United States v. McDonnell

792 F.3d 478

UNITED STATES of America, Plaintiff–Appellee

v.Robert F. McDONNELL, Defendant–Appellant.

Former Virginia Attorneys General; Andrew P. Miller ; Anthony Francis Troy; J. Marshall Coleman; Mary Sue Terry; Stephen Douglas Rosenthal; Mark L. Earley; National Association of Criminal Defense Lawyers; Nancy Gertner, Law Professor; Charles J. Ogletree, Jr., Law Professor; John C. Jeffries, Jr., Law Professor; Benjamin Todd Jealous; Republican Governors Public Policy Committee ; Former State Attorneys General (Non–Virginia); Business Leaders and Public Policy Advocates; Virginia Law Professors; Former Federal Officials; Members and Former Members of the Virginia General Assembly, Amici Supporting Appellant.

No. 15–4019.

United States Court of Appeals, Fourth Circuit.

Argued: May 12, 2015.

Decided: July 10, 2015.

ARGUED:Noel J. Francisco, Jones Day, Washington, D.C., for Appellant. Richard Daniel Cooke, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF:John L. Brownlee, Daniel I. Small, Christopher M. Iaquinto, Elizabeth N. Jochum, Holland & Knight LLP, Washington, D.C.; Henry W. Asbill, Charlotte H. Taylor, James M. Burnham, Ian Samuel, Jones Day, Washington, D.C., for Appellant. Dana J. Boente, United States Attorney, Ryan S. Faulconer, Assistant United States Attorney, Raymond Hulser, Acting Chief, Public Integrity Section, Alexandria, Virginia, Michael S. Dry, Assistant United States Attorney, Jessica D. Aber, Assistant United States Attorney, David V. Harbach, II, Criminal Division, Office of the United States Attorney, Richmond, Virginia, for Appellee. William H. Hurd, Stephen C. Piepgrass, Troutman Sanders LLP, Richmond, Virginia, for Amici Former Virginia Attorneys General Andrew P. Miller, Anthony Francis Troy, J. Marshall Coleman, Mary Sue Terry, Stephen Douglas Rosenthal, and Mark L. Earley. David B. Smith, Smith & Zimmerman, PLLC, Alexandria, Virginia; John D. Cline, Law Office of John D. Cline, San Francisco, California, for Amicus National Association of Criminal Defense Lawyers. William W. Taylor, III, Zuckerman Spaeder LLP, Washington, D.C., for Amici Nancy Gertner, Law Professor, Charles J. Ogletree, Jr., Law Professor, and John C. Jeffries, Jr., Law Professor. Wyatt B. Durrette, Jr., Barrett E. Pope, Robert Rae Gordon, Durrettecrump PLC, Richmond, Virginia, for Amicus Benjamin Todd Jealous. Charles J. Cooper, David H. Thompson, Peter A. Patterson, John D. Ohlendorf, Cooper & Kirk, PLLC, Washington, D.C., for Amicus Republican Governors Public Policy Committee, a/k/a RGPPC. Brian D. Boone, Emily C. McGowan, Charlotte, North Carolina, Edward T. Kang, Alston & Bird LLP, Washington, D.C., for Amici Former State Attorneys General (Non– Virginia). Gregory N. Stillman, Norfolk, Virginia, Edward J. Fuhr, Johnathan E. Schronce, Richmond, Virginia, William J. Haun, Hunton & Williams LLP, Washington, D.C., for Amici Business Leaders and Public Policy Advocates. Timothy M. Richardson, Poole Mahoney PC, Virginia Beach, Virginia, for Amici Virginia Law Professors. William J. Kilberg, Thomas G. Hungar, Helgi C. Walker, David Debold, Katherine C. Yarger, Jacob T. Spencer, Gibson, Dunn & Crutcher LLP, Washington, D.C., for Amici Former Federal Officials. John S. Davis, Joseph R. Pope, Jonathan T. Lucier, Williams Mullen, Richmond, Virginia, for Amici Members and Former Members of the Virginia General Assembly.

Before MOTZ, KING, and THACKER, Circuit Judges.

Opinion

Affirmed by published opinion. Judge THACKER wrote the opinion, in which Judge MOTZ and Judge KING joined.

THACKER, Circuit Judge:

Over the course of five weeks of trial, federal prosecutors sought to prove that former Governor of Virginia Robert F. McDonnell (“Appellant”) and his wife, Maureen McDonnell, accepted money and lavish gifts in exchange for efforts to assist a Virginia company in securing state university testing of a dietary supplement the company had developed. The jury found Appellant guilty of eleven counts of corruption and not guilty of two counts of making a false statement.¹

Appellant appeals his convictions, alleging a multitude of errors. Chiefly, Appellant challenges the jury instructions—claiming the district court misstated the law—and the sufficiency of the evidence presented against him. He also argues that his trial should have been severed from his wife's trial; that the district court's voir dire questioning violated his Sixth Amendment rights; and that the district court made several erroneous evidentiary rulings. Upon consideration of each of Appellant's contentions, we conclude that the jury's verdict must stand and that the district court's judgment should be affirmed.

