bob mcdonnell's appeal to full court

No. 15-4019

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT F. McDONNELL,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Virginia,

Richmond Division, The Honorable James R. Spencer, District Judge

APPELLANTS PETITION FOR PANEL REHEARING OR

REHEARING EN BANC

John L. Brownlee Daniel I. Small Christopher M. Iaquinto Elizabeth N. Jochum HOLLAND & KNIGHT LLP 800 17th Street N.W. Suite 1100 Washington, DC 20006 Telephone: (202) 828-1854

Noel J. Francisco Counsel of Record Henry W. Asbill James M. Burnham JONES DAY 51 Louisiana Avenue, N.W. Washington, DC 20001 Telephone: (202) 879-3939 Facsimile: (202) 626-1700 [email protected] Counsel for Defendant-Appellant Robert F. McDonnell

Appeal: 15-4019 Doc: 129 Filed: 07/24/2015 Pg: 1 of 23

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES ............................................................................................. ii INTRODUCTION AND RULE 35(B) STATEMENT ................................................ 1 ARGUMENT ........................................................................................................................ 4 I. The Opinion Endorses Jury Instructions On Official Action That

Conflict With The Supreme Court And Three Other Circuits ............................ 4 II. The Opinion Creates An Intra-Circuit Conflict With This Courts

Decisions On Goodwill Gifts ................................................................................ 11 III. The Opinion Conflicts With At Least Six Other Circuits By Eliminating

The Right To Any Meaningful Voir Dire On Negative Pretrial Publicity ........ 12 CONCLUSION .................................................................................................................. 15 CERTIFICATE OF COMPLIANCE CIRCUIT RULE 31(E) CERTIFICATION CERTIFICATE OF SERVICE


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TABLE OF AUTHORITIES

Page(s)

CASES

Jordan v. Lippman, 763 F.2d 1265 (11th Cir. 1985) ..................................................................................... 15

Mumin v. Virginia, 500 U.S. 415 (1991) .................................................................................................. 13, 14

Patriarca v. United States, 402 F.2d 314 (1st Cir. 1968) .......................................................................................... 15

Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1968) ......................................................................................... 15

Skilling v. United States, 561 U.S. 358 (2010) ........................................................................................................ 14

United States ex rel. Bloeth v. Denno, 313 F.2d 364 (2d Cir. 1963) ........................................................................................... 15

United States v. Arthur, 544 F.2d 730 (4th Cir. 1976) ............................................................................... 4, 11, 12

United States v. Bailey, 112 F.3d 758 (4th Cir. 1997) ......................................................................................... 14

United States v. Bakker, 925 F.2d 728 (4th Cir. 1991) ......................................................................................... 14

United States v. Blagojevich, No. 11-3853, 2015 WL 4433687 (7th Cir. July 21, 2015) ............................................ 1

United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972) ......................................................................................... 15


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United States v. Jennings, 160 F.3d 1006 (4th Cir. 1998) ............................................................................... 1, 4, 11

United States v. Lewis, 53 F.3d 29 (4th Cir. 1995) .............................................................................................. 12

United States v. Loftus, 992 F.2d 793 (8th Cir. 1993) ......................................................................................... 10

United States v. Pratt, 728 F.3d 463 (5th Cir. 2013) ......................................................................................... 15

United States v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978) ....................................................................................... 10

United States v. Ring, 706 F.3d 460 (D.C. Cir. 2013) ......................................................................................... 9

United States v. Sun-Diamond Growers of Cal., 526 U.S. 398 (1999) .......................................................................................................... 8

United States v. Taylor, 993 F.2d 382 (4th Cir. 1993) ......................................................................................... 12

United States v. Urciuoli, 513 F.3d 290 (1st Cir. 2008) ...................................................................................... 8, 10

Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007) ................................................................................... 7, 9

STATUTES & RULES

18 U.S.C. 201........................................................................................................................ 6

Fed. R. App. P. 35 .............................................................................................................. 3, 4

