ACV Democratic News: Motion for New Trial for Bob McDonnell Denied

Former Virginia governor, wife will not get new trial. December 1st, 2014, 4:30 pm.

RICHMOND, Va. — A federal judge has denied the request of former Virginia Gov. Bob McDonnell and his wife, Maureen, for a new trial. The two were convicted on public corruption charges in September.

Judge James R. Spencer rejected the McDonnells' request for a new trial and their arguments that the guilty verdicts should be overturned.

But Spencer did toss a jury's decision that Maureen McDonnell was guilty of obstructing justice. Spencer said prosecutors did not prove that she attempted to mislead a federal grand jury investigation.

Maureen McDonnell is now guilty of eight counts instead of nine. She is set to be sentenced next year.

In October, Bob McDonnell's lawyers filed a memorandum laying out four reasons for a new trial.

The former governor was convicted of 11 counts, including conspiracy and extortion, of performing official acts to promote a businessman's dietary supplement products in exchange for more than $165,000 in gifts, trips and loans.

Here's how Bob and Maureen got here.

After three days of deliberations, the seven men and five women who heard weeks of gripping testimony about the McDonnells’ alleged misdeeds unanimously found that the couple conspired to lend the prestige of the governor’s office to Jonnie R. Williams Sr. in a nefarious exchange for his largesse.

The verdict means that Robert McDonnell, the first governor in Virginia history to be charged with a crime, now holds an even more unwanted distinction — the first to be convicted of one.

He and his wife face decades in federal prison, although their actual sentences are likely to fall well short of that. U.S. District Judge James R. Spencer set a sentencing hearing for Jan. 6.

UPDATE Wed., Dec. 10th

A federal judge will allow lawyers for former Gov. Bob McDonnell to file a 50-page sentencing memorandum, 20 pages more than the court normally permits.

U.S. District Judge James R. Spencer allowed the 20 extra pages without explanation in an order entered Wednesday.

McDonnell is due to be sentenced by Spencer on Jan. 6. His lawyers filed a request to file the extra pages, citing what they anticipate will be the prosecution’s request for a substantial prison sentence.

Among other things, they want to write about McDonnell’s “entire life,” they said.

The U.S. attorney’s office opposed the request, arguing that more than 30 pages was unnecessary because of the large amount of biographical material on McDonnell that was presented during his six-week trial earlier this year.

They also said McDonnell deserved no more and no less consideration than other defendants.

McDonnell and his wife, Maureen, who is set to be sentenced Feb. 20, were convicted by a federal jury in September.

The former first couple were indicted in January for accepting more than $177,000 in gifts and loans from Jonnie R. Williams Sr., the one-time CEO of Star Scientific, in exchange for promoting a new dietary supplement product.

END OF UPDATE

A portion of the transcript of the new trial request is printed below. The entire document is public and available on line. ACVDN is printing 6 pages of the 25 to give you the flavor of the filing and the decision.

1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION

UNITED STATES OF AMERICA, v. ROBERT F. MCDONNELL, and MAUREEN G. MCDONNELL, Defendants.
Action No. 3:14-CR-12

MEMORANDUM OPINION
THIS MATTER is before the Court on Defendant Robert F. McDonnell’s Motion #40 (“Motion”) (ECF No. 511). The Government filed an Opposition Memorandum (“Opp’n Mem.”) (ECF
No. 530) on October 14, 2014. McDonnell subsequently filed a reply on October 24, 2014 (“Reply Mem.”) (ECF No. 541). The parties have not requested a hearing on this matter, and the Court finds that oral argument is unnecessary. E.D. Va. Loc. Crim. R. 47(J). For the reasons set forth below, the Motion is hereby DENIED.

I.

BACKGROUND
Defendant Robert F. McDonnell (“McDonnell”) served as the 71st Governor of the Commonwealth of Virginia from January 2010 to January 2014. His wife, Maureen G. McDonnell (“Mrs. McDonnell”), served as the First Lady of Virginia.

During his campaign for Governor, McDonnell met Jonnie Williams (“Williams”). Williams was the Chief Executive Officer of Star Scientific, Inc. (“Star Scientific”).

Beginning in or about 2007, Star Scientific focused on utilizing certain alkaloids in the tobacco plant, namely anatabine, to address issues related to the desire to smoke. The company engaged in the development, manufacture, and marketing of two anatabine-based dietary supplements: CigRx
Case 3:14-cr-00012-JRS Document 567 Filed 12/01/14 Page 1 of 25 PageID# 16263

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(Presented here are page 1 (Motion Denied) and pages 20 through 25) On the bottom of page 25 the Judge reaches his decision, appeal denied.

