United States v. Jefferson, 032912 FED4, 09-5130

Docket Nº:09-5130
Opinion Judge:KING, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIAM J. JEFFERSON, Defendant-Appellant.
Attorney:Lawrence Robbins, ROBBINS, RUSSELL, ENG-LERT, ORSECK, UNTEREINER & SAUBER, LLP, Washington, D.C., for Appellant. Mark D. Lytle, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Robert P. Trout, Amy Berman Jackson, Gloria B. Solomon, TROUT CACHERIS, PLLC, Washington, D.C.;...
Judge Panel:Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Case Date:March 29, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

WILLIAM J. JEFFERSON, Defendant-Appellant.

No. 09-5130

United States Court of Appeals, Fourth Circuit

March 29, 2012

Argued: December 9, 2011.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:07-cr-00209-TSE-1).

COUNSEL

ARGUED:

Lawrence Robbins, ROBBINS, RUSSELL, ENG-LERT, ORSECK, UNTEREINER & SAUBER, LLP, Washington, D.C., for Appellant.

Mark D. Lytle, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

ON BRIEF:

Robert P. Trout, Amy Berman Jackson, Gloria B. Solomon, TROUT CACHERIS, PLLC, Washington, D.C.; Mark A. Hiller, ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER, LLP, Washington, D.C., for Appellant.

Neil H. MacBride, United States Attorney, David B. Goodhand, Assistant United States Attorney, Rebeca H. Bellows, Assistant United States Attorney, Charles E. Duross, Special Assistant United States Attorney, Amanda Aikman, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge King wrote the opinion, in which Judge Niemeyer and Judge Duncan concurred.

ORDER

The Court amends its, as follows:

On page 43, first line of text -- the name "John McHugh" is replaced with the name "Matthew F. McHugh"; "the current Secretary of the Army" is deleted; and "Secretary McHugh" is replaced with "Former congressman McHugh."

OPINION

KING, Circuit Judge:

In August 2009, former Louisiana congressman William J. Jefferson was convicted in the Eastern District of Virginia of eleven offenses - including conspiracy, wire fraud, bribery, money laundering, and racketeering - arising from his involvement in multiple bribery and fraud schemes. Jefferson has appealed his convictions on several grounds: (1) that an erroneous instruction was given to the jury with respect to the bribery statute's definition of an "official act"; (2) that another erroneous instruction was given with respect to the "quid pro quo" element of the bribery-related offenses; (3) that Jefferson's schemes to deprive citizens of honest services do not constitute federal crimes; and (4) that venue was improper on one of his wire fraud offenses.1 As explained below, we affirm all of Jefferson's convictions save one, which we vacate for improper venue.

I.

A.

As a nine-term congressman, Jefferson represented the Second District of Louisiana, which includes most of the City of New Orleans. Jefferson, who was first elected to the House of Representatives in 1991, maintained congressional offices both in the District of Columbia and in New Orleans. He served on several committees and subcommittees of the House, including the Ways and Means Committee and its subcommittee on trade, and the Budget Committee. During his congressional tenure, Jefferson also served as co-chair of the Africa Trade and Investment Caucus and the Congressional Caucus on Nigeria.

In about March of 2005, the FBI and the Department of Justice began a comprehensive corruption investigation of Representative Jefferson.2 More than two years later, on June 4, 2007, the federal grand jury in Alexandria returned a sixteen-count indictment charging him as follows:

• Count 1 - Conspiracy to solicit bribes, commit honest services wire fraud, and violate the Foreign Corrupt Practices Act, in violation of 18 U.S.C. § 371;

• Count 2 - Conspiracy to solicit bribes and commit honest services wire fraud, in contravention of 18 U.S.C. § 371;

• Counts 3 and 4 - Solicitation of bribes, in violation of 18 U.S.C. § 201(b)(2)(A);

• Counts 5 through 10 - Self-dealing and bribery-related honest services wire fraud, in contravention of 18 U.S.C. §§ 1343 and 1346;

• Count 11 - Foreign corrupt practices, in violation of 15 U.S.C. §§ 78dd-2(a), 78dd-2(g)(2)(A), and 78ff(a);

• Counts 12 through 14 - Money laundering related to bribery, in contravention of 18 U.S.C. § 1957;

• Count 15 - Obstruction of justice, in violation of 18 U.S.C. § 1512(c)(1); and

• Count 16 - Conducting and participating in a racketeering enterprise, in contravention of 18 U.S.C. § 1962(c) (the "RICO offense").3