OTHER AUTHORITIES

Bob Bauer, The Judging of PoliticiansBy Judges, More Soft Money Hard Law (July 14, 2015), http://goo.gl/JVwqsc .................................................................. 2


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INTRODUCTION AND RULE 35(B) STATEMENT

The panel acknowledges that, to convict Governor McDonnell, a state official

with 38 years of impeccable public service, the jury had to find that he agreed to use

the power of his office to influence governmental decisions. Op.81. But the jury

instructions the panel approves required no such finding. Instead, the jury here had

to convict even if it found that none of the alleged official actslimited to

arranging meetings or attending eventsexercised government power, attempted to

exercise government power, promised to exercise government power, or sought to

influence government policy. Not only that, but the panel also affirms the district

courts refusal to tell the jury that a gift given simply with the generalized hope or

expectation of ultimate benefit on the part of the donor, does not constitute a

bribe1a rule that was critical to the defense. By approving these sweeping

instructions, the panel puts commonplace interactions between politicians, supporters,

and donors at risk of criminal conviction, threatening both fundamental First

Amendment values (the same definition of official action applies when the alleged

bribes are otherwise-lawful campaign contributions) and basic principles of federalism

(the panel opinion criminalizes conduct that was legal under state law). It would be

more than a little surprising to Members of Congress if the judiciary found in the

Hobbs Act, or the mail fraud statute, a rule making everyday politics criminal.2

1 United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998) (citation omitted). 2 United States v. Blagojevich, No. 11-3853, 2015 WL 4433687, at *3 (7th Cir. July


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Nine different groupsincluding bi-partisan groups of former federal and state

law enforcement officials, governors, law professors, legislators, and

businesspeoplehave filed amicus briefs explaining the serious consequences of

endorsing the jury instructions in this caseconsequences the panel never mentions

or addresses. As amici former U.S. Attorneys General, White House Counsels

spanning five Presidents, and other officials explained, the law should not subject

government officials to the threat of prosecution for engaging in innocent conduct

that occurs on a routine basis, but [t]he district courts interpretation of official act

would do just that. Dkt.75-1, at 3. Or as President Obamas former White

House Counsel recently wrote, the panel opinion missed a chance to clarify the

distinction between criminal and lawful politics, and left the law in a condition where

courts will have [to] decide in roving, indeterminate fashion, which of the settled

practices of politicians fall within their official duties for purposes of criminal

prosecution.3 For the prosecutor, this is opportunity, and for the politicians, mostly

risk; and for the courts, when the cases come before them, it becomes the challenge

of making ad hoc judgments about when politicians are behaving appropriately. Id.

The panels exceptionally important decision in this case presents three separate

bases for rehearing. First, nothing in the official action instructions required the

(continued)

21, 2015). 3 Bob Bauer, The Judging of PoliticiansBy Judges, More Soft Money Hard Law

(July 14, 2015), http://goo.gl/JVwqsc.


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jury to find any agreement by Governor McDonnell to influence government policy.

They instead directed the jury to find that all of Governor McDonnells customary acts

were also official actswhich even the panel recognizes is not the law. As the

Government argued in closing, if Governor McDonnell posed for any of 400-and-

some photos making comments at different ribbon cuttings in exchange for

money, its a crime, XI.J.A.7439-40an assertion that literally describes every

campaign fundraiser in America. Or more bluntly: Whatever it was, its all official

action. Id. at 7439. By endorsing instructions that criminalize such wide-ranging

conduct, the opinion conflicts with decisions of the Supreme Court, and the D.C.,

First, and Eighth Circuits, warranting rehearing. Fed. R. App. P. 35(b)(1)(A)-(B).

Moreover, the opinion fails to even mention that the district court refused to

give instructions articulating principles the panel endorses. In quoting Governor

McDonnells written proposed instruction, Op.71, the opinion omits the crucial final

sentence: 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 makessuch as

awarding a contract, hiring a government employee, issuing a license, passing a law, or

implementing a regulation. I.J.A.753-54. Nor does the panel mention the more-

limited instruction Governor McDonnell proposed at the charging conference. See

X.J.A.7341. The opinion endorses the legal principles these instructions communicate

but, without explaining why, also endorses the district courts refusal to give them.


