Government's response to the McDonnells' motions for discovery of recordings between prosecutors and the grand jury

Case 3:14-cr-00012-JRS Document 41 Filed 02/03/14 Page 1 of 13 PageID# 252

Richmond Division


No. 3:14cr12

The United States of America, by undersigned counsel, respectfully files this response to
defendant Robert F. McDonnell’s Motion for Discovery of Selected Recordings of
Communications between Prosecutors and Members of the Grand Jury, and defendant Maureen
McDonnell’s identical motion.1 The defendants’ motions are devoid not only of the relevant
legal standard governing the relief they seek, but also of any showing remotely satisfying that
standard. Their motions should be denied.

The Relief Defendants Seek
The defendants have moved under Federal Rule of Criminal Procedure 6(e)(3)(E)(ii) for

disclosure of “the instructions provided to the grand jury when securing [the] indictment, as well
as all other recordings of the prosecutors’ statements to the grand jury about the legal validity of
the charges.” Doc. No. 8, Mot. at 1.2 Rule 6(e)(3)(E)(ii) is an exception to the general rule of

Six days after Mr. McDonnell filed his motion and accompanying memorandum
(Doc. No. 8), Mrs. McDonnell filed an identical motion adopting the grounds in her husband’s
supporting memorandum (Doc. No. 25).

Because Mr. McDonnell filed his motion and accompanying memorandum in a
single docket entry, both documents have a single docket number but separate pagination.

Case 3:14-cr-00012-JRS Document 41 Filed 02/03/14 Page 2 of 13 PageID# 253

grand jury secrecy and authorizes disclosure where a defendant “shows that a ground may exist
to dismiss the indictment because of a matter that occurred before the grand jury.” Fed. R. Crim.
P. 6(e)(3)(E)(ii).

Applicable Law
In the criminal law, there are few roles or functions more respected than the one held by

the grand jury. See, e.g., Costello v. United States, 350 U.S. 359, 362 (1956) (“[The] adoption
[of the grand jury system] in our Constitution as the sole method for preferring charges in serious
criminal cases shows the high place it held as an instrument of justice.”); United States v.
Jefferson, 546 F.3d 300, 312 (4th Cir. 2008) (“The principle of grand jury independence is firmly
rooted and jealously protected in our federal system of justice.”).
The “proper functioning of our grand jury system depends upon the secrecy of grand jury
proceedings.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 (1979). Indeed,
“[s]ince the 17th century, grand jury proceedings have been closed to the public, and records of
such proceedings have been kept from the public eye. The rule of grand jury secrecy . . . is an
integral part of our criminal justice system.” Id. at 218 n.9 (citations omitted). This fundamental
presumption of grand jury secrecy is now embodied in Federal Rule of Criminal Procedure 6(e).
There is a related presumption of regularity in grand jury proceedings. See, e.g., United
States v. R. Enterprises, Inc., 498 U.S. 292, 300 (1991) (“We begin by reiterating that the law
presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate
scope of its authority.”); United States v. Mechanik, 475 U.S. 66, 75 (1986) (O’Connor, J.,
concurring in judgment) (“The grand jury proceeding is accorded a presumption of regularity,
which generally may be dispelled only upon particularized proof of irregularities in the grand
jury process.”).


Case 3:14-cr-00012-JRS Document 41 Filed 02/03/14 Page 3 of 13 PageID# 254

A party seeking disclosure of grand jury material under Rule 6(e) must make “a strong
showing of particularized need” for the material sought. United States v. Sells Eng’g, Inc., 463
U.S. 418, 443 (1983) (“We have consistently construed [Rule 6(e)] . . . to require a strong
showing of particularized need for grand jury materials before any disclosure will be
permitted.”); see also Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959);
United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958); United States v. Nguyen, 314
F. Supp. 2d 612, 616 (E.D. Va. 2004) (“Because grand jury proceedings are entitled to a strong
presumption of regularity, a defendant seeking disclosure of grand jury information under Rule
6(e)(3)(E)(ii) bears the heavy burden of establishing that ‘particularized and factually based
grounds exist to support the proposition that irregularities in the grand jury proceedings may
create a basis for dismissal of the indictment.’” (citation omitted)).
This presumption of secrecy and regularity applies equally to legal instructions given to
the grand jury by the prosecutor, requiring that a movant seeking disclosure of them demonstrate
a particularized need for those portions of the transcript. See United States v. Morad, 2014 WL
68704, at *2 (E.D. La. Jan. 8, 2014) (defendant’s “bald assertion that the United States failed to
properly instruct the grand jury” insufficient to overcome presumption of regularity and does not
establish particularized need); United States v. Chalker, 2013 WL 4547754, at *6 & n.7 (E.D. Pa.
Aug. 27, 2013) (rejecting argument that disclosure of legal instructions is not subject to
presumption of secrecy as “simply wrong,” and denying disclosure because of no showing of
particularized need); United States v. Singhal, 876 F. Supp. 2d 82, 98–99 (D.D.C. 2012)
(denying request for instructions to grand jury because of failure to show particularized need);
United States v. Stein, 429 F. Supp. 2d 633, 640 (S.D.N.Y. 2006) (“unsupported and speculative
assertions” about how prosecutors instructed the grand jury, based in part on “public statements