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this regard, the more similar the prior act is (in terms of physical similarity or mental state) to the act being proved, the more relevant it becomes.

(2) The act must be necessary in the sense that it is probative of an essential claim or an element of the offense.

(3) The evidence must be reliable. And (4) the evidence's probative value must not be substantially outweighed by confusion or unfair prejudice in the sense that it tends to subordinate reason to emotion in the factfinding process.

3 132 F.3d at 997.

(1)

Goodwin Evidence

First, McDonnell contends that the Court erroneously admitted evidence that he received things of value from William Goodwin (“Goodwin”). Specifically, the Government introduced evidence that McDonnell’s draft 2012 Statement of Economic Interest (“SOEI”) listed a Kiawah Island trip from Goodwin with a value of $23,312.55.

See

Tr. Vol. XXII 5295:9–5296:7. However, McDonnell subsequently crossed out the trip and wrote “personal,” Id . at 5296:10–13, and thus McDonnell’s final SOEI contained no reference to the Kiawah Island trip, id . at 5296:20–24. However, the SOEI still contained other gifts from Goodwin, including a Keswick Cabinet Retreat valued at $920. Id . at 5296:17–19. McDonnell argues that the Government never established that this evidence was relevant to an issue other than character. In essence, he argues, all the evidence did was to suggest that he had a propensity to accept expensive gifts from donors. (Mem. in Supp. of Mot. at 27.) Under Virginia law, certain state officials, including the Governor, are required to annually file a standardized disclosure of their personal economic interests, commonly referred to as the SOEI. The SOEI requires a state official to disclose,

inter alia

, gifts or entertainment valued in excess of fifty dollars received by the state official from any business or individual other than a relative orclose personal friend

. The Government introduced the Goodwin

The Court defines evidence as “necessary where, considered in the light of other evidence available to the government, it is an essential part of the crimes on trial, or where it furnishes part of the context of the crime.”

Queen, 132 F.3d at 998 (internal citations and quotation marks omitted).

The court also points to “(1) a limiting jury instruction, when requested by a party, explaining the purpose for admitting evidence of prior acts, and (2) the requirement in a criminal case of advance notice, when so requested, of the intent to introduce prior act evidence” as protections against potential “pit falls” under this Rule.

Queen, 132 F.3d at 997.

evidence at trial in order to prove McDonnell’s prior improper manipulation of this “personal friend” exception because although McDonnell testified that Goodwin was supposedly his personal friend,

. at 5051:21–22, the Government produced sufficient evidence for a reasonable jury to reject that testimony.

See id

. at 5051:23–5055:20. Contrary to McDonnell’s argument that this evidence did no more than suggest to the jury that McDonnell had a propensity to accept expensive gifts from donors, the Goodwin evidence was clearly relevant to issues other than McDonnell’s general character. First, the evidence showed McDonnell’s knowledge of the SOEI and the existence of the “personal friend” exception. Second, McDonnell testified that, like Goodwin, he viewed Williams as a personal friend in 2012,

see

Tr. Vol. XXI 5109:9–14, but despite this opinion of their relationship, he still chose to disclose gifts from Williams on his 2012 SOEI. Thus, this evidence indicated an absence of mistake or accident in omitting the gifts and loans from Williams and thus was relevant to McDonnell’s intent to defraud. Applying the factors defined in

Queen

, evidence of McDonnell’s knowledge and of the absence of mistake is relevant to, and probative of, his alleged intent to defraud—an element of the charged crimes; the prior act alleged is similar to the act the Government sought to prove—omission of gifts from Williams pursuant to the personal friend exception; and there is nothing in the record to suggest that the evidence was unreliable or unfairly prejudicial to McDonnell.

See

Queen

, 132 F.3d at 997. Therefore, the Goodwin evidence was properly admitted.

(2)

Zubowsky Email Secondly, McDonnell argues that the Court erroneously admitted evidence indicating that his staff organized free golf for him. This piece of evidence revolved around a January 2013 email exchange between Emily Rabbit (“Rabbit”), McDonnell’s scheduler at the time, and Adam Zubowsky (“Zubowsky”). Gov’t Ex. 627. Rabbit

asked Zubowsky whether he had any background in planning a golf trip for the Governor and his sons. Tr. Vol. XXI 5137:23–5138:3. Zubowsky responded that Rabbit should find a golf course that will host McDonnell and his family for free

Id . at 5138:14–16. Zubowsky then directed Rabbit to put all the information in a briefing book for McDonnell’s review.

