PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4019

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ROBERT F. MCDONNELL,

Defendant – Appellant.

------------------------------------

FORMER VIRGINIA ATTORNEYS GENERAL; ANDREW P. MILLER; ANTHONY 

FRANCIS TROY; J. MARSHALL COLEMAN; MARY SUE TERRY; STEPHEN 

DOUGLAS ROSENTHAL; MARK L. EARLEY; NATIONAL ASSOCIATION OF 

CRIMINAL DEFENSE LAWYERS; NANCY GERTNER, Law Professor; 

CHARLES J. OGLETREE, JR., Law Professor; JOHN C. JEFFRIES, 

JR., Law Professor; BENJAMIN TODD JEALOUS; REPUBLICAN 

GOVERNORS PUBLIC POLICY COMMITTEE; FORMER STATE ATTORNEYS 

GENERAL (NON-VIRGINIA); BUSINESS LEADERS AND PUBLIC POLICY 

ADVOCATES; VIRGINIA LAW PROFESSORS; FORMER FEDERAL 

OFFICIALS; MEMBERS AND FORMER MEMBERS OF THE VIRGINIA 

GENERAL ASSEMBLY,

Amici Supporting Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. James R. Spencer, Senior

District Judge. (3:14-cr-00012-JRS-1)

Argued: May 12, 2015 Decided: July 10, 2015

Before MOTZ, KING, and THACKER, Circuit Judges.
2

Affirmed by published opinion. Judge Thacker wrote the opinion, 

in which Judge Motz and Judge King joined.

ARGUED: Noel J. Francisco, JONES DAY, Washington, D.C., for 

Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES 

ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: 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.
3

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.1

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 

 1 The jury also found Mrs. McDonnell guilty of eight counts 

of corruption and one count of obstruction of an official 

proceeding. The jury found her not guilty of three counts of 

corruption and one count of making a false statement. Her 

appeal is not at issue here, as it is pursued separately.
4

verdict must stand and that the district court’s judgment should 

be affirmed.

I.

A.

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.
5

B.

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.

C.

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 
6

in New York.2 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.3

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 

 2 Williams was one of several individuals who offered the 

use of a private plane to Appellant during his campaign on an 

as-needed basis. Although Appellant had used Williams’s plane 

during his campaign, the two men did not meet until December 

2009.

3 In the end, Williams did not purchase an inauguration 

dress for Mrs. McDonnell. According to Williams, Appellant’s 

chief counsel, Jacob Jasen Eige, called Williams, saying, “I 

understand that you’re getting ready to purchase [Mrs.] 

McDonnell a dress for the inauguration. I’m calling to let you 

know that you can’t do that.” J.A. 2208 (internal quotation 

marks omitted). Citations to the “J.A.” refer to the Joint 

Appendix filed by the parties in this appeal.
7

him was that I needed testing and I wanted 

to have this done in Virginia.

J.A. 2211.

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. 
8

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.4 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 

 4 Williams did not send the email to Mrs. McDonnell. 

However, the sender wrote, “Please give to the governor and his 

wife as per Jonnie Williams.” G.S.A. 3. Citations to the 

“G.S.A.” refer to the Supplemental Appendix filed by the 

Government.
9

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 
10

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.5

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 Starsponsored event at the Roskamp Institute.6 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 

 5 Text messages and emails are quoted verbatim without 

identifying any mistakes in the original. Alterations have been 

made only when necessary for clarification.

6 The Roskamp Institute is a private research institute that 

studies Alzheimer’s disease.
11

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 
12

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 
13

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 
14

applications -- each for $25,000 -- to doctors from various 

medical institutions.7 

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.

 7 In total, Williams provided $200,000 for grant 

applications. All of the checks were distributed to researchers 

either at or about the time of the Anatabloc launch luncheon at 

the Governor’s Mansion.
15

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.

D.

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 
16

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 
17

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 
18

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 . . . .

G.S.A. 154.8

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 

 8 The $200,000 mentioned in Mrs. McDonnell’s email to chief 

counsel Eige referred to checks that Star distributed to 

researchers either at or about the time of the Anatabloc launch 

luncheon at the Governor’s Mansion.
19

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.
20

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.
21

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 
22

-- Williams gave Appellant’s daughter Jeanine a $10,000 wedding 

gift.

E.

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 making a false 

statement, in violation of 18 U.S.C. § 1014; and one count of 

obstruction of official proceedings, in violation of 18 U.S.C. 

§ 1512(c)(2).

Ultimately, the jury verdict of September 4, 2014, 

found Appellant not guilty of the false statements counts but

guilty of all eleven counts of corruption.9 

 9 The corruption counts include one count of conspiracy to 

commit honest-services wire fraud pursuant to 18 U.S.C. § 1349; 

three counts of honest-services wire fraud pursuant to 18 U.S.C. 

§ 1343; one count of conspiracy to obtain property under color 

of official right pursuant to 18 U.S.C. § 1951; and six counts 

of obtaining property under color of official right pursuant to 

(Continued)
23

At sentencing the Government requested a sentence of 

78 months -- or six and a half years -- of imprisonment, which 

was at the low end of the applicable Sentencing Guidelines 

range. However, the district court departed downward and 

sentenced Appellant to two years of imprisonment, followed by 

two years of supervised release. Appellant now challenges his 

convictions, asserting a litany of errors.

II.

A.

Motion for Severance

To begin, Appellant argues that the district court 

erred when it denied both his motion for severance and his 

request for ex parte consideration of this motion. We review 

these rulings for an abuse of discretion. See United States v. 

Lighty, 616 F.3d 321, 348 (4th Cir. 2010) (severance); RZS 

Holdings AVV v. PDVSA Petroleo S.A., 506 F.3d 350, 356 (4th Cir. 

2007) (ex parte proceeding).

1.

Appellant contends that he was entitled to a trial 

separate from the trial of Mrs. McDonnell. He argues that a 

joint trial precluded him from calling Mrs. McDonnell as a 

 

18 U.S.C. § 1951. Only Mrs. McDonnell was charged with 

obstruction of official proceedings.
24

witness and thus introducing exculpatory testimony. The 

district court denied Appellant’s motion for severance. 

Appellant claims this decision was an abuse of the court’s

discretion.

In general, “defendants indicted together should be 

tried together.” Lighty, 616 F.3d at 348. This is especially 

true when, as in this case, the defendants are charged with 

conspiracy. See United States v. Parodi, 703 F.2d 768, 779 (4th 

Cir. 1983). So a defendant seeking severance based on the need 

for a co-defendant’s testimony must make an initial showing of 

“(1) a bona fide need for the testimony of his co-defendant, (2) 

the likelihood that the co-defendant would testify at a second 

trial and waive his Fifth Amendment privilege, (3) the substance 

of his co-defendant’s testimony, and (4) the exculpatory nature 

and effect of such testimony.” Id. After the initial showing 

is made, a district court should

(1) examine the significance of the 

testimony in relation to the defendant’s 

theory of defense; (2) assess the extent of 

prejudice caused by the absence of the 

testimony; (3) pay close attention to 

judicial administration and economy; (4) 

give weight to the timeliness of the 

motion[;] and (5) consider the likelihood 

that the co-defendant’s testimony could be 

impeached.

Id.
25

Appellant failed to satisfy even the initial showing 

requirements of United States v. Parodi. The district court 

denied Appellant’s motion for severance because Appellant 

offered only vague and conclusory statements regarding the 

substance of Mrs. McDonnell’s testimony. As we expressed in 

Parodi, vague and conclusory statements regarding potential 

testimony are not enough to establish the substance of a codefendant’s testimony. See 703 F.2d at 780.

Appellant’s motion to sever paints a picture of Mrs. 

McDonnell’s potential testimony in broad strokes without filling 

in any details:

First, her testimony would disprove the 

Government’s primary claim that the 

McDonnells acted in concert through a 

criminal conspiracy to corruptly accept 

gifts and loans in exchange for Mr. 

McDonnell using his office to benefit 

Williams and his company. Second, her 

testimony would refute the Government’s 

allegation that Mr. McDonnell agreed or 

promised to use his office to improperly 

“promote” Star’s products or to “obtain 

research studies for Star Scientific’s 

products.” Third, Mrs. McDonnell would 

refute the Government’s allegation that she 

solicited certain gifts and loans identified 

in the Indictment. Finally, Mrs. McDonnell 

would refute the Government’s allegation 

that the McDonnells “took steps . . . to 

conceal” their supposed scheme.

J.A. 296 (alternation in original) (citations omitted). 

Presented with only these unadorned statements regarding the 

substance of Mrs. McDonnell’s potential testimony, the district 
26

court appropriately exercised its discretion when it denied the 

motion to sever.

2.

Appellant claimed he could provide a more detailed 

account of the substance of Mrs. McDonnell’s potential testimony 

-- an account he offered to share with the district court on the 

condition that the district court review the evidence ex parte. 

The district court denied this invitation, finding an ex parte 

proceeding would be inappropriate.

Ex parte proceedings and communications are disfavored 

because they are “fundamentally at variance with our conceptions 

of due process.” Doe v. Hampton, 566 F.2d 265, 276 (D.C. Cir. 

1977), quoted in Thompson v. Greene, 427 F.3d 263, 269 n.7 (4th 

Cir. 2005). However, such proceedings and communications may be 

permissible in limited circumstances. “[O]ur analysis should 

focus, first, on the parties’ opportunity to participate in the 

court’s decision and, second, on whether the ex parte 

proceedings were unfairly prejudicial.” RZS Holdings AVV, 506 

F.3d at 357.

Ex parte proceedings were not justified in this case. 

Appellant sought to withhold from the Government all of the 

information necessary to establish the necessity of severance. 

This proposal would have barred the Government from challenging 

whether Appellant actually satisfied the initial showing 
27

required by Parodi. If the district court proceeded as 

Appellant requested, it would have been the only entity in a 

position to challenge Appellant’s contentions. The district 

court was reluctant to assume the role of an advocate when 

evaluating “a motion to sever[, which] requires a factintensive, multi-factored analysis for which there is a 

heightened need for well-informed advocacy.” J.A. 351.10 It 

 10 In United States v. Napue, the Seventh Circuit elaborated 

on the problems presented by ex parte communications between a 

court and the Government:

Ex parte communications between the 

government and the court deprive the 

defendant of notice of the precise content 

of the communications and an opportunity to 

respond. These communications thereby can 

create both the appearance of impropriety 

and the possibility of actual misconduct. 

Even where the government acts in good faith 

and diligently attempts to present 

information fairly during an ex parte 

proceeding, the government’s information is 

likely to be less reliable and the court’s 

ultimate findings less accurate than if the 

defendant had been permitted to participate. 

However impartial a prosecutor may mean to 

be, he is an advocate, accustomed to stating 

only one side of the case. An ex parte 

proceeding places a substantial burden upon

the trial judge to perform what is naturally 

and properly the function of an advocate.

834 F.2d 1311, 1318–19 (7th Cir. 1987) (emphasis omitted) 

(citations omitted) (internal quotation marks omitted). The 

reversal of roles in this case does not change the equation. 

See Alderman v. United States, 394 U.S. 165, 184 (1969) (“As the 

need for adversary inquiry is increased by the complexity of the 

issues presented for adjudication, and by the consequent 

(Continued)
28

properly exercised its discretion by denying Appellant’s 

request.

