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SUPREME COURT OF THE UNITED STATES
_________________
No. 15–474
_________________
ROBERT F. McDONNELL, PETITIONER
v.UNITED STATES
on writ of certiorari to the united states
court of appeals for the fourth circuit
[June 27, 2016]
Chief Justice Roberts delivered the opinion of
the Court.
In 2014, the Federal Government indicted former
Virginia Governor Robert McDonnell and his wife, Maureen McDonnell,
on bribery charges. The charges related to the acceptance by the
McDonnells of $175,000 in loans, gifts, and other benefits from
Virginia businessman Jonnie Williams, while Governor McDonnell was
in office. Williams was the chief executive officer of Star
Scientific, a Virginia-based company that had developed a
nutritional supplement made from anatabine, a compound found in
tobacco. Star Scientific hoped that Virginia’s public universities
would perform research studies on anatabine, and Williams wanted
Governor McDonnell’s assistance in obtaining those studies.
To convict the McDonnells of bribery, the
Government was required to show that Governor McDonnell committed
(or agreed to commit) an “official act” in exchange for the loans
and gifts. The parties did not agree, however, on what counts as an
“official act.” The Government alleged in the indictment, and
maintains on appeal, that Governor McDonnell committed at least
five “official acts.” Those acts included “arranging meetings” for
Williams with other Virginia officials to discuss Star Scientific’s
product, “hosting” events for Star Scientific at the Governor’s
Mansion, and “contacting other government officials” concerning
studies of anatabine. Supp. App. 47–48. The Government also argued
more broadly that these activities constituted “official action”
because they related to Vir-ginia business development, a priority
of Governor Mc-Donnell’s administration. Governor McDonnell
contends that merely setting up a meeting, hosting an event, or
contacting an official—without more—does not count as an “official
act.”
At trial, the District Court instructed the jury
according to the Government’s broad understanding of what
constitutes an “official act,” and the jury convicted both Governor
and Mrs. McDonnell on the bribery charges. The Fourth Circuit
affirmed Governor McDonnell’s conviction, and we granted review to
clarify the meaning of “official act.”
I
A
On November 3, 2009, petitioner Robert
McDonnell was elected the 71st Governor of Virginia. His campaign
slogan was “Bob’s for Jobs,” and his focus in office was on
promoting business in Virginia. As Governor, McDonnell spoke about
economic development in Virginia “on a daily basis” and attended
numerous “events, ribbon cuttings,” and “plant facility openings.”
App. 4093, 5241. He also referred thousands of constituents to
meetings with members of his staff and other government officials.
According to longtime staffers, Governor McDonnell likely had more
events at the Virginia Governor’s Mansion to promote Virginia
business than had occurred in “any other administration.”
Id., at 4093.
This case concerns Governor McDonnell’s
interactions with one of his constituents, Virginia businessman
Jonnie Williams. Williams was the CEO of Star Scientific, a
Virginia-based company that developed and marketed Anatabloc, a
nutritional supplement made from anatabine, a compound found in
tobacco. Star Scientific hoped to obtain Food and Drug
Administration approval of Anatabloc as an anti-inflammatory drug.
An important step in securing that approval was initiating
independent research studies on the health benefits of anatabine.
Star Scientific hoped Virginia’s public universities would
undertake such studies, pursuant to a grant from Virginia’s Tobacco
Commission.
Governor McDonnell first met Williams in 2009,
when Williams offered McDonnell transportation on his private
airplane to assist with McDonnell’s election campaign. Shortly
after the election, Williams had dinner with Governor and Mrs.
McDonnell at a restaurant in New York. The conversation turned to
Mrs. McDonnell’s search for a dress for the inauguration, which led
Williams to offer to purchase a gown for her. Governor McDonnell’s
counsel later instructed Williams not to buy the dress, and Mrs.
McDonnell told Williams that she would take a rain check.
Id., at 2203–2209.
In October 2010, Governor McDonnell and Williams
met again on Williams’s plane. During the flight, Williams told
Governor McDonnell that he “needed his help” moving forward on the
research studies at Virginia’s public universities, and he asked to
be introduced to the person that he “needed to talk to.”
Id., at 2210–2211. Governor McDonnell agreed to introduce
Williams to Dr. William Hazel, Virginia’s Secretary of Health and
Human Resources. Williams met with Dr. Hazel the following month,
but the meeting was unfruitful; Dr. Hazel was skeptical of the
science behind Anatabloc and did not assist Williams in obtaining
the studies. Id., at 2211–2217, 3738–3749.
Six months later, Governor McDonnell’s wife,
Maureen McDonnell, offered to seat Williams next to the Governor at
a political rally. Shortly before the event, Williams took Mrs.
McDonnell on a shopping trip and bought her $20,000 worth of
designer clothing. The McDonnells later had Williams over for
dinner at the Governor’s Mansion, where they discussed research
studies on Anatabloc. Id., at 6560.
Two days after that dinner, Williams had an
article about Star Scientific’s research e-mailed to Mrs.
McDonnell, which she forwarded to her husband. Less than an hour
later, Governor McDonnell texted his sister to discuss the
financial situation of certain rental properties they owned in
Virginia Beach. Governor McDonnell also e-mailed his daughter to
ask about expenses for her upcoming wedding.
The next day, Williams returned to the
Governor’s Mansion for a meeting with Mrs. McDonnell. At the
meeting, Mrs. McDonnell described the family’s financial problems,
including their struggling rental properties in Virginia Beach and
their daughter’s wedding expenses. Mrs. McDonnell, who had
experience selling nutritional supplements, told Williams that she
had a background in the area and could help him with Anatabloc.