Case 3:14-cr-00012-JRS Document 41 Filed 02/03/14 Page 4 of 13 PageID# 255

by Department of Justice officials regarding the government’s theory of the case” do not
overcome presumption of regularity or demonstrate particularized need); Nguyen, 314 F. Supp.
2d at 616 (“conclusory or speculative allegations of misconduct” not sufficient; Rule
6(e)(3)(E)(ii) “is not an invitation to engage in a fishing expedition to search for grand jury
wrongdoing and abuse when there are no grounds to believe that any wrongdoing or abuse has
occurred”); United States v. Johnson, 1994 WL 805243, at *7 (W.D.N.Y. May 26, 1995) (“As
with a request for a review of grand jury minutes, the secrecy of the grand jury will not be
compromised by an order to disclose grand jury instructions without a showing of ‘particularized
need.’”), aff'd mem., 108 F.3d 1370 (2d Cir. 1997); United States v. Keystone Automotive Plating
Corp., 1984 WL 2946, at *7 (D.N.J. Jan. 9, 1984) (denying request for instructions to grand jury
because of presumption of regularity in grand jury proceedings and failure to show particularized
need); United States v. Pike Industries, Inc., 575 F. Supp. 885, 891 (D. Vt. 1983) (defendants’
reference to a “substantial possibility” of improper instructions to grand jury does not meet
requirement of particularized need); United States v. Shoher, 555 F. Supp. 346, 354–55
(S.D.N.Y. 1983) (denying request for disclosure of grand jury instructions because no showing
of particularized need).
Indeed, the provision of legal instructions to the grand jury is not even required. See,
e.g., United States v. Lopez-Lopez, 282 F.3d 1, 9 (1st Cir. 2002) (“[U]nder federal law the
prosecutor is not obligated to provide legal instruction to the grand jury.”); United States v.
Zangger, 848 F.2d 923, 925 (8th Cir.1988) (“The prosecutor is under no obligation to give the
grand jury legal instructions.”); United States v. Kenny, 645 F.2d 1323, 1347 (9th Cir. 1981)
(“We are not persuaded that the Constitution imposes the additional requirement that grand
jurors receive legal instructions.”); United States v. Finnerty, 2006 WL 2802042, at *9 (S.D.N.Y.


Case 3:14-cr-00012-JRS Document 41 Filed 02/03/14 Page 5 of 13 PageID# 256

Oct. 2, 2006) (“Thus, even if the prosecutors only read the relevant statute to the grand jury,
defendants still have not made a sufficient showing for inspection.”).

When considered in light of the applicable law, defendants’ motions fall far short of any

showing justifying the relief they seek. Their briefs do not even mention any of the above-cited
case law, much less discuss it. Instead, the defendants appear content to offer conclusory
protestations of innocence, hurl invective at the Government, cite to one district court opinion as
an example of where they claim similar relief was granted, and, without any elaboration beyond
what they term the “unprecedented nature of this indictment,” invite the Court to reason that
since the relief was granted there, it should be granted here. Doc. No. 8, Mem. (“Def. Mem.”) at
5, citing United States v. Stevens, 771 F. Supp. 2d 556 (D. Md. 2011). This Court should decline
that invitation.

