• Coeditor, The Anticorruption Manual: A Guide for State Prosecutors
    Director, NAGTRI Center for Ethics and Public Integrity

McDonnell, Its State Progeny, and How to McDonnell-Proof Your State Corruption Case

Amie Ely, Director, NAGTRI Center for Ethics & Public Integrity

Introduction

In late June 2016, the U.S. Supreme Court reversed the federal bribery conviction of former Virginia Gov. Robert “Bob” McDonnell,1 finding that prosecutors had not proven that the favors he did for a businessman who plied him with over $175,000 worth of gifts, cash, and loans were “official acts” under the federal bribery statute. 2

In the 18-plus months since that decision, McDonnell has led to reversals of several federal cases in which local and state officials were charged with offenses similar to those alleged against the former governor. It has also been cited by prosecutors to support their decisions not to bring some federal charges3 and to dismiss at least one state case.4

Because McDonnell has made federal bribery prosecution more challenging, it has created opportunities for state public integrity prosecutors to fill the void when federal prosecutors cannot or choose not to prosecute corrupt local and state officials. Along with these potential new opportunities, however, state prosecutors should be aware that McDonnell may have an impact on their own prosecutions and they should be prepared to deal with that from the beginning stages of an investigation to the final stages of trial. While a number of editorials, opinion pieces, and law review articles have examined McDonnell’s impact on the federal prosecution of local and state officials, comparatively little ink has been spilled about what the case means for prosecutors in state courts. 5 This piece seeks to begin filling that gap by examining McDonnell and its two state court progeny. It will also offer several practical steps to reduce the chance a state corruption case is imperiled by McDonnell.

McDonnell and Its Progeny

The Supreme Court’s Decision

McDonnell was found guilty by a jury after a trial that revealed, as the Court characterized them, “tawdry tales” about how he had used the power of the governor’s office to benefit a businessman’s nicotine-based dietary supplement.6

For his part, the businessman — Jonnie Williams — provided about $175,000 worth of goodies to induce his benefactor’s kindly exercise of discretion. Williams’s gifts ranged from a Rolex watch for the governor, to a ball gown for the governor’s wife (and later co-defendant), to tens of thousands of dollars in cash and loans for the McDonnells and their children. In exchange for those gifts, McDonnell did things like hosting parties for Williams at the governor’s mansion, so Williams could pitch his tobacco supplement, and encouraging other state officials to meet with Williams and conduct scientific studies that could have legitimized his product.

At trial, during his appeal, and before the Supreme Court, McDonnell argued that the actions he allegedly took to benefit Williams were not “official acts”; in his view, that definition was limited to “acts that ‘direct . . . a particular resolution of a specific governmental decision’ or that pressure another official to do so.”7

The government responded that the statute should be read as it was written: “‘official act’ is “any decision or action, on any question or matter, that may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity,” which it argued “therefore encompasses nearly any activity by a public official.”8

The Supreme Court adopted an “official acts” definition for the federal bribery statute similar to that proposed by the defense. In its analysis, the Court applied two standard principles of statutory interpretation—“a word is known by the company it keeps” (noscitur a sociis) and “statutory language is not superfluous”—to construe the statute narrowly and announce a new definition of what acts prosecutors would be required to prove to convict an official of bribery. The Court held that, for the purpose of the federal bribery statute:

“[O]fficial act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy”. . .[that] must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official.9

Applying its construction of the statute, the Court concluded that arranging meetings, hosting events, making phone calls, and contacting other government officials were not, without more, “official acts.”10 Because the jury instruction given at trial permitted the jury to convict McDonnell if it concluded that he had merely arranged a meeting, hosted an event, made a phone call, or contacted other officials on the businessman’s behalf, the Court reversed his conviction.