According to Williams, she explained that the “Governor says it’s
okay for me to help you and—but I need you to help me. I need you
to help me with this financial situation.” Id., at 2231.
Mrs. McDonnell then asked Williams for a $50,000 loan, in addition
to a $15,000 gift to help pay for her daughter’s wedding, and
Williams agreed.
Williams testified that he called Governor
McDonnell after the meeting and said, “I understand the financial
problems and I’m willing to help. I just wanted to make sure that
you knew about this.” Id., at 2233. According to Williams,
Governor McDonnell thanked him for his help. Ibid. Governor
McDonnell testified, in contrast, that he did not know about the
loan at the time, and that when he learned of it he was upset that
Mrs. McDonnell had requested the loan from Williams. Id., at
6095–6096. Three days after the meeting between Williams and Mrs.
McDonnell, Governor McDonnell directed his assistant to forward the
article on Star Scientific to Dr. Hazel.
In June 2011, Williams sent Mrs. McDonnell’s
chief of staff a letter containing a proposed research protocol for
the Anatabloc studies. The letter was addressed to Governor
McDonnell, and it suggested that the Governor “use the attached
protocol to initiate the ‘Virginia Study’ of Anatabloc at the
Medical College of Virginia and the University of Virginia School
of Medicine.” Id., at 2254. Governor McDonnell gave the
letter to Dr. Hazel. Id., at 6121–6122. Williams testified
at trial that he did not “recall any response” to the letter.
Id., at 2256.
In July 2011, the McDonnell family visited
Williams’s vacation home for the weekend, and Governor McDonnell
borrowed Williams’s Ferrari while there. Shortly thereafter,
Governor McDonnell asked Dr. Hazel to send an aide to a meeting
with Williams and Mrs. McDonnell to discuss research studies on
Anatabloc. The aide later testified that she did not feel pressured
by Governor or Mrs. McDonnell to do “anything other than have the
meeting,” and that Williams did not ask anything of her at the
meeting. Id., at 3075. After the meeting, the aide sent
Williams a “polite blow-off” e-mail. Id., at 3081.
At a subsequent meeting at the Governor’s
Mansion, Mrs. McDonnell admired Williams’s Rolex and mentioned that
she wanted to get one for Governor McDonnell. Williams asked if
Mrs. McDonnell wanted him to purchase a Rolex for the Governor, and
Mrs. McDonnell responded, “Yes, that would be nice.” Id., at
2274. Williams did so, and Mrs. McDonnell later gave the Rolex to
Governor McDonnell as a Christmas present.
In August 2011, the McDonnells hosted a lunch
event for Star Scientific at the Governor’s Mansion. According to
Williams, the purpose of the event was to launch Anatabloc. See
id., at 2278. According to Governor McDonnell’s
gubernatorial counsel, however, it was just lunch. See id.,
at 3229–3231.
The guest list for the event included
researchers at the University of Virginia and Virginia Commonwealth
University. During the event, Star Scientific distributed free
samples of Anatabloc, in addition to eight $25,000 checks that
researchers could use in preparing grant proposals for studying
Anatabloc. Governor McDonnell asked researchers at the event
whether they thought “there was some scientific validity” to
Anatabloc and “whether or not there was any reason to explore this
further.” Id., at 3344. He also asked whether this could “be
something good for the Commonwealth, particularly as it relates to
economy or job creation.” Ibid. When Williams asked Governor
McDonnell whether he would support funding for the research
studies, Governor McDonnell “very politely” replied, “I have
limited decision-making power in this area.” Id., at
3927.
In January 2012, Mrs. McDonnell asked Williams
for an additional loan for the Virginia Beach rental properties,
and Williams agreed. On February 3, Governor McDonnell followed up
on that conversation by calling Williams to discuss a $50,000
loan.
Several days later, Williams complained to Mrs.
McDonnell that the Virginia universities were not returning Star
Scientific’s calls. She passed Williams’s complaint on to the
Governor. While Mrs. McDonnell was driving with Governor McDonnell,
she also e-mailed Governor McDonnell’s counsel, stating that the
Governor “wants to know why nothing has developed” with the
research studies after Williams had provided the eight $25,000
checks for preparing grant proposals, and that the Governor “wants
to get this going” at the universities. Id., at 3214, 4931.
According to Governor McDonnell, how-ever, Mrs. McDonnell acted
without his knowledge or per-mission, and he never made the
statements she attributed to him. Id., at 6306–6308.
On February 16, Governor McDonnell e-mailed
Williams to check on the status of documents related to the $50,000
loan. A few minutes later, Governor McDonnell e-mailed his counsel
stating, “Please see me about Anatabloc issues at VCU and UVA.
Thanks.” Id., at 3217. Governor McDonnell’s counsel replied,
“Will do. We need to be careful with this issue.” Ibid. The
next day, Governor McDonnell’s counsel called Star Scientific’s
lobbyist in order to “change the expectations” of Star Scientific
regarding the involvement of the Governor’s Office in the studies.
Id., at 3219.
At the end of February, Governor McDonnell
hosted a healthcare industry reception at the Governor’s Mansion,
which Williams attended. Mrs. McDonnell also invited a number of
guests recommended by Williams, including researchers at the
Virginia universities. Governor McDonnell was present, but did not
mention Star Scientific, Williams, or Anatabloc during the event.