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Second, the panel affirms the district courts refusal to inform the jury that a gift

given simply with the generalized hope or expectation of ultimate benefit on the

part of the donor, does not constitute a bribe. Jennings, 160 F.3d at 1013. It does so

despite numerous decisions of this Court holding that district courts must explain

how to differentiate [goodwill] expenditures from those which do constitute bribery.

United States v. Arthur, 544 F.2d 730, 735 (4th Cir. 1976). By approving this omission,

the panel creates an intra-circuit conflict, necessitating rehearing to maintain

uniformity of the courts decisions. Fed. R. App. 35(b)(1)(A).

Third, this was the most publicized prosecution in modern Virginia history, with

near-daily media condemnation of Governor McDonnell and his family prior to trial.

Yet the panel holds that district courts have no obligation to either (a) ask potential

jurors whether they have formed opinions about guilt or innocence as a result of their

admitted exposure to extensive, negative pretrial publicity, Op.32-33, or (b) conduct

individual questioning, out of earshot of the rest of the venire to alleviate

generalized concerns about the pernicious effects of pretrial publicity, id. at 35. That

conflicts with decisions in (at least) six other Circuits. Fed. R. App. P. 35(b)(1)(B).

ARGUMENT

I. The Opinion Endorses Jury Instructions On Official Action That Conflict With The Supreme Court And Three Other Circuits.

A. Despite recognizing that the Government needed to prove Governor

McDonnell used the power of his office to influence governmental decisions,


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Op.81, the panel endorses jury instructions that never communicate the basic

difference between ceremonial acts, access-facilitating acts, and acts that actually seek

to influence governmental decisions. The instructions below expand federal

corruption law far beyond anything that any court has before endorsed. They

permittedindeed, requiredthe jury to convict even if it agreed with Governor

McDonnell that he never sought to influence any governmental decision. In full:

The term official action means 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 public officials official capacity. 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.

XI.J.A.7671-72. These instructions never mention governmental decisions or

exercising influence over governmental decisions, nor do they specify that the

questions or matters must be governmental in nature. They thus invite juries

to convict when officials engage in any settled practice or take any sort of action.

The panel disagrees, holding that the district court adequately delineated those

limits when it informed the jury that the term official act covers only decision[s] or

action[s] on any question, matter, cause, suit, proceeding, or controversy, which may


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at any time be pending, or which may by law be brought before any public official, in

such public officials official capacity. Op.54-55. But merely reciting broad and

complex statutory language (which is from a different statute4) does not convey to

twelve lay jurors that they were required to find Governor McDonnell use[d] the

power of his office to influence governmental decisions. Id. at 81. The instruction

completely omits this critical principle. Instead, it invites the jury to conclude that any

actionsuch as an everyday photo-op, a meaningless meeting, or a routine cocktail

partyfalls within the statute even if that action is not intended to influence

governmental decisions. Id. It likewise invites the jury to conclude that any matter

falls within the statuteincluding matters like Virginia business development

even if the matter involves no governmental decisions. Id.

For example, one of the alleged official acts was a meeting between one

McDonnell staffer and Williams. The panel cites this as an example of Governor

McDonnell exploit[ing] the power of his office in furtherance of an ongoing effort to

influence the work of state university researchers. Op.83-84. The jury, however,

could have believed the staffers testimony that Governor McDonnell wanted

nothing more than her attending that meeting, V.J.A.3044, and that he never

interfere[d] with [the] decision-making process by [her or her] colleagues in [her]

4 The phrase official act appears only in the bribery statute for federal

officials, 18 U.S.C. 201. The panel opinion thus turns on importing that federal-official definition into the Hobbs Act and honest-services statute and then construing it more broadly than any prior decision has ever interpreted it in any corruption law.