In support of its decision to construe the statute narrowly, the Court recognized concerns—including those lodged by a number of amici—that an overly broad view of the statute could criminalize interactions between officials and their constituents that were harmless, or even a positive part of the political process. It also cited principles of federalism: as sovereigns, states have “the prerogative to regulate the permissible scope of interactions between state officials and their constituents,” and the Supreme Court warned against interpreting federal laws in a manner that involves federal prosecutors in “setting standards” of “good government for local and state officials.”11

In the end, while some of the things McDonnell did for the businessman fell outside of the Court’s narrowed “official acts” definition, the Court concluded that others might not. As some things the ex-governor allegedly did were still potentially “official acts,” they could be still proscribed under the new, narrowed construction of the federal bribery statute.

The Court thus remanded the case for the Fourth Circuit to decide, in the first instance, how to apply the Court’s new definition to things McDonnell did that could be “official acts,” including, potentially: (1) making a decision on or taking an action to initiate a research study, or even narrowing down a list of potential research topics; (2) “using his official position to exert pressure on another official to perform an ‘official act’”; or (3) using his official position to provide advice to another official, intending or knowing that this advice would form the basis for that official to perform an official act.12 The Court also noted that the government need only prove that McDonnell agreed to do something that qualified as an official act—not that he actually did so—and that the agreement did not need to be explicit or include a description of what, precisely, McDonnell intended to do to carry out his end of the bargain.13 Finally, the Court noted that even ministerial acts it concluded were insufficient, standing alone, to be official acts (hosting an event, setting up a meeting, making a phone call) could be evidence of an agreement to take an official act, should those ministerial acts reveal that McDonnell was attempting to pressure or advise another official on a pending matter.14

Before any decision was issued by the Fourth Circuit, however, the government dismissed the charges against McDonnell and his wife.15

Selected Progeny

As of April 4, 2018, McDonnell has been cited 102 times in federal decisions, including by every federal circuit court, and in nine state court decisions across seven states.

To oversimplify, there are essentially three different views about the scope of McDonnell, which are reflected in decisions by courts across the country and in the writings of commentators and academics. One view reads McDonnell narrowly, as a case about the interpretation of one federal bribery statute.16 The second reads the case broadly, as a warning about the dangers of sweeping statutes and the need to rein in prosecutors who seek to apply those statutes in ways not contemplated by the legislature, particularly in cases involving public officials.17 And the third potential reading is somewhere in the middle: perhaps McDonnell may apply to other statutes that are quite similar to the federal bribery statute construed by the Court.

Several state decisions, and some federal decisions, cite McDonnell for unremarkable principles of statutory construction. Other cases have applied the new “official act” definition to reverse federal prosecutions where courts instructed jurors using a pre-McDonnell official act definition.18

In six state court opinions, McDonnell is cited for general principles that are untethered from any focus on corruption.19 Three of those five cases cite McDonnell for the proposition that a statute cannot be construed by relying upon “the assumption that the government will use it responsibly.”20

Two other state cases involve the prosecution of government officials; those cases warrant a close look.

Commonwealth v. Veon (Pennsylvania, 2016)

In Veon, the Pennsylvania Supreme Court21 cited McDonnell—arguably in dicta—when it reversed the conviction of Michael Veon, a member of the Pennsylvania House of Representatives.22

Veon and others engaged in a scheme to use a non-profit entity they controlled to rent several offices, in an apparent effort to obtain additional, subsidized office space for Veon to use for meeting constituents in his legislative role.23 The non-profit was funded on public monies obtained by Veon, through applications he prepared that were signed pro forma by one of his co-conspirators.24 Its use permitted Veon to avoid requesting additional funds from the legislature for the rental spaces—requests that would be part of the public record and risk “political blowback from constituents.”25

Veon was charged with, inter alia, violating a statute that criminalized conflicts of interest by prohibiting officials from “leveraging the authority of their offices for ‘private pecuniary benefit.’”26 The court instructed the jury that “private pecuniary benefit” included “intangible political gain such as garnering favorable publicity, obtaining free publicity, enhancing standing in the community, or the like.”27 The jury convicted Veon at trial.28