Id., at 3671–3672. That same day, Governor McDonnell and
Williams spoke about the $50,000 loan, and Williams loaned the
money to the McDonnells shortly thereafter. Id., at 2306,
2353.
In March 2012, Governor McDonnell met with Lisa
Hicks-Thomas, the Virginia Secretary of Administration, and Sara
Wilson, the Director of the Virginia Department of Human Resource
Management. The purpose of the meeting was to discuss Virginia’s
health plan for state employees. At that time, Governor McDonnell
was taking Anatabloc several times a day. He took a pill during the
meeting, and told Hicks-Thomas and Wilson that the pills “were
working well for him” and “would be good for” state employees.
Id., at 4227. Hicks-Thomas recalled Governor McDonnell
asking them to meet with a representative from Star Scientific;
Wilson had no such recollection. Id., at 4219, 4227. After
the discussion with Governor McDonnell, Hicks-Thomas and Wilson
looked up Anatabloc on the Internet, but they did not set up a
meeting with Star Scientific or conduct any other follow-up.
Id., at 4220, 4230. It is undisputed that Virginia’s health
plan for state employees does not cover nutritional supplements
such as Anatabloc.
In May 2012, Governor McDonnell requested an
additional $20,000 loan, which Williams provided. Throughout this
period, Williams also paid for several rounds of golf for Governor
McDonnell and his children, took the McDonnells on a weekend trip,
and gave $10,000 as a wedding gift to one of the McDonnells’
daughters. In total, Williams gave the McDonnells over $175,000 in
gifts and loans.
B
In January 2014, Governor McDonnell was
indicted for accepting payments, loans, gifts, and other things of
value from Williams and Star Scientific in exchange for “performing
official actions on an as-needed basis, as opportunities arose, to
legitimize, promote, and obtain research studies for Star
Scientific’s products.” Supp. App. 46. The charges against him
comprised one count of conspiracy to commit honest services fraud,
three counts of honest services fraud, one count of conspiracy to
commit Hobbs Act extortion, six counts of Hobbs Act extortion, and
two counts of making a false statement. See 18 U. S. C.
§§1343, 1349 (honest services fraud); §1951(a) (Hobbs Act
extortion); §1014 (false statement). Mrs. McDonnell was indicted on
similar charges, plus obstructing official proceedings, based on
her alleged involvement in the scheme. See §1512(c)(2)
(obstruction).
The theory underlying both the honest services
fraud and Hobbs Act extortion charges was that Governor McDonnell
had accepted bribes from Williams. See Skilling v. United
States, 561 U. S. 358, 404 (2010) (construing honest
services fraud to forbid “fraudulent schemes to deprive another of
honest services through bribes or kickbacks”); Evans v.
United States, 504 U. S. 255, 260, 269 (1992)
(construing Hobbs Act extortion to include “ ‘taking a
bribe’ ”).
The parties agreed that they would define honest
services fraud with reference to the federal bribery statute, 18
U. S. C. §201. That statute makes it a crime for “a
public official or person selected to be a public official,
directly or indirectly, corruptly” to demand, seek, receive,
accept, or agree “to receive or accept anything of value” in return
for being “influenced in the performance of any official act.”
§201(b)(2). 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.” §201(a)(3).
The parties also agreed that obtaining a “thing
of value . . . knowing that the thing of value was given
in return for official action” was an element of Hobbs Act
extortion, and that they would use the definition of “official act”
found in the federal bribery statute to define “official action”
under the Hobbs Act. 792 F. 3d 478, 505 (CA4 2015) (internal
quotation marks omitted).
As a result of all this, the Government was
required to prove that Governor McDonnell committed or agreed to
commit an “official act” in exchange for the loans and gifts from
Williams. See Evans, 504 U. S., at 268 (“the offense is
completed at the time when the public official receives a payment
in return for his agreement to perform specific official acts;
fulfillment of the quid pro quo is not an element of the
offense”).
The Government alleged that Governor McDonnell
had committed at least five “official acts”:
(1) “arranging meetings for [Williams] with
Virginia government officials, who were subordinates of the
Governor, to discuss and promote Anatabloc”;
(2) “hosting, and . . . attending,
events at the Governor’s Mansion designed to encourage Virginia
university researchers to initiate studies of anatabine and to
promote Star Scientific’s products to doctors for referral to their
patients”;
(3) “contacting other government officials in
the [Governor’s Office] as part of an effort to encourage Vir-ginia
state research universities to initiate studies of anatabine”;
(4) “promoting Star Scientific’s products and
facilitating its relationships with Virginia government officials
by allowing [Williams] to invite individuals important to Star
Scientific’s business to exclusive events at the Governor’s
Mansion”; and
(5) “recommending that senior government
officials in the [Governor’s Office] meet with Star Scientific
executives to discuss ways that the company’s products could lower
healthcare costs.” Supp. App. 47–48(indictment).
The case proceeded to a jury trial, which lasted
five weeks. Pursuant to an immunity agreement, Williams testified
that he had given the gifts and loans to the McDonnells to obtain
the Governor’s “help with the testing” of Anatabloc at Virginia’s
medical schools. App. 2234. Governor McDonnell acknowledged that he
had requested loans and accepted gifts from Williams. He testified,
however, that setting up meetings with government officials was
something he did “literally thousands of times” as Governor, and
that he did not expect his staff “to do anything other than to
meet” with Williams. Id., at 6042.
