United States v. William Jefferson ( 2012 )


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  •                                                        Filed:      March 29, 2012
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 09-5130
    (1:07-cr-00209-TSE-1)
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    WILLIAM J. JEFFERSON,
    Defendant – Appellant.
    O R D E R
    The Court amends its opinion filed March 26, 2012, as
    follows:
    On page 43, first line of text -- the name                         “John
    McHugh”    is    replaced    with    the   name    “Matthew   F.    McHugh”;   “the
    current    Secretary    of     the    Army”   is    deleted;       and   “Secretary
    McHugh” is replaced with “Former congressman McHugh.”
    For the Court – By Direction
    /s/ Patricia S. Connor
    Clerk
    PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,             
    Plaintiff-Appellee,
    v.                           No. 09-5130
    WILLIAM J. JEFFERSON,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Alexandria.
    T. S. Ellis, III, Senior District Judge.
    (1:07-cr-00209-TSE-1)
    Argued: December 9, 2011
    Decided: March 26, 2012
    Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
    Affirmed in part, vacated in part, and remanded by published
    opinion. Judge King wrote the opinion, in which Judge Nie-
    meyer and Judge Duncan concurred.
    2                  UNITED STATES v. JEFFERSON
    COUNSEL
    ARGUED: Lawrence Robbins, ROBBINS, RUSSELL, ENG-
    LERT, ORSECK, UNTEREINER & SAUBER, LLP, Wash-
    ington, D.C., for Appellant. Mark D. Lytle, OFFICE OF THE
    UNITED STATES ATTORNEY, Alexandria, Virginia, for
    Appellee. ON BRIEF: Robert P. Trout, Amy Berman Jack-
    son, Gloria B. Solomon, TROUT CACHERIS, PLLC, Wash-
    ington, D.C.; Mark A. Hiller, ROBBINS, RUSSELL,
    ENGLERT, ORSECK, UNTEREINER & SAUBER, LLP,
    Washington, D.C., for Appellant. Neil H. MacBride, United
    States Attorney, David B. Goodhand, Assistant United States
    Attorney, Rebeca H. Bellows, Assistant United States Attor-
    ney, Charles E. Duross, Special Assistant United States Attor-
    ney, Amanda Aikman, Special Assistant United States
    Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
    Alexandria, Virginia, for Appellee.
    OPINION
    KING, Circuit Judge:
    In August 2009, former Louisiana congressman William J.
    Jefferson was convicted in the Eastern District of Virginia of
    eleven offenses — including conspiracy, wire fraud, bribery,
    money laundering, and racketeering — arising from his
    involvement in multiple bribery and fraud schemes. Jefferson
    has appealed his convictions on several grounds: (1) that an
    erroneous instruction was given to the jury with respect to the
    bribery statute’s definition of an "official act"; (2) that another
    erroneous instruction was given with respect to the "quid pro
    quo" element of the bribery-related offenses; (3) that Jeffer-
    son’s schemes to deprive citizens of honest services do not
    constitute federal crimes; and (4) that venue was improper on
    one of his wire fraud offenses.1 As explained below, we
    In this appeal, Jefferson challenges his aggregate sentence of 156
    1
    months in prison only insofar as he contests his convictions.
    UNITED STATES v. JEFFERSON                     3
    affirm all of Jefferson’s convictions save one, which we
    vacate for improper venue.
    I.
    A.
    As a nine-term congressman, Jefferson represented the Sec-
    ond District of Louisiana, which includes most of the City of
    New Orleans. Jefferson, who was first elected to the House of
    Representatives in 1991, maintained congressional offices
    both in the District of Columbia and in New Orleans. He
    served on several committees and subcommittees of the
    House, including the Ways and Means Committee and its sub-
    committee on trade, and the Budget Committee. During his
    congressional tenure, Jefferson also served as co-chair of the
    Africa Trade and Investment Caucus and the Congressional
    Caucus on Nigeria.
    In about March of 2005, the FBI and the Department of
    Justice began a comprehensive corruption investigation of
    Representative Jefferson.2 More than two years later, on June
    4, 2007, the federal grand jury in Alexandria returned a
    sixteen-count indictment charging him as follows:
    •   Count 1 — Conspiracy to solicit bribes, commit
    honest services wire fraud, and violate the For-
    eign Corrupt Practices Act, in violation of 
    18 U.S.C. § 371
    ;
    •   Count 2 — Conspiracy to solicit bribes and com-
    mit honest services wire fraud, in contravention
    of 
    18 U.S.C. § 371
    ;
    2
    In 2006, Jefferson was reelected to the House of Representatives,
    despite the ongoing and publicly exposed corruption investigation.
