2-3117; Va. Code 3120.
10

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II. Skilling, Honest Services Wire Fraud and the Hobbs Act
If dicta in Citizens United and McCutcheon define what is not corruption,
then Skilling v. United States, decided several months after Citizens United,
defined what is. In Skilling, the Court explicitly rejected a theory of honest services
mail fraud in 18 U.S.C. 1343 that went beyond bribery and kickbacks to
encompass intangible property, namely, undisclosed self-dealing by a public
official or private employee. 561 U.S. at 409. The Court scaled back the reach of
honest services wire fraud to the bribe-and-kickback core of the pre-McNally case
law, id. at 409, to the paradigmatic cases of bribes and kickbacks, id. at 411, to
the solid core of acts with which traditional bribery and kickback prosecutions
were concerned, id. at 407.
And the reason for this scaling back was to avoid the vagaries of defining
criminal conduct beyond that pre-McNally core, the very concerns about fair notice
to defendants and discriminatory prosecutions of them that this case raises. Id. at
411, n.44. See infra part IV. Reading the statute to proscribe a wider range of
offensive conduct, . . . would raise the due process concerns underlying the
vagueness doctrine. Skilling, 561 U.S. at 408.
A parallel concern was reflected in an earlier Hobbs Act prosecution in
McCormick v. United States, 500 U.S. 257 (1991). In that case, the Court stated
that, to hold that legislators commit the federal crime of extortion when they act
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for the benefit of constituents or support legislation furthering the interests of some
of their constituents, shortly before or after campaign contributions are solicited
and received from those beneficiaries, is an unrealistic assessment of what
Congress could have meant by making it a crime to obtain property from another,
with his consent, under color of official right. Id. at 272. Court after court has
drawn similar lines, restricting the definition of official act necessary for
convictions of bribery. See, e.g. United States v. Urciuoli, 513 F.3d 290, 295-96
(1st Cir. 2008); Valdes v. United States, 475 F.3d 1319, 1324-25 (D.C. Cir. 2007)
(en banc); United States v. Muntain, 610 F.2d 964, 967-68 (D.C. Cir. 1979);
United States v. Rabbitt, 583 F.2d 1014, 1028 (8th Cir. 1978).
That solid core and paradigmatic bribery and kickback prosecution that
characterized the pre-McNally landscape typically involved money in exchange for
a specific government act, not for access or ingratiation, not the vague hope of
future influence. As Professor Albert Alschuler has written:
Someone who contributes to an officials reelection campaign or gives his
daughter a nice wedding present may hope to curry the officials favor. This
conduct may indeed influence the official, and critics may call it the
functional equivalent of bribery. Few, however, would describe this conduct
as bribery itself . . . As the word is most commonly used today, bribery
probably denotes an actual or contemplated exchange of something of value
for favorable government action, not simply a unilateral act intended to
make favorable governmental action more likely.
Albert W. Alschuler, Criminal Corruption: Why Broad Definitions of Bribery
Make Things Worse, U. of Chicago, Public Law Working Paper No. 502, at 9
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available

at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2555912.
The district courts instructions here ignored these distinctions, permitting
the jury to view an official act as any settled practice, disregarding the view
that while a settled practice may be an official act, not all settled practices fit
within the purview of the Hobbs Acts and the honest services statuteand surely
not the acts of ingratiation/access of which Governor McDonnell was convicted.4
Indeed, as the Court stated in United States v. Sun-Diamond Growers, 526 U.S.
398, 407 (1999), some actions [taken by government officials]while they are
assuredly official acts in some senseare not official acts within the meaning
of the federal anti-bribery laws, citing to 18 U.S.C. 201(a)(3).

United States v. Jefferson, 674 F.3d 332 (4th Cir. 2012), in affirming a conviction
for bribery, did not provide otherwise. First, the court responded to Congressman
Jeffersons argument that only legislative acts were covered under the Hobbs Act.
The court held that the phrase official acts was broader than that, yet not so
broad as to encompass every action taken in ones official capacity. 674 F.3d at
356. Second, the Fourth Circuit continued: an official act . . . must yet adhere to
the definition confining an official act to a pending question, matter, cause, suit,
proceeding or controversy. Id. The matter or decision must be a decision[] that
the government actually makes like who will get a contract, rather than the more
general inquiry, who to call or see. Id. at 357. (Jefferson involved obtaining a letter
of endorsement to secure an Army contract, 674 F.3d at 342; lobbying the ExportImport Bank to give a bribe-payor specific financial assistance, 674 F.3d at 342.)
Third, the instructions in the case at bar went even further than did the instructions
in Jeffersoninstructing the jury that the official did not have to have authority
over the act in question so long as the payor reasonably believed he had influence,
and that official acts include any acts taken in furtherance of longer term goals.
4

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III. Due Process, Notice and Prosecutorial Discretion

