McDonnell Appeal: Gertner and Ogletree Appellate Amicus Brief

No. 15-4019

In TheUnited 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 COURTFOR THE EASTERN DISTRICT OF VIRGINIA, RICHMOND DIVISION

(THE HONORABLE JAMES R. SPENCER, DISTRICT JUDGE)

BRIEF OF AMICI CURIAE LAW PROFESSORSIN SUPPORT OF DEFENDANT-APPELLANT

William W. Taylor, IIIZUCKERMAN SPAEDER LLP1800 M Street, N.W., Ste. 1000Washington, D.C. 20036-5802T: (202) [email protected]

Counsel for Amici Curiae

Appeal: 15-4019 Doc: 62 Filed: 03/09/2015 Pg: 1 of 28

10/28/2013 SCC - 1 -

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITDISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS

Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamuscase, except that a disclosure statement is not required from the United States, from an indigentparty, or from a state or local government in a pro se case. In mandamus cases arising from acivil or bankruptcy action, all parties to the action in the district court are considered parties tothe mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici curiae arerequired to file disclosure statements.

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Pursuant to FRAP 26.1 and Local Rule 26.1,

______________________________________________________________________________(name of party/amicus)

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

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15-4019 United States v. Robert F. McDonnell

Judge Nancy Gertner (Ret.)

Amicus

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4. Is there any other publicly held corporation or other publicly held entity that has a directfinancial interest in the outcome of the litigation (Local Rule 26.1(b))? YES NOIf yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question) YES NOIf yes, identify any publicly held member whose stock or equity value could be affectedsubstantially by the outcome of the proceeding or whose claims the trade association ispursuing in a representative capacity, or state that there is no such member:

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Signature: ____________________________________ Date: ___________________

Counsel for: __________________________________

CERTIFICATE OF SERVICE**************************

I certify that on _________________ the foregoing document was served on all parties or theircounsel of record through the CM/ECF system if they are registered users or, if they are not, byserving a true and correct copy at the addresses listed below:

_______________________________ ________________________(signature) (date)

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/s/ William W. Taylor, III March 9, 2015

Amicus - Judge Nancy Gertner (Ret.)

March 9, 2015



10/28/2013 SCC - 1 -





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Charles J. Ogletree, Jr.

Amicus

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Signature: ____________________________________ Date: ___________________

Counsel for: __________________________________



_______________________________ ________________________(signature) (date)

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Amicus - Charles J. Ogletree, Jr.

March 9, 2015



10/28/2013 SCC - 1 -





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John C. Jeffries, Jr.

Amicus

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Signature: ____________________________________ Date: ___________________

Counsel for: __________________________________



_______________________________ ________________________(signature) (date)

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Amicus - John C. Jeffries, Jr.

March 9, 2015



TABLE OF CONTENTSDisclosures of Corporate Affiliations and Other InterestsTable of Contents ....................................................................................................... iTable to Authorities .................................................................................................. iiInterest of Amici Curiae ............................................................................................ 1Summary ................................................................................................................... 2Argument................................................................................................................... 4I. Citizens United and Its Progeny ................................................................ 7II. Skilling, Honest Services Wire Fraud and the Hobbs Act ...................... 11III. Due Process, Notice and Prosecutorial Discretion.................................. 14IV. Conclusion ............................................................................................... 16

Certificate of ComplianceCertificate of Service


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TABLE OF AUTHORITIESCASESBuckley 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


iii

Valdes v. United States,475 F.3d 1319 (D.C. Cir. 2007) ...........................................................................12

Yates v. United States,574 U.S. ___ (2015) ...............................................................................................4

STATUTES18 U.S.C. 201(a) .....................................................................................................618 U.S.C. 201(a)(3)...............................................................................................1318 U.S.C. 1343................................................................................................. 2, 1118 U.S.C. 1951(b)(2)...............................................................................................2Article 16, Criminal Code of 1926, U.S.S.R. ..........................................................14Va. Code 2.2-3103(8)-(9) .....................................................................................10Va. Code 2.2-3117 ................................................................................................10Va. Code 3120.......................................................................................................10Va. Code 2.2-3114 ..............................................................................................10OTHERAlbert W. Alschuler, Criminal Corruption: Why Broad Definitions of BriberyMake 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) .............14Robert H. Jackson, The Federal Prosecutor,24 J. AM. JUD. SOC'Y 18 (1940) ............................................................................15


INTEREST OF AMICI CURIAEAmici 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

1 No counsel for a party authored this brief in whole or in part, and nocounsel or party made a monetary contribution intended to fund the preparation orsubmission of this brief. No person other than the amici curiae or their counselmade a monetary contribution to its preparation or submission. All parties haveconsented to the submission of this brief.


2Institute 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).

SUMMARYTo 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.


3It 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


4only 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 himwas arranging meetings; hosting and attending events; allowing Jonnie Williams, the payor, to inviteindividuals important to his business to exclusive events at the Governors mansion; recommending thatofficials meet with Williams; and contacting officials to encourage studies of Williams product.Indictment at 33-38.