    4                     UNITED STATES v. JEFFERSON
    •   Counts 3 and 4 — Solicitation of bribes, in viola-
    tion of 
    18 U.S.C. § 201
    (b)(2)(A);
    •   Counts 5 through 10 — Self-dealing and bribery-
    related honest services wire fraud, in contraven-
    tion of 
    18 U.S.C. §§ 1343
     and 1346;
    •   Count 11 — Foreign corrupt practices, in viola-
    tion of 15 U.S.C. §§ 78dd-2(a), 78dd-2(g)(2)(A),
    and 78ff(a);
    •   Counts 12 through 14 — Money laundering
    related to bribery, in contravention of 
    18 U.S.C. § 1957
    ;
    •   Count 15 — Obstruction of justice, in violation
    of 
    18 U.S.C. § 1512
    (c)(1); and
    •   Count 16 — Conducting and participating in a
    racketeering enterprise, in contravention of 
    18 U.S.C. § 1962
    (c) (the "RICO offense").3
    Three months later, on September 7, 2007, Jefferson sought
    the dismissal of Counts 2, 3, 10, 12, 13, and 14 for lack of
    venue, and the transfer of the balance of the indictment to the
    District of Columbia. On November 30, 2007, the district
    court, by summary order, denied the motion. After Jefferson
    sought reconsideration of the venue rulings, however, the dis-
    trict court issued a more formal opinion on June 27, 2008,
    reiterating and further explaining its decision. See United
    States v. Jefferson, 
    562 F. Supp. 2d 695
     (E.D. Va. 2008)
    ("Jefferson I"). On September 7, 2007, Jefferson also moved
    to dismiss the bribery-related charges of the indictment
    (Counts 1-10, 12-14, and 16) on the basis that none are predi-
    In addition to alleging sixteen criminal offenses, the indictment made
    3
    criminal forfeiture allegations relating to the proceeds of the alleged
    offenses.
    UNITED STATES v. JEFFERSON                             5
    cated on Jefferson’s receipt of things of value "in return for
    . . . the performance of any official act." 
    18 U.S.C. § 201
    (b)(2)(A). Jefferson contended that none of those
    charges sufficiently alleged an "official act" under the bribery
    statute, 
    18 U.S.C. § 201
    (b).4 In his motion to dismiss the
    bribery-related charges, Jefferson took the position that the
    definition of an "official act," set forth in 
    18 U.S.C. § 201
    (a)(3), is limited to those activities involving questions
    pending or brought before Congress, such as voting on pro-
    posed legislation or conducting committee work. Jefferson
    maintained that, as a result, each of the bribery-related
    charges is fatally flawed.
    4
    The bribery statute, which is part of the 
    18 U.S.C. § 201
     statutory
    scheme entitled "Bribery of public officials and witnesses," provides, in
    pertinent part:
    (b) Whoever —
    ***
    (2) being a public official . . . directly or indirectly, corruptly
    demands, seeks, receives, accepts, or agrees to receive or accept
    anything of value personally or for any other person or entity, in
    return for:
    (A) being influenced in the performance of any official
    act;
    ***
    shall be [guilty of an offense against the United States].
    
    18 U.S.C. § 201
    (b)(2)(A). Pursuant to § 201(a)(3), the term "official act,"
    as used in the bribery statute and the balance of § 201, is defined as
    any decision or action on any question, matter, cause, suit, pro-
    ceeding 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.
    Id. § 201(a)(3).
    6                  UNITED STATES v. JEFFERSON
    The district court rejected Jefferson’s position on what con-
    stitutes an official act by its opinion of May 23, 2008, ruling
    that, in proving an official act, the prosecution is obligated to
    satisfy two criteria:
    First, the act must be among the official duties or
    among the settled customary duties or practices of
    the official charged with bribery. And second, per-
    formance of the act must involve or affect a govern-
    ment decision or action.
    United States v. Jefferson, 
    562 F. Supp. 2d 687
    , 691 (E.D. Va.
    2008) ("Jefferson II"). Elaborating, the court explained that an
    official act may include those duties of a public official that
    are not defined in written rules, but that are otherwise
    "‘clearly established by settled practice.’" 
    Id.
     (quoting United
    States v. Birdsall, 
    233 U.S. 223
    , 230-31 (1914)). The court
    deemed the Birdsall decision as controlling, and further
    explained that the proper definition of an "official act" under
    the bribery statute encompassed such matters as Jefferson’s
    official travel to foreign countries, his official correspondence
    to and meetings with domestic and foreign government offi-
    cials, as well as the use of his congressional staff to facilitate
    other activities alleged in the indictment. The court thus
    declined to dismiss the bribery-related charges but specified
    that the government was obligated to prove at trial that Jeffer-
    son’s alleged acts "(i) involve[d] the performance of an offi-
    cial duty or settled customary duty or practice and (ii)
    involve[d] or affect[ed] a government decision or action." Jef-
    ferson II, 562 F. Supp. 2d at 693.
    On March 20, 2009, Jefferson moved for reconsideration of
    the district court’s rulings in Jefferson II concerning the
    bribery-related charges, and the government sought clarifica-
    tion of that decision. As a result, on May 22, 2009, the court
    issued a follow-up opinion. See United States v. Jefferson,
    
    634 F. Supp. 2d 595
     (E.D. Va. 2009) ("Jefferson III"). In Jef-
    ferson III, the court clarified two of its rulings in Jefferson II.
    UNITED STATES v. JEFFERSON                    7
    First, the court emphasized that an official act must involve
    or affect a government decision or action. To satisfy this
    requirement, the bribery statute, embodied in 
    18 U.S.C. § 201
    (b)(2)(A), requires that the defendant himself, and not a
    third party, "be influenced in the performance of a decision or
    action." Jefferson III, 
    634 F. Supp. 2d at 601
    . That is, the "de-
    cision or action" must be made or done by the charged public
    official. 
    Id. at 600-01
    . Second, the court explained that the
    statutory phrase "any public official" means the charged pub-
    lic official. 
    Id. at 601
    . The Jefferson III decision further speci-
    fied what could be deemed an official act under the bribery
    statute. Official acts are not, as Jefferson III explained, limited
    solely to legislative acts such as "voting on or introducing a
    piece of legislation." 
    Id. at 602
    . The court thus affirmed its
    earlier ruling that such official acts include those actions that
    would ordinarily involve the legitimate use of an official’s
    office. 