The Pennsylvania Supreme Court defined its task as determining if the conflict of interest statute “extends to what the trial court referred to as ‘intangible political gain.’” 29 After examining the use of the word “pecuniary” in other state statutes, the court concluded that it required some form of a money benefit.30 It characterized the McDonnell decision as “a recent case presenting some of the same concerns that we confront here,” and quoted its pronouncement that “a statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter.”31 The court wrote:

The trial court’s jury instruction here made of the statute a meat axe, finding (or creating) a conflict of interest on every dais, at each parade, and at every ribbon-cutting, given that the very nature of seeking to satisfy one’s constituents and secure re-election all but requires the taking of official action to secure intangible political gains. This criminalization of politics is a bridge too far.32

The Pennsylvania Supreme Court concluded that the jury charge was erroneous, as the jury could have convicted Veon if it found that he received a benefit that was only “political in nature.”33 As a result, it vacated the sentence imposed for his conflict of interest count and remanded for a new trial on that count.34

Commonwealth v. Degnan (Massachusetts, 2017)

In Commonwealth v. Degnan, the Appeals Court of Massachusetts affirmed the conviction of Leonard Degnan, the former chief of staff of the mayor of Lawrence, Mass.35 Degnan was accused of bribery-related crimes for threatening to “rip up” a contract with the city’s waste services provider if it did not “donate” trash trucks to Tenares, a city in the Dominican Republic.36

Testimony at trial revealed that Degnan told the waste company’s general manager that the mayor would not honor a contract the waste company signed with the previous administration unless the company donated “a couple of trucks” to Tenares.37 The company’s general manager believed that, if he went to the police or refused to donate the trucks, the multi-million contract would be voided.38 As a result, the general manager requested that his company donate one trash truck, which was repainted and given new tires at the mayor’s request, and then shipped to the Dominican Republic.39

Prosecutors charged Degnan with violating the state bribery statute, which required, inter alia, proof that “[a] municipal employee . . . or a person selected to be such an employee . . . directly or indirectly . . . corruptly . . . solicit[ed] . . . anything of value for . . . any other person or entity, in return for . . . being influenced in his performance of any official act or any act within his official responsibility.”40 As that statute “tracks a cognate Federal statute,” the court considered both Massachusetts case law and case law interpreting the parallel federal statute—the federal bribery statute.41 As a result, the court concluded that the prosecution had to prove a quid pro quo—that is, that the defendant solicited the bribe knowing that it would be given to induce him to violate his official duty.42 It cited McDonnell for a narrow proposition: “In determining whether the defendant agreed to be influenced in the quid pro quo exchange, ‘[t]he jury may consider a broad range of pertinent evidence, including the nature of the transaction.’”43

The court concluded that the evidence sufficed to prove that the defendant had corrupt intent: he clearly conditioned the survival of the Lawrence waste management contract on the “donation” of a trash truck to Tenares.44

Turning to whether the prosecution proved that the “quo” was an “official act” or an “official responsibility,” the court concluded that a decision to terminate a city contract would be an official act—but not one that was in the defendant’s authority as city manager.45 But no matter: the contract was, the court found, in the defendant’s “official responsibility”46 as that included working with vendors and advising the mayor on large contracts.47 “Put another way, the defendant had the requisite authority to be able to make good on his agreement to influence the mayor’s treatment of the trash contract.”48 As a result, the court affirmed Degnan’s convictions.

Steps that May Reduce the Likelihood of “McDonnell Problems” in State Corruption Cases

McDonnell’s citation by the Pennsylvania Supreme Court in Veon suggests that the prudent prosecutor should consider taking steps to minimize McDonnell’s potential impact during the investigation, while making charging decisions, and when suggesting jury instructions and verdict forms. Here are some of the ways that state prosecutors might reduce the chance that McDonnell will imperil their cases.

