United States v. Jefferson
289 F. Supp. 3d 717 (2017)
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Rule of Law:
The Supreme Court's narrower definition of "official act" from United States v. McDonnell is a new substantive rule that applies retroactively on collateral review, requiring a "focused and concrete" matter involving a formal governmental power exercise and a decision/action on that matter, beyond mere support or arranging meetings.
Facts:
- From 2000 to 2005, Congressman William Jefferson solicited hundreds of thousands of dollars from companies involved in telecommunications, oil, and sugar for business promotion and development, often for projects in West Africa.
- In 2001, Jefferson entered into an agreement with Vernon Jackson, President of iGate, a telecommunications company, where iGate would pay Jefferson's family consulting firm (ANJ) with shares and annual payments in exchange for Jefferson promoting iGate technology to the Army and West African countries.
- Jefferson promoted iGate technology in Nigeria, arranging meetings with officials and the U.S. Export-Import Bank (Ex-Im Bank) for iGate's joint venture with NDTV, and later secured increased payments to ANJ.
- After the iGate-NDTV venture failed in 2004, Jefferson secured Lori Mody and her company W2 Limited as a replacement, assuring them of financing from Ex-Im Bank and cooperation from Nigerian officials, receiving payments to ANJ.
- In 2005, Mody, now working with the FBI, provided Jefferson with $100,000 in marked cash for a bribe to Nigerian Vice President Abubakar to secure NITEL support for the iGate-W2 venture.
- The FBI found $90,000 of the marked cash hidden in frozen food boxes in Jefferson's Washington, D.C. home.
- Separately, Jefferson solicited payments from George Knost (Arkel International) for assisting with a sugar project in Nigeria and Ex-Im Bank financing, requiring Arkel to hire his brother Mose, who provided no services.
- Jefferson pressured U.S. Trade Development Agency (USTDA) officials to approve funding for a feasibility study of TDC Energy Overseas, Inc.'s fertilizer plant in Nigeria, continuously monitoring its progress and influencing officials to keep it alive despite issues.
Procedural Posture:
- William Jennings Jefferson, a Congressman, was indicted by a federal grand jury on June 4, 2007, on sixteen counts including bribery, honest services wire fraud, money laundering, racketeering, and conspiracy.
- On September 7, 2007, Jefferson filed a pretrial motion in the United States District Court for the Eastern District of Virginia (trial court) to dismiss the bribery-related charges, arguing the indictment did not allege "official acts" as defined by statute; this motion was denied by the district court in United States v. Jefferson, 562 F.Supp.2d 687 (E.D. Va. 2008) (Jefferson I).
- Jefferson moved for reconsideration of Jefferson I, which was denied by the district court in United States v. Jefferson, 634 F.Supp.2d 595 (E.D. Va. 2009) (Jefferson II), affirming that official acts were not limited solely to legislative acts.
- Jefferson's jury trial in the Eastern District of Virginia began on June 9, 2009, during which the court instructed the jury on the meaning of "official act" using a broad "settled practice" interpretation from United States v. Birdsall, which Jefferson objected to.
- On August 5, 2009, the jury returned a verdict, convicting Jefferson on eleven of the sixteen counts.
- Jefferson was sentenced to thirteen years in prison, with concurrent sentences, and began serving his sentence on May 4, 2012, pending appeal.
- Jefferson appealed his conviction to the Fourth Circuit Court of Appeals, arguing, among other things, that the bribery instructions were erroneous for including the Birdsall settled-practice language; the Fourth Circuit affirmed his conviction on all but one count (Count 10) in United States v. Jefferson, 674 F.3d 332 (4th Cir. 2012).
- Jefferson (appellant) appealed to the Supreme Court, and certiorari was denied on November 26, 2012, affirming the Fourth Circuit's decision except for Count 10, after which the same sentence was imposed.
- On June 27, 2016, the Supreme Court issued its decision in United States v. McDonnell, 136 S.Ct. 2355 (2016), which altered the definition of "official act."
- On September 26, 2016, Jefferson filed a petition under 28 U.S.C. § 2255 in the United States District Court for the Eastern District of Virginia, challenging his convictions based on the McDonnell decision.
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Issue:
Does the Supreme Court's newly recognized, narrower definition of "official act" in McDonnell constitute a new substantive rule retroactively applicable on collateral review, thereby invalidating former Congressman William Jefferson's bribery-related convictions where the jury instructions were overbroad?
