Listen to audio of the argument here:
On October 18, 2018, Jerry Madden presented oral argument on behalf of Tamela M. Lee in the United States Court of Appeals for the Sixth Circuit in an appeal which presents issues of first impression in the Sixth Circuit. Ms. Lee is a former Summit County (Ohio) Council member who was convicted of “honest services” fraud and Hobbs Act extortion. She was indicted prior to the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016) but tried after the McDonnell decision.
In McDonnell, the Supreme Court dramatically narrowed the definition of what constitutes an “official act” that could give rise to criminal liability of a public official. Governor McDonnell of Virginia was convicted for accepting $175,000 in loans, gifts and, other benefits from a constituent, Jonnie Williams, related to Williams’s efforts to have Virginia universities recognize that a supplement he was marketing, called Anatabloc, had health benefits and to have the state’s employee health plans cover the cost of purchasing the supplement. The United States Court of Appeals for the Fourth Circuit affirmed McDonnell’s conviction concluding that McDonnell committed an “official act,” thereby triggering criminal liability, when he hosted a dinner at the Governor’s Mansion in which Williams and relevant
Virginia university officials and professors were invited and at which checks for $25,000 from Williams were distributed to invitees to pay the cost of preparing grant applications to study Anatabloc.
The Supreme Court rejected the position of the Department of Justice—accepted by the Fourth Circuit— that any time a public official receives anything of value from a constituent related to the official’s contacting another public official about a question or matter before that official the contacting official is criminally liable. The Supreme Court held that for criminal liability to arise the official, in exchange for something of value, must “exert pressure” on another public official or the official by custom, practice, regulation, or statute the official must “provide advice” to another public official about a question or matter before that official. The Supreme Court vacated the verdict and remanded the case because the jury instructions did not make the distinction between the provision of routine constituent services and illegal pressuring or misleading a public official. The Court found that reversal and remand was necessary because even if there was some evidence that McDonnell pressured state employees the jury might have convicted McDonnell on evidence that merely showed that the Governor contacted a state official in support of Williams (not illegal).
The Supreme Court stated that a narrow definition of “official act” was necessary so that (i) ordinary people (public officials and constituents alike) can distinguish between illegal action and routine constituent services, thereby avoiding a violation of the Due Process Clause and (ii) to avoid having the Federal Government set standards of good government for local and state officials. The Court observed that “[t]he basic compact underlying representative government assumes [emphasis original] that public officials will hear from their constituents and act appropriately on their concerns ….” 136 S. Ct. at 2372. The Court noted that “[s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit the definition of ‘official act,’” because “conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time.” Id.
Two issues were argued before the Sixth Circuit: (i) whether the Lee Indictment should have been
quashed because, after the McDonnell decision, it failed to allege facts that, if proven, would establish prima facie criminal violations, i.e., the Indictment alleged facts of routine constituent services wherein Lee merely contacted other public officials “in support of” her constituents but did not “exert pressure” on them to decide a question or matter before them in a certain way; and (ii) whether the failure of the jury instructions to distinguish between permissible actions by Lee “in support of” constituents and impermissible actions by Lee to “exert pressure” on other public officials to decide questions or matters involving those constituents in a certain way required reversal
Virginia Whitner Hoptman played a substantial role in briefing the appeal on behalf of Lee.
Three other circuit courts have addressed the implications of the McDonnell v. United States decision:
United States v. Silver, 864 F.3d 102 (2d Cir. 2017) (holding pre-McDonnell jury instructions were
overbroad because the jury may have convicted Silver on evidence that was not illegal under McDonnell)
United States v. Repak, 852 F.3d 230 (3d Cir. 2017) (upholding under McDonnell a conviction of the executive director of a regional redevelopment authority who was responsible for “provid[ing] advise” to the authority’s board of directors about which contractors should receive contracts funded by state and federal tax money in return for bribes and kickbacks).
United States v. Fattah, 902 F.3d 197, 241 (3d Cir. 2018) (holding that pre-McDonnell jury instructions were overbroad because they did not distinguish between “permissible attempts to ‘express[ ] support’” or impermissible attempts “to pressure or advise another official on a pending matter”) (citing McDonnell, 136 S. Ct. at 2371).