    Id.
     (citing United States v. Biaggi, 
    853 F.2d 89
    , 96-99
    (2d Cir. 1988)).
    Jefferson’s jury trial began in Alexandria on June 9, 2009,
    and continued for two months. It involved more than forty
    prosecution witnesses, plus two for the defense. Jefferson did
    not testify in his own defense. During the trial, the prosecu-
    tion, in proving that the conduct underlying the bribery-
    related charges constitutes official acts, was guided by the dis-
    trict court’s Jefferson II and Jefferson III decisions. The gov-
    ernment thus presented evidence establishing that Jefferson’s
    various meetings with foreign and domestic public officials
    on behalf of his myriad alleged bribers, coconspirators, and
    coschemers, as well as his use of congressional resources to
    correspond with such officials and coordinate foreign trips,
    were part of the well-settled congressional practice known as
    "constituent services." After the parties rested, the district
    court instructed the jury in a manner that was consistent with
    its earlier rulings. By the instructions, the court read and
    explained § 201(a)(3)’s statutory definition of an "official
    act," and charged the jury that
    8                     UNITED STATES v. JEFFERSON
    [a]n act may be official even if it was not taken pur-
    suant to responsibilities explicitly assigned by law.
    Rather, official acts include those activities that have
    been clearly established by settled practice as part
    [of] a public official’s position.
    J.A. 5149.5 The verdict reflected that the jury was convinced
    that Jefferson’s meetings and communications with domestic
    and foreign public officials, as alleged in the bribery-related
    charges in the indictment, involved official acts.
    B.
    By its verdict, returned on August 5, 2009, the jury con-
    victed Jefferson on eleven of the sixteen counts of the indict-
    ment.6 Jefferson’s contentions on appeal challenge his
    convictions in the following respects:
    (1) The district court’s "official act" bribery instruc-
    tion, which implicates each of Jefferson’s eleven
    convictions, was fatally erroneous;
    5
    Jefferson objected to the instructions in a consistent and timely man-
    ner. He asserted that the proper definition of an official act is much more
    circumscribed than the jury instructions indicated, as he had contended in
    the pretrial proceedings leading to Jefferson II and Jefferson III. See J.A.
    4826-29. (Citations herein to "J.A. ___" refer to the contents of the Joint
    Appendix filed by the parties in this appeal.)
    6
    The jury acquitted Jefferson on Counts 5, 8, and 9 (honest services
    wire fraud offenses), Count 11 (the foreign corrupt practices offense), and
    Count 15 (the obstruction of justice offense). On August 6, 2009, by a spe-
    cial verdict returned on the indictment’s forfeiture allegations, the jury
    found by a preponderance that the following property constituted proceeds
    derived from the offenses on which Jefferson had been convicted:
    $449,300 (Counts 1, 3, 4, and 16); $59,300 (Counts 6, 7, and 10);
    $21,353.47 (Counts 2 and 16); 30,775,000 shares of Class A stock in a
    business called iGate Incorporated; 1,500,000 shares of stock in an entity
    called W2-IBBS Limited; 1,500,000 shares of stock in a company called
    International Broad Band Services, LLC; and 600 shares of stock in a
    business called Multi-Media Broad Band Services. Jefferson does not con-
    test the forfeiture verdict in this appeal.
    UNITED STATES v. JEFFERSON                          9
    (2) The court’s "quid pro quo" bribery instruction,
    which implicates Jefferson’s convictions under
    Counts 3 and 4, was also fatally erroneous;
    (3) The Supreme Court has now repudiated the self-
    dealing honest services wire fraud theory on which
    Jefferson was prosecuted, undermining six of his
    convictions, that is, Counts 1, 2, 6, 7, 10, and 16; and
    (4) There was a lack of venue in the Eastern District
    of Virginia on the Count 10 wire fraud offense.
    Specifically, Jefferson first contends that each of his eleven
    convictions must be reversed because the district court tried
    his case under an unduly expansive and erroneous definition
    of an "official act" for purposes of the bribery statute. Jeffer-
    son maintains that an official act is more circumscribed than
    the jury instructions indicated, and that such an act "must con-
    cern a question resolvable through the formal legislative pro-
    cess, or, at most, as the D.C. Circuit held in Valdes v. United
    States, 
    475 F.3d 1319
     (D.C. Cir. 2007) (en banc), resolvable
    through a governmental process." Br. of Appellant 14. Jeffer-
    son asserts that his position on the definition of an "official
    act" is supported by the Supreme Court’s decision in United
    States v. Sun-Diamond Growers of California, 
    526 U.S. 398
    (1999), which, he insists, undercuts the district court’s reli-
    ance on the Birdsall decision.
    Jefferson next argues that, by misconstruing the bribery
    statute, the district court gave the jury an erroneous instruc-
    tion on the "in return for" (also called the "quid pro quo") ele-
    ment of bribery relevant to Counts 3 and 4, instructing that the
    quid pro quo requirement could be satisfied by proof that Jef-
    ferson had agreed to perform unspecified official acts on an
    "as-needed basis."7 Jefferson thus maintains that the court’s
    7
    As the district court explained, the bribery-related charges each require
    proof of a quid pro quo element. The court gave the following example:
    10                    UNITED STATES v. JEFFERSON
    instruction on the quid pro quo element also contravenes the
    Supreme Court’s Sun-Diamond decision. See 
    526 U.S. at 414
    (explaining, in illegal gratuity context, that "thing of value"
    must be linked to specific act for "which it was given").