During the Investigation

To help inoculate a case against later McDonnell motions, prosecutors should strongly consider guiding the investigation. This is perhaps most important and useful in cases involving proactive tools like confidential informants, cooperating witnesses, or undercover law enforcement officers—which I will refer to as “undercover work.” Prosecutors can help ensure that the “ask” by the undercover “briber” is for something that is an “official act”—or its equivalent under their state’s bribery statute. This approach is akin to ensuring that a confidential informant asks a firearms trafficking target to provide guns that function in a state case where only operable guns are criminalized.49

Of course, there are other benefits, beyond addressing McDonnell, to involving prosecutors in investigations. Prosecutors who supervise undercover work can ensure it is conducted in a manner consistent with constitutional and any relevant statutory requirements. This supervision can guard against the invasion of attorney-client, legislative, or other privileges more likely to be at issue in cases involving public officials. It can also reduce the chance the investigations are imperiled because methods used to obtain evidence run afoul of the directives enunciated in, for example, Massiah50 or Garrity.51

Prosecutors’ involvement in investigations is uncontroversial, if not expected, at many U.S. Attorney’s Offices; indeed, it is required by Federal Bureau of Investigation guidelines for cases involving undercover work.52 It is also encouraged by the American Bar Association’s Standards on Prosecutorial Investigations.53 As some state and local prosecutor’s offices do not have a tradition of prosecutors being involved in investigations,54 however, they may not be comfortable taking a more proactive approach to investigations, even if that approach will result in stronger cases. But, increasingly—particularly in corruption units and other units that handle complicated cases—state and local prosecutors work hand-in-hand with their law enforcement partners. Many attorney general offices have in-house investigators; some are embedded in the same unit as the prosecutors and others are in a separate investigations unit. State and local prosecutors also work with a variety of federal, state, and local investigative bodies.

That said, prosecutors should be aware that, while they have absolute immunity under federal law for “quasi-judicial” activities like evaluating the sufficiency of evidence and preparing for grand jury or trial, they are entitled to only qualified immunity for actions they take during an investigation.55 They should also ensure that they do not become directly involved themselves in subterfuge,56 or unintentionally disqualify themselves by becoming a necessary witness in their own case.57 Finally, they should research their state’s Rules of Professional Conduct—particularly Rule 8.4(c), but also potentially Rules 3.8, 4.1, and 4.2—to ensure those rules have not been construed to prohibit prosecutors from directing undercover work.58

When Considering Charges

Particularly in states where the bribery statutes contain language similar to the federal bribery statute’s official act definition, prosecutors should consider if there are broader conduct allegations that also can be included in their charging instruments.

Two cases construing the same Massachusetts statute are instructive. In Degnan, as discussed above, Massachusetts state prosecutors charged the defendant both with committing “official acts” and with exercising his “official responsibility” as part of a bribery scheme. Given that the Massachusetts “official acts” bribery statute is patterned after the federal bribery statute, and courts there look to federal cases construing the federal analogue when interpreting the state statute, the case may well have fallen prey to McDonnell had the defendant been charged only with committing “official acts.” Instead, the court concluded that the defendant’s actions (threatening to cancel the contract) easily fell within his “official responsibility,” as the state statute defined it.

United States v. Tavares shows what can happen when prosecutors allege only that a defendant committed an “official act” in violation of the state bribery statue. In that case, the First Circuit reversed a federal racketeering case in which prosecutors alleged, as predicate acts, that the defendants violated the same Massachusetts statute at issue in Degnan by committing “official acts” in exchange for benefits.59 The First Circuit—following Massachusetts law that instructed them to look to courts’ interpretations of the federal bribery statute—concluded that the government failed to prove the state statute’s “official act” element, as the Supreme Court defined it in McDonnell.60 As a result, Tavares’s conviction was reversed.