Appellant also maintains that the district court erred 

by failing to defer its ruling on the motion to sever until 14 

days prior to trial. The district court was not obligated to 

consider this request because Appellant waited until his reply 

to argue this issue. Cf. U.S. S.E.C. v. Pirate Investor LLC, 

580 F.3d 233, 255 n.23 (4th Cir. 2009) (“Ordinarily we do not 

consider arguments raised for the first time in a reply 

brief . . . .”); Mike’s Train House, Inc. v. Broadway Ltd. 

Imports, LLC, 708 F. Supp. 2d 527, 535 (D. Md. 2010) (applying 

this principle to reply memoranda). We are satisfied, 

therefore, that the district court did not abuse its discretion 

by denying this request outright.

Appellant simply failed to provide adequate 

justification for his claim that a severance was warranted. He 

was not entitled to an ex parte examination of his evidence; he 

was not entitled to deferral of the district court’s ruling. 

Accordingly, we affirm the denial of Appellant’s motion to 

sever.

 

inadequacy of ex parte procedures as a means for their accurate 

resolution, the displacement of well-informed advocacy 

necessarily becomes less justifiable.” (emphasis omitted)).
29

B.

Voir Dire

Appellant next argues that the district court failed 

to adequately question prospective jurors on the subject of 

pretrial publicity. He complains that, during the voir dire

proceedings, the court declined his request for individual 

questioning on this topic. Instead, the court polled the 

members of the venire as a group, asking whether any of them 

believed themselves to be incapable of “put[ting] aside whatever 

it is that [they had] heard.” J.A. 1692. The court did call 

eight prospective jurors to the bench for one-on-one 

questioning, but only after the defense singled them out on the 

basis of their responses to a jury selection questionnaire. 

Appellant argues that such “perfunctory” questioning violated 

his Sixth Amendment right to an impartial jury. Appellant’s Br. 

65. Because “[t]he conduct of voir dire necessarily is 

committed to the sound discretion of the trial court,” United 

States v. Lancaster, 96 F.3d 734, 738 (4th Cir. 1996) (en banc), 

we also review this contention for abuse of discretion, see

United States v. Caro, 597 F.3d 608, 613 (4th Cir. 2010).

Appellant’s argument begins inauspiciously, with an 

assertion that the Supreme Court’s decision in Skilling v. 

United States, 130 S. Ct. 2896 (2010), establishes minimum 

requirements for voir dire in “publicity-saturated” cases like 
30

this one. Appellant’s Br. 22. In Skilling, he claims, the 

Court approved the voir dire procedure “only because” the trial 

court asked prospective jurors to indicate whether they had 

formed an opinion about the defendant’s guilt or innocence and 

later examined them individually about pretrial publicity. Id. 

Appellant then reasons that, because the trial court in this 

case took neither of those steps, it necessarily “failed to 

‘provide a reasonable assurance that prejudice would be 

discovered if present.’” Id. (quoting Lancaster, 96 F.3d at 

740).

Skilling, however, does not purport to hand down 

commandments for the proper conduct of voir dire proceedings. 

See 130 S. Ct. at 2918 (explaining that the legal issue under 

review was, narrowly, “the adequacy of jury selection in 

Skilling’s case” (emphasis supplied)). On the contrary, the 

Court in Skilling recommitted itself to the principle that jury 

selection is unsusceptible to any “hard-and-fast formula”; as 

always, it remains “particularly within the province of the 

trial judge.” Id. at 2917 (internal quotation marks omitted); 

see also United States v. Wood, 299 U.S. 123, 145-46 (1936) 

(stating that procedures for detecting and rooting out juror 

bias cannot be “chained to any ancient and artificial formula”). 

Trial judges, as we have repeatedly recognized, retain broad 

discretion over the conduct of voir dire, see, e.g., United 
31

States v. Jeffery, 631 F.3d 669, 673 (4th Cir. 2011), both as a 

general matter and in the area of pretrial publicity, 

specifically, see, e.g., United States v. Bailey, 112 F.3d 758, 

770 (4th Cir. 1997); United States v. Bakker, 925 F.2d 728, 733-

34 (4th Cir. 1991). The Supreme Court has itself emphasized the 

“wide discretion” that trial courts enjoy in questioning 

prospective jurors about pretrial publicity:

Particularly with respect to pretrial 

publicity, we think this primary reliance on 

the judgment of the trial court makes good 

sense. The judge of that court sits in the 

locale where the publicity is said to have 

had its effect and brings to his evaluation 

of any such claim his own perception of the 

depth and extent of news stories that might 

influence a juror. The trial court, of 

course, does not impute his own perceptions 

to the jurors who are being examined, but 

these perceptions should be of assistance to 

it in deciding how detailed an inquiry to 

make of the members of the jury venire.

Mu’Min v. Virginia, 500 U.S. 415, 427 (1991).

In his opening brief, Appellant accuses the district 

court of “limit[ing] voir dire on this issue to asking the 

prospective jurors en masse to sit down if they felt they could 

be fair.” Appellant’s Br. 65. The court, though, did a good 

deal more than that.

Jury selection in this case commenced with a courtapproved jury questionnaire spanning 99 questions, four of which 

pressed prospective jurors for information about their exposure 
32

to pretrial publicity.11 The questionnaire -- by and large, a 

condensed version of a slightly longer proposed questionnaire 

that the parties submitted jointly -- asked respondents to state 

whether they had “seen, heard or read anything” about the case; 

“[h]ow closely” they had followed news about the case; and from 

which types of media they had heard about it. J.A. 592-93. It 

then asked whether each respondent had “expressed an opinion 

about this case or about those involved to anyone,” and if so, 

to elaborate on both “the circumstances” and the opinion 

expressed. Id. at 593.

Appellant makes much of the fact that the jury 

questionnaire merely asked whether prospective jurors had 

“expressed” an opinion about the case, rather than whether they 

had formed an opinion about it. Appellant, however, bears much 

of the responsibility for the wording and scope of questions on 

that document. And while the jointly proposed jury 

questionnaire from which the final questionnaire was culled did, 

indeed, ask whether prospective jurors had “formed” an opinion 

about the case, the wording of this proposed question was 

suspect. It asked: “Based on what you have read, heard, seen, 

 11 Another section of the questionnaire asked prospective 

jurors to discuss their news consumption more generally. 

Respondents were instructed to list, among other things, the 

print and online news sources they read most often and any 

websites they visit regularly. 
33

and/or overheard in conversations, please tell us what opinions, 

if any, you have formed about the guilt or innocence of Robert 

F. McDonnell.” J.A. 527. So worded, this question invites 

respondents to deliberate on the defendant’s guilt or innocence 

and to stake out a position before even a single juror has been 

seated. The court was justified in rejecting it.12

Later, the court did exercise its discretion to 

question the prospective jurors as a group, instead of 

individually, on the subject of pretrial publicity. See Bakker, 

925 F.2d at 734 (“[I]t is well established that a trial judge 

may question prospective jurors collectively rather than 

individually.”). During this portion of the in-court voir dire, 

the court asked the members of the venire, collectively, to 

stand up if they had read, heard, or seen any media reports 

about the case. The court then asked the prospective jurors to

 12 Indeed, the court’s decision not to pose Appellant’s 

suggested question finds support in the Supreme Court’s guidance 

on matters of pretrial publicity. See Mu’Min, 500 U.S. at 430

(explaining that the question for voir dire is “whether the 

jurors . . . had such fixed opinions that they could not judge 

impartially the guilt of the defendant” (alteration in original) 

(emphasis supplied) (internal quotation marks omitted)); Irvin 

v. Dowd, 366 U.S. 717, 723 (1961) (“To hold that the mere 

existence of any preconceived notion as to the guilt or 

innocence of an accused, without more, is sufficient to rebut 

the presumption of a prospective juror’s impartiality would be 

to establish an impossible standard. It is sufficient if the 

juror can lay aside his impression or opinion and render a 

verdict based on the evidence presented in court.”).
34

sit down if, despite this, they believed they were “able to put 

aside whatever it is that [they] heard, listen to the evidence 

in this case and be fair to both sides.” J.A. 1691-92. Even 

still, the court invited defense counsel to identify any 

specific veniremen it would like to question further on this 

subject. In response, Appellant’s counsel brought forward the 

names of eight prospective jurors, and the court proceeded to 

summon each of those prospective jurors to the bench for 

individual questioning. The court struck one of these 

individuals, without objection, based on her responses to its 

questions. When this process was complete, the court asked 

Appellant’s counsel whether there was “[a]nybody else” he wished 

to question. J.A. 1706. “Not on publicity,” counsel said. Id.

Appellant, relying on our decision in United States v. 

Hankish, 502 F.2d 71 (4th Cir. 1974), argues that the 

prospective jurors’ acknowledgment that they had been exposed to 

pretrial publicity obligated the trial court to question every 

single one of them -- not merely one at a time, but outside of 

the others’ presence. See Appellant’s Br. 65. Hankish, 

however, is inapplicable. The error in that case was a district 

court’s refusal to poll jurors, after they had already been 

seated, to discern whether any of them had read a particular, 

“highly prejudicial” article that ran in the local newspaper on 

the second day of the trial. 502 F.2d at 76. We did not hold 
35

then, and have not held since, that individual questioning, out 

of earshot of the rest of the venire, is required to alleviate 

generalized concerns about the pernicious effects of pretrial 

publicity. On the contrary, we have held that merely asking for 

a show of hands was not an abuse of discretion. See Bailey, 112 

F.3d at 769-70 (finding no abuse of discretion where a court 

asked prospective jurors to raise their hands if they had heard 

or read about the case and, separately, if “anything they had 

heard would predispose them to favor one side or the other”).

We are satisfied that the trial court’s questioning in 

this case was adequate to “provide a reasonable assurance that 

prejudice would be discovered if present.” Lancaster, 96 F.3d 

at 740 (internal quotation marks omitted); see also United 

States v. Hsu, 364 F.3d 192, 203-04 (4th Cir. 2004). And 

Appellant does not contend that any actual juror bias has been 

discovered. We conclude, therefore, that the court did not 

abuse its discretion.

C.

Evidentiary Rulings

Appellant asserts the district court made multiple 

erroneous evidentiary rulings. In general, we review 

evidentiary rulings for an abuse of discretion, affording 

substantial deference to the district court. See United States 

v. Medford, 661 F.3d 746, 751 (4th Cir. 2011). “A district 
36

court abuses its discretion if its conclusion is guided by 

erroneous legal principles or rests upon a clearly erroneous 

factual finding.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 

261 (4th Cir. 1999) (citations omitted). Reversal is 

appropriate if we have “a definite and firm conviction that the 

court below committed a clear error of judgment in the 

conclusion it reached upon a weighing of the relevant factors.” 

Id. (internal quotation marks omitted).

1.

Exclusion of Expert Testimony

Appellant objects to the exclusion of his proposed 

expert testimony about Williams’s cooperation agreement with the 

Government as well as expert testimony about the Statements of 

Economic Interest. We reject these claims, as the trial court’s 

decisions to exclude this evidence were not abuses of 

discretion.

a.

First, Appellant argues that he should have been 

permitted to present expert testimony about Williams’s 

cooperation agreement with the Government, which provided 

Williams with transactional immunity. In a letter dated May 30, 

2014, the Government outlined the immunized conduct:

(1) conduct involving his agreement to 

provide, and his provision of, things of 

value to former Virginia Governor Robert F. 
37

McDonnell, former First Lady of Virginia 

Maureen P. McDonnell, and their family 

members; (2) conduct related to loans 

Williams received from 2009 to 2012 in 

exchange for his pledge of Star Scientific 

stock; and (3) conduct related to Williams’ 

gifts of Star Scientific stock to certain 

trusts from 2009 to 2012.