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office, id. at 3071. Yet even if it agreed that Governor McDonnell never tried to

influence policyit still would have had to convict. After all, arranging a meeting

even without any attempt to influence the outcomeis still an action on a

matter that can at any time be pending before a public official.

Indeed, a properly instructed jury could not have concluded that any of the five

alleged acts sought to inappropriate[ly] influence a decision that the government

actually makes. Valdes v. United States, 475 F.3d 1319, 1325 (D.C. Cir. 2007) (en

banc). Consider, for example, the Healthcare Leaders reception, which the panel

never mentions. The only act there was inviting someone to a cocktail party at which

no official business was discussed or conducted. If that was official action, then the

President violates the federal bribery statutes whenever he invites donors to the White

House Christmas Party. The same is true of the other alleged acts: As the Opening

Brief catalogues, witness after witness testified that Governor McDonnell never did

anything to influence any governmental policy.5 Yet under this instruction, the jury

could have believed these witnesses and it still would have had to convict, since this

instruction makes merely arranging a meetingwithout anything elsean official[]

act[ion] on the issue of Virginia business development. XI.J.A.7438 (Governments

closing argument).6 As the bipartisan group of Virginia Attorneys General explained:

5 The absence of any actual official action is, of course, why the alleged bribe-

payor never got one dime from the Virginia government during a two-year-long conspiracy which, if real, was the most unsuccessful bribery scheme in history.

6 Because the instructions allowed convicting based on any of the five acts,


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That expansive interpretation of federal law is completely alien to any legal advice

that any of us would have given to any Governor of Virginia. Dkt.60, at 2.

By endorsing this unprecedented and open-ended instruction, the opinion

conflicts with the Supreme Courts most recent decision interpreting official action,

and decisions in the D.C., First, and Eighth Circuits. First, in United States v. Sun-

Diamond Growers of California, the Supreme Court explained that official action does

not include, e.g., providing a complimentary lunch for the Secretary of Agriculture in

conjunction with his speech to the farmers concerning various matters of USDA

policy, because while [that is] assuredly [an] official act[] in some sense[it is] not

[an] official act[] within the meaning of the statute. 526 U.S. 398, 407 (1999). But

under the instructions here, that act is an official act. Speaking to farmers is clearly an

action that is a settled practice of the Secretary of Agriculture, while USDA

policy (no less than Virginia business development) is a matter which may by

law be brought before [him], in [his] official capacity. Id. at 406, 407 (citation

omitted). The instruction thus converts the action Sun-Diamond says is not an official

act into an official act, causing the very absurdities it criticized. Id. at 407-08.7

(continued)

reversal is required if any fall short of the legal line. See, e.g., United States v. Urciuoli, 513 F.3d 290, 297 (1st Cir. 2008). For example, since the instructions permitted the jury to conclude the Healthcare Leaders Receptionwhich the panel simply omits from its analysis of alleged actswas an official act when it was not, reversal is required.

7 The panel distinguishes Sun-Diamond by calling it dicta, Op.57, and arguing that the function of such speeches is not to exert[] some influence on those


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Second, the opinion conflicts with the D.C. Circuits en banc holding that to take

official action, an official must exert inappropriate influence on decisions that the

government actually makes. Valdes, 475 F.3d at 1325. Official action requires more

than a purely informational inquiry; the official must actually try to influence a

governmental decision. United States v. Ring, 706 F.3d 460, 470 (D.C. Cir. 2013). The

Ring district court thus instructed that the term official act refer[s] to a class of

questions or matters whose answer or disposition is determined by the government,

that [m]ere favoritism, as evidenced by a public officials willingness to take a

lobbyists telephone call or to meet with a lobbyist, and that sharing information

with the lobbyist or helping to develop a lobbying strategy, is not an official act.