Several state officials testified that they had
discussed Anatabloc with Williams or Governor McDonnell, but had
not taken any action to further the research studies. Id.,
at 3739–3750 (Dr. Hazel), 3075–3077 (aide to Dr. Hazel), 4218–4220
(Sara Wilson), 4230–4231 (Lisa Hicks-Thomas). A UVA employee in the
university research office, who had never spoken with the Governor
about Anatabloc, testified that she wrote a pro/con list concerning
research studies on Anatabloc. The first “pro” was the
“[p]erception to Governor that UVA would like to work with local
companies,” and the first “con” was the “[p]olitical pressure from
Governor and impact on future UVA requests from the Governor.”
Id., at 4321, 4323 (Sharon Krueger).
Following closing arguments, the District Court
instructed the jury that to convict Governor McDonnell it must find
that he agreed “to accept a thing of value in exchange for official
action.” Supp. App. 68. The court described the five alleged
“official acts” set forth in the indictment, which involved
arranging meetings, hosting events, and contacting other government
officials. The court then quoted the statutory definition of
“official act,” and—as the Government had requested—advised the
jury that the term encompassed “acts that a public official
customarily performs,” including acts “in furtherance of
longer-term goals” or “in a series of steps to exercise influence
or achieve an end.” Id., at 69–70.
Governor McDonnell had requested the court to
further instruct the jury that the “fact that an activity is a
routine activity, or a ‘settled practice,’ of an office-holder does
not alone make it an ‘official act,’ ” and that “merely arranging a
meeting, attending an event, hosting a reception, or making a
speech are not, standing alone, ‘official acts,’ even if they are
settled practices of the official,” because they “are not decisions
on matters pending before the government.” 792 F. 3d, at 513
(internal quotation marks omitted). He also asked the court to
explain to the jury that an “official act” must intend to or “in
fact influence a specific official decision the government actually
makes—such as awarding a contract, hiring a government em-ployee,
issuing a license, passing a law, or implementing a regulation.”
App. to Pet. for Cert. 147a. The District Court declined to give
Governor McDonnell’s proposed instruction to the jury.
The jury convicted Governor McDonnell on the
honest services fraud and Hobbs Act extortion charges, but
acquitted him on the false statement charges. Mrs. McDonnell was
also convicted on most of the charges against her. Although the
Government requested a sentence of at least ten years for Governor
McDonnell, the District Court sentenced him to two years in prison.
Mrs. McDonnell received a one-year sentence.
Following the verdict, Governor McDonnell moved
to vacate his convictions on the ground that the jury instructions
“were legally erroneous because they (i) allowed the jury to
convict [him] on an erroneous understanding of ‘official act,’ and
(ii) allowed a conviction on the theory that [he] accepted things
of value that were given for future unspecified action.” 64
F. Supp. 3d 783, 787 (ED Va. 2014). The District Court denied
the motion. Id., at 802. In addition, Governor McDonnell
moved for acquittal on the basis that there was insufficient
evidence to convict him, and that the Hobbs Act and honest services
statute were unconstitutionally vague. Crim. No. 3:14–CR–12 (ED
Va., Dec. 1, 2014), Supp. App. 80, 82–92. That motion was also
denied. See id., at 92–94. (He also raised other challenges
to his convictions, which are not at issue here.)
Governor McDonnell appealed his convictions to
the Fourth Circuit, challenging the definition of “official action”
in the jury instructions on the ground that it deemed “virtually
all of a public servant’s activities ‘official,’ no matter how
minor or innocuous.” 792 F. 3d, at 506. He also reiterated his
challenges to the sufficiency of the evidence and the
constitutionality of the statutes under which he was convicted.
Id., at 509, n. 19, 515.
The Fourth Circuit affirmed, and we granted
certiorari. 577 U. S. ___ (2016). Mrs. McDonnell’s separate
appeal remains pending before the Court of Appeals.
II
The issue in this case is the proper
interpretation of the term “official act.” Section 201(a)(3)
defines an “official act” 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.”
According to the Government, “Congress used
intentionally broad language” in §201(a)(3) to embrace “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 capac-ity.”
Brief for United States 20–21 (Government’s emphasis; alteration
and internal quotation marks omitted). The Government concludes
that the term “official act” therefore encompasses nearly any
activity by a public official. In the Government’s view, “official
act” specifically includes arranging a meeting, contacting another
public official, or hosting an event—without more—concerning any
subject, including a broad policy issue such as Vir-ginia economic
development. Id., at 47–49; Tr. of Oral Arg. 28–30.
Governor McDonnell, in contrast, contends that
statu-tory context compels a more circumscribed reading, limiting
“official acts” to those acts that “direct[ ] a particular
resolution of a specific governmental decision,” or that pressure
another official to do so. Brief for Petitioner 44, 51. He also
claims that “vague corruption laws” such as §201 implicate serious
constitutional concerns, militating “in favor of a narrow, cautious
reading of these criminal statutes.” Id., at 21.
Taking into account the text of the statute, the
precedent of this Court, and the constitutional concerns raised by
Governor McDonnell, we reject the Government’s reading of
§201(a)(3) and adopt a more bounded interpretation of “official
act.” Under that interpretation, setting up a meeting, calling
another public official, or hosting an event does not, standing
alone, qualify as an “official act.”
A
The text of §201(a)(3) sets forth two
requirements for an “official act”: First, the Government must
identify a “question, matter, cause, suit, proceeding or
controversy” that “may at any time be pending” or “may by law be
brought” before a public official. Second, the Government must
prove that the public official made a decision or took an action
“on” that question, matter, cause, suit, proceeding, or
controversy, or agreed to do so. The issue here is whether
arranging a meeting, contacting another official, or hosting an
event—without more—can be a “question, matter, cause, suit,
proceeding or controversy,” and if not, whether it can be a
decision or action on a “question, matter, cause, suit, proceeding
or controversy.”