J.A. 7918. Appellant offered the expert testimony of Peter 

White -- a partner at Schulte Roth & Zabel LLP and former 

Assistant United States Attorney -- to “explain[] transactional 

immunity, its value, and its uniqueness” and to “help[] the jury 

understand Williams’s deal so it could assess his credibility.” 

Appellant’s Br. 78. 

Expert testimony cannot be used for the sole purpose 

of undermining a witness’s credibility. See United States v. 

Allen, 716 F.3d 98, 105–06 (4th Cir. 2013). Here, the defense 

wished to present White’s testimony in order to emphasize the 

rarity of Williams’s agreement and to imply, as a result, that 

Williams had more reason to provide false or greatly exaggerated 

testimony. In other words, the sole purpose of White’s 

testimony was to undermine Williams’s credibility. This is a 

matter best left to cross examination. Accordingly, we cannot 

conclude that the district court’s decision to exclude this 

evidence was an abuse of discretion. See Allen, 716 F.3d at 106 

(“A juror can connect the dots and understand the implications 

that a plea agreement might have on a codefendant’s testimony --
38

it is certainly within the realm of common sense that certain 

witnesses would have an incentive to incriminate the defendant 

in exchange for a lower sentence.” (internal quotation marks 

omitted)).13

b.

Second, Appellant argues that he should have been 

permitted to present expert testimony about the Statements of 

Economic Interest. Appellant offered the expert testimony of 

Norman A. Thomas -- a private attorney who formerly worked in 

 13 Appellant also contests the exclusion of his proposed lay 

witness testimony about the rarity of Williams’s agreement. At 

trial, the court sustained the Government’s objection after 

defense counsel asked Williams whether he understood “how 

unusual it is . . . to get transactional immunity” and again 

after defense counsel asked an FBI special agent whether he had 

“ever seen a cooperating witness get the kind of deal that Mr. 

Williams got.” J.A. 2778, 5064. Appellant claims this 

testimony would have helped the jury assess Williams’s 

credibility. In relevant part, Rule 701 of the Federal Rules of 

Evidence requires that opinion testimony from a lay witness must 

be “helpful to clearly understanding the witness’s testimony.” 

Fed. R. Evid. 701(b); see also United States v. Hassan, 742 F.3d 

104, 136 (4th Cir. 2014) (“Lay opinion testimony is particularly 

useful when . . . the terms and concepts being discussed . . . 

are likely to be unfamiliar to the jury.”). Juries are familiar 

with the general import and effect of immunity agreements. Cf.

Allen, 716 F.3d at 106 (discussing jurors’ ability to understand 

the implications of a plea agreement). Here, the jury was 

informed of the contents of Williams’s agreement, and Williams 

testified about the agreement and his understanding of the 

immunities from prosecution it afforded him. The jury did not 

need additional testimony regarding what types of agreements are 

more common than others to assess Williams’s credibility. In 

other words, the district court reasonably concluded that the 

testimony would not have been helpful.
39

the Office of the Attorney General of Virginia and served as a 

judge -- to explain the vagueness and complexity of the 

Statements of Economic Interest. According to Appellant, Thomas 

also would have explained that Appellant’s Statements of 

Economic Interest evidenced a reasonable understanding of the 

disclosure requirements.

Expert testimony must “help the trier of fact to 

understand the evidence or to determine a fact in issue.” Fed. 

R. Evid. 702(a). “The helpfulness requirement of Rule 702 thus 

prohibits the use of expert testimony related to matters which 

are obviously . . . within the common knowledge of jurors.” 

United States v. Lespier, 725 F.3d 437, 449 (4th Cir. 2013) 

(alteration in original) (internal quotations marks omitted).

The district court excluded the testimony of Thomas

because it would not be helpful to the jury. As the court 

observed, the jurors were “capable of reading and assessing the 

complexity of the [Statements] for themselves.” J.A. 719. 

Generally speaking, one does not need any special skills or 

expertise to recognize that something is complex. Accordingly,

this matter was plainly within the common knowledge of the 

jurors. Similarly, the jurors did not need expert assistance to

assess the reasonableness of Appellant’s opinions about what he 

did and did not have to disclose. The district court reasonably

concluded that Thomas’s testimony would not have been helpful. 
40

As a result, we cannot conclude that the district court’s 

decision to exclude this evidence was an abuse of discretion.

2.

Admission of Statements of Economic Interest

Appellant objects to the admission of the Statements 

of Economic Interest filed by Appellant during his time in 

office. Appellant moved in limine to exclude evidence relating 

to the Statements of Economic Interest, arguing the Statements

of Economic Interest would have little to no probative value and

their admission would confuse the issues and mislead the jury. 

The Government, on the other hand, characterized the 

Statements of Economic Interest and related evidence as 

concealment evidence, which would reveal Appellant’s “corrupt 

intent and consciousness of guilt.” J.A. 723. In support of 

this proposition, the Government offered four examples of how 

the Statements of Economic Interest amounted to concealment 

evidence:

[F]irst, because of [Appellant’s] deliberate 

omission of his golf-related gifts paid by 

Jonnie Williams; second, because of 

[Appellant’s] deliberate omission of the 

$15,000 check from Mr. Williams to pay the 

remainder of the catering bill the 

McDonnells owed for their daughter’s 

wedding; third, as the reason why Mrs. 

McDonnell sold and repurchased all Star 

stock held in her account on dates flanking 

the due date for [Appellant’s] 2011 

[Statement of Economic Interest], and why 

the next year, she similarly unloaded Star 
41

stock to [Appellant’s] children on December 

26, 2012, such that less than $10,000 worth 

of Star stock remained in her account at 

year-end; and fourth, as the reason why 

[Appellant] had Mr. Williams direct $70,000 

in loan proceeds to [Mobo].

Id. at 723–24 (citations omitted).

Evidence is relevant if “it has any tendency to make a 

fact more or less probable than it would be without the 

evidence” and “the fact is of consequence in determining the 

action.” Fed. R. Evid. 401(a)–(b). Relevant evidence may be 

excluded “if its probative value is substantially outweighed by 

a danger of . . . unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly 

presenting cumulative evidence.” Id. 403.

The district court admitted the Statements of Economic 

Interest because they were relevant “to concealment and may be 

probative of intent to defraud” and because “admission . . . 

will not unfairly prejudice [Appellant] because there is no 

suggestion, and there will be none at trial, that [Appellant] 

violated Virginia’s ethics laws or reporting requirements.” 

J.A. 760. Indeed, an attempt to conceal actions may indicate an 

individual has a guilty conscience or is aware of the 

unlawfulness of the actions. See United States v. Zayyad, 741 

F.3d 452, 463 (4th Cir. 2014). Because the Statements of 

Economic Interest did not include various gifts, stock 
42

transactions, and loans from Williams to Appellant -- omissions 

Appellant sought to explain during trial14 -- the structuring of 

the loans and gifts and failures to report could be seen as 

efforts to conceal Appellant’s dealings with Williams. The 

district court correctly observed as much. And the district 

court weighed the probative value of this evidence against any 

dangers that would accompanying its admission. Accordingly, we 

cannot conclude that the district court’s decision to admit this 

evidence was an abuse of discretion.

3.

Admission of Other Gifts Evidence

Appellant objects to the admission of evidence that he 

accepted a gift of the Kiawah vacation from Goodwin and that he 

 14 Appellant testified that he should have reported -- but 

did not report -- golf outings provided by Williams in 2011. He 

did not report Williams’s $15,000 check for catering at 

Appellant’s daughter’s wedding, characterizing the check as a 

wedding gift to his daughter. Appellant instructed Williams to 

write loan checks to Mobo, circumventing disclosure 

requirements. In both 2011 and 2012, Mrs. McDonnell unloaded 

shares of Star stock prior to the filing dates for the 

Statements of Economic Interest so her ownership did not have to 

be reported. But after the 2011 Statement of Economic Interest 

was filed, Mrs. McDonnell repurchased shares of Star stock. 

Appellant testified that “it was not a big deal” if he had to 

report ownership of Star stock. J.A. 6276. He claimed that he 

encouraged his wife to sell the stock in 2011 because it was a 

risky investment. He also claimed that Mrs. McDonnell 

repurchased and again transferred Star stock in 2012 because she 

wanted to give the stock to their children as a Christmas 

present.
43

did not disclose this gift pursuant to the “personal friend” 

exception to Virginia’s reporting requirements. Appellant moved 

in limine to exclude this evidence as extrinsic evidence of 

unrelated alleged acts with no probative value of his intent. 

The Government responded that this evidence showed Appellant’s 

knowledge of the “personal friend” exception to reporting 

requirements. This evidence, the Government further noted, 

would be “competent evidence of absence of mistake or lack of 

accident when it comes to assessing [Appellant’s] intent in 

failing to disclose the gifts and loans from Mr. Williams.” 

J.A. 731.

As a general rule, “[e]vidence of a crime, wrong, or 

other act is not admissible to prove a person’s character in 

order to show that on a particular occasion the person acted in 

accordance with the character.” Fed. R. Evid. 404(b)(1). 

However, such evidence “may be admissible for another purpose, 

such as proving motive, opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake, or lack of accident.” 

Id. 404(b)(2).

The district court admitted the evidence of the Kiawah 

vacation omission because it was used to show knowledge and lack 

of mistake. The omission of the gift from Goodwin, the district 

court determined, “is similar to the act the Government seeks to 

prove -- omission of gifts from Williams pursuant to the 
44

personal friend exception.” J.A. 761. This evidence 

established that Appellant knew about the “personal friend” 

exception and omitted certain gifts pursuant to this exception. 

Thus, Appellant’s knowledge and the absence of mistake was

“relevant to, and probative of, his alleged intent to defraud.” 

Id. Rule 404 permits the admission of evidence of intent and 

knowledge, and in our view, the district court could conclude 

that the Goodwin evidence was admissible for these purposes.

Therefore, we cannot conclude that the district court’s decision 

to admit this evidence was an abuse of discretion.

4.

Admission of Email Exchange Regarding Free Golf

Appellant objects to the admission of an email 

exchange about obtaining free rounds of golf. On January 4, 

2013, Emily Rabbitt -- Appellant’s travel aide and deputy 

director of scheduling -- asked Adam Zubowsky for advice about 

planning golf trips for Appellant. Zubowsky -- once Appellant’s 

travel aide and later Appellant’s son-in-law -- responded in an 

email dated January 4, 2013:

Yes basically this means find out who we 

know in these cities, that owns golf courses 

and will let me and my family play for free, 

or at a reduced cost. Also finding out 

where to stay for free / or reduced cost. 

So this means . . . find out about pac 

donors, and rga donors, who will host rfm.

J.A. 7921.
45

During trial, Appellant objected to the admission of 

this email, asserting that this evidence was not relevant and 

was extraordinarily prejudicial. In post-trial motions and on 

appeal, however, Appellant has claimed the exchange was 

inadmissible hearsay and inadmissible character evidence. 

Because Appellant did not object at trial on these grounds, our 

review is for plain error. See United States v. Bennett, 698 

F.3d 194, 200 (4th Cir. 2012).

