Argued May 12, 2015
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. (3:14-cr-00012-JRS-1). James R. Spencer, Senior District Judge.
Noel J. Francisco, JONES DAY, Washington, D.C., for Appellant.
Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
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. 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.
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.
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.
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.
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. 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.
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.
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. 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, Mrs. McDonnell began explaining her family's financial woes -- thoughts about filing for bankruptcy, high-interest loans, the decline in the real estate market, and credit card debt. Then, according to Williams, Mrs. McDonnell said, " I have a background in nutritional supplements and I can be helpful to you with this project, with your company. The Governor says it's okay for me to help you and -- but I need you to help me. I need you to help me with this financial situation." J.A. 2231 (internal quotation marks omitted). Mrs. McDonnell asked to borrow $50,000. Williams agreed to loan the money to the McDonnells. Mrs. McDonnell also mentioned that she and her husband owed $15,000 for their daughter's wedding reception. Again, Williams agreed to provide the money. Before cutting the checks, Williams called Appellant to " make sure [he] knew about it." J.A. 2233. " I called him and said that, you know, 'I met with Maureen. I understand the financial problems and I'm willing to help. I just wanted to make sure that you knew about this,'" Williams recounted at trial. Id. Appellant's response was " Thank you." Id.
Three days later, on May 5 at 11 a.m., Appellant met with Secretary Hazel and Chief of Staff Martin Kent to discuss the strategic plan for the state's health and human resources office. Shortly after the meeting, Appellant directed his assistant to forward to Hazel the article about Star that Mrs. McDonnell had earlier brought to Appellant's attention.
Williams returned to the Governor's Mansion on May 23, 2011, to deliver two checks for the amounts discussed on May 2: a $50,000 check made out to Mrs. McDonnell and a $15,000 check that was not made out to anyone but was going to the wedding caterers. After Williams delivered these checks to Mrs. McDonnell, Appellant expressed his gratitude in a May 28 email to Williams:
Johnnie. Thanks so much for alll your help with my family. Your very generous gift to Cailin was most appreciated as well as the golf round tomorrow for the boys. Maureen is excited about the trip to fla to learn more about the products . . . . Have a restful weekend with your family. Thanks.
G.S.A. 20. The next day, as mentioned in the email, Appellant, his two sons, and his soon-to-be son-in-law spent the day at Kinloch Golf Club in Manakin-Sabot, Virginia. During this outing, they spent more than seven hours playing golf, eating, and shopping. Williams, who was not present, covered the $2,380.24 bill.
Also as mentioned in the email, Mrs. McDonnell traveled to Florida at the start of June to attend a Star-sponsored event at the Roskamp Institute. While there, she addressed the audience, expressing her support for Star and its research. She also invited the audience to the launch for Anatabloc, which would be held at the Governor's Mansion. The same day -- June 1, 2011 -- she purchased 6,000 shares of Star stock at $5.1799 per share, for a total of $31,079.40.
Weeks later, Williams sent Appellant a letter about conducting Anatabloc studies in Virginia. Williams wrote, " I am suggesting that you use the attached protocol to initiate the 'Virginia study' of Anatabloc at the Medical College of Virginia and the University of Virginia School of Medicine, with an emphasis on endocrinology, cardiology, osteoarthritis and gastroenterology." G.S.A. 29. Appellant forwarded the letter and its attachments to Secretary Hazel for review.
Appellant's political action committee -- Opportunity Virginia (the " PAC" ) -- hosted and funded a retreat at the Omni Homestead Resort in Hot Springs, Virginia. The retreat began on June 23, 2011, and was attended by the top donors to Opportunity Virginia. Williams, " a $100,000 in-kind contributor to the campaign and the PAC," was invited, and he flew Appellant's children to the resort for the retreat. J.A. 6117. Appellant and Williams played golf together during the retreat. A few days later, Williams sent golf bags with brand new clubs and golf shoes to Appellant and one of his sons.