The first inquiry is whether a typical meeting,
call, or event is itself a “question, matter, cause, suit,
proceeding or controversy.” The Government argues that nearly any
activity by a public official qualifies as a question or
matter—from workaday functions, such as the typical call, meeting,
or event, to the broadest issues the government confronts, such as
fostering economic development. We conclude, however, that the
terms “question, matter, cause, suit, proceeding or controversy” do
not sweep so broadly.
The last four words in that list—“cause,”
“suit,” “proceeding,” and “controversy”—connote a formal exercise
of governmental power, such as a lawsuit, hearing, or
administrative determination. See, e.g., Crimes Act of 1790,
§21, 1Stat. 117 (using “cause,” “suit,” and “controversy” in a
related statutory context to refer to judicial proceedings);
Black’s Law Dictionary 278–279, 400, 1602–1603 (4th ed. 1951)
(defining “cause,” “suit,” and “controversy” as judicial
proceedings); 18 U. S. C. §201(b)(3) (using “proceeding”
to refer to trials, hearings, or the like “before any court, any
committee of either House or both Houses of Congress, or any
agency, commission, or officer”). Al-though it may be difficult to
define the precise reach of those terms, it seems clear that a
typical meeting, telephone call, or event arranged by a public
official does not qualify as a “cause, suit, proceeding or
controversy.”
But what about a “question” or “matter”? A
“question” could mean any “subject or aspect that is in dispute,
open for discussion, or to be inquired into,” and a “matter” any
“subject” of “interest or relevance.” Webster’s Third New
International Dictionary 1394, 1863 (1961). If those meanings were
adopted, a typical meeting, call, or event would qualify as a
“question” or “matter.” A “question” may also be interpreted more
narrowly, however, as “a subject or point of debate or a
proposition being or to be voted on in a meeting,” such as a
question “before the senate.” Id., at 1863. Similarly, a
“matter” may be limited to “a topic under active and usually
serious or practical consideration,” such as a matter that “will
come before the committee.” Id., at 1394.
To choose between those competing definitions,
we look to the context in which the words appear. Under the
familiar interpretive canon noscitur a sociis, “a word is
known by the company it keeps.” Jarecki v. G. D.
Searle & Co., 367 U. S. 303, 307 (1961) . While “not
an inescapable rule,” this canon “is often wisely applied where a
word is capable of many meanings in order to avoid the giving of
unintended breadth to the Acts of Congress.” Ibid. For
example, in Gustafson v. Alloyd Co., 513 U. S.
561 (1995) , a statute defined the word “prospectus” as a
“prospectus, notice, circular, advertisement, letter, or
communication.” Id., at 573–574 (internal quotation marks
omitted). We held that although the word “communication” could in
the abstract mean any type of communication, “it is apparent that
the list refers to documents of wide dissemination,” and that
inclusion “of the term ‘communication’ in that list suggests that
it too refers to a public communication.” Id., at 575.
Applying that same approach here, we conclude
that a “question” or “matter” must be similar in nature to a
“cause, suit, proceeding or controversy.” Because a typical
meeting, call, or event arranged by a public official is not of the
same stripe as a lawsuit before a court, a determination before an
agency, or a hearing before a committee, it does not qualify as a
“question” or “matter” under §201(a)(3).
That more limited reading also comports with the
presumption “that statutory language is not superfluous.”
Arlington Central School Dist. Bd. of Ed. v. Murphy,
548 U. S. 291, 299, n. 1 (2006) . If “question” and “matter”
were as unlimited in scope as the Government argues, the terms
“cause, suit, proceeding or controversy” would serve no role in the
statute—every “cause, suit, proceeding or controversy” would also
be a “question” or “matter.” Under a more confined interpretation,
however, “question” and “matter” may be understood to refer to a
formal exercise of governmental power that is similar in nature to
a “cause, suit, proceeding or controversy,” but that does not
necessarily fall into one of those prescribed categories.
Because a typical meeting, call, or event is not
itself a question or matter, the next step is to determine whether
arranging a meeting, contacting another official, or hosting an
event may qualify as a “decision or action” on a different
question or matter. That requires us to first establish what counts
as a question or matter in this case.
In addition to the requirements we have
described, §201(a)(3) states that the question or matter must be
“pending” or “may by law be brought” before “any public official.”
“Pending” and “may by law be brought” suggest something that is
relatively circumscribed—the kind of thing that can be put on an
agenda, tracked for progress, and then checked off as complete. In
particular, “may by law be brought” conveys something within
the specific duties of an official’s position—the function
conferred by the authority of his office. The word “any” conveys
that the matter may be pending either before the public official
who is performing the official act, or before another public
official.
The District Court, however, determined that the
relevant matter in this case could be considered at a much higher
level of generality as “Virginia business and economic
development,” or—as it was often put to the jury—“Bob’s for Jobs.”
Supp. App. 88; see, e.g., App. 1775, 2858, 2912, 3733.
Economic development is not naturally described as a matter
“pending” before a public official—or something that may be brought
“by law” before him—any more than “justice” is pending or may be
brought by law before a judge, or “national security” is pending or
may be brought by law before an officer of the Armed Forces. Under
§201(a)(3), the pertinent “question, matter, cause, suit,
proceeding or controversy” must be more focused and concrete.