I.

A.

On November 3, 2009, Appellant was elected the seventy-first Governor of Virginia. From the outset, he made economic development and the promotion of Virginia businesses priorities of his administration.

The economic downturn preceding the election had taken a personal toll on Appellant. Mobo Real Estate Partners LLC (“Mobo”), a business operated by Appellant and his sister, was losing money on a pair of beachfront rental properties in Virginia Beach. When Appellant became Governor, he and his sister were losing more than $40,000 each year. By 2011, they owed more than $11,000 per month in loan payments. Each year their loan balance increased, and by 2012, the outstanding balance was nearing $2.5 million.

Appellant was also piling up credit card debt. In January 2010, the month of his inauguration, Appellant and his wife had a combined credit card balance exceeding $74,000. Eight months later, in September 2010, the combined balance exceeded $90,000.

B.

While Appellant was campaigning on promises of economic development in Virginia, Virginia-based Star Scientific Inc. (“Star”) and its founder and chief executive officer Jonnie Williams were close to launching a new product: Anatabloc. For years, Star had been evaluating the curative potential of anatabine, an alkaloid found in the tobacco plant, focusing on whether it could be used to treat chronic inflammation. Anatabloc was one of the anatabine-based dietary supplements Star developed as a result of these years of evaluation.

Star wanted the Food and Drug Administration to classify Anatabloc as a pharmaceutical. Otherwise, it would have to market Anatabloc as a nutraceutical, which generally has less profit potential than a pharmaceutical. Classification as a pharmaceutical would require expensive testing, clinical trials, and studies. But Star did not have the financial wherewithal to conduct the necessary testing, trials, and studies on its own. It needed outside research and funding.

C.

Appellant and Williams first met in December 2009—shortly after Appellant's election to the governorship but before his inauguration. Appellant had used Williams's plane during his campaign, and he wanted to thank Williams over dinner in New York.² During dinner, Williams ordered a $5,000 bottle of cognac and the conversation turned to the gown Appellant's wife would wear to Appellant's inauguration. Williams mentioned that he knew Oscar de la Renta and offered to purchase Mrs. McDonnell an expensive custom dress.³

In October 2010, Appellant and Williams crossed paths again. This time, the two were on the same plane—Williams's plane—making their way from California to Virginia. During the six-hour flight, Williams extolled the virtues of Anatabloc and explained that he needed Appellant's help to move forward with the product:

[W]hat I did was I explained to him how I discovered it. I gave him a basic education on the—on smoking, the diseases that don't happen with smokers and just tried to make sure he understood, you know, what I had discovered in this tobacco plant and that I was going to—what I needed from him was that I needed testing and I wanted to have this done in Virginia.

J.A. 2211.

By the end of the flight, the two agreed that “independent testing in Virginia was a good idea.” J.A. 2211. Appellant agreed to introduce Williams to Dr. William A. Hazel Jr., the Commonwealth's secretary of health and human resources.

In April 2011, Mrs. McDonnell invited Williams to join the first couple at a political rally in New York. “I'll have you seated with the Governor and we can go shopping now,” Mrs. McDonnell said, according to Williams. J.A. 2222 (internal quotation marks omitted). So Williams took Mrs. McDonnell on a shopping spree; they lunched and shopped at Bergdorf Goodman and visited Oscar de la Renta and Louis Vuitton stores on Fifth Avenue. Williams bought Mrs. McDonnell dresses and a white leather coat from Oscar de la Renta; shoes, a purse, and a raincoat from Louis Vuitton; and a dress from Bergdorf Goodman. Williams spent approximately $20,000 on Mrs. McDonnell during this shopping spree. That evening, Williams sat with Appellant and Mrs. McDonnell during a political rally.

A few weeks later, on April 29, Williams joined Appellant and Mrs. McDonnell for a private dinner at the Governor's Mansion. The discussion at dinner centered on Anatabloc and the need for independent testing and studies. Appellant, who had campaigned on promoting business in Virginia, was “intrigued that [Star] was a Virginia company with an idea,” and he wanted to have Anatabloc studies conducted within the Commonwealth's borders. J.A. 6561.

Two days after this private dinner—on May 1, 2011—Mrs. McDonnell received an email via Williams.⁴ The email included a link to an article entitled “Star Scientific Has Home Run Potential,” which discussed Star's research and stock. Mrs. McDonnell forwarded this email to Appellant at 12:17 p.m. Less than an hour later, Appellant texted his sister, asking for information about loans and bank options for their Mobo properties. Later that evening, Appellant emailed his daughter Cailin, asking her to send him information about the payments he still owed for her wedding.

The next day, May 2, Mrs. McDonnell and Williams met at the Governor's Mansion to discuss Anatabloc. However,...