II.J.A.1082-83. The dramatic difference between that instruction and the instruction

here on the same element of the same crimes highlights the conflict with Valdes.8

Third, the opinion conflicts with the First Circuits invalidation of honest-

services-fraud convictions where the underlying jury instructions do not communicate

the key limitations on official action. Specifically, in the First Circuit, instructions

must require the jury to find that the official was biased in his judgment in making

(continued)

policies, id. at 61. But that is the same argument Governor McDonnell made about his actionsthat none were intended to exert any influence over any policies. Yet no instruction actually told the jury that the influence line matters.

8 The conflict between this Circuit and the D.C. Circuit is alone more than sufficient basis for rehearing, since it raises the specter that the same lunch between the same Congressman and same supporter is legal in D.C. but a felony in Bethesda.


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an official decision, that he invoked [] purported oversight authority, that he

threatened to use official powers in support of his advocacy, or that he sought

deliberately to exploit []his leverage as a public official. Urciuoli, 513 F.3d at 295-96.

The panel never distinguishes the legal rule Urciuoli adopted.

Finally, the opinion is irreconcilable with Eighth Circuit law. In United States v.

Rabbitt, 583 F.2d 1014 (8th Cir. 1978), a Hobbs Act case, Missouris House Speaker

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 & n.5. The court

held this conduct was not criminal: [W]hile Rabbitts influence obviously helped

these architects obtain state jobs, no testimony established that any state contracting

officer awarded any contract ... because of Rabbitts influence. Id. at 1028. As the

Eighth Circuit later explained, it reversed because Mr. Rabbitt 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). The instructions here require convicting an official who introduced [a]

firm to influential persons, id., and thus conflict directly with these decisions.

B. The panel also never mentions critical limiting instructions that the

district court refused to include. First, the opinion does never addresses the last

sentence of Governor McDonnells proposed official act instruction:

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


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such as awarding a contract, hiring a government employee, issuing a license, passing a law, or implementing a regulation.

I.J.A.753-54. Second, as the parties discussed at length during oral argument,

Governor McDonnell proposed a similar instruction at the charging conference:

[P]roviding mere credibility or a reputational benefit to another is not an official act. To find an official act, 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.

X.J.A.7341.9 These instructions communicate accurate statements of law. Rehearing

is necessary to address whether it was appropriate for the district court to omit them.

II. The Opinion Creates An Intra-Circuit Conflict With This Courts Decisions On Goodwill Gifts.

Prior to the panel opinion, the law was that a gift given simply with the

generalized hope or expectation of ultimate benefit on the part of the donor, does

not constitute a bribe. Jennings, 160 F.3d at 1013. This Court had long held: The

crucial distinction between goodwill expenditures and bribery is the existence or

nonexistence of criminal intent that the benefit be received by the official as a quid pro

quo for some official act, pattern of acts, or agreement to act favorably to the donor

when necessary. Arthur, 544 F.2d at 735. Thus, [i]n instructing on bribery, district

courts were obliged to set forth that distinction with sufficient clarity to enable the

jury to determine the legality of appellants expenditures. Id. Instructions cannot

merely suggest the distinction between goodwill gifts and bribes; they must explain

9 When the parties were discussing Proposed Instruction 38, defining official action, the defense requested this paragraph be added. See X.J.A.7348-49.


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how to differentiate such expenditures from those which do constitute bribery. Id.

On this issue, under Arthur, the defendant is entitled to have his guilt or innocence

voted up or down on the clearest possible lines of distinction. Id. at 735 n.9.

Governor McDonnells goodwill gifts instruction was essential because

[t]here is no express agreement in this case. XI.J.A.7614. The evidence strongly

supported Governor McDonnells defense that, at worst, he accepted gifts knowing

they were intended to cultivate his general goodwill. But that is not even evidence of

wrong doing, because such is a given for every payment or contribution to an elected

public official. United States v. Taylor, 993 F.2d 382, 385 (4th Cir. 1993).

