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Supreme Court Unanimously Rejects “The Government’s Boundless Interpretation Of The Federal Bribery Statute”

This [1] previous post previewed U.S. v. McDonnell, the former Virginia governor’s Supreme Court appeal of criminal charges related to the acceptance by the McDonnells of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams (CEO of Star Scientific) while Governor McDonnell was in office.

Although outside the context of the Foreign Corrupt Practices Act, the case is FCPA relevant because it presented the Supreme Court with the following question: “whether ‘official action’ is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed.”

As noted in the prior post, the core of the FCPA’s anti-bribery provisions prohibit the direct or indirect payment or offering of money or anything of value to a “foreign official” for purposes of: (A) (i) influencing any act or decision of such foreign official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or (iii) securing any improper advantage; or (B) inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality in order to assist the payor in obtaining or retaining business for or with, or directing business to, any person. (emphasis added).

Yesterday, the Supreme Court, in a unanimous decision written by Chief Justice Roberts [2], reversed McDonnell’s criminal convictions. Calling the government’s theory of prosecution “boundless,” the Court adopted a narrow interpretation of the meaning of “official action.”

As summarized by the Court:

“To convict the McDonnells of bribery, the Government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts. The parties did not agree, however, on what counts as an “official act.” The Government alleged in the indictment, and maintains on appeal, that Governor McDonnell committed at least five “official acts.” Those acts included “arranging meetings” for Williams with other Virginia officials to discuss Star Scientific’s product, “hosting” events for Star Scientific at the Governor’s Mansion, and “contacting other government officials” concerning studies of anatabine. The Government also argued more broadly that these activities constituted “official action” because they related to Virginia business development, a priority of Governor McDonnell’s administration. Governor McDonnell contends that merely setting up a meeting, hosting an event, or contacting an official—without more—does not count as an “official act.” At trial, the District Court instructed the jury according to the Government’s broad understanding of what constitutes an “official act,” and the jury convicted both Governor and Mrs. McDonnell on the bribery charges. The Fourth Circuit affirmed Governor McDonnell’s conviction, and we granted review to clarify the meaning of “official act.”

After a lengthy review of the facts, the decision noted that the key legal issue involved interpretation of the federal bribery statute (18 USC 201) and stated:

“That statute makes it a crime for “a public official or person selected to be a public official, directly or indirectly, corruptly” to demand, seek, receive, accept, or agree “to receive or accept anything of value” in return for being “influenced in the performance of any official act.” An “official act” is defined as “any 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, or in such official’s place of trust or profit.”

[…]

[T]he Government was required to prove that Governor McDonnell committed or agreed to commit an “official act” in exchange for the loans and gifts from Williams. […] The Government alleged that Governor McDonnell had committed at least five “official acts”:

(1) “arranging meetings for [Williams] with Virginia government officials, who were subordinates of the Governor, to discuss and promote Anatabloc”;

(2) “hosting, and . . . attending, events at the Governor’s Mansion designed to encourage Virginia university researchers to initiate studies of anatabine and to promote Star Scientific’s products to doctors for referral to their patients”;

(3) “contacting other government officials in the [Governor’s Office] as part of an effort to encourage Virginia state research universities to initiate studies of anatabine”;

(4) “promoting Star Scientific’s products and facilitating its relationships with Virginia government officials by allowing [Williams] to invite individuals important to Star Scientific’s business to exclusive events at the Governor’s Mansion”; and

(5) “recommending that senior government officials in the [Governor’s Office] meet with Star Scientific executives to discuss ways that the company’s products could lower healthcare costs.”

The case proceeded to a jury trial, which lasted five weeks. Pursuant to an immunity agreement, Williams testified that he had given the gifts and loans to the McDonnells to obtain the Governor’s “help with the testing” of Anatabloc at Virginia’s medical schools. Governor McDonnell acknowledged that he had requested loans and accepted gifts from Williams. He testified, however, that setting up meetings with government officials was something he did “literally thousands of times” as Governor, and that he did not expect his staff “to do anything other than to meet” with Williams.

[…]

Following closing arguments, the District Court instructed the jury that to convict Governor McDonnell it must find that he agreed “to accept a thing of value in exchange for official action.” The court described the five alleged “official acts” set forth in the indictment, which involved arranging meetings, hosting events, and contacting other government officials. The court then quoted the statutory definition of “official act,” and—as the Government had requested—advised the jury that the term encompassed “acts that a public official customarily performs,” including acts “in furtherance of longer-term goals” or “in a series of steps to exercise influence or achieve an end.”

Governor McDonnell had requested the court to further instruct 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,’ ” and 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,” because they “are not decisions on matters pending before the government.” […] He also asked the court to explain to the jury that an “official act” must intend to or “in fact influence a specific official decision the government actually makes— such as awarding a contract, hiring a government employee, issuing a license, passing a law, or implementing a regulation.”  The District Court declined to give Governor McDonnell’s proposed instruction to the jury.

The jury convicted Governor McDonnell on the honest services fraud and Hobbs Act extortion charges, but acquitted him on the false statement charges. Mrs. McDonnell was also convicted on most of the charges against her. Although the Government requested a sentence of at least ten years for Governor McDonnell, the District Court sentenced him to two years in prison. Mrs. McDonnell received a one-year sentence. Following the verdict, Governor McDonnell moved to vacate his convictions on the ground that the jury instructions “were legally erroneous because they (i) allowed the jury to convict [him] on an erroneous understanding of ‘official act,’ and (ii) allowed a conviction on the theory that [he] accepted things of value that were given for future unspecified action.” 64 F. Supp. 3d 783, 787 (ED Va. 2014). The District Court denied the motion.

[…]

Governor McDonnell appealed his convictions to the Fourth Circuit, challenging the definition of “official action” in the jury instructions on the ground that it deemed “virtually all of a public servant’s activities ‘official,’ no matter how minor or innocuous.”

[…]

The Fourth Circuit affirmed, and we granted certiorari.”

The key language from the opinion is the following:

“[A]n “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. 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, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of “official act.”

In closing, the opinion states:

“There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term “official act” leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court.”