    Third, Jefferson contends that his convictions on Counts 1,
    2, 6, 7, 10, and 16 must be reversed because they rest on the
    now-discredited self-dealing honest services wire fraud theory
    that he failed to properly disclose his (or his family’s) finan-
    cial interests in the businesses he was promoting. This
    conflict-of-interest theory, Jefferson maintains, was repudi-
    ated a year after his trial by the Supreme Court’s decision in
    Skilling v. United States, 
    130 S. Ct. 2896
     (2010).8
    Finally, Jefferson asserts that his Count 10 wire fraud con-
    viction should be reversed because there was no venue for
    that offense in the Eastern District of Virginia. Count 10
    involved a telephone communication from Africa to Ken-
    tucky, in furtherance of one of Jefferson’s bribery schemes.
    According to Jefferson, inasmuch as the essential criminal
    conduct constituting the wire fraud offense, i.e., "the act of
    causing a wire to be transmitted," did not occur in Virginia,
    the Count 10 offense should not have been prosecuted there.
    See Br. of Appellant 54.
    [T]he quid pro quo is satisfied if you find that the government has
    established beyond a reasonable doubt that the defendant agreed
    to accept things of value in exchange for performing official acts
    on an as-needed basis, so that whatever [sic] the opportunity
    presented itself, he would take specific action on the payor’s
    behalf.
    J.A. 5151.
    8
    The Supreme Court determined in Skilling that 
    18 U.S.C. § 1346
    ,
    which prohibits "a scheme or artifice to deprive another of the intangible
    right of honest services," criminalizes only those wire fraud schemes
    involving bribery and kickbacks, and not a defendant’s failure to disclose
    self-dealing conflicts of interest. Skilling, 
    130 S. Ct. at 2933
    .
    UNITED STATES v. JEFFERSON                           11
    II.
    The indictment against Representative Jefferson — con-
    taining sixteen counts and spanning ninety-four pages —
    details the background of the various charges. The crux of the
    factual background consists of ten pages of "general allega-
    tions" laid out in thirty-eight numbered paragraphs, which are
    then realleged in each count. Those general allegations con-
    tain several that use coded terms, in lieu of proper names,
    such as the "CW" (for "cooperating witness"), "Nigerian Offi-
    cial A," and "Nigerian Company A" through "Nigerian Com-
    pany G."
    Focusing on the charges of conviction, Counts 1 and 2
    make allegations of two criminal conspiracies involving Jef-
    ferson and others. Count 1, for example, alleges that the
    objects of the conspiracy were bribery and honest services
    wire fraud involving iGate Incorporated, various related per-
    sons and entities in the United States and Nigeria, and several
    members of Jefferson’s family. Count 2 alleges a separate
    conspiracy, with its objects being bribery and honest services
    wire fraud with respect to schemes that are distinct from those
    in Count 1, involving different businesses and companies,
    plus Jefferson’s family members.9
    9
    With respect to the elements of the Count 1 conspiracy offense, the dis-
    trict court instructed the jury, in relevant part, as follows:
    First, that the conspiracy, agreement, or understanding to commit
    bribery as charged in the indictment [or] honest services wire
    fraud as alleged in the indictment . . . was formed or reached or
    entered into by two or more persons[;] Second, . . . that at some
    time during the . . . life of the conspiracy, agreement or under-
    standing, that the defendant knowingly and intentionally joined
    the conspiracy; And third, that at sometime during the existence
    or life of the conspiracy, agreement or understanding, . . . a mem-
    ber of the conspiracy did one of the overt acts described in Count
    1 . . . for the purpose of advancing, furthering or helping the
    object or purpose of the conspiracy.
    J.A. 5131-32. A nearly identical instruction was given on the Count 2 con-
    spiracy offense. See id. at 5141-42. The legal sufficiency of those instruc-
    tions is not challenged on appeal.
    12                      UNITED STATES v. JEFFERSON
    In Counts 3 and 4 of the indictment, Jefferson is alleged to
    have solicited bribes in exchange for his official acts. Count
    3 involves such a solicitation from iGate and its president for
    payments to a Jefferson family-controlled company called
    ANJ Group. Count 4 alleges a bribery solicitation from the
    CW (identified in the evidence as Virginia businesswoman
    Lori Mody), and her companies, International Broad Band
    Services, LLC ("IBBS"), and W2-IBBS Limited.10
    Counts 6, 7, and 10 allege three honest services wire fraud
    offenses predicated on self-dealing and bribery that involving
    iGate’s business ventures in Nigeria, Ghana, and elsewhere.11
    10
    On the elements of the bribery offenses in Counts 3 and 4, the court
    instructed that the jury must find:
    First, that the defendant directly or indirectly demanded, sought,
    received or accepted, or agreed to receive or accept, anything of
    value, personally or for another person or entity; Two, that defen-
    dant was at the time a public official of the United States; and
    Three, that the defendant demanded, sought, received, accepted
    or agreed to receive or accept the item of value corruptly in return
    for being influenced in the performance of any official act.
    J.A. 5147. Jefferson challenges both the "official act" and the "in return
    for" (i.e., "quid pro quo") aspects of that instruction on appeal.