For its part, the Fourth Circuit found at least
three questions or matters at issue in this case: (1) “whether
researchers at any of Virginia’s state universities would initiate
a study of Anatabloc”; (2) “whether the state-created Tobacco
Indemnification and Community Revitalization Commission” would
“allocate grant money for the study of anatabine”; and (3) “whether
the health insurance plan for state employees in Virginia would
include Anatabloc as a covered drug.” 792 F. 3d, at 515–516.
We agree that those qualify as questions or matters under
§201(a)(3). Each is focused and concrete, and each involves a
formal exercise of governmental power that is similar in nature to
a lawsuit, administrative determination, or hearing.
The question remains whether—as the Government
argues—merely setting up a meeting, hosting an event, or calling
another official qualifies as a decision or action on any of those
three questions or matters. Although the word “decision,” and
especially the word “action,” could be read expansively to support
the Government’s view, our opinion in United States v.
Sun-Diamond Growers of Cal., 526 U. S. 398 (1999) ,
rejects that interpretation.
In Sun-Diamond, the Court stated that it
was not an “official act” under §201 for the President to host a
championship sports team at the White House, the Secretary of
Education to visit a high school, or the Secretary of Agriculture
to deliver a speech to “farmers concerning various matters of USDA
policy.” Id., at 407. We recognized that “the Secretary of
Agriculture always has before him or in prospect matters
that affect farmers, just as the President always has before him or
in prospect matters that affect college and professional sports,
and the Secretary of Education matters that affect high schools.”
Ibid. But we concluded that the existence of such pending
matters was not enough to find that any action related to them
constituted an “official act.” Ibid. It was possible to
avoid the “absurdities” of convicting individuals on corruption
charges for engaging in such conduct, we explained, “through the
definition of that term,” i.e., by adopting a more
limited definition of “official acts.” Id., at 408.
It is apparent from Sun-Diamond that
hosting an event, meeting with other officials, or speaking with
interested parties is not, standing alone, a “decision or action”
within the meaning of §201(a)(3), even if the event, meeting, or
speech is related to a pending question or matter. Instead,
something more is required: §201(a)(3) specifies that the public
official must make a decision or take an action on that
question or matter, or agree to do so.
For example, a decision or action to initiate a
research study—or a decision or action on a qualifying step, such
as narrowing down the list of potential research topics—would
qualify as an “official act.” A public official may also make a
decision or take an action on a “question, matter, cause, suit,
proceeding or controversy” by using his official position to exert
pressure on another official to perform an “official act.”
In addition, if a public official uses his official position to
provide advice to another official, knowing or intending that such
advice will form the basis for an “official act” by another
official, that too can qualify as a decision or action for purposes
of §201(a)(3). See United States v. Birdsall, 233
U. S. 223, 234 (1914) (finding “official action” on the part
of subordinates where their superiors “would necessarily rely
largely upon the reports and advice of subordinates . . .
who were more directly acquainted with” the “facts and
circumstances of particular cases”).
Under this Court’s precedents, a public official
is not required to actually make a decision or take an action on a
“question, matter, cause, suit, proceeding or controversy”; it is
enough that the official agree to do so. See Evans, 504
U. S., at 268. The agreement need not be explicit, and the
public official need not specify the means that he will use to
perform his end of the bargain. Nor must the public official in
fact intend to perform the “official act,” so long as he agrees to
do so. A jury could, for example, conclude that an agreement was
reached if the evidence shows that the public official received a
thing of value knowing that it was given with the expectation that
the official would perform an “official act” in return. See
ibid. It is up to the jury, under the facts of the case, to
determine whether the public official agreed to perform an
“official act” at the time of the alleged quid pro quo. The
jury may consider a broad range of pertinent evidence, including
the nature of the transaction, to answer that question.
Setting up a meeting, hosting an event, or
calling an official (or agreeing to do so) merely to talk about a
research study or to gather additional information, however, does
not qualify as a decision or action on the pending question of
whether to initiate the study. Simply expressing support for the
research study at a meeting, event, or call—or sending a
subordinate to such a meeting, event, or call—similarly does not
qualify as a decision or action on the study, as long as the public
official does not intend to exert pressure on another official or
provide advice, knowing or intending such advice to form the basis
for an “official act.” Otherwise, if every action somehow related
to the research study were an “official act,” the requirement that
the public official make a decision or take an action on that
study, or agree to do so, would be meaningless.
Of course, this is not to say that setting up a
meeting, hosting an event, or making a phone call is always an
innocent act, or is irrelevant, in cases like this one. If an
official sets up a meeting, hosts an event, or makes a phone call
on a question or matter that is or could be pending before another
official, that could serve as evidence of an agreement to take an
official act. A jury could conclude, for example, that the official
was attempting to pressure or advise another official on a pending
matter. And if the official agreed to exert that pressure or give
that advice in exchange for a thing of value, that would be
illegal.
The Government relies on this Court’s decision
in Birdsall to support a more expansive interpretation of
“official act,” but Birdsall is fully consistent with our
reading of §201(a)(3). We held in Birdsall that “official
action” could be established by custom rather than “by statute” or
“a written rule or regulation,” and need not be a formal part of an
official’s decisionmaking process. 233 U. S., at
230–231. That does not mean, however, that every decision or action
customarily performed by a public official—such as the myriad
decisions to refer a constituent to another official—counts as an
“official act.” The “official action” at issue in Birdsall
was “advis[ing] the Commissioner of Indian Affairs, contrary to the
truth,” that the facts of the case warranted granting leniency to
certain defendants convicted of “unlawfully selling liquor to
Indians.” Id., at 227–230. That “decision or action” fits
neatly within our understanding of §201(a)(3): It reflected a
decision or action to advise another official on the pending
question whether to grant leniency.