The panel holds that this instruction was not required because, [i]n its Hobbs

Act instruction, the court made clear that extortion under color of official right

requires an intent to have the public official take specific official action on the payors

behalf, and in its instruction on honest-services wire fraud, the court referred to the

quo in a quid pro quo exchange as the requested official action. Op.77. But those

stray referencesburied in the district courts two-hour-long recitation of

instructionsdid not focus the jurys attention on the critical issue, United States

v. Lewis, 53 F.3d 29, 34 (4th Cir. 1995), because they never explain how to differentiate

[goodwill] expenditures from those which do constitute bribery. Arthur, 544 F.2d at

735 (emphasis added). The panel opinion thus conflicts directly with these decisions.

III. The Opinion Conflicts With At Least Six Other Circuits By Eliminating The Right To Any Meaningful Voir Dire On Negative Pretrial Publicity.


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A. The panel affirms the district courts refusal to ask prospective jurors the

most basic question: Whether their admitted exposure to negative pretrial publicity

had caused them to form an opinion about guilt. Governor McDonnell repeatedly

requested this question. He first did so jointly with the Government, through a

proposed jury questionnaire that asked: Based on what you have read, heard, seen,

and/or overheard in conversations, please tell us what opinions, if any, you have

formed about the guilt or innocence of Robert F. McDonnell. I.J.A.527. The

district court inexplicably struck that question and then refused to ask three other

questions at voir dire that Governor McDonnell proposed, III.J.A.1690, such as: At

any time have you ever formed or expressed any opinion about this case, or any of the

people involved? II.J.A.917; see also id. at 916-17 (two other, similar questions).10

The panel thus holds, in the highest-profile criminal case in Virginia history,

that the defendant was not entitled to ask whether the jurors who will decide his fate

had formed opinions based on admitted exposure to pre-trial publicity, despite the

defense providing four different formulations of that question. That holding conflicts with

every case to have addressed the issue. For example, in Mumin v. Virginia, the

Supreme Court made clear that [w]henever a potential juror indicated that he had

read or heard something about the case, the juror was then asked whether he had

10 The panel reasons that the jointly proposed question invites respondents to deliberate on the defendants guilt or innocence and to stake out a position before even a single juror has been seated. Op.33. But the question asks only whether respondents already formed opinions; it never invites them to start forming opinions or to deliberate. And the panel just ignores the refusal to ask similar questions at voir dire.


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formed an opinion. 500 U.S. 415, 420 (1991). Similar cases abound.11

B. The panel also endorses the following voir dire: After summoning

approximately 150 prospective jurorsand after acknowledging that this case has

generated a lot of media interestthe district court asked the prospective jurors to

stand if you have read, heard or seen something in the media. III.J.A.1691.

Virtually everyone stood. The court then asked whether, [b]ased 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 1692. Everyone sat. See id. The court

announced it was satisfied with ... the responses and refused to ask more questions,

despite counsel requesting additional inquiry about pretrial publicity. Id. (defense: I

cant trust the credibility of that without a further inquiry.). The panel blesses this,

holding defendants have no right to individual questioning to alleviate generalized

concerns about the pernicious effects of pretrial publicity. Op.35.

C. By dispensing with any mechanism for uncovering publicity-driven bias,

the panel opinion conflicts with settled law in at least six other Circuits. In the Fifth

11 See, e.g., Skilling v. United States, 561 U.S. 358, 371 & n.4, 374 (2010)

(questionnaire asked about opinions regarding the defendants and their possible guilt or innocence and court asked individual questions about pretrial publicity); United States v. Bakker, 925 F.2d 728, 733 (4th Cir. 1991) (similar). The panel cites United States v. Bailey, but even there the court twice asked whether prospective jurors had formed opinions based on pre-trial publicity. See 112 F.3d 758, 769-70 (4th Cir. 1997); Reply Br., No. 15-4116, Dkt.34, at 32 (Do any of you at this point in time have an opinion as to the guilt or innocence of the accused? (quoting questions)).


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Circuit, [i]t is clear that a court may not rely solely on a jurors assertion of

impartiality but instead must conduct a sufficiently probing inquiry to permit the court

to reach its own conclusion. United States v. Pratt, 728 F.3d 463, 470 (5th Cir. 2013).