From July 28 to July 31, Appellant and his family vacationed at Williams's multi-million-dollar home at Smith Mountain Lake in Virginia. Williams allowed the McDonnells to stay there free of charge. He also paid $2,268 for the McDonnells to rent a boat. And Williams provided transportation for the family: Appellant's children used Williams's Range Rover for the trip to the home, and he paid more than $600 to have his Ferrari delivered to the home for Appellant to use.
Appellant drove the Ferrari back to Richmond at the end of the vacation on July 31. During the three-hour drive, Mrs. McDonnell snapped several pictures of Appellant driving with the Ferrari's top down. Mrs. McDonnell emailed one of the photographs to Williams at 7:47 p.m. At 11:29 p.m., after returning from the Smith Mountain Lake vacation, Appellant directed Secretary Hazel to have his deputy attend a meeting about Anatabloc with Mrs. McDonnell at the Governor's Mansion the next day.
Hazel sent a staffer, Molly Huffstetler, to the August 1 meeting, which Williams also attended. During the meeting, Williams discussed clinical trials at the University of Virginia (" UVA" ) and Virginia Commonwealth University (" VCU" ), home of the Medical College of Virginia (" MCV" ). Then Williams and Mrs. McDonnell met with Dr. John Clore from VCU, who Williams said was " important, and he could cause studies to happen at VCU's medical school." J.A. 2273. Williams -- with Mrs. McDonnell at his side -- told Dr. Clore that clinical testing of Anatabloc in Virginia was important to Appellant. After the meeting ended, Mrs. McDonnell noticed the Rolex watch adorning Williams's wrist. She mentioned that she wanted to get a Rolex for Appellant. When Williams asked if she wanted him to purchase one for Appellant, she responded affirmatively.
The next day -- August 2, 2011 -- Mrs. McDonnell purchased another 522 shares of Star stock at $3.82 per share, for a total of $1,994.04.
Appellant and one of his sons returned to Kinloch Golf Club on August 13, 2011. The bill for this golf outing, which Williams again paid, was $1,309.17. The next day, Williams purchased a Rolex from Malibu Jewelers in Malibu, California. The Rolex cost between $6,000 and $7,000 and featured a custom engraving: " Robert F. McDonnell, 71st Governor of Virginia." J.A. 2275 (internal quotation marks omitted). Mrs. McDonnell later took several pictures of Appellant showing off his new Rolex -- pictures that were later sent to Williams via text message.
Over the next few weeks, Governor's Mansion staff planned and coordinated a luncheon to launch Anatabloc -- an event paid for by Appellant's PAC. Invitations bore the Governor's seal and read, " Governor and Mrs. Robert F. McDonnell Request the Pleasure of your Company at a Luncheon." G.S.A. 104. Invitees included Dr. Clore and Dr. John Lazo from UVA. At the August 30 luncheon, each place setting featured samples of Anatabloc, and Williams handed out checks for grant applications -- each for $25,000 -- to doctors from various medical institutions.
Appellant also attended the luncheon. According to Lazo, Appellant asked attendees various questions about their thoughts about Anatabloc:
So I think one question he asked us was, did we think that there was some scientific validity to the conversation and some of the pre-clinical studies that were discussed, or at least alluded to. He also, I think, asked us whether or not there was any reason to explore this further; would it help to have additional information. And also, he asked us about could this be something good for the Commonwealth, particularly as it relates to [the] economy or job creation.
J.A. 3344. According to Williams, Appellant was " [a]sking questions like . . . 'What are the end points here? What are you looking for to show efficacy with the studies? How are you going to proceed with that?'" Id. at 2283. Appellant also thanked the attendees for their presence and " talked about his interest in a Virginia company doing this, and his interest in the product." Id. at 3927. Overall, " [Appellant] was generally supportive. . . . [T]hat was the purpose." Id. at 2284.
Despite the fanfare of the luncheon, Star's President, Paul L. Perito, began to worry that Star had lost the support of UVA and VCU. In the fall of 2011, Perito was working with those universities to file grant applications. During a particular call with UVA officials, Perito felt the officials were unprepared. According to Perito, when Williams learned about this information, " [h]e was furious and said, 'I can't understand it. [Appellant] and his wife are so supportive of this and suddenly the administration has no interest.'" J.A. 3934.