5ethical 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


6of 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

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


7public 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


8preventing 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 federalcandidates and officeholders in exchange for large soft-moneydonations. Id. at 9596.

o So pervasive is this practice [of peddling access] that the six nationalparty committees actually furnish their own menus of opportunitiesfor access to would-be soft-money donors, with increased pricesreflecting an increased level of access. Id. at 151.

o Many of the deeply disturbing examples of corruption . . . to justifyFECAs contribution limits were not episodes of vote buying, butevidence that various corporate interests had given substantialdonations to gain access to high-level government officials. Id. at150 (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 tocandidates and senior Government officials in exchange for large soft-money contributions. The committee majority described the WhiteHouse coffees that rewarded major donors with access to PresidentClinton. One fundraising letter recited that the chairman of theRNC had personally escorted a donor on appointments that turnedout to be very significant in the legislation affecting public utilityholding 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


9speech 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.


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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


12

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 hisdaughter a nice wedding present may hope to curry the officials favor. Thisconduct may indeed influence the official, and critics may call it thefunctional equivalent of bribery. Few, however, would describe this conductas bribery itself . . . As the word is most commonly used today, briberyprobably denotes an actual or contemplated exchange of something of valuefor favorable government action, not simply a unilateral act intended tomake 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


13

(January 2015), 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).

4United States v. Jefferson, 674 F.3d 332 (4th Cir. 2012), in affirming a convictionfor bribery, did not provide otherwise. First, the court responded to CongressmanJeffersons 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 sobroad as to encompass every action taken in ones official capacity. 674 F.3d at356. Second, the Fourth Circuit continued: an official act . . . must yet adhere tothe definition confining an official act to a pending question, matter, cause, suit,proceeding or controversy. Id. The matter or decision must be a decision[] thatthe government actually makes like who will get a contract, rather than the moregeneral inquiry, who to call or see. Id. at 357. (Jefferson involved obtaining a letterof endorsement to secure an Army contract, 674 F.3d at 342; lobbying the Export-Import 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 instructionsin Jeffersoninstructing the jury that the official did not have to have authorityover 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.


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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.)

5 Indeed, the First Circuit contrasted the American requirements of specificity andnotice with the practices of an authoritarian regime. The court quoted from Article16, Criminal Code of 1926, U.S.S.R.: If any socially dangerous act has not beendirectly provided for by the present Code, the basis and extent of liability for it isdetermined by applying to it those articles of the Code which deal with theoffences 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))


15

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 thathe can choose his defendants. Therein is the most dangerous power ofthe prosecutor: that he will pick people that he thinks he should get,rather than pick cases that need to be prosecuted. With the law booksfilled with a great assortment of crimes, a prosecutor stands a fairchance of finding at least a technical violation of some act on the partof anyone. It is in this realm in which the prosecutor picks someperson whom he dislikes or desires to embarrass, or selects somegroup of unpopular persons and then looks for an offense, that thegreatest danger of abuse of prosecuting power lies. It is here that lawenforcement becomes personal, and the real crime becomes that ofbeing unpopular with the predominant or governing group, being


16

attached to the wrong political views, or being personally obnoxiousto 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.


04/13/2012SCC

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. _______ Caption: __________________________________________________

CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a)Type-Volume Limitation, Typeface Requirements, and Type Style Requirements

1. Type-Volume Limitation: ! " "#$$%&() * "#&+& , - .+#/0 ! " "#$$##() 1#) " 2&)# - .+#/0 %&3! " "#$$%&() 1#) " 2&)#41# " $5 - .+#/ 6 %5 &2 #78##3 94,000 words or 1,300 lines. ! " "#$$##()Opening/Response Brief may not exceed 16,500 words or 1,500 lines. Any Reply or AmicusBrief may not exceed 7,000 words or 650 lines. Counsel may rely on the word or line countof the word processing program used to prepare the document. The word-processing programmust be set to include footnotes in the count. Line count is used only with monospaced type.

This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2) or32(a)(7)(B) because:

[ ] this brief contains [state number of] words, excluding the parts ofthe brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or

[ ] this brief uses a monospaced typeface and contains [state numberof] lines of text, excluding the parts of the brief exempted by Fed. R. App. P.32(a)(7)(B)(iii).

2. Typeface and Type Style Requirements: A proportionally spaced typeface (such as TimesNew Roman) must include serifs and must be 14-point or larger. A monospaced typeface(such as Courier New) must be 12-point or larger (at least 10 characters per inch).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because:

[ ] this brief has been prepared in a proportionally spaced typeface using[identify word processing program] in[identify font size and type style]; or

[ ] this brief has been prepared in a monospaced typeface using[identify word processing program] in[identify font size and type style].

(s)

Attorney for

Dated:


4,104

Microsoft Word

4

4

14pt Font - Times New Roman

/s/ William W. Taylor, III

Amici Curiae

March 9, 2015


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 first-

class mail, postage prepaid.

/s/ William W. Taylor, IIIWilliam W. Taylor, III


Documents

McDonnell Appeal: Gertner and Ogletree Appellate Amicus Brief