So, the takeaway from Degnan and Tavares: prosecutors should look carefully at their bribery statutes when drafting charges, particularly if those statutes either mirror the federal bribery statute and/or case law directs them to look to the interpretation of the federal bribery statute when construing their state’s bribery statute. If there is a chance that what the defendant agreed to do in exchange for an illicit benefit is not an “official act” and your state’s bribery statute also criminalizes a broader range of conduct, charge those broader conduct allegations if the facts warrant them.

Another option, if the facts support them, is to consider including charges other than bribery, as McDonnell’s broader themes about the danger of “criminalizing politics” were primarily concerned with interactions between an official and his constituents.

When Drafting Jury Instructions

The opportunity to protect against a case being reversed on McDonnell grounds does not end when the charges are filed. In cases where the state statute mimics the federal bribery statute, prosecutors should make sure that the jury instructions correctly reflect the limitations imposed by the Supreme Court. In cases where state statutes criminalize a broader range of conduct, prosecutors should submit jury instructions that accurately define the elements of that broader statute.

Using Massachusetts as an example, if the defendant is charged under both “official act” and “official responsibility” sections of a statute, make sure that the jury instructions include both sections, with the “official act” instruction mirroring the Supreme Court’s ruling in McDonnell and the “official responsibility” instruction reflecting the broader definition in the state statute.

When Considering the Verdict Form

Prosecutors should also consider whether to request a special verdict form in some cases. If there are multiple potential “official acts,” some of which could be invalidated if McDonnell was applied to your state statute, a special verdict form might avoid a retrial by providing a clear record for an appellate court to consider.

Using McDonnell as an example, the Supreme Court noted that there were aspects of McDonnell’s conduct that may well have represented his promise to commit “official acts,” under its new definition, in exchange for the businessman’s gifts. Had federal prosecutors invited the jury to find what act(s) McDonnell agreed to complete to help the businessman in exchange for his gifts, the Court may have been able to determine if any particular act found by the jury was an “official act.”61

Of course, special verdict forms also carry some risks: courts are not always open to them; they may also confuse the jury, increase the length of deliberations, and make it more likely that the jury cannot come to a verdict. So prosecutors should think carefully about whether to use special verdict forms in cases in which there are several potential “official acts”—or the equivalent under your state statutes—that include actions that might no longer be valid if McDonnell was applied to your statute.

Conclusion

McDonnell has undoubtedly affected federal prosecutors’ abilities to charge the federal bribery statute in certain cases. Its federalism underpinnings may also mean that it applies more broadly to federal cases in which state and local officials are targets.

This potential reduction in the breadth of the federal anticorruption apparatus means that state prosecutors should consider ensuring that the laws in their states are enforced against corrupt officials who might have been subject to federal prosecution in the past. Prudent state prosecutors can take some commonsense steps at nearly every phase of their cases to try to guard against the likelihood that, if it is applied by the courts in their states, McDonnell imperils their conviction.