Prior to the beginning of 2012, Mrs. McDonnell sold all of her 6,522 shares of Star stock for $15,279.45, resulting in a loss of more than $17,000. This allowed Appellant to omit disclosure of the stock purchases on a required financial disclosure form known as a Statement of Economic Interest. Then on January 20, 2012 -- four days after the Statement of Economic Interest had been filed -- Mrs. McDonnell purchased 6,672 shares of Star stock at $2.29 per share, for a total of $15,276.88.
In the meantime, on January 7, 2012, Appellant made another golf visit to Kinloch Golf Club, running up a $1,368.91 bill that Williams again paid. Appellant omitted this golf outing and the 2011 golf trips from his Statements of Economic Interest. See J.A. 723 (noting Appellant's " deliberate omission of his golf-related gifts paid by Jonnie Williams" ). Appellant also omitted from his Statement of Economic Interest the $15,000 check for the caterers at his daughter's wedding.
Also in January 2012, Williams discussed the Mobo properties with Mrs. McDonnell, who wanted additional loans. As a result, Williams agreed to loan more money. At the same time, he mentioned to Mrs. McDonnell that the studies with UVA were proceeding slowly. Mrs. McDonnell was " furious when [Williams] told her that [they were] bogged down in the administration." J.A. 2308. Later, Mrs. McDonnell called Williams to advise him that she had relayed this information to Appellant, who " want[ed] the contact information of the people that [Star] [was] dealing with at [UVA]." Id. at 2309 (internal quotation marks omitted).
Appellant followed up on these discussions by calling Williams on February 3, 2012, to talk about a $50,000 loan. Initially, Appellant wanted a cash loan, but Williams mentioned that he could loan stock to Appellant. Williams proposed " that he could loan that stock either to [Appellant's] wife or he could loan it to [Mobo]." J.A. 6224. This conversation continued to February 29, when Williams visited the Governor's Mansion. During this meeting, Appellant and Williams discussed the potential terms of a stock transfer. However, Appellant and Williams did not move forward with this idea because Williams discovered he would have to report a stock transfer to the Securities and Exchange Commission. At trial, Williams testified that he did not want to transfer Star stock because he " didn't want anyone to know that I was helping the Governor financially with his problems while he was helping our company." Id. at 2333-34. When asked what he expected in return from Appellant, Williams testified, " I expected what had already happened, that he would continue to help me move this product forward in Virginia" by " assisting with the universities, with the testing, or help with government employees, or publicly supporting the product." Id. at 2355. In the end, Williams agreed to make a $50,000 loan, writing a check in this amount to the order of Mobo on March 6.
Also on February 3, one of Williams's employees responded to Mrs. McDonnell's request for a list of doctors Williams wished to invite to an upcoming healthcare industry leaders reception at the Governor's Mansion. The employee emailed the list of doctors to Mrs. McDonnell. Four days later -- on February 7 -- Mrs. McDonnell sent a revised list of invitees for this event, a list that now included the doctors identified by Williams. The next day, Sarah Scarbrough, director of the Governor's Mansion, sent an email to Secretary Hazel's assistant, Elaina Schramm. Scarbrough informed Schramm that " [t]he First Lady and Governor were going over the list last night for the healthcare industry event. The Governor wants to make sure [head officers at UVA and VCU, along with those of other institutions,] are included in the list." G.S.A. 146.
Mrs. McDonnell received an email, as previously requested by Appellant, containing the names of the UVA officials with whom Star had been working. She forwarded this list to Appellant and his chief counsel, Jacob Jasen Eige, on February 9. The next day, while riding with Appellant, Mrs. McDonnell followed up with Eige:
Pls call Jonnie today [and] get him to fill u in on where this is at. Gov wants to know why nothing has developed w studies after Jonnie gave $200,000. I'm just trying to talk w Jonnie. Gov wants to get this going w VCU MCV. Pls let us know what u find out after we return . . . .
Less than a week later -- on February 16, 2012 -- Appellant emailed Williams to check on the status of certificates and documents relating to loans Williams was providing for Mobo. Six minutes after Appellant sent this email, he emailed Eige: " Pls see me about anatabloc issues at VCU and UVA. Thx." G.S.A. 157.