Defendants’ Attack on the Theory of Prosecution Does Not Justify Relief

Throughout their briefs, the defendants have as much as admitted that they have no
factually based grounds suggesting irregularities before the grand jury, and they point to nothing
other than their erroneous view that this prosecution is “unprecedented.” See Def. Mem. at 2–3
(disclosure warranted “so that the defense and the Court can determine whether the
prosecution misinformed the grand jury about the requirements of federal law”); at 4 (so-called
“unprecedented legal theory” warrants disclosure “to determine whether or not those
instructions accurately described federal law”); at 5 (“Given the unprecedented nature of this
indictment, a similarly substantial risk of improper instruction exists.”) (emphases added). This
is precisely the type of baseless speculation that the courts in Morad, Stein, and the other district
court opinions cited above found inadequate to justify breaching the secrecy of the grand jury.


Case 3:14-cr-00012-JRS Document 41 Filed 02/03/14 Page 6 of 13 PageID# 257

The defendants’ legal argument boils down to an assertion that they cannot be guilty of
the charges contained in the Indictment, and therefore, the Court should examine any instructions
the Government gave the members of the grand jury. The argument’s premise and conclusion
are both wrong.
As to the premise, the defendants’ principal contention is that none of the actual or
prospective conduct by Mr. McDonnell, acting personally or through his office, that is alleged in
the Indictment to be official action constitutes official action as a matter of law; therefore, the
defendants claim, that conduct cannot suffice to establish bribery-based honest-services fraud or
obtaining property under color of official right in violation of the Hobbs Act. See Def. Mem. at
5–14. For reasons that will be explained in further detail should the defendants file a motion to
dismiss the Indictment on this basis, the defendants are wrong. For now, we briefly discuss a
few simple principles to illustrate the point.
To begin with, in order to substantiate the honest-services fraud and Hobbs Act charges
in the Indictment, the Government will have to prove a quid pro quo. See Skilling v. United
States, __ U.S. __, 130 S. Ct. 2896, 2933–34 (2010) (citing United States v. Ganim, 510 F.3d
134, 147–149) (2d Cir. 2007) (requiring quid pro quo for honest-services bribery prosecution));
United States v. Jefferson, 674 F.3d 332, 360 (4th Cir. 2012) (requiring quid pro quo for 18
U.S.C. § 1343 honest-services wire fraud counts); Evans v. United States, 504 U.S. 255, 268
(1992) (requiring quid pro quo under 18 U.S.C. § 1951 for obtaining property under color of
official right; “need only show that a public official has obtained a payment to which he was not
entitled, knowing that the payment was made in return for official acts”).


Case 3:14-cr-00012-JRS Document 41 Filed 02/03/14 Page 7 of 13 PageID# 258

Importantly, the Government need not prove a specific this-for-that correlation between
each particular thing of value given and each particular official action performed or
contemplated. For example, in Jefferson, the Fourth Circuit approved a jury instruction stating:
[T]he quid pro quo requirement is satisfied if you find that the
government has established beyond a reasonable doubt that the
defendant agreed to accept things of value in exchange for
performing official acts on an as-needed basis, so that [when]ever
the opportunity presented itself, he would take specific action on
the payor’s behalf.
674 F.3d at 358 (second alteration in original); see also United States v. Jennings, 160 F.3d
1006, 1014 (4th Cir. 1998) (“[A]ll that must be shown [to establish quid pro quo under 18 U.S.C.
§ 666] is that payments were made with the intent of securing a specific type of official action or
favor in return. For example, payments may be made with the intent to retain the official’s
services on an ‘as needed’ basis, so that whenever the opportunity presents itself the official will
take specific action on the payor’s behalf.”).
That is exactly what the Indictment alleges. See, e.g., Indictment ¶¶ 22 (alleging receipt
of things of value “in exchange for [Mr. McDonnell] and [his former office] performing official
actions on an as-needed basis, as opportunities arose, to legitimize, promote, and obtain research
studies for Star Scientific’s products”); 110 (same); 111(c)(i)–(v) (listing different types of
official actions). Those allegations are entirely consistent with Fourth Circuit law. See, e.g.,
Jefferson, 674 F.3d at 351–60; Jennings, 160 F.3d at 1014.
Indeed, although the Indictment alleges, and at trial the Government will prove, that Mr.
McDonnell used his office and took official actions in fulfillment of the corrupt bargain, we need
not even do so since “fulfillment of the quid pro quo is not an element of the offense.” Evans,
504 U.S. at 268; see also United States v. Brewster, 408 U.S. 501, 526 (1972) (“There is no need
[in order to satisfy quid pro quo requirement in 18 U.S.C. § 201] for the Government to show