Three months later, on September 7, 2007, Jefferson sought the dismissal of Counts 2, 3, 10, 12, 13, and 14 for lack of venue, and the transfer of the balance of the indictment to the District of Columbia. On November 30, 2007, the district court, by summary order, denied the motion. After Jefferson sought reconsideration of the venue rulings, however, the district court issued a more formal opinion on June 27, 2008, reiterating and further explaining its decision. See United States v. Jefferson, 562 F.Supp.2d 695 (E.D. Va. 2008) ("Jefferson I"). On September 7, 2007, Jefferson also moved to dismiss the bribery-related charges of the indictment (Counts 1-10, 12-14, and 16) on the basis that none are predicated on Jefferson's receipt of things of value "in return for . . . the performance of any official act." 18 U.S.C. § 201(b)(2)(A). Jefferson contended that none of those charges sufficiently alleged an "official act" under the bribery statute, 18 U.S.C. § 201(b).4 In his motion to dismiss the bribery-related charges, Jefferson took the position that the definition of an "official act, " set forth in 18 U.S.C. § 201(a)(3), is limited to those activities involving questions pending or brought before Congress, such as voting on proposed legislation or conducting committee work. Jefferson maintained that, as a result, each of the bribery-related charges is fatally flawed.

The district court rejected Jefferson's position on what constitutes an official act by its opinion of May 23, 2008, ruling that, in proving an official act, the prosecution is obligated to satisfy two criteria:

First, the act must be among the official duties or among the settled customary duties or practices of the official charged with bribery. And second, performance of the act must involve or affect a government decision or action.

United States v. Jefferson, 562 F.Supp.2d 687, 691 (E.D. Va. 2008) ("Jefferson II"). Elaborating, the court explained that an official act may include those duties of a public official that are not defined in written rules, but that are otherwise "'clearly established by settled practice.'" Id. (quoting United States v. Birdsall, 233 U.S. 223, 230-31 (1914)). The court deemed the Birdsall decision as controlling, and further explained that the proper definition of an "official act" under the bribery statute encompassed such matters as Jefferson's official travel to foreign countries, his official correspondence to and meetings with domestic and foreign government officials, as well as the use of his congressional staff to facilitate other activities alleged in the indictment. The court thus declined to dismiss the bribery-related charges but specified that the government was obligated to prove at trial that Jefferson's alleged acts "(i) involve[d] the performance of an official duty or settled customary duty or practice and (ii) involve[d] or affect[ed] a government decision or action." Jefferson II, 562 F.Supp.2d at 693.

On March 20, 2009, Jefferson moved for reconsideration of the district court's rulings in Jefferson II concerning the bribery-related charges, and the government sought clarification of that decision. As a result, on May 22, 2009, the court issued a follow-up opinion. See United States v. Jefferson, 634 F.Supp.2d 595 (E.D. Va. 2009) ("Jefferson III"). In Jefferson III, the court clarified two of its rulings in Jefferson II. First, the court emphasized that an official act must involve or affect a government decision or action. To satisfy this requirement, the bribery statute, embodied in 18 U.S.C. § 201(b)(2)(A), requires that the defendant himself, and not a third party, "be influenced in the performance of a decision or action." Jefferson III, 634 F.Supp.2d at 601. That is, the "decision or action" must be made or done by the charged public official. Id. at 600-01. Second, the court explained that the statutory phrase "any public official" means the charged public official. Id. at 601. The Jefferson III decision further specified what could be deemed an official act under the bribery statute. Official acts are not, as Jefferson III explained, limited solely to legislative acts such as "voting on or introducing a piece of legislation." Id. at 602. The court thus affirmed its earlier ruling that such official acts include those actions that would ordinarily involve the legitimate use of an official's office. Id. (citing United States v. Biaggi, 853 F.2d 89, 96-99 (2d Cir. 1988)).

Jefferson's jury trial began in Alexandria on June 9, 2009, and continued for two months. It involved more than forty prosecution witnesses, plus two for the defense. Jefferson did not testify in his own defense. During the trial, the prosecution, in proving that the conduct underlying the bribery-related charges constitutes official acts, was guided by the district court's Jefferson II and Jefferson III decisions. The government thus presented evidence establishing that Jefferson's various meetings with foreign and domestic public officials on behalf of his myriad alleged bribers, coconspirators, and coschemers, as well as his use of congressional resources to correspond with such officials and coordinate foreign trips, were part of the well-settled congressional practice known as "constituent services." After the parties rested, the district court instructed the jury in a manner that was consistent with...

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