On plain error review, an appellant “bears the burden 

of establishing (1) that the district court erred; (2) that the 

error was plain; and (3) that the error affect[ed his] 

substantial rights.” Bennett, 698 F.3d at 200 (alteration in 

original) (internal quotation marks omitted). An error affects 

an individual’s substantial rights if it was prejudicial, “which 

means that there must be a reasonable probability that the error 

affected the outcome of the trial.” United States v. Marcus, 

130 S. Ct. 2159, 2164 (2010). The mere possibility that the 

error affected the outcome of the trial does not establish 

prejudice. See id. “Even then, this court retain[s] discretion 

to deny relief, and denial is particularly warranted where it 

would not result in a miscarriage of justice.” Bennett, 698 

F.3d at 200 (alteration in original) (internal quotation marks 

omitted).
46

At first, the district court refused to permit 

discussion of the particular email exchange when it was 

mentioned during the testimony of Rabbitt. Later in the trial, 

during cross examination of Appellant, the email exchange was 

admitted over Appellant’s relevancy objection. The discussion 

of the exchange focused on whether Appellant received 

information about golf courses where he could play for free or 

at a reduced cost. Upon review of the record, it does not 

appear that this exchange was mentioned again, and the parties 

have not identified any other discussion of the exchange.

The use of the email exchange was quite limited, 

especially in light of the voluminous evidence presented during 

the course of the five weeks of trial. We cannot say there is a 

reasonable probability that its admission affected the outcome 

of the trial. The indictment, we note, did not seek to 

prosecute Appellant for this conduct; indeed, the district court 

instructed the jury that Appellant was “not on trial for any act 

or conduct or offense not alleged in the indictment.” J.A. 

7695. We presume the jurors followed the district court’s 

instruction. See, e.g., Weeks v. Angelone, 528 U.S. 225, 234 

(2000). Accordingly, the claim that evidence of the email 

exchange affected the outcome of the trial is beyond the realm 

of reasonable probability. The admission of this evidence was 

not plainly erroneous.
47

5.

Return of Forensic Image of Williams’s iPhone

Appellant also asserts the district court erroneously 

ordered him to return all copies of a forensic image of 

Williams’s iPhone, which the Government had produced to 

Appellant pursuant to Rule 16 of the Federal Rules of Criminal 

Procedure. Appellant’s chief complaint is that the forensic 

image may contain evidence to which he is entitled pursuant to 

Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United 

States, 405 U.S. 150 (1972). 

However, Appellant waives this claim because his 

treatment of it is conclusory. Appellant merely argues: “If 

[Appellant] receives a new trial, he is entitled to this 

evidence, which almost certainly contains Brady and Giglio

material. Likewise, if any of that evidence proves material, 

its confiscation requires a new trial.” Appellant’s Br. 85

(citations omitted). Appellant’s argument includes bare 

citations to two decisions of little obvious relevance from 

other courts of appeals. Furthermore, Appellant does not make 

any effort to establish the elements of a Brady or Giglio

violation. See Strickler v. Greene, 527 U.S. 263, 281–82 (1999) 

(“The evidence at issue must be favorable to the accused, either 

because it is exculpatory, or because it is impeaching; that 
48

evidence must have been suppressed by the State, either 

willfully or inadvertently; and prejudice must have ensued.”). 

Summary treatment of a claim does not sufficiently 

raise the claim. See, e.g., Russell v. Absolute Collection 

Servs., Inc., 763 F.3d 385, 396 n.* (4th Cir. 2014) (noting that 

failure to present legal arguments and “record citations or 

pertinent legal authority supporting . . . a claim” waives the 

claim). Although Appellant raised this issue in an 

interlocutory appeal in a related case -- an appeal we dismissed 

for want of jurisdiction -- this does not preserve the issue and 

is not sufficient to raise the issue now. To avoid waiver, a 

party must brief the issue in an appeal over which we may 

exercise jurisdiction. Thus, because Appellant fails to 

sufficiently raise this issue and has, therefore, effectively 

waived it, we do not further address it.

III.

With these matters resolved, we turn to the two 

arguments at the core of this appeal. First and foremost, 

Appellant asserts that the district court’s jury instructions 

misstated fundamental principles of federal bribery law. 

Second, he asserts that the Government’s evidence was 

insufficient to support his convictions pursuant to the honestservices wire fraud statute and the Hobbs Act. We address each 

of these contentions in turn.
49

A.

Jury Instructions

Appellant’s claim with respect to the jury 

instructions is that the court defined bribery far too 

expansively. “We review de novo the claim that a jury 

instruction failed to correctly state the applicable law.” 

United States v. Jefferson, 674 F.3d 332, 351 (4th Cir. 2012). 

“[W]e do not view a single instruction in isolation, but instead 

consider whether taken as a whole and in the context of the 

entire charge, the instructions accurately and fairly state the 

controlling law.” United States v. Woods, 710 F.3d 195, 207 

(4th Cir. 2013) (internal quotation marks omitted). Even if, 

upon review, we find that the court misinstructed the jury on an 

element of an offense, we may disregard the error as harmless. 

See United States v. Cloud, 680 F.3d 396, 408 n.5 (4th Cir. 

2012); United States v. Ramos-Cruz, 667 F.3d 487, 496 (4th Cir. 

2012). “We find an error in instructing the jury harmless if it 

is ‘clear beyond a reasonable doubt that a rational jury would 

have found the defendant guilty absent the error.’”15 Ramos-

 15 Prior to closing arguments in this case, the trial court 

conducted a lengthy charge conference, during which Appellant’s 

counsel vigorously challenged many of the Government’s proposed 

instructions, including instructions that the court ultimately 

gave. The court did not invite the parties to object to the 

instructions after the court gave them to the jury -- nor did 

either party request to do so. We remind the district courts 

(Continued)
50

Cruz, 667 F.3d at 496 (quoting Neder v. United States, 527 U.S. 

1, 18 (1999)).

1.

We begin our analysis with an examination of the 

statutes of conviction. The first of these is the honestservices wire fraud statute, 18 U.S.C. §§ 1343, 1346.16 This 

statute requires the Government to prove that the defendant 

sought to “carry out a ‘scheme or artifice to defraud’ another 

of ‘the intangible right of honest services.’” United States v. 

Terry, 707 F.3d 607, 611 (6th Cir. 2013) (citations omitted) 

(quoting 18 U.S.C. §§ 1341, 1346). The Supreme Court has 

 

and counsel that the proper time for cementing objections to 

instructions is after they are given but “before the jury 

retires to deliberate.” Fed. R. Crim. P. 30(d); see United 

States v. Taglianetti, 456 F.2d 1055, 1056-57 (1st Cir. 1972) 

(rejecting the “improper practice” of taking objections to the 

jury charge “in chambers before delivery, rather than 

afterwards”). 

16 The wire fraud statute provides, in pertinent part:

Whoever, having devised or intending to 

devise any scheme or artifice to 

defraud, . . . transmits or causes to 

be transmitted by means of wire . . .

communication in interstate or foreign 

commerce, any writings, signs, signals, 

pictures, or sounds for the purpose of 

executing such scheme or artifice, shall be 

fined . . . or imprisoned . . . or both.

18 U.S.C. § 1343. “[T]he term ‘scheme or artifice to defraud’ 

includes a scheme or artifice to deprive another of the 

intangible right of honest services.” Id. § 1346. 
51

recognized that § 1346 proscribes two, and only two, types of 

activities: bribery and kickback schemes. See Skilling v. 

United States, 130 S. Ct. 2896, 2907 (2010). To the extent that 

the statute prohibits acts of bribery, the prohibition “draws 

content . . . from federal statutes proscribing -- and defining 

-- similar crimes,” including the general federal bribery 

statute, 18 U.S.C. § 201(b), and the statute prohibiting theft 

and bribery involving federal funds, 18 U.S.C. § 666(a)(2). 

Skilling, 130 S. Ct. at 2933.

Here, in their proposed instructions for honestservices wire fraud, both parties sought to import the 

definition of bribery set forth in 18 U.S.C. § 201(b)(2). This 

statute provides that public officials may not “corruptly” 

demand, seek, or receive anything of value “in return 

for . . . being influenced in the performance of any official 

act.” 18 U.S.C. § 201(b)(2). The statute defines an “official 

act” as “any decision or action on any question, matter, cause, 

suit, proceeding or controversy, which may at any time be 

pending, or which may by law be brought before any public 

official, in such official’s official capacity, or in such 

official’s place of trust or profit.” Id. § 201(a)(3). The 

district court provided a near-verbatim recitation of these 

provisions in its honest-services wire fraud instructions.
52

A second statute of conviction in Appellant’s case, 

the Hobbs Act, prohibits acts of extortion which “in any way or 

degree obstruct[], delay[], or affect[] commerce or the movement 

of any article or commodity in commerce.” 18 U.S.C. § 1951(a). 

Though a defendant may commit extortion through threats or 

violence, it is also possible to commit extortion by obtaining 

property “under color of official right.” Id. § 1951(b)(2). In 

Evans v. United States, the Supreme Court explained that its 

construction of § 1951 “is informed by the common-law 

tradition,” under which “[e]xtortion by [a] public official was 

the rough equivalent of what we would now describe as ‘taking a 

bribe.’” 504 U.S. 255, 260, 268 (1992). Accordingly, we have 

concluded that prosecutions for extortion under color of 

official right, like prosecutions under other bribery-related 

statutes, require proof of a quid pro quo. See United States v. 

Hairston, 46 F.3d 361, 365 (4th Cir. 1995).

Here, the parties agreed that a charge of extortion 

under color of official right has four elements. The trial 

court accordingly instructed the jury that the Government must 

prove beyond a reasonable doubt that the defendant (1) was a 

public official; (2) “obtained a thing of value not due him or 

his [office]”; (3) “did so knowing that the thing of value was 

given in return for official action”; and (4) “did or attempted 
53

in any way or degree to delay, obstruct, or affect interstate 

commerce, or an item moving in interstate commerce.” J.A. 7681.

2.

Official Acts

Appellant first challenges the district court’s 

instructions on the meaning of “official act,” or, 

alternatively, “official action.” Appellant argues the court’s 

definition was overbroad, to the point that it would seem to 

encompass virtually any action a public official might take 

while in office.

In its instructions on honest-services wire fraud, the 

district court defined “official action”:

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 official’s 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 official’s 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, 
54

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.

J.A. 7671-72. The court later explained to the jury that these 

instructions “apply equally to the definition of official action 

for the purposes of” the Hobbs Act counts. Id. at 7683.

In broad strokes, Appellant’s argument is that the 

court’s definition of “official action” is overinclusive. By 

his account, the court’s instructions would deem virtually all 

of a public servant’s activities “official,” no matter how minor 

or innocuous. For public figures such as a governor, who 

interact with constituents, donors, and business leaders as a 

matter of custom and necessity, these activities might include 

such routine functions as attending a luncheon, arranging a 

meeting, or posing for a photograph. Appellant argues that 

activities of this nature can never constitute an official act. 

See Appellant’s Br. 28.

We have recognized that the term “official act” “does 

not encompass every action taken in one’s official capacity.” 

Jefferson, 674 F.3d at 356. Its meaning is more limited than 

that. We are satisfied, though, 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 
55

controversy, which may at any time be pending, or which may by 

law be brought before any public official, in such public 

official’s official capacity.” J.A. 7671 (paraphrasing 18 

U.S.C. § 201(a)(3)).

a.