Case 3:14-cr-00012-JRS Document 41 Filed 02/03/14 Page 8 of 13 PageID# 259

that [defendant public official] fulfilled the alleged illegal bargain; acceptance of the bribe is the
violation of the statute, not performance of the illegal promise.”).
Moreover, none of the statutes governing honest-services fraud or obtaining property
under color of official right requires that the official acts or pattern of official action result in – or
even contemplate – a financial benefit to the bribe payor. Similarly, none of those statutes
requires that the action or actions to be taken by the public official be particularly substantial;
rather, the actions need only be “official.” In Jefferson, the court approved jury instructions for
both bribery under 18 U.S.C. § 201 and bribery-based honest-services fraud that included the
broad statutory definition of “official act” found at 18 U.S.C. § 201(a)(3) (“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”), coupled with the following elaboration:
“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.” Jefferson, 674 F.3d at 353, 355 (alteration in
original). In this respect, the Fourth Circuit found the Government to have presented sufficient
evidence for the jury to find that “first of all, that performing constituent services was a settled
official practice of Jefferson’s congressional office and, second, that African trade issues were
‘matters’ or ‘causes’ that were pending before him.” Id. at 357. Therefore, as shown at trial,
Jefferson’s official acts included scheduling and conducting meetings, as well as attempting to
facilitate and promote business ventures of those who were paying him. Id. at 356.
Jefferson and other cases make it clear that an official act is no less official because it is
one in a series of steps towards a longer-term goal; rather, it is the official nature of the act, not


Case 3:14-cr-00012-JRS Document 41 Filed 02/03/14 Page 9 of 13 PageID# 260

its substantiality, that makes it sufficient to be the basis for criminal charges, so long as it is part
of a prohibited corrupt exchange. See, e.g., United States v. Rosen, 716 F.3d 691, 695, 699–700
(2d Cir. 2013) (state legislator, among other things, “wrote a letter on State Assembly letterhead
stationery” and “set up a meeting between Rosen and the Governor’s chief of staff”); United
States v. Ring, 706 F.3d 460, 469–70 (D.C. Cir. 2013) (sum total of official action was
Department of Justice attorney making a phone call to an Immigration and Naturalization
Service official’s secretary seeking to expedite review of a visa application and following up
with an email).
More to the point for present purposes, however, the fact that the defendants have made
these arguments does not suffice to pierce the secrecy of the grand jury. Otherwise, every
motion to dismiss an indictment on legal grounds would simultaneously justify disclosure of
legal instructions given to the grand jury. This is not the law. As the Court stated in United
States v. Welch, 201 F.R.D. 521, 525 (D. Utah 2001):
In this case, defendants’ motion is speculative, general and does
not show particularized need. If inspection of grand jury
instructions were granted in this case they would be subject to
production on a mere desire framed as a claim that the indictment
is complex or being challenged. That is insufficient.
The grand jury is a “constitutional fixture in its own right,” stands at “arm’s length” with
the Judicial Branch, and remains “free to pursue its investigations unhindered by external
influence or supervision so long as it does not trench upon the legitimate rights of any witness
called before it.” United States v. Williams, 504 U.S. 36, 47–49 (1992) (citations omitted). The
special place accorded the grand jury in our system of justice, the presumption of regularity in its
operation, the important secrecy that attaches to its proceedings, and the tall hurdle that must be


Case 3:14-cr-00012-JRS Document 41 Filed 02/03/14 Page 10 of 13 PageID# 261

surmounted by those who would pierce such secrecy all counsel powerfully against granting the
relief the defendants seek here. Their motions should be denied.