To sweep access/ingratiation conduct under the Hobbs Act or wire fraud for
criminal prosecution is to do precisely what the Constitution forbidsnamely, to
carve out a new crime, after the fact, as to which no citizen, let alone any
politician, could have had notice. If the law is not clear, it cannot give adequate
notice to citizens of how to conform their conduct to the law. And it follows that
prosecutorsin good or bad faithcan pick and choose not just what to prosecute
but whom. As the First Circuit noted in United States v. Anzalone, 766 F.2d 676,
678 (1st Cir. 1985), [T]he Constitution of the United States mandates that, before
any person is held responsible for violation of the criminal laws of this country, the
conduct for which he is held accountable be prohibited with sufficient specificity
to forewarn of the proscription of said conduct.5 See also McNally v. United
States, 483 U.S. 350, 360 (1987) (dealing with mail fraud) (A criminal statute must
be construed narrowly and in such a manner that does not leave[] its outer
boundaries ambiguous.)

Indeed, the First Circuit contrasted the American requirements of specificity and
notice with the practices of an authoritarian regime. The court quoted from Article
16, Criminal Code of 1926, U.S.S.R.: If any socially dangerous act has not been
directly provided for by the present Code, the basis and extent of liability for it is
determined by applying to it those articles of the Code which deal with the
offences most similar in nature. 766 F.2d at 678, n.1 (quoting See E. L. Johnson,
An Introduction to the Soviet Legal System, 39-40 (1972))
5

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The vaguely worded criminal anti-corruption statutes raise special due

process concerns. Those laws, possessing the capacity to act as a meat axe or a
scalpel should reasonably be taken to be the latter. Sun-Diamond Growers, 526
U.S. at 412 (wire fraud). The risk of abusing broad statutes is that they can be used
to prosecute kinds of behavior that, albeit offensive to the morals or aesthetics of
federal prosecutors, cannot reasonably be expected by the instigators to form the
basis of a federal felony. United States v. Czubinski, 106 F.3d 1069, 1079 (1st Cir.
1997). Skilling attempted to avoid these problemsarbitrary prosecutions,
vaguenessby restricting the honest services wire fraud statute to pre-McNally
case law, the core crimes of bribery and receiving kickbacks. Skilling, 561 U.S. at
412.
Indeed, when political figures are concerned, vaguely defined crimes whose
outer boundaries are ambiguous pose especially grave dangers. Justice Jackson
said it best:
If the prosecutor is obliged to choose his cases, it follows that
he can choose his defendants. Therein is the most dangerous power of
the prosecutor: that he will pick people that he thinks he should get,
rather than pick cases that need to be prosecuted. With the law books
filled with a great assortment of crimes, a prosecutor stands a fair
chance of finding at least a technical violation of some act on the part
of anyone. It is in this realm in which the prosecutor picks some
person whom he dislikes or desires to embarrass, or selects some
group of unpopular persons and then looks for an offense, that the
greatest danger of abuse of prosecuting power lies. It is here that law
enforcement becomes personal, and the real crime becomes that of
being unpopular with the predominant or governing group, being
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attached to the wrong political views, or being personally obnoxious

to or in the way of the prosecutor himself.
Robert H. Jackson, The Federal Prosecutor, 24 J. AM. JUD. SOC'Y 18 (1940).
The instructions given by the district court would bring within the statutes
significant routine and ordinary activities undertaken by political officials on a
regular basis, and thereby leave uncertain the outer boundaries of what
constitutes an official act. See Tr. Vol. XXVI, at 6102:23-6103:14. And that
uncertainty makes all politicians vulnerable to arbitrary enforcement of the law,
precisely what our Constitution prohibits.
IV. Conclusion
The district courts overbroad instructions extended the honest services
statute and Hobbs Act to cover common everyday behavior of government
officials. The issue is not whether Congress could have criminalized this behavior.
It clearly could have. Nor is the issue whether Congress should have done so. That
is a question for public debate. The issue here is whether Congress has done so
with any clarity. It plainly has not. Vague criminal laws cannot be stretched and
prodded to fill gaps in the criminal law. They provide no notice to citizens and,
worse yet, they enable arbitrary enforcement. We urge the reversal of this
conviction.

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

United States v. Robert F. McDonnell
Caption: __________________________________________________

No. 15-4019
_______

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(s) /s/ William W. Taylor, III

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Dated: March 9, 2015

04/13/2012
SCC

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CERTIFICATE OF SERVICE
I hereby certify on this 9th day of March, 2015 the foregoing Brief of Amici
Curiae Law Professors in Support of Defendant-Appellants was served on all
parties or their counsel of record through the CM/ECF system if they are registered
users or, if they are not, by serving a true and correct copy by e-mail and/or firstclass mail, postage prepaid.
/s/ William W. Taylor, III
William W. Taylor, III