The Supreme Court has twice expounded on the meaning 

of “official act.” It first did so a little more than a century 

ago, in United States v. Birdsall, 233 U.S. 223 (1914). There, 

two federal officers responsible for suppressing liquor traffic 

in Indian communities challenged their indictments for accepting 

bribes in violation of section 117 of the Criminal Code, the 

predecessor statute to 18 U.S.C. § 201(b).17 See Birdsall, 233 

 17 Section 117 provided:

Whoever, being an officer of the United 

States, or a person acting for or on behalf 

of the United States, in any official 

capacity, under or by virtue of the 

authority of any department or office of the 

Government thereof[,] . . . shall ask, 

accept, or receive any money, . . . with 

intent to have his decision or action on any 

question, matter, cause, or proceeding which 

may at any time be pending, or which may by 

law be brought before him in his official 

capacity, or in his place of trust or 

profit, influenced thereby, shall be 

[penalized by fine, imprisonment, and 

disqualification from office].

Act of March 4, 1909, ch. 321, § 117, 35 Stat. 1088, 1109-10. 

We have observed that “there is simply no distinction in 

substance between an official act as defined by Birdsall” and an 

(Continued)
56

U.S. at 227. The indictments alleged that attorney Birdsall 

bribed the officers to advise the Commissioner of Indian Affairs 

to recommend leniency for individuals convicted of liquor 

trafficking offenses involving Indians. See id. at 229-30. The 

district court sustained the officers’ demurrers, holding that 

their actions were not within the scope of the bribery statute 

because “there [was] no act of Congress conferring upon the 

Interior Department, or the Bureau of Indian Affairs, any duty 

whatever in regard to recommending to the executive or judicial 

departments of the government whether or not executive or 

judicial clemency shall be extended.” United States v. 

Birdsall, 206 F. 818, 821 (N.D. Iowa 1913), rev’d, 233 U.S. 223 

(1914). The Supreme Court, however, reversed. In doing so, it 

declared that an action may be “official” for purposes of a 

bribery charge even if it is not prescribed by statute, written 

rule, or regulation. See Birdsall, 233 U.S. at 230-31. Indeed, 

as the Court explained, an official act:

might also be found in an established usage 

which constituted the common law of the 

department and fixed the duties of those 

engaged in its activities. In numerous 

instances, duties not completely defined by 

written rules are clearly established by 

settled practice, and action taken in the 

 

“official act” under the current bribery statute, 18 U.S.C. 

§ 201(a)(3). Jefferson, 674 F.3d at 353.
57

course of their performance must be regarded 

as within the provisions of the abovementioned statutes against bribery.

Id. at 231 (citation omitted).

Birdsall continues to stand for the proposition that 

an “official act” “may include acts that a [public servant] 

customarily performs, even if the act falls outside the formal 

legislative process.” Jefferson, 674 F.3d at 357; see also

United States v. Morlang, 531 F.2d 183, 192 (4th Cir. 1975). 

Importantly, though, Birdsall did not rule, and we have never 

held, that every act an official performs as a matter of custom 

is an “official act.” To constitute an “official act” under 

federal bribery law, a settled practice “must yet adhere to the 

definition confining an official act to a pending ‘question, 

matter, cause, suit, proceeding or controversy.’” Jefferson, 

674 F.3d at 356 (quoting 18 U.S.C. § 201(a)(3)).

By way of dicta in United States v. Sun-Diamond 

Growers of California, 526 U.S. 398 (1999), the Supreme Court 

has clarified this point. Sun-Diamond, it must be noted, was 

not a bribery case. Its focus, rather, was the federal gratuity 

statute, 18 U.S.C. § 201(c), which criminalizes gifts given to a 

public official “for or because of any official act.” 18 U.S.C. 

§ 201(c)(1)(A). Notably, though, the definition of an “official 

act” supplied in § 201(a)(3) applies to the entirety of § 201, 

including the dual prohibitions on bribery and illegal 
58

gratuities. See 18 U.S.C. § 201(a) (providing a definition of 

“official act” “[f]or the purpose of this section”).

The Sun-Diamond Court explained that the illegal 

gratuity statute requires the Government to demonstrate a link 

between the gift and “some particular official act of whatever 

identity.” 526 U.S. at 406 (internal quotation marks omitted). 

In the course of its explanation, the Court stated that an 

alternative reading would criminalize, for example, “token gifts 

to the President based on his official position and not linked 

to any identifiable act -- such as the replica jerseys given by 

championship sports teams each year during ceremonial White 

House visits”; “a high school principal’s gift of a school 

baseball cap to the Secretary of Education, by reason of his 

office, on the occasion of the latter’s visit to the school”; or 

a “complimentary lunch” provided for the Secretary of 

Agriculture “in connection with his speech to the farmers 

concerning various matters of USDA policy.” Id. at 406-07. The 

Court proceeded to explain why it would not do to argue that 

these three acts -- that is, receiving the sports teams, 

visiting the high school, or speaking to farmers -- were 

“official acts” in their own right:

The answer to this objection is that those 

actions -- while they are assuredly 

“official acts” in some sense -- are not 

“official acts” within the meaning of the 

statute, which, as we have noted, defines 
59

“official act” to mean “any decision or 

action on any question, matter, cause, suit, 

proceeding or controversy, which may at any 

time be pending, or which may by law be 

brought before any public official, in such 

official’s official capacity, or in such 

official’s place of trust or profit.” 18 

U.S.C. § 201(a)(3). Thus, when the 

violation is linked to a particular 

“official act,” it is possible to eliminate 

the absurdities through the definition of 

that term.

Id. at 407-08 (emphasis omitted).

We have previously declined to read Sun-Diamond to 

exclude “all settled practices by a public official from the 

bribery statute’s definition of an official act.” Jefferson, 

674 F.3d at 356 (emphasis supplied). Appellant concedes the 

point, acknowledging that “some settled practices can be 

official acts.” Appellant’s Br. 37 (emphasis omitted). He 

argues, though, that under the logic of Sun-Diamond, the kinds 

of activities he is accused of -- e.g., speaking with aides and 

arranging meetings -- can never constitute “official acts” 

because they “implicate no official power.”18 Id. at 31 

(emphasis omitted). Appellant simply misreads Sun-Diamond.

 18 In further support of his argument that an “official act” 

necessitates a deployment of “official powers,” Appellant calls 

our attention to the First Circuit’s decision in United States 

v. Urciuoli, 513 F.3d 290 (1st Cir. 2008). The appellants in 

Urciuoli were hospital executives who allegedly employed a state 

senator in a “sham job” in exchange for various efforts to 

advance the hospital’s financial interests. 513 F.3d at 292. 

In pertinent part, the Government alleged that the senator 

(Continued)
60

The Sun-Diamond Court did not rule that receptions, 

public appearances, and speeches can never constitute “official 

acts” within the meaning of § 201(a)(3); the Court’s point was 

that job functions of a strictly ceremonial or educational 

nature will rarely, if ever, fall within this definition. The 

reason is not that these functions cannot relate, in some way, 

 

lobbied municipal officials to comply with Rhode Island law 

governing ambulance runs. See id. As a result of this act, 

among various other actions, the executives were convicted of 

honest-services mail fraud pursuant to 18 U.S.C. §§ 1341 and 

1346. See id. at 293.

There, as in this case, the chief issue on appeal was 

whether the court’s instructions were overbroad. It must be 

noted, though, that the instructions in that case were decidedly 

different than the instructions here. Instead of borrowing the 

bribery definition from § 201(a)(3), as the court here did, the 

trial court in Urciuoli instructed the jury to decide whether 

the object of the scheme was a deprivation of “honest services,” 

defined as follows:

The honest services that an elected official 

owes to citizens is not limited to the 

official’s formal votes on legislation. It 

includes the official’s behind-the-scenes 

activities and influence in the legislation, 

and it also includes other actions that the

official takes in an official capacity, not 

what he does as a private individual but 

what he does under the cloak of his office.

Urciuoli, 513 F.3d at 295 n.2 (internal quotation marks 

omitted). The First Circuit ruled that the phrase “under the 

cloak of his office” was overbroad under the circumstances 

because lobbying mayors to obey state law cannot constitute a 

deprivation of honest services. See id. at 295. While 

Appellant reads Urciuoli to proclaim that acts like lobbying can 

never be official acts, the First Circuit made no such 

pronouncement.
61

to a “question, matter, cause, suit, proceeding or controversy.” 

18 U.S.C. § 201(a)(3). Frequently, they will. When, as in the 

Court's example, the Secretary of Education visits a local high 

school, he may proceed to discuss matters of education policy 

with the student body. Surely, though, this discussion does not 

have the purpose or effect of exerting some influence on those 

policies. Its function, rather, is to educate an audience of 

students. Under these circumstances, it cannot be said that the 

Secretary’s visit is a “‘decision or action on’” the question, 

matter, cause, suit, proceeding, or controversy. Sun-Diamond, 

526 U.S. at 407 (emphasis supplied) (quoting 18 U.S.C. 

§ 201(a)(3)).

In view of these precedents, we are satisfied that the 

reach of § 201(a)(3) is broad enough to encompass the customary 

and settled practices of an office, but only insofar as a 

purpose or effect of those practices is to influence a 

“question, matter, cause, suit, proceeding or controversy” that 

may be brought before the government. 18 U.S.C. § 201(a)(3). 

It is with this principle in mind that we assess Appellant’s 

contentions about the jury instructions in this case.19

 19 Appellant invokes a number of canons of statutory 

interpretation that favor a narrow construction of “official 

act.” As for his argument that the bribery laws should be void 

for vagueness, the Supreme Court has already rejected a 

challenge that the honest-services statute is unconstitutionally 

(Continued)
62

b.

Appellant accuses the district court of giving the 

jury an “unprecedented and misleading” instruction on the 

“official act” element. Appellant’s Br. 51. We disagree with 

these characterizations. First, the court’s instruction was not 

unprecedented. To a large extent, the instruction echoed the 

“official act” instruction in United States v. Jefferson.20 

Second, the instruction here was not misleading. The court 

correctly stated, consistent with Birdsall, that the term 

“official action” “includes those actions that have been clearly 

established by settled practice as part of a public official’s 

position, even if the action was not taken pursuant to 

responsibilities explicitly assigned by law.” J.A. 7671-72. 

 

vague as applied to bribery. See Skilling, 130 S. Ct. at 2928. 

And because Appellant has “engage[d] in some conduct that is 

clearly proscribed” by the Hobbs Act, he “cannot complain of the 

vagueness of the law as applied to the conduct of others.” 

Holder v. Humanitarian Law Project, 561 U.S. 1, 18-19 (2010) 

(internal quotation marks omitted). Appellant’s remaining 

narrowing arguments -- which invoke federalism concerns, the 

rule of lenity, and dicta in Sun-Diamond -- all presuppose 

inherent ambiguity in the statutory term “official act.” 

However, as we have explained, the term is sufficiently definite 

as to make recourse to those canons unnecessary.

20 In Jefferson, we held that the following jury instruction 

was not erroneous: “An act may be official even if it was not 

taken pursuant to responsibilities explicitly assigned by law. 