Defendants’ Attack on the Sufficiency of Evidence Presented to the Grand
Jury Does Not Entitle Them to Relief

Defendants also attack the sufficiency of the evidence supporting the Indictment and
argue that it is so insufficient as to justify disclosure of the instructions to the grand jury. Their
arguments suffer from several flaws.
As a preliminary matter, the defendants’ pronouncements that the Government has “no
credible evidence” of any illicit agreement or corrupt intent, see Def. Mem. at 15, and “no
evidence that Governor McDonnell ‘knowingly’ made a false statement on a loan application,”
Def. Mem. at 18, are curious, since when they filed their motions, the defendants had not yet
even received any discovery. Relatedly, the defendants’ suggestion in a footnote that there is no
evidence substantiating a conspiracy between Mrs. McDonnell and her husband because “no
witness reports that she conspired with her husband to promote Star’s products,” Def. Mem. at
15 n.21, is misleading. As this Court is well aware, criminal conspiracies can be, and very often
are, proven by circumstantial evidence. See United States v. Burgos, 94 F.3d 849, 857 (4th Cir.
1996) (“By its very nature, a conspiracy is clandestine and covert, thereby frequently resulting in
little direct evidence of such an agreement. Hence, a conspiracy generally is proved by
circumstantial evidence and the context in which the circumstantial evidence is adduced.”
(citations omitted)).
But the biggest problem the defendants have with their insufficiency argument is that the
Supreme Court has unequivocally foreclosed it as a basis for piercing the secrecy of the grand
jury. This section of defendants’ brief is a series of naked jury arguments, and they are out of
place. “An indictment returned by a legally constituted and unbiased grand jury . . . , if valid on

Case 3:14-cr-00012-JRS Document 41 Filed 02/03/14 Page 11 of 13 PageID# 262

its face, is enough to call for trial of the charge on the merits,” and challenges based on the
sufficiency of the evidence are inappropriate at the indictment stage. Costello, 350 U.S. at 363–
64. In Williams, the Court invoked Costello in rejecting a claim that the grand jury proceedings
could be scrutinized to assess the prosecutors’ presentation:
It would make little sense, we think, to abstain from reviewing the
evidentiary support for the grand jury’s judgment while
scrutinizing the sufficiency of the prosecutor’s presentation.
A complaint about the quality or adequacy of the evidence can
always be recast as a complaint that the prosecutor’s presentation
was “incomplete” or “misleading.” Our words in Costello bear
repeating: Review of facially valid indictments on such grounds
“would run counter to the whole history of the grand jury
institution[,] [and] [n]either justice nor the concept of a fair trial
requires [it].”
Williams, 504 U.S. at 54–55 (quoting Costello, 350 U.S. at 364) (alterations in original); see also
Bank of Nova Scotia v. United States, 487 U.S. 250, 261 (1988) (citing Costello for proposition
that “a court may not look behind an indictment to determine if the evidence upon which it was
based is sufficient”). Defendants’ sufficiency argument should be rejected.

This Court will have ample opportunity to opine on the defendants’ challenges to the

legal sufficiency of the Indictment, should the defendants file a motion to dismiss. For now, the
defendants have not requested that relief, choosing instead to use a motion for disclosure of
instructions to the grand jury as a public forum to castigate the Government on the day the grand
jury returned the Indictment, all without so much as articulating the legal standard for the relief
they purport to seek. Defendants’ arguments amount to no more than “conclusory or speculative
allegations” about supposed impropriety in any legal instructions given to the grand jury.
Nguyen, 314 F. Supp. 2d at 616 (quotation omitted). The defendants’ motions should be denied.


Case 3:14-cr-00012-JRS Document 41 Filed 02/03/14 Page 12 of 13 PageID# 263

Respectfully submitted,
Acting United States Attorney


Michael S. Dry
Jessica D. Aber
Ryan S. Faulconer
Counsel for the United States
U.S. Attorney’s Office
600 E. Main Street, Suite 1800
Richmond, Va. 23219
Phone: 804-819-5400
Fax: 804-771-2316

Chief, Public Integrity Section
Criminal Division
U.S. Department of Justice


David V. Harbach, II
Counsel for the United States
U.S. Department of Justice
Criminal Division
Public Integrity Section
1400 New York Ave., N.W., Ste 12100
Washington, D.C. 20005
Phone: 202-514-1412
Fax: 202-514-3003

Case 3:14-cr-00012-JRS Document 41 Filed 02/03/14 Page 13 of 13 PageID# 264

I hereby certify that on February 3, 2014, I will electronically file the foregoing with the
Clerk of Court using the CM/ECF system, which will then send a notification of such filing
(“NEF”) to all counsel of record.

Ryan S. Faulconer
Counsel for the United States
U.S. Attorney’s Office
600 E. Main Street, Suite 1800
Richmond, Va. 23219
Phone: 804-819-5400
Fax: 804-771-2316