Endnotes

  1. McDonnell v. United States, 579 U.S. ___, 136 S.Ct. 2355 (2016). Bob McDonnell served as Virginia governor from 2010 – 2014. He was Virginia attorney general from 2006 – 2009.
  2. Throughout this piece, I will refer to 18 U.S.C. § 201, which sets forth the “official acts” definition the parties chose to apply to the Hobbs Act (18 U.S.C. § 1951) and Honest Services Fraud (18 U.S.C. § 1346) charges in McDonnell’s case, as the “federal bribery statute.” I do this for ease of reference, even though that appellation better fits, and could just as easily refer to, 18 U.S.C. § 666.
  3. William K. Rashbaum, No Charges, but Harsh Criticism for de Blasio’s Fund-Raising, N.Y. Times, Mar. 16, 2017, https://www.nytimes.com/2017/03/16/nyregion/mayor-bill-de-blasio-investigation-no-criminal-charges.html (decision not to bring federal charges against the mayor of New York).
  4. Dennis Romboy, Prosecutors “Stand Down” and Drop Criminal Case Against Mark Shurtleff, Deseret News, July 18, 2016, https://www.deseretnews.com/article/865658246/Prosecutors-file-motion-to-dismiss-all-charges-against-Shurtleff.html. Notably, the decision by the court granting the motion to dismiss did not cite McDonnell as grounds for dismissing the case. See State of Utah v. Mark Leonard Shurtleff, Case No. 141907720, July 27, 2016 Ruling and Order (on file with author).
  5. See, e.g., Editorial Board, McDonnell Case Reveals the Supreme Court’s Squishy Corruption Standard, Wash. Post, June 27, 2016, https://www.washingtonpost.com/opinions/the-supreme-courts-squishy-corruption-standard/2016/06/27/144541a6-3ca4-11e6-a66f-aa6c1883b6b1_story.html?utm_term=.1f5fd44571c0.(describing McDonnell as “a narrow and exceptionally permissive interpretation of what constitutes actual corruption” that will “give comfort to other ethics-scorning politicians . . .”); George D. Brown, The Federal Anti-Corruption Enterprise After McDonnell—Lessons from the Symposium, 121 Penn State L. Rev. 989, 998 (2017) (summarizing some of the academic works examining McDonnell). While one commentator opines that corruption cases brought in state courts “may not be as vulnerable to nullification by the Supreme Court,” this observation is a small aspect of a broader article focused primarily on federal practice. Jacob Eisler, McDonnell and Anti-Corruption’s Last Stand, 50 U.C.Davis L. Rev. 1619, 1662 (2017).
  6. McDonnell, 136 S. Ct. at 2375.
  7. Id. at 2367.
  8. Id.
  9. Id. at 2371-72.
  10. The Court offered scant guidance about what, precisely, this “more” might be.
  11. Id. at 2373 (quoting McNally v. United States, 483 U.S. 350, 360 (1987)).
  12. Id. at 2370-71, 2375.
  13. Id. at 2371.
  14. Id.
  15. Matt Zapotosky, Rachel Weiner & Rosalind S. Helderman, Prosecutors Will Drop Cases Against Former Va. Governor Robert McDonnell, Wife, Wash. Post, Sept. 8, 2016, https://www.washingtonpost.com/local/public-safety/prosecutors-will-drop-case-against-former-va-gov-robert-mcdonnell/2016/09/08/a19dc50a-6878-11e6-ba32-5a4bf5aad4fa_story.html?utm_term=.27b955a50c33.
  16. See, e.g., United States v. Silver, 864 F.3d 102, 116 n.67 (2d Cir. 2017); Commonwealth v. Degnan, 91 Mass. App. Ct. 266, 266 (App. Ct. Mass. 2017).
  17. See, e.g., United States v. Tavares, 844 F.3d 46 (1st Cir. 2016); Commonwealth v. Veon, 150 A.3d 435, 447-48 (Pa. 2016).
  18. See, e.g., Tavares, 844 F.3d 46 (reversing federal racketeering conviction); Silver, 864 F.3d 102 (reversing federal Hobbs Act and honest services fraud conviction); United States v. Ferriero, 866 F.3d 107 (3d Cir. 2017) (affirming federal racketeering conviction).