The healthcare industry leaders reception was held on February 29 -- the same day as Appellant's private meeting about securing a loan from Williams. Following the reception, Appellant, Mrs. McDonnell, Williams, and two doctors went out for a $1,400 dinner on Williams's dime. During dinner the diners discussed Anatabloc. Mrs. McDonnell talked about her use of Anatabloc, and Appellant asked one of the doctors -- a Star consultant -- " How big of a discovery is this?" J.A. 2728 (internal quotation marks omitted). At one point during the dinner Mrs. McDonnell invited the two doctors to stay at the Governor's Mansion for the evening -- an offer the doctors accepted.
On March 21, 2012, Appellant met with Virginia Secretary of Administration Lisa Hicks-Thomas, who oversaw state employee health plans and helped determine which drugs would be covered by the state health plan. At one point during the meeting, Appellant reached into his pocket, retrieving a bottle of Anatabloc. He told Hicks-Thomas that Anatabloc was " working well for him, and that he thought it would be good for . . . state employees." J.A. 4227. He then asked Hicks-Thomas to meet with representatives from Star.
Almost two months later -- on May 18, 2012 -- Appellant sent Williams a text message concerning yet another loan: " Johnnie. Per voicemail would like to see if you could extend another 20k loan for this year. Call if possible and I'll ask mike to send instructions. Thx bob." G.S.A. 166. Twelve minutes later, Williams responded, " Done, tell me who to make it out to and address. Will FedEx. Jonnie." Id. at 168.
Later the same month -- from May 18 to May 26 -- Appellant and his family vacationed at Kiawah Island in South Carolina. According to Appellant, the $23,000 vacation was a gift from William H. Goodwin Jr., whom Appellant characterized as a personal friend. Appellant did not report this gift on his 2012 Statement of Economic Interest. He said he did not need to report it because it fell under the " personal friend" exception to the reporting requirements.
Between April and July 2012, Appellant emailed and texted Williams about Star stock on four occasions, each coinciding with a rise in the stock price. In response to a text sent on July 3, Williams said, " Johns Hopkins
human clinical trials report on aug 8. If you need cash let me know. Let's go golfing and sailing Chatham Bars inn Chatham mass labor day weekend if you can. Business about to break out strong. Jonnie." G.S.A. 170.
Appellant and his wife took Williams up on his Labor Day weekend vacation offer. Williams spent more than $7,300 on this vacation for the McDonnells. Williams paid the McDonnells' share of a $5,823.79 bill for a private clambake. Also joining in on the weekend excursion was one of the doctors who attended the February healthcare leaders reception, whom Williams invited in an attempt " to try to help get the Governor more involved." J.A. 2371.
Appellant said he learned in December 2012 that Mrs. McDonnell had repurchased Star stock in January 2012 -- despite having sold her entire holding of Star stock the previous year. Appellant testified that he " was pretty upset with her." J.A. 6270. This revelation led to a tense conversation about reporting requirements:
[I]t was her money that she had used for this. But I told her, you know, " Listen. If you have this stock, you know, this is" -- " again, triggers a reporting requirement for me. I can do it, but I need" -- " I just don't" -- " I really don't appreciate you doing things that really" -- " that affect me without" -- " without me knowing about it."
Id. at 6271. That Christmas, Mrs. McDonnell transferred her Star stock to her children as a gift. This again allowed Appellant to file a Statement of Economic Interest that did not report ownership of the stock. That same month -- December 2012 -- Williams gave Appellant's daughter Jeanine a $10,000 wedding gift.
Eventually, all of these events came to light. And on January 21, 2014, a grand jury indicted Appellant and Mrs. McDonnell in a fourteen-count indictment. Appellant and Mrs. McDonnell were charged with one count of conspiracy to commit honest-services wire fraud, in violation of 18 U.S.C. § 1349; three counts of honest-services wire fraud, in violation of 18 U.S.C. § 1343; one count of conspiracy to obtain property under color of official right, in violation of 18 U.S.C. § 1951; six counts of obtaining property under color of official right, in violation of 18 U.S.C. § 1951; two counts of ...