Category: Recent Decisions

Political Corruption Made Easier: McDonnell v. United States

WRITTEN BY: Anjelica Cappellino, Esq. & Prof. John Meringolo, Esq.

On Monday, June 27, 2016, politicians and their friends breathed a collective sigh of relief when the United States Supreme Court unanimously vacated the conviction of former Virginia governor, Bob McDonnell. The decision, authored by Chief Justice John G. Roberts Jr., narrowed the definition of an “official act” and what it means in the context of bribery and honest services fraud. As a result, ostensibly politicians will be able to more freely provide favors to others.

McDonnell and his wife were convicted on charges of honest services fraud and Hobbs Act extortion in connection with their acceptance of $175,000 in loans and gifts from the chief executive officer of a nutritional supplement company. In exchange for the monies, the government alleged that McDonnell committed “official acts” in his capacity as governor, to facilitate Virginia’s public universities to perform research studies on the CEO’s nutritional supplements. The government alleged these “official acts” included hosting and attending events, and contacting and promoting the CEO’s products to other government officials. McDonnell v. United States, 579 U.S. __ (2016) at 10. Although McDonnell was found guilty at trial, the Supreme Court vacated the conviction, which hinged on the definition of an “official act.”

Under 18 U.S.C. § 201, the statute that proscribes the bribery of public officials, an “official act” is defined 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.”

First, the Court concluded that the terms “cause, suit, proceeding or controversy,” “connote a formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination.” McDonnell, 579 U.S. __ at 20. The Court held the terms “question” and “matter” are similar in nature to a “cause, suit, proceeding or controversy,” and therefore, cannot be broadly applied. Second, the Court held that the requirement in 18 U.S.C. § 201(a)(3), stating that the question or matter must be “pending” or “may by law be brought,” before “any public official,” suggests that it is a matter “that is relatively circumscribed – the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete.” Id. at 22. Therefore, the Court held that “[u]nder that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’” Id. at 19.

What does this mean for the future of political bribery and honest services fraud cases? It narrows the reach of the statute. If an “official act” must be a formalized exercise of power, on a question or matter that can be tracked for progress, arguably a politician may now provide favors in a more informal, tempered way. Therefore, McDonnell is likely to positively impact politicians and other government officials who dole out favors to those who provide them gifts and other benefits. Understandably, and especially in our currently unstable political climate, lax interpretations of bribery statutes are not likely to go over well with the public.

On the other hand, however, McDonnell does tenuously open the doors for more honest and free-flowing communications between government officials and the individuals they represent. As Chief Justice Roberts states:

[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns – whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm…. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic recourse.

Id. at 22. While it is safe to say bribery and honest services fraud are exactly what keeps ordinary citizens from “participating in democratic recourse,” McDonnell nonetheless gives politicians and government officials a chance to rise to the occasion. If these types of “unofficial” favors are truly as innocuous as politicians claim, now is the time for them to prove it. Prove it is not simply a quid pro quo. Prove it is not a quick cash grab. Prove it is not only those with wealth and influence that you seek to help. Prove it, as Chief Justice Roberts states, embodies that you genuinely want to appropriately help all constituents.

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NYCA Addresses the Mode of Proceedings Error Doctrine

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The “mode of proceedings error” doctrine created by the NY Court of Appeals recognizes that some errors committed by a criminal trial court are so harmful to the integrity of the process that they are subject to appellate review even if defense counsel did not lodge an objection. The doctrine’s procedural safeguard is powerful because when it is held to apply, harmless error analysis is barred and the conviction must be reversed.

In a decision issued on June 7, 2016, the Court of Appeals had to determine whether a trial court committed such error when it accepted a jury’s guilty verdict on a charge of first-degree gang assault before the court had responded to certain notes from the jury requesting review of a court instruction and of testimony by a witness. On appeal, a divided panel of the Fourth Department found this to be a mode of proceedings error requiring reversal and a new trial. People v. Mack, 117 A.D. 3d 1450,  984 N.Y.S.2d 768 (App. Div. 4th Dep’t 2014). The People sought review by the Court of Appeals.

At issue was NY Criminal Procedure Law § 310.30’s requirement that a trial court receiving a note from a deliberating jury must provide counsel with notice of the content of the note and provide a meaningful response to the jury. Also at issue was the scope of the Court’s precedents in cases such as People v. O’Rama, 78 N.Y.2d 270, 579 N.E.2d 189, 574 N.Y.S.2d 159 (1991), in which the Court applied the mode of proceedings doctrine in the context of a court’s response or failure to respond to juror requests for further instruction.

In People v. Mack, it was undisputed that the trial court fulfilled its responsibility to inform counsel of the contents of the jury’s notes. The Court’s precedents also made clear that a court’s failure in that responsibility would constitute a mode of proceedings error. Six judges of the Court of Appeals considered that the issue presented was a new one: whether a mode of proceedings error was committed by a trial court that, although properly informing counsel of the content of jury notes, erred by not providing a response to the jury before accepting the verdict.