  19. State v. Holle, 240 Ariz. 300, 313 (2016) (child molestation case; McDonnell cited primarily in dissent for proposition that “we cannot construe a criminal statute on the assumption that the Government will ‘use it responsibly'”); Wertheim, LLC v. Currency Corp., No. B270926, 2017 Cal. App. Unpub. LEXIS 5927, at *21 (Ca. 2d Ct. App. Aug. 25, 2017) (unpublished civil case; McDonnell cited for the noscitur a sociis canon of statutory interpretation); Goldmex, Inc. v. Glendale I Mall Assocs., LLC, No. B265076, 2016 Cal. App. Unpub. LEXIS 6660, at *26-27 (Ca. 2d Ct. App. Sep. 8, 2016) (same); Kenwood Gardens Condos., Inc. v. Whalen Props., LLC, 449 Md. 313, 340 n.11, 144 A.3d 647, 664 (Md. 2016).
  20. Acri v. Bureau of Prof’l & Occupational Affairs, 2018 Pa. Commw. Unpub. LEXIS 18, at *11 n.7 (Commw. Ct. Jan. 5, 2018); State v. Holle, 379 P.3d 197, 209 n.60 (Az. 2016) (Bales, C.J., dissenting in part and concurring in the result); Valenzuela-Castillo v. United States, No. 15-CM-413, 2018 D.C. App. LEXIS 82, * 23 n. 13(Mar. 8, 2018) (A.J. Easterly, dissenting).
  21. Appeal to the Pennsylvania Supreme Court is not typically of right; that the justices agreed to hear Veon’s appeal arguably signified the case’s importance. R. App. P. Pa. Code § 1114. See also Richard B. Cappalli, What is Authority? Creation and Use of Case Law by Pennsylvania’s Appellate Courts, 72 Temp. L. Rev. 303, 307-08 (1999) (Pennsylvania Supreme Court granted 6.8% of the petitions to appeal in 1996).
  22. 150 A.3d 435, 447-48 (Pa. 2016).
  23. Id. at 439-40.
  24. Id. at 440.
  25. Id. at 438.
  26. Id. at 437 (citing 65 Pa. Cons. Stat. § 1103(a)).
  27. Id. at 440.
  28. Id. at 440-41.
  29. Id. at 437 (citing 65 Pa. Cons. Stat.. § 1103(a)).
  30. Id. at 445-47.
  31. Id. at 447 (quoting McDonnell v. United States, 136 S.Ct. 2355, 2373 (2016) (quoting United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 408, (1999))). In applying the Supreme Court’s exhortation so broadly, the Pennsylvania Supreme Court untethered it from limitations in the opinion where it was announced, United States v. Sun-Diamond. In Sun-Diamond, the Supreme Court narrowly construed an anti-gratuity statute, 18 U.S.C. § 201(c)(1)(A), as it was part of an interwoven regulatory mix of statutes and regulations that set forth various ethical requirements that officials—on pain of anything from a small fine to federal prison—were bound to follow. The Pennsylvania Supreme Court did not describe a similar ecosystem of ethics for legislators—and, perhaps tellingly, the Pennsylvania State Ethics Commission filed an amicus brief arguing that the statute should be read to apply to Veon’s conduct.
  32. Veon, 150 A.3d at 447-48.
  33. Id. at 448.
  34. Id. at 448, 455-56.
  35. 91 Mass. App. Ct. 266, 266 (App. Ct. Mass. 2017).
  36. Id. at 266-67. Tenares was the birthplace of a substantial portion of the city’s one-third Dominican population, id. at 268, and home to many absentee voters who would presumably support the mayor—who was also born in the Dominican Republic—if he caused a donated garbage truck to appear on their shores. Keith Eddings, Willie Win? Lantigua Aims to Regain Mayor’s Office, Eagle-Trib., Oct. 29, 2017, http://www.eagletribune.com/news/merrimack_valley/willie-win-lantigua-aims-to-regain-mayor-s-office/article_1d7611e4-fba0-5e8e-b670-55b44f5e2a5c.html (describing Tenares as “a Dominican city that is the birthplace of many Lawrencians, including many who returned there and vote in Lawrence elections by absentee ballot”).
  37. Degnan, 91 Mass. App. Ct. at 269.
  38. Id.
  39. Id. at 270.
  40. Id. (quoting Mass. Gen. Laws ch. 268A, § 2(b)).
  41. Id. at 271.
  42. Id.
  43. Id. at 271-72 (quoting McDonnell, 136 S. Ct. at 2371.
  44. Id. at 272.
  45. Id.
  46. As the court noted, “official responsibility” is defined as “the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action.” Id. at 272 (quoting Mass. Gen. Laws. ch. 268A § 1(i)).