In sum, an “official act” is a decision or
action on a “question, matter, cause, suit, proceeding or
controversy.” The “question, matter, cause, suit, proceeding or
controversy” 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. To qualify as an
“official act,” the public official must make a decision or take an
action on that “question, matter, cause, suit, proceeding or
controversy,” or agree to do so. That decision or action may
include using his official position to exert pressure on another
official to perform an “official act,” or to advise another
official, knowing or intending that such advice will form the basis
for an “official act” by another official. Setting up a meeting,
talking to another official, or organizing an event (or agreeing to
do so)—without more—does not fit that definition of “official
act.”
B
In addition to being inconsistent with both
text and precedent, the Government’s expansive interpretation of
“official act” would raise significant constitutional concerns.
Section 201 prohibits quid pro quo corruption—the exchange
of a thing of value for an “official act.” In the Government’s
view, nearly anything a public official accepts—from a campaign
contribution to lunch—counts as a quid; and nearly anything
a public official does—from arranging a meeting to inviting a guest
to an event—counts as a quo. See Brief for United States 14,
27; Tr. of Oral Arg. 34–35, 44–46.
But conscientious public officials arrange
meetings for constituents, contact other officials on their behalf,
and include them in events all the time. The 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. The Government’s
position could cast a pall of potential prosecution over these
relationships if the union had given a campaign contribution in the
past or the homeowners invited the official to join them on their
annual outing to the ballgame. 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 discourse.
This concern is substantial. White House counsel
who worked in every administration from that of President Reagan to
President Obama warn that the Government’s “breathtaking expansion
of public-corruption law would likely chill federal officials’
interactions with the people they serve and thus damage their
ability effectively to perform their duties.” Brief for Former
Federal Officials as Amici Curiae 6. Six former Virginia
attorneys general—four Democrats and two Republicans—also filed an
amicus brief in this Court echoing those concerns, as did 77
former state attorneys general from States other than Virginia—41
Democrats, 35 Republicans, and 1 independent. Brief for Former
Virginia Attorneys General as Amici Curiae 1–2, 16; Brief
for 77 Former State Attorneys General (Non-Virginia) as Amici
Curiae 1–2.
None of this, of course, is to suggest that the
facts of this case typify normal political interaction between
public officials and their constituents. Far from it. But the
Government’s legal interpretation is not confined to cases
involving extravagant gifts or large sums of money, and we
cannotconstrue a criminal statute on the assumption that the
Government will “use it responsibly.” United States v.
Stevens, 559 U. S. 460, 480 (2010) . The Court in
Sun-Diamond declined to rely on “the Government’s
discretion” to protect against overzealous prosecutions under §201,
concluding instead 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.” 526 U. S., at
408, 412.
A related concern is that, under the
Government’s interpretation, the term “official act” is not defined
“with sufficient definiteness that ordinary people can understand
what conduct is prohibited,” or “in a manner that does not
encourage arbitrary and discriminatory enforcement.”
Skilling, 561 U. S., at 402–403 (internal quotation
marks omitted). Under the “ ‘standardless sweep’ ” of the
Government’s reading, Kolender v. Lawson, 461
U. S. 352, 358 (1983) , public officials could be subject to
prosecution, without fair notice, for the most prosaic
interactions. “Invoking so shapeless a provision to condemn someone
to prison” for up to 15 years raises the serious concern that the
provision “does not comport with the Constitution’s guarantee of
due process.” Johnson v. United States, 576
U. S. ___, ___ (2015) (slip op., at 10). Our more constrained
interpretation of §201(a)(3) avoids this “vagueness shoal.”
Skilling, 561 U. S., at 368.
The Government’s position also raises
significant federalism concerns. A State defines itself as a
sovereign through “the structure of its government, and the
character of those who exercise government authority.”
Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) .
That includes the prerogative to regulate the permissible scope of
interactions between state officials and their constituents. Here,
where a more limited interpretation of “official act” is supported
by both text and precedent, we decline to “construe the statute in
a manner that leaves its outer boundaries ambiguous and involves
the Federal Government in setting standards” of “good government
for local and state officials.” McNally v. United
States, 483 U. S. 350, 360 (1987) ; see also United
States v. Enmons, 410 U. S. 396 –411 (1973)
(rejecting a “broad concept of extortion” that would lead to “an
unprecedented incursion into the criminal jurisdiction of the
States”).
III
A
Governor McDonnell argues that his convictions
must be vacated because the jury was improperly instructed on the
meaning of “official act” under §201(a)(3) of the federal bribery
statute. According to Governor McDonnell, the District Court
“refused to convey any meaningful limits on ‘official act,’ giving
an instruction that allowed the jury to convict [him] for lawful
conduct.” Brief for Petitioner 51. We agree.
The jury instructions included the statutory
definition of “official action,” and further defined the term to
include “actions that have been clearly established by settled
practice as part of a public official’s position, even if the
action was not taken pursuant to responsibilities explicitly
assigned by law.” Supp. App. 69–70. The instructions also stated
that “official actions may include acts that a public official
customarily performs,” including acts “in furtherance of
longer-term goals” or “in a series of steps to exercise influence
or achieve an end.” Id., at 70. In light of our
interpretation of the term “official acts,” those instructions
lacked important qualifications, rendering them significantly
overinclusive.