Rather, official acts include those activities that have been 

clearly established by settled practice as part of a public 

official’s position.” 674 F.3d at 353 (alteration omitted).
63

The court then explained that the meaning of “official action” 

is tethered to decisions or actions on a “question, matter, 

cause, suit, proceeding, or controversy” that may come before 

the government. See id. at 7671.

i.

Appellant takes issue with the court’s instruction

that an official action “‘can include actions taken in 

furtherance of longer-term goals.’” Appellant’s Br. 56 (quoting 

J.A. 7672). He argues that this instruction is too sweeping, as 

“virtually anything could be in ‘furtherance’ of some goal.” 

Id. For similar reasons, Appellant challenges the court’s 

instruction that “‘an official action is no less official 

because it is one in a series of steps to exercise influence or 

achieve an end.’” Id. (emphasis omitted) (quoting J.A. 7672). 

We find no error in either of the court’s statements.

We observe, first, that the federal bribery statute, 

18 U.S.C. § 201(b), from which the honest-services wire fraud 

statute draws meaning, criminalizes the act of “corruptly 

demand[ing], seek[ing], receiv[ing], accept[ing], or agree[ing] 

to receive or accept” a thing of value in return for influence. 

18 U.S.C. § 201(b)(2). The solicitation or acceptance of the 

bribe completes the crime, regardless of whether the recipient 

completes, or even commences, the “official act” the bribe payor 

sought to influence. See Howard v. United States, 345 F.2d 126, 
64

128 (1st Cir. 1965) (“[I]t has been long established that the 

crime of bribery is complete upon the acceptance of a bribe 

regardless of whether or not improper action is thereafter 

taken.”). The same is true of a Hobbs Act extortion charge. 

See Evans, 504 U.S. at 268 (recognizing that the crime of 

extortion under color of official right is “completed at the 

time when the public official receives a payment in return for 

his agreement to perform specific official acts”); United States 

v. Loftus, 992 F.2d 793, 797 (8th Cir. 1993). In either case, 

when prosecuting a bribe recipient, the Government need only 

prove that he or she solicited or accepted the bribe in return 

for performing, or being influenced in, some particular official 

act. Of importance, the consummation of an “official act” is 

“not an element of the offense.” Evans, 504 U.S. at 268.

We further observe that an “official act” may pertain 

to matters outside of the bribe recipient’s control. See 18 

U.S.C. § 201(a)(3) (providing that an act may be “official” so 

long as the matter to be decided or acted upon “may by law be 

brought before any public official” (emphasis supplied)). 

Indeed, in Birdsall, the defendant-officers lacked any authority 

to grant clemency; all they could provide was advice. 233 U.S. 

at 229-30. Nevertheless, the Supreme Court upheld their bribery 

indictments. See id. at 236. Likewise, in Sears v. United 

States, the First Circuit recognized that government inspectors 
65

were performing an “official” function, for purposes of two 

shoemakers’ federal bribery charges, when they accepted payoffs 

to disregard inadequacies in leather shoes destined for sale to 

the Army. 264 F. 257, 261-62 (1st Cir. 1920). As the court 

stated:

The fact that these inspectors acted only in 

a preliminary or in an advisory capacity, 

and without final power to reject or accept, 

does not prevent their duties from

being official duties. Final decisions 

frequently, perhaps generally, rest in large 

part upon the honesty and efficiency of 

preliminary advice. . . . To sustain the 

contention of the defendants that these 

inspectors were not performing an official 

function would be to rule that the thousands 

of inspectors employed to advise and assist 

the government under the contracts for the 

hundreds of millions of war supplies might 

be bribed with impunity. To state the 

proposition is to reject it.

Id.

Our decision in Jefferson supports the proposition 

that mere steps in furtherance of a final action or decision may 

constitute an “official act.” The defendant in that case was a 

former Louisiana congressman who, as co-chair of the Africa 

Trade and Investment Caucus and the Congressional Caucus on 

Nigeria, was “largely responsible for promoting trade” with 

Africa. 674 F.3d at 357. A jury convicted Jefferson of both 

bribery and honest-services wire fraud, based in part on 

allegations that he asked a telecommunications company to hire 
66

his family’s consulting firm in return for his efforts to 

promote the company’s technology in Africa. See id. at 338. 

Jefferson’s efforts on the company’s behalf involved a series of 

trips and meetings. In particular, we explained, “acts 

performed by Jefferson in exchange for the various bribe 

payments included, inter alia”: “corresponding and visiting with 

foreign officials”; “[a]ttempting to facilitate and promote” 

certain business ventures; “[s]cheduling and conducting 

meetings”; and “seeking to secure construction contracts.” Id.

at 356. We were satisfied that these activities were in keeping 

with Jefferson’s settled practice of serving constituents and 

promoting trade in Africa and that, accordingly, the jury was 

“entitled to conclude” that his actions “fall under the umbrella 

of his ‘official acts.’” Id. at 357-58.

ii.

Appellant next challenges the district court’s 

instruction that 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.” J.A. 7672. Appellant 

argues that this is a misstatement of law: a bribe payor’s 

subjective belief cannot convert a non-official act into an 
67

official one. See Appellant’s Br. 55. Again, we are 

unpersuaded.

The first part of the court’s instruction is 

indisputably correct.21 In Wilson v. United States, we held that 

a bribery conviction will stand regardless of whether the bribe 

recipient “had actual authority to carry out his commitments 

under the bribery scheme.” 230 F.2d 521, 526 (4th Cir. 1956). 

There, a jury convicted an adjutant general of soliciting bribes 

from an insurance salesman in exchange for the right to sell 

insurance at Fort Jackson -- even though the solicitations 

occurred while the adjutant general was temporarily relieved of 

his post.22 See id. at 523. We deemed the adjutant general’s 

lack of actual authority “immaterial”: “Regardless of his 

actual authority, it was still within his practical power to 

influence the regulation of insurance sales as it had formerly 

 21 Appellant’s own proposed jury instructions concede the 

point, stating that a public official “can perform an ‘official 

act’ when it is a settled practice as part of the official’s 

position for him to exercise influence over a government 

decision even if he does not have authority to make the final 

decision himself.” J.A. 753.

22 The statute of conviction in Wilson was 18 U.S.C. § 202, 

which authorized penalties for any federal officer or employee 

who “asks [for], accepts, or receives” a thing of value “with 

intent to have his decision or action on any question, matter, 

cause, or proceeding which may at any time be pending, or which 

may by law be brought before him in his official capacity, or in 

his place of trust or profit, influenced thereby.” 18 U.S.C. 

§ 202 (1952) (current version at 18 U.S.C. § 201(b) (2012)). 
68

been . . . .” Id. at 526; cf. United States v. Ring, 706 F.3d 

460, 470 (D.C. Cir. 2013) (holding that a Department of Justice 

attorney committed an “official act” pursuant to § 201(c) when 

he forwarded an email to another government official in an 

effort to expedite a foreign student’s visa application, even 

though the attorney “lacked independent authority to expedite 

visa applications”).

As to the second part of the court’s instruction, we 

have no difficulty recognizing that proof of a bribe payor’s 

subjective belief in the recipient’s power or influence over a 

matter will support a conviction for extortion under color of 

official right. See United States v. Bencivengo, 749 F.3d 205, 

212-13 (3d Cir. 2014); United States v. Blackwood, 768 F.2d 131, 

134-35 (7th Cir. 1985); United States v. Bibby, 752 F.2d 1116 

(6th Cir. 1985); United States v. Rabbitt, 583 F.2d 1014, 1027 

(8th Cir. 1978) (“The official need not control the function in 

question if the extorted party possesses a reasonable belief in 

the official’s powers.”). As the First Circuit explained in 

United States v. Hathaway, the phrase “under color of official 

right” “includes the misuse of office to induce payments not 

due.” 534 F.2d 386, 394 (1st Cir. 1976). Accordingly, the 

“relevant question” when contemplating a prosecution under this 

statute is simply whether the government official “imparted and 
69

exploited a reasonable belief that he had effective influence 

over” the subject of the bribe. Id.

Plainly, Hobbs Act principles support the district 

court’s instruction that a bribe recipient’s lack of actual 

authority over a matter does not preclude “official act” status, 

“so long as the alleged bribe payor reasonably believes” that 

the recipient had “influence, power or authority over a means to 

the end sought.” J.A. 7672. We are satisfied, therefore, that 

this instruction was not erroneous with respect to the Hobbs Act

extortion charges.

It is less certain that a bribe payor’s subjective 

belief in the recipient’s power or influence will suffice to 

demonstrate an “official act” for purposes of an honest-services 

wire fraud charge. The “intangible right of honest services,” 

after all, is a right held by the public. See United States v. 

Harvey, 532 F.3d 326, 333 (4th Cir. 2008). When a government 

official agrees to influence a matter in exchange for money, 

that official deprives the public of his “honest, faithful, and 

disinterested services.” Id. (internal quotation marks 

omitted). The third party who pays the government official may 

be a constituent of the official, but he is no victim, and the 

honest-services wire fraud statute does not seek to protect him.

Appellant’s argument, therefore, that the subjective 

beliefs of a third party in an honest-services wire fraud case 
70

cannot “convert non-official acts into official ones” is 

debatable. Appellant’s Br. 55 (emphasis omitted). This, 

however, is not an issue that we need to decide. Even if the 

court’s instruction on this point were erroneous, the error 

would be harmless. See Ramos-Cruz, 667 F.3d at 496. As 

Governor of Virginia, Appellant most certainly had power and 

influence over the results Williams was seeking. We have no 

doubt that the jury’s verdict on the honest-services wire fraud 

charge would have been the same even if the instructions 

required a finding that Appellant had the power to influence a 

means to the end being sought.

Appellant has thus failed to show that the court’s 

“official act” instructions, taken as a whole, were anything 

less than a “fair and accurate statement of law.” United States 

v. Smoot, 690 F.3d 215, 223 (4th Cir. 2012). Appellant’s claim 

of reversible error with respect to the “official act” 

instructions is therefore rejected.

c.

We likewise reject Appellant’s argument that the court 

erred in refusing to give his proposed instructions on the 

meaning of “official act.” We review a district court’s refusal 

to give a specific jury instruction for abuse of discretion, 

“and reverse only when the rejected instruction (1) was correct; 

(2) was not substantially covered by the court’s charge to the 
71

jury; and (3) dealt with some point in the trial so 

important . . . that failure to give the requested instruction 

seriously impaired the defendant’s ability to conduct his 

defense.” United States v. Smith, 701 F.3d 1002, 1011 (4th Cir. 

2012) (internal quotation marks omitted).

Appellant’s proposed instruction contained the 

following passage:

[T]he fact that an activity is a routine 

activity, or a “settled practice,” of an 

office-holder does not alone make it an 

“official act.” Many settled practices of 

government officials are not official acts 

within the meaning of the statute. For 

example, merely arranging a meeting, 

attending an event, hosting a reception, or 

making a speech are not, standing alone, 

“official acts,” even if they are settled 

practices of the official. A government 

official’s decisions on who[m] to invite to 

lunch, whether to attend an event, or 

whether to attend a meeting or respond to a 

phone call are not decisions on matters 

pending before the government. That is 

because mere ingratiation and access are not 

corruption.

J.A. 753.

This passage is problematic in a number of ways. 

First, it is hardly evident that “[m]any” settled practices do 

not qualify as “official acts.” J.A. 753. Even if this were 

so, it is not a statement of law. Rather, it seems to us a 

thinly veiled attempt to argue the defense’s case. Given the 
72

risk of misleading the jury, we cannot fault the court for 

declining to give this instruction.