[M]erely asking potential jurors to raise their hands if they could not be impartial was

not adequate voir dire in light of significant pretrial publicity, even if the district

court gave a general admonishment to the venire that they would be required to

decide the case impartially. Id. at 471. [S]uch a perfunctory inquiry is insufficient

when there is a reasonable probability of bias. Id. The First, Second, Seventh,

Ninth, and Eleventh Circuits agree.12 The opinion conflicts with all these decisions.13

CONCLUSION

The panels decision establishes an unprecedented and opaque line between

lawful politics and federal felonies, while eliminating the basic protections that ensure

impartial juries in publicity-saturated cases. Rehearing is amply warranted.

12 Jordan v. Lippman, 763 F.2d 1265, 1275 (11th Cir. 1985) ([R]elief is required where there is a significant possibility of prejudice plus inadequate voir dire to unearth such potential prejudice in the jury pool.); United States v. Dellinger, 472 F.2d 340, 374 (7th Cir. 1972) (similar); Silverthorne v. United States, 400 F.2d 627, 639-40 (9th Cir. 1968) (similar); Patriarca v. United States, 402 F.2d 314, 317-18 (1st Cir. 1968) (similar); United States ex rel. Bloeth v. Denno, 313 F.2d 364, 372 (2d Cir. 1963) (en banc) (similar).

13 The panel notes that Governor McDonnell was invited to identify any specific veniremen it would like to question further on this subject, Op.34, but that questioning was not about pretrial publicity. The district court had already refused orally to question jurors who had been exposed to publicity. It allowed questioning of only those specific folks who we need to look at specific responses, III.J.A.1692i.e., responses beyond sitting when asked if they could be fair. That is why the district court refused to question one juror who had not actually given other answers in her questionnaire that warranted further questioning. See id. at 1696 (Im sorry, maam. We thought there was something on your questionnaire. So you can have a seat.).


Dated: July 24, 2015

Respectfully submitted, /s/ Noel J. Francisco Noel J. Francisco Henry W. Asbill James M. Burnham JONES DAY 51 Louisiana Avenue, N.W. Washington, DC 20001 Telephone: (202) 879-3939 Facsimile: (202) 626-1700 [email protected] John L. Brownlee Daniel I. Small Christopher M. Iaquinto Elizabeth N. Jochum 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


CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P.

40(b) because this brief does not exceed 15 pages, excluding those parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and Cir. R. 32(b), and the type style requirements of Fed. R. App. P. 32(a)(6)

because this brief has been prepared in a proportionally spaced typeface using

Microsoft Office 2007 in Garamond 14 point.

Dated: July 24, 2015 /s/ Noel J. Francisco Noel J. Francisco Counsel for Defendant-Appellant Robert F. McDonnell


CIRCUIT RULE 31(E) CERTIFICATION

The undersigned hereby certifies that he has filed electronically, pursuant to

Cir. R. 31(e), versions of the brief that are available in a non-scanned PDF format.

Dated: July 24, 2015 /s/Noel J. Francisco Noel J. Francisco Counsel for Defendant-Appellant Robert F. McDonnell


CERTIFICATE OF SERVICE

The undersigned counsel hereby certifies that the foregoing APPELLANTS

PETITION FOR PANEL REHEARING OR REHEARING EN BANC, was filed

electronically with the Clerk of the Court for the United States Court of Appeals for

the Fourth Circuit using the appellate CM/ECF system. Participants in the case who

are registered CM/ECF users will be served by the appellate CM/ECF system.

Dated: July 24, 2015 /s/Noel J. Francisco Noel J. Francisco


I. The Opinion Endorses Jury Instructions On Official Action That Conflict With The Supreme Court And Three Other Circuits.II. The Opinion Creates An Intra-Circuit Conflict With This Courts Decisions On Goodwill Gifts.III. The Opinion Conflicts With At Least Six Other Circuits By Eliminating The Right To Any Meaningful Voir Dire On Negative Pretrial Publicity.

bob mcdonnell's appeal to full court

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