Opinions:
Majority - T.S. Ellis, III, United States District Judge
Yes, the Supreme Court's new, constrained definition of "official act" from McDonnell is a new substantive rule retroactively applicable on collateral review. This new definition means that most of William Jefferson's actions were not "official acts," leading to the vacating of many of his bribery-related convictions, except for those where he demonstrably exerted pressure on U.S. government officials. First, Jefferson's § 2255 motion is procedurally proper and timely. The McDonnell decision is a new "substantive" rule that altered the scope of the "official act" definition under 18 U.S.C. § 201(a)(3), and substantive rules apply retroactively on collateral review under the Teague v. Lane framework. Jefferson filed his motion within one year of the McDonnell decision. Furthermore, Jefferson did not procedurally default on his argument because he consistently challenged the government's broad "settled practice" jury instruction during his trial and appeals, even if his proposed remedy (eliminating the instruction) differed from McDonnell's (adding limiting language). The error recognized in McDonnell was the overbroad instruction itself. Next, the court applied the two-prong definition of an "official act" as clarified in McDonnell: 1) the government must identify a "question, matter, cause, suit, proceeding or controversy" that is "focused and concrete" (like a lawsuit, agency determination, or committee hearing) that "may at any time be pending" or "may by law be brought" before a public official; and 2) the public official must make a decision or take an action "on" that matter, or agree to do so. Merely setting up a meeting, talking to another official, or organizing an event (without more) is not an "official act"; however, "exerting pressure" or providing advice intending to form the basis for an official act is. Applying this standard, the court found: Count 1 (FCPA Conspiracy): The "official act" definition is not an element of FCPA conspiracy, and the evidence overwhelmingly supports Jefferson's involvement in a conspiracy to bribe Nigerian Vice President Abubakar. This conviction stands. Counts 3, 4, 6, 7, 12, 13, and 14 (iGate Scheme): Jefferson's meetings with General Hylton and Colonel Brown did not involve "pressure" on a "pending matter" and some occurred before the bribery scheme began. His interactions with African officials cannot be "official acts" under the U.S. bribery statute (18 U.S.C. § 201(a)(1)) as it only applies to U.S. public officials. Privately sponsored trade delegations, while "concrete," do not involve a "formal exercise of governmental power" similar to a lawsuit or agency determination. His efforts to secure a visa for Dumebi Kachikwu and Ex-Im Bank financing for NDTV and W2 amounted to merely making introductions and expressing support, which McDonnell explicitly stated are not criminal. Consequently, there was insufficient evidence under the McDonnell standard that Jefferson took "official acts" for these counts. The erroneous jury instruction, which broadly allowed conviction for "constituent services," had a "substantial and injurious effect" on the jury's verdict. These convictions and sentences are vacated. Counts 2 and 16 (Other Schemes including USTDA): Actions to pressure foreign officials (Wilson, Knost, Samara) were not "official acts" for the same reason as in the iGate scheme. Efforts for Ex-Im Bank approval for Arkel were informational, not exerting pressure. However, Jefferson's extensive and ongoing involvement in pressuring U.S. Trade Development Agency (USTDA) officials to approve funding for TDC's fertilizer plant feasibility study was an "official act." The USTDA grant was a "pending matter," and Jefferson's continuous monitoring, repeated inquiries, and direct engagement, including calling a nervous USTDA official to his office, clearly amounted to "exerting pressure" beyond mere support. This evidence was substantial at trial and a significant part of the government's case. Therefore, the instructional error was harmless with respect to Counts 2 and 16. These convictions stand. In conclusion, while Jefferson engaged in corrupt conduct, most of his convictions for bribery-related charges, which relied on an overbroad definition of "official act," must be vacated in light of McDonnell*. However, convictions supported by evidence of actual pressure on U.S. officials remain.
Analysis:
This case significantly clarifies the retroactive application of the Supreme Court's McDonnell decision, establishing that McDonnell's narrowing of "official act" is a substantive rule applicable on collateral review. It underscores the high burden on prosecutors to prove a specific quid pro quo involving a "focused and concrete" governmental matter and active "pressure" or "decision/action" by a public official, rather than general influence or constituent services. This decision will likely make it harder to prosecute public corruption cases based on less direct forms of influence, emphasizing clear statutory definitions over broad interpretations of "settled practice."