The court was likewise justified in rejecting 

Appellant’s assertion that “merely arranging a meeting, 

attending an event, hosting a reception, or making a speech” 

cannot constitute an “official act.” As detailed above, neither 

Sun-Diamond nor any other precedent sweeps so broadly.

Moving on, Appellant has also failed to explain why 

the court should have instructed the jury that “decisions on 

who[m] to invite to lunch, whether to attend an event, or 

whether to attend a meeting or respond to a phone call are not 

decisions on matters pending before the government.” J.A. 753. 

Even if we assume that most such decisions would not qualify as 

official acts, we cannot accept the assertion that they may 

never do so. Here, again, the proposed instruction goes too 

far.

Finally, we hold that the court did not err in 

refusing to instruct the jury, in language borrowed from

Citizens United v. Federal Election Commission, 558 U.S. 310, 

361 (2010), that “mere ingratiation and access are not 

corruption.” J.A. 753. Affording the talismanic significance 

Appellant assigns to this language ignores its context; Citizens 

United, a campaign-finance case, involved neither the honestservices statute nor the Hobbs Act. Moreover, the Citizens 
73

United Court employed the “ingratiation” language only after 

providing a much broader definition of corruption: “The hallmark 

of corruption is the financial quid pro quo: dollars for 

political favors.” Citizens United, 558 U.S. at 359 (internal 

quotation marks omitted). In the case at hand, this broader 

definition was “substantially covered by the court’s charge to 

the jury.” Smith, 701 F.3d at 1011 (internal quotation marks 

omitted). Thus, the court’s failure to include this language 

did not “impair[]” Appellant’s “ability to conduct his defense.” 

Id. (internal quotation marks omitted). The district court 

instructed the jury that “there would be no crime” as long as

Appellant “believed in good faith that he . . . was acting 

properly, even if he . . . was mistaken in that belief.” J.A. 

7692. Appellant was thus free to argue that he believed in good 

faith that any ingratiation or access he provided Williams was 

entirely proper. If the jury believed that, it would have had 

no choice but to acquit him.

Taken as a whole, Appellant’s proposed instruction on 

the meaning of “official act” failed to present the district 

court with a correct statement of law. He cannot now argue that 

the court’s refusal to give that instruction was an abuse of 

discretion.
74

3.

Quid Pro Quo

Appellant also contests the court’s instructions on 

the “quid pro quo” elements of honest-services wire fraud and 

Hobbs Act extortion, maintaining that the court’s gloss on this 

term would criminalize the lawful receipt of “goodwill” gifts to 

lawmakers.

In this context, the term “quid pro quo” refers to “an 

intent on the part of the public official to perform acts on his 

payor’s behalf.” Jefferson, 674 F.3d at 358; see also SunDiamond, 526 U.S. at 404-05 (defining “quid pro quo as “a 

specific intent to give or receive something of value in 

exchange for an official act” (emphasis omitted)). Accordingly, 

in its instructions on the honest-services wire fraud charge, 

the district court explained that the jury must find that 

Appellant demanded or received the item of value “corruptly” --

i.e., with an “improper motive or purpose.” J.A. 7669-70; see

United States v. Quinn, 359 F.3d 666, 674 (4th Cir. 2004) 

(defining “[c]orrupt intent” under 18 U.S.C. § 201(b)). 

Likewise, in its Hobbs Act instruction, the court stated that 

Appellant must have “obtained a thing of value to which he was 

not entitled, knowing that the thing of value was given in 

return for official action.” J.A. 7682; see Evans, 504 U.S. at 

268.
75

Appellant’s contention is not that the court’s 

instructions were incorrect but, rather, that they were 

incomplete. In particular, Appellant asserts that the court 

failed to make the jury aware of a critical limitation on 

bribery liability when it neglected to state, per his proposed 

instructions, that “[a] gift or payment given with the 

generalized hope of some unspecified future benefit is not a 

bribe.” J.A. 751; accord id. at 756. Appellant claims that 

this omission seriously impaired his defense because “a central 

defense theory was that Governor McDonnell believed Williams was 

simply trying to cultivate goodwill.” Appellant’s Br. 59-60.

Appellant’s statement of the law is correct, so far as 

it goes. See United States v. Jennings, 160 F.3d 1006, 1013 

(4th Cir. 1998). “It is universally recognized that bribery 

occurs only if the gift is coupled with a particular criminal 

intent. That intent is not supplied merely by the fact that the 

gift was motivated by some generalized hope or expectation of 

ultimate benefit on the part of the donor.” United States v. 

Arthur, 544 F.2d 730, 734 (4th Cir. 1976) (citations omitted)

(reversing a conviction for misapplication of bank funds

pursuant to 18 U.S.C. § 656). The bribe payor must have more 

than a “‘[v]ague expectation[]’” that the public official will 

reward his kindness, somehow or other. Jennings, 160 F.3d at 

1013 (quoting United States v. Allen, 10 F.3d 405, 411 (7th Cir. 
76

1993)). He must harbor an intent to secure a “specific type of 

official action or favor in return” for his largesse. Id. at 

1014 (emphasis omitted).

The Government never disputed these points. Indeed, 

there is little reason to doubt that if the defense had 

submitted a written instruction relating to goodwill gifts, the 

court would have accepted it. However, the defense did no such 

thing. Instead, its proposed “goodwill gift” language was 

tucked into the penultimate sentence of the defense’s proposed 

instructions on the definition of “corruptly,” see J.A. 751, 

756, a term the court took care to explicate, see id. at 7670 

(explaining that bribery requires a corrupt intent -- meaning, 

here, that the public official must demand, seek, or receive the 

item of value “knowingly and dishonestly for a wrongful 

purpose”). As outlined above, the court emphasized the 

essentiality of the prosecution’s burden to prove corrupt intent 

when it instructed the jury on Appellant’s “good faith” defense. 

See J.A. 7692 (charging the jury that “if a defendant believed 

in good faith that he or she was acting properly, even if he or 

she was mistaken in that belief, and even if others were injured 

by his or her conduct, there would be no crime”). Appellant was 

adamant, during the trial conference, about the importance of 

his “good faith” defense in this case, referring to it as “our 

critical defense.” Id. at 7360.
77

It is not enough, in any event, for Appellant to show 

that his proposed instructions contained a correct statement of 

law. If, as it happens, the rejected instruction was 

“substantially covered by the court’s charge to the jury,” there 

is no reversible error. United States v. Passaro, 577 F.3d 207, 

221 (4th Cir. 2009) (internal quotation marks omitted). Put 

succinctly, we are satisfied that the court’s “quid pro quo” 

instructions were adequate. In 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 payor’s behalf.” J.A. 7682-83 (emphasis 

supplied). Similarly, 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” -- signaling that an 

official action necessarily entails some particular type of act 

within the parties’ contemplation at the time of the exchange. 

Id. at 7669.

In sum, we are satisfied that the court properly 

instructed the jury on the “quid pro quo” requirement of the 

charged offenses. Accordingly, we reject Appellant’s claim of 

instructional error in that respect.
78

B.

Sufficiency of the Evidence

This leads us to Appellant’s claim that the 

Government’s evidence was insufficient to support the

convictions. “We review a challenge to the sufficiency of the 

evidence de novo . . . .” United States v. Bran, 776 F.3d 276, 

279 (4th Cir. 2015). If, viewing the evidence in the light most 

favorable to the Government, we find there is substantial 

evidence to support the conviction, we will affirm the jury 

verdict. See United States v. Hager, 721 F.3d 167, 179 (4th 

Cir. 2013). “Substantial evidence is such evidence that a 

reasonable finder of fact could accept as adequate and 

sufficient to support a conclusion of a defendant’s guilt beyond 

a reasonable doubt.” Id. (internal quotation marks omitted).

To review, the Government set out to prove that 

Williams and Appellant engaged in a corrupt quid pro quo. 

Williams, we know, supplied the “quid,” and plenty of it. Among 

other things, he provided Appellant’s family -- generally at the 

behest of Appellant or Mrs. McDonnell -- with multiple fivefigure payments and loans, expensive getaways, shopping trips, 

golf outings, and a Rolex watch. The greater challenge for the 

Government was persuading the jury that Williams’s payments to 

Appellant and his family were “pro quo.” In short, the 

Government was obligated to prove, first, that Williams’s 
79

payments came with a corrupt understanding and, second, that the 

key to that understanding was the expectation that Appellant 

would perform certain official acts for Williams’s benefit.

1.

Evidence of Official Acts

In the first place, we reject Appellant’s contention 

that the Government’s evidence cannot satisfy the “official act” 

requirement.

An “official act,” as defined by statute, requires the 

existence of some “question, matter, cause, suit, proceeding or 

controversy.” 18 U.S.C. § 201(a)(3). Here, the Government 

presented evidence of three questions or matters within 

Appellant’s sphere of influence. The first of these was whether 

researchers at any of Virginia’s state universities would 

initiate a study of Anatabloc. The second was whether the 

state-created Tobacco Indemnification and Community 

Revitalization Commission (“Tobacco Commission”) would allocate 

grant money for the study of anatabine. The third was whether 

the health insurance plan for state employees in Virginia would 

include Anatabloc as a covered drug.

These were all government matters, and Appellant, as 

head of the Commonwealth’s government, was in a prime position 

to affect their disposition. The Constitution of Virginia vests 

the Governor with “[t]he chief executive power of the 
80

Commonwealth.” Va. Const. art. V., § 1. State law provides 

that the Governor “shall have the authority and responsibility 

for the formulation and administration of the policies of the 

executive branch.” Va. Code Ann. § 2.2-103.A. These powers 

include the authority to approve the health insurance plans 

provided to public-sector employees at the state and local 

level. See id. §§ 2.2-1204.A, -2818.A. In addition, among his 

myriad other powers, the Governor appoints 12 of the 13 members 

of the State Council of Higher Education for Virginia, see id.

§ 23-9.3.C.; all members serving on the boards of visitors of 

Virginia Commonwealth University and the University of Virginia, 

see id. §§ 23-50.6(a), -70.A; and a majority of commissioners on 

the Tobacco Commission, see id. § 3.2-3102.A.

With power comes influence. As the witness Jerry 

Kilgore, Star’s lawyer, put it: “[T]he Governor is the Chief 

Executive of the Commonwealth. He has this bully pulpit, if you 

will, to go out and talk about issues.” J.A. 4374. The 

evidence at trial made clear that Star executives wanted 

Appellant to use his prominence and influence to the company’s 

advantage. See e.g., id. at 3898 (former Star President Perito

testifying that when “the Chief Executive of the 

Commonwealth . . . embraces the worthiness of the 

product[,] . . . [i]t gives it a type of credibility”); see also

id. at 2314 (Williams testifying that the opportunity to 
81

“showcase” a product at the Governor’s Mansion “automatically” 

imbues the product with “credibility”).

To the extent, then, that Appellant made any 

“decision” or took any “action” on these matters, the federal 

bribery laws would hold that decision or action to be 

“official.” 18 U.S.C. § 201(a)(3). As we have explained, it 

was not necessary for the Government to prove that Appellant 

actually took any such official action. What the Government had

to show was that the allegedly corrupt agreement between 

Appellant and Williams carried with it an expectation that some 

type of official action would be taken. See United States v. 