    11
    The district court instructed on the elements of the wire fraud offenses
    charged in Counts 6, 7 and 10 as follows:
    First, that the defendant knowingly devised or knowingly partici-
    pated in a scheme to defraud the citizens of the United States and
    the United States House of Representatives of their intangible
    right to his honest services; Two, that the scheme or artifice to
    defraud involved a material misrepresentation or concealment of
    material fact; Three, that the defendant acted with intent to
    defraud; and Four, that in advancing or furthering or carrying out
    this scheme to defraud, the defendant transmitted or caused to be
    transmitted any writing, signal or sound by means of a wire com-
    munication in interstate and foreign commerce.
    J.A. 5154. The court went on to instruct the jury that the wire fraud counts
    alleged two theories of honest services referred to in the first element: (1)
    bribery; and (2) intentionally failing to disclose material conflicts of inter-
    est in connection with his performance of official acts (also called "self-
    dealing"). See id. at 5156-57.
    UNITED STATES v. JEFFERSON                              13
    Counts 12 through 14 of the indictment charge Jefferson with
    three money laundering offenses, arising from his bribery
    activities, and the corresponding monetary transactions in
    criminally derived property.12 Finally, Count 16, which
    encompasses thirty pages of allegations, charges the RICO
    offense and alleges twelve racketeering acts of bribery, self-
    dealing and bribery honest services wire fraud, and money laun-
    dering.13
    For purposes of this appeal, we review the allegations and
    evidence in the context of five bribery and fraud schemes: (1)
    the iGate scheme; (2) the Arkel scheme; (3) the Melton
    12
    The trial court instructed on the elements of the money laundering
    offenses charged in Counts 12 through 14, in pertinent part, as follows:
    First, that the defendant knowingly engaged or attempted to
    engage in a monetary transaction in or affecting interstate com-
    merce; Second, that the defendant knew the transaction involved
    criminally . . . derived property[;] Third, that the property had a
    value of greater than $10,000; Fourth, that the property was, in
    fact, derived from bribery; and Fifth, that the transaction occurred
    in the United States.
    J.A. 5180-81. The legal sufficiency of that instruction is not challenged on
    appeal.
    13
    With respect to the RICO offense charged in Count 16, the district
    court instructed that the elements of the RICO offense were the following:
    First, . . . that an enterprise [Jefferson’s congressional office]
    existed on or about the time alleged in the indictment; Second,
    that the enterprise engaged in or its activity affected interstate or
    foreign commerce; Third, that the defendant was employed by or
    was associated with the enterprise; Fourth, that the defendant par-
    ticipated, either directly or indirectly, in the conduct of the affairs
    of [the] enterprise; and Fifth, that the defendant knowingly partic-
    ipated in the conduct of the affairs of the enterprise through a pat-
    tern of racketeering activity as described in the indictment, that
    is, through the commission of at [least] two of the charged racke-
    teering acts within ten years of each other, or through causing or
    aiding and abetting the commission of two such racketeering acts.
    J.A. 5193-94. The legal sufficiency of that instruction is also not chal-
    lenged on appeal.
    14                    UNITED STATES v. JEFFERSON
    scheme; (4) the Wilson-Creaghan scheme; and (5) the Interna-
    tional Petroleum scheme.14 Although much of the conduct
    underlying Jefferson’s various convictions occurred during
    the period from 2000 through 2003, it was the iGate scheme,
    which continued from 2000 through most of 2005, that ulti-
    mately led to the comprehensive FBI investigation into Jeffer-
    son’s illicit activities.
    A.    The iGate Scheme15
    1.
    The indictment alleges that Jefferson solicited bribes from
    Vernon Jackson, the President of iGate, a Louisville, Ken-
    tucky telecommunications firm, in exchange for Jefferson’s
    assistance in the promotion of iGate’s telecommunications
    technology in Africa.16 In return for monetary payments and
    the delivery of iGate shares to ANJ, the Louisiana company
    controlled by Jefferson’s wife, the congressman sent letters on
    official congressional letterhead, conducted official travel,
    and met with domestic and foreign government officials to
    promote iGate’s technology. In furtherance of the iGate ven-
    tures, Jefferson solicited bribes from a Nigerian company cal-
    led Netlink Digital Television ("NDTV") that was pursuing a
    telecommunications venture with iGate in Africa. In return for
    14
    The relevant facts are spelled out herein in the light most favorable to
    the government, as the prevailing party at trial. See United States v. Mad-
    rigal–Valadez, 
    561 F.3d 370
    , 374 (4th Cir. 2009) (observing that we
    review sufficiency of evidence to support conviction in light most favor-
    able to government); United States v. Seidman, 
    156 F.3d 542
    , 547 (4th
    Cir. 1998) (recognizing that, in reviewing legal conclusions and factual
    findings, "[w]e construe the evidence in the light most favorable to . . . the
    prevailing party below").
    15
    The iGate scheme relates primarily to Jefferson’s Count 1 conspiracy
    conviction, his Count 3 bribery conviction, his honest services wire fraud
    convictions under Counts 6, 7, and 10, and his Count 16 RICO conviction.
    16
    At the time of Jefferson’s trial, Jackson had been in prison for more
    than two years as a result of his related convictions.
    UNITED STATES v. JEFFERSON                        15
    a portion of NDTV’s revenue, the delivery to ANJ of shares
    of NDTV stock, and the payment of fees, Jefferson performed
    various official acts, including meetings with Nigerian gov-
    ernment officials to promote NDTV’s venture with iGate.
    The indictment also alleges that Jefferson induced Lori
    Mody to finance a telecommunications project in Africa using
    iGate’s technology. Jefferson solicited bribes from Mody in
    the form of shares in W2-IBBS, the Nigerian company cre-
    ated by her to pursue the iGate venture. Jefferson also solic-
    ited monetary payments from Mody to his family members.