A 6-1 majority of the Court found against the defendant. The majority’s review of the Court’s precedents persuaded it that in the juror note context the mode of proceedings doctrine did not apply when, as in this case, defense counsel had sufficient notice, information, and opportunity to lodge an objection. In the majority’s view, the powerful force of the doctrine should not be deployed in such circumstances and where the thought of its applicability might provide perverse incentives to defense counsel to forego objecting.

Judge Rivera authored a forceful dissent. She disagreed with the majority’s statement that the issue presented was novel. In her view, a proper reading of the Court’s precedents indicated that the trial court committed a mode of proceedings error when it defaulted on its “core responsibility under CPL § 310.30” by accepting the jury’s verdict without first responding to its questions “or without alternatively asking the jurors whether they had withdrawn their requests.” With respect to the majority’s comment about perverse incentives, Judge Rivera argued that

[d]efendant’s preference or acquiescence is irrelevant because the duty [to comply with CPL § 310.30] works on the court, not the defendant.

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Supreme Court Remands Case for Re-sentencing on Batson Violation

On May 23, 206, the Supreme Court decided Foster v. Chatman, No. 14-8349 (U.S. 2016), a thirty-year old death penalty case raising Batson claims of racial selection of the trial jury. The court remanded the case, presumably for a new trial. You can read an analysis by Professor Bennett Gershman in his latest titled How Prosecutors Get Rid of Black Jurors. 

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Anticipating the Supreme Court’s McDonnell Decision on Corruption

Bob-McDonnell-enters-federal-c-500x500_cInterestingly, the federal court has postponed Sheldon Silver’s surrender date pending the Supreme Court’s decision in United States v. McDonnell. Read a recent post by Prof. Bennett L. Gershman on the pending appeal titled Corrupt Acts, Political Favors, and the McDonnell Case. Virginia Ex-Governor McDonnell appealed his bribery conviction after jury found him guilty of receiving frequent and multiple gifts from Jonnie Williams, head of a dietary supplement company. The statute requires that a public official “corruptly received anything of value personally in return for being influenced in the performance of any official act.”

McDonnell appealed the conviction citing routine political conduct, being accessible to its constituents, lending a friendly ear, and even arguing that “political favors were political speech protected by the First Amendments.” Prof. Gershman comments on the Justices’ behavior during the arguments pointing out that although Justice Breyer appeared “troubled by the statutory term ‘influence'”, its definition, meaning and application, Justice Kennedy, on the other hand, appeared to “buy McDonnell’s arguments.”

How will the Court’s decision in McDonnell, a decision watched by many across the country, affect the results of Sheldon Silver’s pending appeal?

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NYCA Addresses Interesting Mens Rea Question

Earlier this month, the New York Court of Appeals issued its decision in People v. Elliot Parrilla, in which the defendant was convicted of possession of a gravity knife under NY Penal Law § 265.02(1). That provision states that a person is guilty of criminal possession of a weapon in the third degree when

…[s]uch person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one…of section 265.01 and has been previously convicted of any crime.

NY Penal Law § 265.01 defines Criminal Possession of a Weapon in the Fourth Degree as follows:

A person is guilty of criminal possession of a weapon in the fourth degree when: (1) he or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or “Kung Fu star”; …

Both sides agreed that, to be convicted, the defendant had to knowingly possess a knife. The defense argued that the defendant also had to know that the knife he possessed was capable of being a “gravity knife.” The Court of Appeals held that he did not, and affirmed the conviction.

Interestingly, when the defendant was arrested he possessed a knife that he had bought at a large retail store in the Bronx  for use in his work as a contractor/ carpenter to cut sheet rock. He testified that on the day of his arrest, he had used the knife to cut tiles, but that he opened it with two hands and had never opened it with one hand by flicking his wrist, which is what makes a knife a gravity knife. The court charged the jury that it could convict the defendant if it found he knowingly possessed a knife, did not have to find that he knew it fit the “legal description of a gravity knife,” but had to find that it did in fact fit that description. Under NY Penal Law § 265.01(5) a gravity knife is

any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.

The Court did not engage in any extended analysis: it relied on the plain language of the statute to find an intent to criminalize possession of weapons that are per se particularly dangerous. It supported this holding by pointing out that knowledge of a firearm’s operability is not an element of criminal possession of a weapon.

Arguably, under the Model Penal Law, the result would be different. Since no mens rea is specified in the statute, the MPC would require that a conviction be based on evidence that the defendant intentionally, knowingly, or recklessly possessed a gravity knife, and it would apply not only to the possession element but to the attendant circumstance that what is possessed is a gravity knife.

Interestingly, again, this was one of the cases argued at Elisabeth Haub School of Law, when the Court of Appeals heard cases at the Judicial Institute. It was a fascinating argument, partly because of the fact that the knives had been legally sold by a major store chain until that chain agreed with the office of the NY County District Attorney to stop selling that item; partly because the defendant apparently did use the knife in his work, and partly because he was only arrested and charged with the weapon after he caused a ruckus with the police. Of course, those are the kinds of facts that you can learn from an oral argument or a trial, but that rarely make it into a written decision on a question of law.

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