First, the instructions did not adequately
explain to the jury how to identify the “question, matter, cause,
suit, proceeding or controversy.” As noted, the Fourth Circuit held
that “the Government presented evidence of three questions or
matters”: (1) “whether researchers at any of Virginia’s state
universities would initiate a study of Anatabloc”; (2) “whether the
state-created Tobacco Indemnification and Community Revitalization
Commission” would “allocate grant money for the study of
anatabine”; and (3) “whether the health insurance plan for state
employees in Virginia would include Anatabloc as a covered drug.”
792 F. 3d, at 515–516.
The problem with the District Court’s
instructions is that they provided no assurance that the jury
reached its verdict after finding those questions or matters. The
testimony at trial described how Governor McDonnell set up
meetings, contacted other officials, and hosted events. It is
possible the jury thought that a typical meeting, call, or event
was itself a “question, matter, cause, suit, proceeding or
controversy.” If so, the jury could have convicted Governor
McDonnell without finding that he committedor agreed to commit an
“official act,” as properly defined. To prevent this problem, the
District Court should have instructed the jury that it must
identify a “question, matter, cause, suit, proceeding or
controversy” involving the formal exercise of governmental
power.
Second, the instructions did not inform the jury
that the “question, matter, cause, suit, proceeding or controversy”
must be more specific and focused than a broad policy objective.
The Government told the jury in its closing argument that
“[w]hatever it was” Governor McDonnell had done, “it’s all official
action.” App. to Pet. for Cert. 263a–264a. Based on that remark,
and the repeated references to “Bob’s for Jobs” at trial, the jury
could have thought that the relevant “question, matter, cause,
suit, proceeding or controversy” was something as nebulous as
“Virginia business and economic development,” as the District Court
itself concluded. Supp. App. 87–88 (“The alleged official actions
in this case were within the range of actions on questions,
matters, or causes pending before McDonnell as Governor as multiple
witnesses testified that Virginia business and economic development
was a top priority in McDonnell’s administration”). To avoid that
misconception, the District Court should have instructed the jury
that the pertinent “question, matter, cause, suit, proceeding or
controversy” must be something specific and focused that is
“pending” or “may by law be brought before any public official,”
such as the question whether to initiate the research studies.
Third, the District Court did not instruct the
jury that to convict Governor McDonnell, it had to find that he
made a decision or took an action—or agreed to do so—on the
identified “question, matter, cause, suit, proceeding or
controversy,” as we have construed that requirement. At trial,
several of Governor McDonnell’s subordinates testified that he
asked them to attend a meeting, not that he expected them to do
anything other than that. See, e.g., App. 3075, 3739–3740,
4220. If that testimony reflects what Governor McDonnell agreed to
do at the time he accepted the loans and gifts from Williams, then
he did not agree to make a decision or take an action on any of the
three questions or matters described by the Fourth Circuit.
The jury may have disbelieved that testimony or
found other evidence that Governor McDonnell agreed to exert
pressure on those officials to initiate the research studies or add
Anatabloc to the state health plan, but it is also possible that
the jury convicted Governor McDonnell without finding that he
agreed to make a decision or take an action on a properly defined
“question, matter, cause, suit, proceeding or controversy.” To
forestall that possibility, the District Court should have
instructed the jury that merely arranging a meeting or hosting an
event to discuss a matter does not count as a decision or action on
that matter.
Because the jury was not correctly instructed on
the meaning of “official act,” it may have convicted Governor
McDonnell for conduct that is not unlawful. For that reason, we
cannot conclude that the errors in the jury instructions were
“harmless beyond a reasonable doubt.” Neder v. United
States, 527 U. S. 1, 16 (1999) (internal quotation marks
omitted). We accordingly vacate Governor McDonnell’s
convictions.
B
Governor McDonnell raises two additional
claims. First, he argues that the charges against him must be
dismissed because the honest services statute and the Hobbs Act are
unconstitutionally vague. See Brief for Petitioner 58–61. We reject
that claim. For purposes of this case, the parties defined honest
services fraud and Hobbs Act extortion with reference to §201 of
the federal bribery statute. Because we have interpreted the term
“official act” in §201(a)(3) in a way that avoids the vagueness
concerns raised by Governor McDonnell, we decline to invalidate
those statutes under the facts here. See Skilling, 561
U. S., at 403 (seeking “to construe, not condemn, Congress’
enactments”).
Second, Governor McDonnell argues that the
charges must be dismissed because there is insufficient evidence
that he committed an “official act,” or that he agreed to do so.
Brief for Petitioner 44–45. Because the parties have not had an
opportunity to address that question in light of the interpretation
of §201(a)(3) adopted by this Court, we leave it for the Court of
Appeals to resolve in the first instance. If the court below
determines that there is sufficient evidence for a jury to convict
Governor McDonnell of committing or agreeing to commit an “official
act,” his case may be set for a new trial. If the court instead
determines that the evidence is insufficient, the charges against
him must be dismissed. We express no view on that question.
* * *
There is no doubt that this case is
distasteful; it may be worse than that. But our concern is not with
tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead
with the broader legal implications of the Government’s boundless
interpretation of the federal bribery statute. A more limited
interpretation of the term “official act” leaves ample room for
prosecuting corruption, while comporting with the text of the
statute and the precedent of this Court.
The judgment of the Court of Appeals is vacated,
and the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