    In return for those bribes, Jefferson used his congressional
    office to promote W2-IBBS’s interests in Nigeria and else-
    where. Jefferson also solicited bribes from Mody in the form
    of shares in IBBS, the Ghanaian company formed by her to
    pursue a telecommunications project in that country. In return,
    Jefferson sent letters on official congressional letterhead, con-
    ducted official travel to Ghana, and met with Ghanaian gov-
    ernment officials to promote the interests of Mody, IBBS, and
    W2-IBBS in Ghana and elsewhere.
    Jefferson introduced Mody to officials of the Export-Import
    Bank of the United States (the "Ex-Im Bank"), and sought the
    bank’s financial assistance for Mody and her businesses.17 Jef-
    ferson and Mody discussed and planned the bribery of various
    Nigerian government officials to facilitate the W2-IBBS proj-
    ects. Pursuant to his discussions with Mody, Jefferson met
    with and agreed make bribe payments to Atiku Abubakar, the
    Vice President of Nigeria. Indeed, Jefferson received
    $100,000 in cash from Mody for the purpose of bribing Abu-
    bakar.
    17
    The Ex-Im Bank is a credit agency of the United States designed to
    assist in financing the export of U.S. goods and services to international
    markets.
    16                UNITED STATES v. JEFFERSON
    2.
    a.
    The trial evidence established that, in the year 2000, Jeffer-
    son became friends with Jackson, iGate’s president. As a
    business, iGate focused on the development of technology
    that enabled high speed broadband services to be delivered at
    low cost over existing telephonic infrastructures. iGate’s goals
    were to market and sell its technology to the military, to tar-
    geted African telecommunications and cable companies, and
    to "Historically Black Institutions located throughout the
    United States." J.A. 5266. In "mid to late" 2000, when Jack-
    son sought to secure military contracts for iGate’s products,
    Jefferson used his position as a congressman to promote iGate
    to the United States Army. See id. at 350. Specifically, in his
    promotion of iGate’s products, Jefferson arranged meetings
    with Army officials, with an Army congressional liaison, and
    with Representative Billy Tauzin of Louisiana, who served as
    Chair of the House Subcommittee on Telecommunications,
    Trade, and Consumer Protection. As part of those efforts, Jef-
    ferson secured a letter of endorsement for iGate from Repre-
    sentative Tauzin, which Tauzin’s staff understood was to be
    used on behalf of one of Jefferson’s constituents.
    After Jackson received favorable results from Jefferson’s
    work in promoting iGate to the Army, Jefferson asked Jack-
    son and iGate to hire ANJ, the Jefferson family consulting
    firm, to market iGate’s products. Jackson testified that Jeffer-
    son
    approached me and he said to me, that he had been
    helpful to me but he could no longer spend the time
    with me or work with me on this product and ser-
    vices, and that I needed a company now to get with
    me and market these products to high-end decision
    makers in the corporate sector as well as government
    people. . . . He said, "Well, I know of a company,"
    UNITED STATES v. JEFFERSON                         17
    and he told me about the company. And he told me
    the company was ANJ. . . . And he said, "My wife
    and daughters own this company."
    J.A. 364. On the basis of Jefferson’s request, Jackson and
    iGate agreed to hire ANJ, and Jefferson provided Jackson
    with a draft contract for ANJ’s services. The contract pro-
    posed a term of five years, and provided that iGate would pay
    ANJ with shares of iGate stock, plus $90,000 per year in
    twelve $7500 monthly payments, plus bonuses based on a
    percentage of iGate’s profits. That contract was executed by
    Jackson (for iGate) and by ANJ president Andrea Jefferson
    (Jefferson’s wife) on January 15, 2001.18 Jefferson then pro-
    ceeded to promote iGate’s technology to his fellow congress-
    men. At trial, Jackson asserted that he was "paying [Jefferson]
    to help." J.A. 469. On January 22, 2002, Jackson transferred
    100,000 shares of iGate stock to ANJ and, by September
    2002, had transferred 550,000 iGate shares to ANJ.
    In 2003, Jefferson began to promote iGate’s technology
    abroad, travelling to West Africa to meet with high-ranking
    foreign officials. In Nigeria, Jefferson promoted iGate to
    Dumebi Kachikwu and Ahmed Vanderpuije, the founders of
    NDTV. Jefferson then facilitated an agreement between iGate
    and NDTV under which NDTV would use iGate’s technology
    to establish satellite service in Nigeria. Without iGate’s
    knowledge, Jefferson solicited from NDTV a portion of its
    profits from the iGate-NDTV venture, plus an ownership
    interest in NDTV. Vanderpuije and Kachikwu agreed to pay
    Jefferson a commission of five dollars on each "set top box"
    (a required component for a cable service subscription)
    because, as Vanderpuije explained, he was "excited about the
    fact that he could have a U.S. Congressman in his pocket."
    J.A. 1227, 1240. NDTV also agreed to pay iGate approxi-
    mately $44,000,000, with a $6,500,000 down payment, for the
    18
    Interestingly, ANJ was not actually formed as a legal entity until Janu-
    ary 19, 2001, four days after the contract had been signed.
    18                      UNITED STATES v. JEFFERSON
    right to use iGate’s technology in Nigeria. After that agree-
    ment was consummated, Jefferson successfully sought to have
    iGate increase its payments to ANJ from five to thirty-five
    percent of iGate’s profits.