Giles, 246 F.3d 966, 973 (7th Cir. 2001). Here, the Government 

exceeded its burden. It showed that Appellant did, in fact, use 

the power of his office to influence governmental decisions on 

each of the three questions and matters discussed above.

First, in August 2011, Appellant asked his Secretary 

of Health, Dr. Hazel, to send a deputy to a “short briefing” 

with Mrs. McDonnell at the Governor’s mansion. In his email to 

Hazel, Appellant made clear that the subject of the briefing 

would be “the Star Scientific anatablock trials planned in va at 

vcu and uva.” G.S.A. 80. Naturally, the staff complied. As 

one staffer, Molly Huffstetler, wrote in an email to her 

colleagues: “[W]e will do what we can to carry out the desires 

of the Governor and First Lady.” Id. at 81.
82

That same month, Appellant and his wife hosted a 

product launch for Anatabloc at the Governor’s Mansion. Prior 

to the event, Mrs. McDonnell explained to a staff member that 

one of the purposes of the event was to “encourag[e] 

universities to do research on the product.” J.A. 3608. 

Invitees included Dr. Clore, an associate vice president for 

clinical research at VCU, and Dr. Lazo, former associate dean 

for basic research at the UVA School of Medicine. Appellant 

spoke with Lazo, asking him and other attendees whether they 

thought “there was some scientific validity” to the pre-clinical 

studies of Anatabloc presented at the event and “whether or not 

there was any reason to explore this further; would it help to 

have additional information.” J.A. 3344. Appellant also asked 

whether the development of Anatabloc could “be something good 

for the Commonwealth, particularly as it relates to [the] 

economy or job creation.” Id.

A series of emails exchanged in February 2012 between 

Appellant, his wife, and chief counsel Eige shows Appellant 

continuing to push for state university research on Anatabloc. 

In a February 17 email, Appellant told Eige: “Pls see me about 

anatabloc issues at VCU and UVA. Thx.” G.S.A. 157. Eige would 

later express his discomfort with Appellant’s involvement in the 

issue, telling Kilgore: “I’ve been asked by the Governor to call 

and put -- you know, show support for this research, and I’m 
83

just -- I just don’t think we should be doing it.” J.A. 4374

(internal quotation marks omitted).

Just a week before Appellant’s email to Eige, Mrs. 

McDonnell sent a series of emails of her own asking Eige to get 

in touch with Williams. The first email bore the subject line: 

“FW: Anatabine clinical studies – UVA, VCU, JHU.” This email 

said that Williams “has calls in to VCU & UVA & no one will 

return his calls.” G.S.A. 147. The next day, while sitting

right next to Appellant, Mrs. McDonnell emailed Eige again:

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. . . . Gov wants to 

get this going w VCU MCV. Pls let us know 

what u find out after we return.

Id. at 154. The email included Williams’s cell phone number. 

Eige later testified that he understood the emails to mean that 

Mrs. McDonnell wanted him to “[s]omehow reach out and 

see . . . if we couldn’t elicit some type of response from these 

two universities.” J.A. 3214.

Appellant argues that these actions -- asking a 

staffer to attend a briefing, questioning a university 

researcher at a product launch, and directing a policy advisor 

to “see” him about an issue -- are too insignificant to 

constitute official acts. We disagree. With each of these 

acts, Appellant exploited the power of his office in furtherance 
84

of an ongoing effort to influence the work of state university 

researchers. Accordingly, a reasonable juror could find, beyond 

a reasonable doubt, that the actions contemplated under 

Appellant’s agreement with Williams were “official” in nature.

A jury could likewise conclude that Appellant 

performed an “official” act when he discussed Anatabloc at the 

March 2012 meeting with two high-ranking administration 

officials: Secretary of Administration Hicks-Thomas and 

Department of Human Resource Management Director Sara Wilson. 

There, amid a discussion about the state employee health 

insurance plan, Appellant pulled a bottle of Anatabloc from his 

pocket and showed the pills to Hicks-Thomas and Wilson. As 

Hicks-Thomas recalled, Appellant “said that he had been taking 

[the pills] and that they were working well for him, and that he 

thought it would be good for . . . state employees.” J.A. 4227. 

Appellant then asked Hicks-Thomas and Wilson if they would be 

willing to meet with Star. Here, again, the evidence suggests 

that Appellant used his position as Governor to influence a 

matter of importance to Virginia. This evidence was more than 

sufficient to support the jury’s verdict.

2.

Evidence of a Quid Pro Quo

Next we turn to whether the Government presented 

evidence sufficient to support a conclusion that there was a 
85

corrupt quid pro quo, “a specific intent to give or receive 

something of value in exchange for an official act.” SunDiamond, 526 U.S. at 404–05 (emphasis omitted). To establish 

the necessary intent, the Government had to present evidence of 

“an exchange of money (or gifts) for specific official action.” 

Jennings, 160 F.3d at 1014. Direct proof of a corrupt intent is 

not necessary, and “[s]uch an intent may be established by 

circumstantial evidence.” Id.

At trial, the Government presented an array of 

evidence to show Appellant’s corrupt intent. Critically, the 

Government’s evidence demonstrated a close relationship between 

Appellant’s official acts and the money, loans, gifts, and 

favors provided by Williams to Appellant and Mrs. McDonnell. 

With respect to the official acts alleged by the Government, a 

“quo” came on the heels of each “quid.” For example:

• Between July 28 and July 31, 2011, 

Williams provided lodging, transportation,

and a boat for the McDonnells’ Smith 

Mountain Lake vacation. Upon returning 

home on July 31 -- after a three-hour trip 

home in Williams’s Ferrari -- Appellant 

directed Hazel to send a deputy to meet 

with Mrs. McDonnell about Anatabloc. On 

August 1, Huffstetler, Williams, and Mrs. 

McDonnell met at the Governor’s Mansion to 

discuss Anatabloc clinical trials at UVA 

and VCU.

• Later that month, on August 31, 2011, 

McDonnell hosted the launch of Anatabloc 

at the Governor’s Mansion. State 

employees arranged the event, and 
86

invitations to the launch bore the 

Governor’s seal. UVA and VCU researchers 

attended as invited representatives of 

their institutions, boxes of Anatabloc 

were placed at each place setting, and 

Williams and Mrs. McDonnell spoke at the 

event. 

• Between February and March 2012, Appellant 

and Williams had a series of discussions 

regarding a $50,000 so-called loan. On 

February 16, Appellant checked in with 

Williams about documents relating to the 

monies. Six minutes later, Appellant 

emailed Eige, asking Eige to see him about 

the Anatabloc studies.

• During these payment negotiations, Mrs. 

McDonnell and Appellant encouraged 

Williams to “invite all the doctors that 

[he] want[ed] to invite” to the healthcare 

industry leaders reception held at the 

Governor’s Mansion on February 29. J.A. 

2312. The list of invitees for the event 

was revised to include Williams’s guests 

at the direction of Appellant and Mrs. 

McDonnell.

• On the day of the healthcare leaders 

event, Appellant met with Williams about a 

loan of Star Scientific shares worth 

$187,000. J.A. 6767-72. Less than five 

hours later, Appellant saw Williams at the 

event. Appellant’s briefing materials for 

the evening specifically identified the 

“[p]ersonal doctors of McDonnells,” which 

included Williams’s guests, doctors 

affiliated with Anatabloc. J.A. 6775. 

Following the event, Williams took 

Appellant, Mrs. McDonnell, and two of 

these doctors out to dinner. 

• On March 6, 2012, as a result of the 

negotiations, Williams wrote a $50,000 

check to Mobo. Then, on March 21, 

Appellant met with Hicks-Thomas to discuss 

covering Anatabloc under the state health 
87

plan. Appellant also asked Hicks-Thomas 

to meet with Star representatives.

The temporal relationship between the “quids” and “quos” -- the 

gifts, payments, loans, and favors and the official acts --

constitute compelling evidence of corrupt intent.

Throughout the two years during which Appellant was 

performing the official acts alleged, Williams lavished 

Appellant with shopping sprees, money, loans, golf outings, and 

vacations:

• In April 2011, Mrs. McDonnell contacted 

Williams about a political rally and 

shopping in New York. On April 13, 

Williams spent approximately $20,000 on 

Mrs. McDonnell’s New York City shopping 

spree. That evening, Williams sat next to 

Appellant and his wife during the 

political rally.

• In May 2011, Williams loaned the 

McDonnells $50,000 and provided $15,000 to 

cover the McDonnells’ daughter’s wedding 

reception. When she requested the loan, 

Mrs. McDonnell said, “The Governor says 

it’s okay for me to help you and -- but I 

need you to help me.” J.A. 2231 (internal 

quotation marks omitted). In the 

meantime, Appellant passed an article 

about Anatabloc along to members of his 

administration.

• On May 29, 2011, Williams paid $2,380.24 

for Appellant and his sons to enjoy golf

and amenities at Kinloch Golf Club.

• On January 7, Williams paid $1,368.91 for 

another of Appellant’s golf outings.
88

• During the 2012 Memorial Day weekend, 

Williams footed the bill for the 

McDonnells’ vacation, spending more than 

$7,300.

None of these payments were goodwill gifts from one friend to 

another. Indeed, Appellant and Williams did not know each other 

until after Appellant was elected Governor. As Williams 

testified with regard to the money he provided, “I was loaning 

[Appellant] money so that he would help our company.” Id. at

2360. He expected Appellant “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. And since at least their 

shared cross-country flight in October 2010, Appellant knew what 

Williams wanted for his company: independent studies of 

Anatabloc conducted by Virginia universities.

This evidence established that Appellant received

money, loans, favors, and gifts from Williams in exchange for 

official acts to help Williams secure independent testing of 

Anatabloc. In light of the foregoing, the jury could readily 

infer that there were multiple quid pro quo payments, and that 

Appellant acted in the absence of good faith and with the 

necessary corrupt intent. See United States v. Hamilton, 701 
89

F.3d 404, 409 (4th Cir. 2012) (“[I]ntent can be implied -- and 

it is the jury’s role to make such factual inferences.”).23 

In sum, Appellant has thereby failed to sustain his 

heavy burden of showing that the Government’s evidence was 

inadequate. See United States v. Engle, 676 F.3d 405, 419 (4th 

Cir. 2012) (“A defendant bringing a sufficiency challenge must 

overcome a heavy burden, and reversal for insufficiency must be 

confined to cases where the prosecution’s failure is clear.” 

(citations omitted) (internal quotation marks omitted)). 

Accordingly, the trial evidence was sufficient to support each 

of Appellant’s convictions.

IV.

Appellant received a fair trial and was duly convicted 

by a jury of his fellow Virginians. We have no cause to undo 

what has been done. The judgment of the district court is

AFFIRMED.

 23 Significantly, the jury found the necessary corrupt 

intent despite being instructed extensively on Appellant’s “good 

faith” defense and hearing from an array of witnesses who 

testified to Appellant’s honesty, integrity, respect for the 

law, and good character. The jury was instructed not only that 

“if a defendant believed in good faith that he or she was acting 

properly . . . there would be no crime,” but also that “evidence 

of good character alone may create a reasonable doubt as to a 

defendant’s guilt.” See J.A. 7692, 7694. Appellant’s character 

witnesses included cabinet members from his time as Governor of 

Virginia, as well as longtime friends such as Father Timothy R. 

Scully, a Catholic priest and University of Notre Dame professor 

who met Appellant in 1972 when they became college roommates.