Id . at 5138:21–5139:1. McDonnell now objects to the introduction of this email, arguing that it is both inadmissible hearsay and Rule 404(b) evidence. As an initial matter, when the Government first attempted to introduce this email through its direct examination of Rabbit, McDonnell’s counsel objected on the basis that the evidence is not

relevant and “extraordinarily prejudicial.” Tr. Vol. XII 2869:1–2. When the Government subsequently attempted to introduce the email during the cross-examination of McDonnell, his counsel again objected solely based on relevancy.

Tr. Vol. XXI 5137:7–9. Thus, during trial McDonnell’s counsel never objected based on hearsay or Rule 404(b). Based on Federal Rule of Evidence 103, a party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and if the party both timely objected at trial and stated the specific grounds for the objection

. Fed. R. Evid. 103(a)(1). Because McDonnell’s counsel objected solely on the basis of relevance, this Court properly admitted the email at trial. Despite McDonnell’s apparent mistake, the Court may still consider McDonnell’s present objections if the introduction of this email constituted plain error, meaning it affected McDonnell’s substantial rights. Fed. R. Crim. P. 52(b); Fed. R. Evid. 103(e). To proceed with the merits, McDonnell first argues that this email was inadmissible hearsay, and should have been excluded as such. Hearsay is an out-of-court statement that is offered in court to prove the truth of the matter asserted, Fed. R. Evid. 801(c), and is inadmissible at trial unless an exception applies, Fed. R. Evid. 802. A statement that is offered against an opposing party and was made by either the party in his individual capacity or representative capacity, or made by the party’s agent or employee on a matter within the scope of that relationship and while it existed, is deemed

non-hearsay. Fed. R. Evid. 801(d)(2)(A), (D). First, the portion of the email from Rabbit is not hearsay.

See

Fed. R. Evid. 801(d)(2)(D). Rabbit was McDonnell’s scheduler at the time and thus an employee. The statement she made in the email was within the scope of her employment

relationship, as McDonnell requested that

they meet to discuss golf trips in Myrtle Beach or Florida. The statement was then offered against McDonnell at trial. Second, with respect to Zubowsky’s statements in the email, McDonnell’s counsel is correct that the email is hearsay that does not fall within any exception. Zubowsky was no longer employed by McDonnell at the time he

sent the email and he does not purport to relate any statement made by McDonnell. However, the admission of this evidence was harmless error as it did not affect any substantial right of McDonnell and thus McDonnell’s argument must be disregarded.

See

Fed. R. Crim. P. 52(a). “Where non-constitutional error is involved, the proper test of harmlessness is whether, on appellate review, this Court can say ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by error.’”

United States v. Hartgrove, No. 90-5331, 919 F.2d 139, at *2 (4th Cir. Nov. 29, 1990) (quoting

United States v. Urbanik, 801 F.2d 692, 698 (4th Cir. 1986)). Based on the considerable amount of evidence introduced over a five-week period during this trial, the Court can assuredly state that the jury’s verdict was not swayed by one portion of one e-mail. McDonnell next contends that this evidence also violated Rule 404(b) as the Government’s only purpose in introducing it was to show McDonnell’s character in an unflattering light–that he had a propensity to seek out free expensive gifts. On the other hand, the Government contends that this email “was not Rule 404(b) evidence; [rather] it was offered to rebut Mr. McDonnell’s assertion that he didn’t seek gifts and he simply accepted gifts to spend time with his family.” (Opp’n Mem. at 29.) As support, the Government cites a section of “McCormick on Evidence,” which describes impeachment by “specific contradiction.” 1 McCormick on Evid. § 45 (7th ed. 2013). “Impeachment by contradiction is a means of policing the defendant’s obligation to speak the truth in response to proper questions.”

United States v. Gilmore

, 553 F.3d 266, 271 (3d Cir. 2009) (internal quotation marks and citations omitted). Specifically, “this doctrine

Case 3:14-cr-00012-JRS Document 567 Filed 12/01/14 Page 23 of 25 PageID# 16285

provides that when a witness puts certain facts at issue in his testimony, the government may seek to rebut those facts, including by resorting to extrinsic evidence if necessary.”

United States v. Ramirez

, 609 F.3d 495, 499 (2d Cir. 2010). In sum, this form of impeachment is intended to prevent the defendant from invoking “the Federal Rules of Evidence in order to shield his perjury from contradiction.”

. Impeachment by contradiction is authorized by Federal Rule of Evidence 607 and its application is governed by Rule 403.

Gilmore

, 553 F.3d at 271;