    In promoting iGate, Jefferson also arranged for meetings
    between iGate, NDTV, and representatives of the Ex-Im
    Bank. Jefferson personally participated in those meetings and
    encouraged the Ex-Im Bank to fund the iGate-NDTV venture.
    Additionally, Jefferson arranged a meeting in 2003 with Jack-
    son, Vanderpuije, Otumba Fashawe (another NDTV represen-
    tative), plus Nigerian Vice President Abubakar, at which
    Jefferson urged Nigeria’s support for the iGate-NDTV ven-
    ture. As the venture fell into place in late 2003 and early
    2004, ANJ collected more than $230,000 in fees from iGate
    to compensate Jefferson for his efforts in promoting iGate.
    When iGate was occasionally past due on payments to ANJ,
    Jefferson reminded Jackson of such delinquencies and sent
    ANJ invoices to iGate.19
    During 2003 and 2004, Jefferson made multiple trips to
    Africa to meet with foreign officials and promote the iGate-
    NDTV venture. On one occasion in February 2004, Jefferson
    met with Nigerian President Olusegun Obasanjo to discuss the
    improvement of telecommunication infrastructure in that
    country "in a low cost way." J.A. 4270.20 During his travels,
    For example, Jefferson advised Jackson by letter of December 27,
    19
    2004:
    When the money comes in a few days for the African project, I
    trust, that . . . iGate’s debt to ANJ will be brought fully current.
    It now stands at $262,500, per the attachment. As you know, ANJ
    has a specific profit share agreement with iGate on the NDTV
    business, but this can wait for a better time.
    J.A. 5369. The attachment being referred to was an ANJ invoice to iGate
    for $262,500, designated as "a request for payment of amounts currently
    due." Id. at 5370.
    20
    While meeting with President Obasanjo in February 2004, Jefferson
    expressed an interest in exploring oil and gas opportunities in Nigeria —
    a venture that is the subject of another Jefferson scheme.
    UNITED STATES v. JEFFERSON                         19
    Jefferson consistently used his congressional passport, had his
    congressional staff accompany him, and used staff assistance
    to create trip itineraries and coordinate with the Department
    of State to schedule meetings with government officials. Jef-
    ferson also corresponded with foreign officials using his con-
    gressional letterhead, and he scheduled meetings with
    officials of domestic agencies to secure financing for the
    iGate-NDTV venture. Indeed, Mr. Kachikwu of NDTV
    described Jefferson’s arrivals for meetings in Nigeria as being
    "in his full apparatus as a US congressman, with embassy
    security, embassy vehicles, introduc[ing] himself as a US con-
    gressman in charge of overseeing affairs of Nigeria or
    Africa." Id. at 1313.
    b.
    The trial evidence reflected that the iGate-NDTV venture
    foundered in approximately 2004, and iGate agreed that it
    would refund to NDTV the sum of $3,500,000, a major por-
    tion of the $6,500,000 down payment NDTV had already paid
    iGate. As the iGate-NDTV venture faltered, however, Jeffer-
    son managed to secure a replacement for NDTV’s role in the
    iGate scheme, that is, Lori Mody, who then represented a
    company called W2 Limited. Mody was first introduced to
    Jefferson by one of his former legislative aides, Brett Pfeffer.21
    On behalf of W2 Limited, Mody entered into an investment
    agreement with Jackson and iGate after Jefferson assured her
    that he could secure financing for iGate’s African ventures
    through the Ex-Im Bank. He also assured her that he could
    secure the necessary cooperation of the Nigerian government.
    21
    Pfeffer worked as Jefferson’s legislative assistant for approximately
    three years before leaving in 1998 to become a consultant. He was eventu-
    ally hired by Mody as president of W2-IBBS to solicit investment and
    development opportunities in start-up companies. As president of W2-
    IBBS, Pfeffer was paid $700,000 per year, plus fifty percent of the profits
    made in any opportunity he "brought to the table." J.A. 1925. For his
    involvement in the iGate scheme, Pfeffer was convicted and sentenced to
    ninety-six months in prison.
    20                UNITED STATES v. JEFFERSON
    Mody and W2 Limited’s contract with iGate, effective July
    21, 2004, provided that W2 Limited would own the distribu-
    tion rights for iGate’s technology in Nigeria in exchange for
    a payment to iGate of $44,934,400. The parties to the contract
    expected that Mody would fund $3,500,000 of this amount
    and that the Ex-Im Bank would finance the balance. As a
    result, Mody created W2-IBBS to be used exclusively for the
    iGate-Mody aspect of the iGate scheme. Jefferson assisted
    Mody and Jackson in negotiating and drafting the terms of
    that contract, and the congressman requested compensation
    from Mody for his efforts. Such compensation was to include
    payments to ANJ, ownership interests in Mody’s businesses,
    and payments to other businesses owned by Jefferson’s fam-
    ily. In return, Jefferson continued to correspond and meet
    with African government officials to promote the iGate-Mody
    venture.
    Mody and W2-IBBS made an initial payment of
    $1,500,000 to iGate in July 2004, and a day later Jackson
    remitted to ANJ the sum of $50,000. In September 2004,
    Mody and W2-IBBS made their second payment to iGate, in
    the sum of $2,000,000. Jackson promptly paid another
    $50,000 to ANJ. Notably, ANJ never performed any work for
    iGate.
    In late 2004 and early 2005, despite Jefferson’s efforts, the
    iGate-Mody venture began to unravel. Mody grew concerned
    with the propriety of Jefferson’s conduct and, in March 2005,
    acted on her suspicions and contacted the FBI. She then
    turned against Jefferson and began to cooperate with the FBI
    and the Department of Justice.