  47. Id.
  48. Id. at 272-73.
  49. See, e.g., People v. Longshore, 86 N.Y.2d 851, 852 (NY Ct. App. 1995), (“Although the statute is silent on the point, it is now accepted that to establish criminal possession of a handgun the People must prove that the weapon is operable”).
  50. Massiah v. United States, 377 U.S. 201 (1964) (prohibiting the government from eliciting statements from a defendant after his Sixth Amendment right to counsel has attached).
  51. Garrity v. New Jersey, 385 U.S. 493 (1967) (holding that statements compelled from an official during the course of an internal investigation cannot be used to prosecute that official).
  52. The Attorney General’s Guidelines on Federal Bureau of Investigation Undercover Operations, Sep. 24, 2013, https://www.justice.gov/sites/default/files/ag/legacy/2013/09/24/undercover-fbi-operations.pdf. The Guidelines require agents to continuously consult with a U.S. attorney or section chief in the U.S. Department of Justice’s Criminal Division:Upon initiating and throughout the course of any undercover operation, the SAC or a designated Supervisory Special Agent shall consult on a continuing basis with the appropriate Federal prosecutor, particularly with respect to the propriety of the operation and the legal sufficiency and quality of evidence that is being produced by the activity.
  53. ABA Standard on Prosecutorial Investigations 2.3 (ABA 2014) (directing prosecutors to consider potential benefits and risks of using or advising the use of undercover techniques during a criminal investigation).
  54. See, e.g., Mark Osley, The (Very Informal) Mike Freeman Statement, Minn. Star Trib., Dec. 18, 2017, http://www.startribune.com/the-very-informal-mike-freeman-statement/465051513/ (describing a process where investigators alone “develop a case and then bring it to the prosecutor in the hopes that the prosecutor will accept the case and pursue a conviction”).
  55. See Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). There may be no real change to prosecutors’ exposure to lawsuits in states, like Hawaii, that do not provide prosecutors with absolute immunity for any acts. See, e.g., Towse v. State, 64 Haw. 624, 631-32 (Haw. 1982).
  56. The Ohio Supreme Court disciplined a prosecutor who himself “went undercover” to create fake Facebook accounts and communicate with potential alibi witnesses for a defendant he was prosecuting. Disciplinary Counsel v. Brockler, 145 Ohio St. 3d 270, 271-73, 48 N.E.3d 557, 559-60 (Ohio 2016).
  57. Model Code of Prof’l Conduct r. 3.7 (Am. Bar Ass’n 1983).
  58. See, e.g., In re Gatti, 8 P.3d 966 (2000) (applying Disciplinary Rule 1-102(A)(3) to discipline a private attorney who misrepresented himself as a chiropractor during a civil fraud investigation), Amie Ely, Survey of “Ethics Gurus” in AG Offices Reveals Priorities, NAGTRI J., Vol. 2:3 (May 2017), https://www.naag.org/ethics/attorney-general-journal/survey-of-ethics-gurus-in-attorney-general-offices-reveals-priorities/ (describing 2017 litigation in Colorado regarding application of Rule 8.4(c) to prosecutors who supervise undercover work).
  59. United States v. Tavares, 844 F.3d 46, 58 (1st Cir. 2016). Both the indictment and the jury instructions from Tavares’s trial confirm that prosecutors charged, and the jury was instructed on, only the “official act” portion of the Massachusetts bribery statute.
  60. Id. at 56-57.
  61. Accord Yates v. United States, 354 U.S. 298 (1957) (constitutional error occurs when a jury is instructed on alternative theories of guilt and returns a general verdict that may rest on a legally invalid theory).

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