    With the FBI monitoring their relationship, Jefferson and
    Mody renewed their efforts to pursue the iGate-Mody venture
    in Nigeria. Jefferson assured Mody that he was committed to
    the success of iGate’s ventures in Nigeria and other West
    African countries, but continued to demand payments from
    Mody, including an ownership interest in W2-IBBS for
    UNITED STATES v. JEFFERSON                         21
    Global Energy and Environmental Services, an entity owned
    by Jefferson’s daughters. Acting on Mody’s behalf, Jefferson
    made further efforts to assist the iGate-Mody venture, includ-
    ing visiting Ghana in July 2005 to — at least in part — pro-
    mote the iGate scheme to Ghanaian government officials.
    After Jefferson’s return from Ghana, his office completed an
    official travel disclosure form confirming that one of Mody’s
    companies had sponsored his trip, and affirming that his travel
    to Africa was "in connection with [Jefferson’s] official duties
    and would not create the appearance that [he] is using public
    office for private gain." J.A. 6175.22
    In his negotiations with Mody, Jefferson constantly sought
    additional compensation for himself and his interests. Those
    negotiations were conducted mostly in a clandestine manner,
    through cryptic notes and coded messages. Nevertheless, Jef-
    ferson made a comment to Mody that revealed his apprehen-
    sion concerning the propriety of their dealings. During a
    monitored meeting with Mody on May 12, 2005, Jefferson
    remarked, "All these damn notes we’re writing to each other,
    as if we thought . . . [the] FBI’s watching us." J.A. 2321.23 At
    a July 30, 2005 meeting with Jefferson, Mody received from
    him a document entitled "Cash Requirements," which
    reflected so-called "project costs" for the iGate-Mody venture
    in Nigeria and Ghana. Id. at 5631. This document provides for
    four disbursements: (1) $8,389,000 to a bank account under
    the name of Multi-Media Broad Band Services; (2) $145,000
    to ANJ; (3) $1,000,000 to the "Global Energy Account"; and
    (4) $500,000 to an otherwise unexplained account called
    22
    Jefferson’s congressional office submitted similar travel disclosure
    forms for other trips relating to his bribery and fraud schemes, including
    a February 2003 trip to Nigeria and a February 2004 trip to Nigeria, Cam-
    eroon, Equatorial Guinea, and Sao Tome and Principe.
    23
    During an FBI-monitored telephone conversation with Jefferson in
    mid-2005, Jackson suggested replacing Mody with a new investor. Jeffer-
    son responded, "We’ve got to do this shit right, though. I mean, otherwise,
    we’re going to all be in the goddamn pokey somewhere, fooling with . . .
    shit like this." J.A. 783-84.
    22                UNITED STATES v. JEFFERSON
    "Valenti Firm Escrow Account." Id. at 5631-32. Multi-Media
    Broad Band Services was a business entity created by Jeffer-
    son, with Mody on its board. Having reached suitable com-
    pensation arrangements with Mody, Jefferson pressed on,
    seeking cooperation from the governments of Nigeria and
    other West African countries for the iGate scheme, and spe-
    cifically the iGate-Mody venture.
    During the iGate scheme, Nigeria Telecommunications
    Limited ("NITEL"), the country’s primary telephone carrier,
    was controlled by the Nigerian government. In order for the
    iGate scheme to succeed in Nigeria, iGate needed access to
    NITEL’s telephone lines. To secure NITEL’s cooperation,
    Jefferson met with Nigerian Vice President Abubakar on July
    18, 2005, and offered him a percentage of the profits from the
    iGate-Mody venture. In addition to such "back-end compen-
    sation," Jefferson sought to have Mody pay Abubakar
    $500,000 in cash on the "front end," that is, immediately, in
    order to ensure his cooperation. See J.A. 2752-60; 6289-91. In
    furtherance of that plan, Mody obtained $100,000 in marked
    cash from the FBI and placed it in a briefcase. On July 30,
    2005, outside a hotel in Arlington, Virginia, Mody delivered
    the briefcase containing the money to Jefferson, who was to
    deliver it to Abubakar. The conversations between Jefferson
    and Mody concerning this illicit payment were monitored and
    recorded by the FBI. Despite indicating to Mody on August
    1, 2005, that he had already delivered the $100,000 cash pay-
    ment to Abubakar, Jefferson was still in possession of at least
    $90,000 of the bribe money.
    Two days later, FBI agents visited Jefferson’s New Orleans
    home. Jefferson admitted the agents into his residence at
    about 7:00 that morning, and agreed to speak with them. Dur-
    ing the FBI interview, Jefferson concealed his activities
    involving iGate and Mody and falsely responded to the inqui-
    ries. Later that day, the FBI executed six search warrants with
    respect to the Jefferson investigation: (1) Jefferson’s District
    of Columbia residence; (2) his vehicle in the District of
    UNITED STATES v. JEFFERSON                      23
    Columbia; (3) his New Orleans residence; (4) the New Orle-
    ans office of the Jefferson family accountant; (5) Vice Presi-
    dent Abubakar’s Potomac, Maryland residence; and (6) iGate
    president Vernon Jackson’s home in Kentucky. During their
    search of Jefferson’s D.C. home, the FBI agents found and
    seized $90,000 of the marked Abubakar cash, which was con-
    cealed in frozen food boxes in the freezer.
    B.   The Arkel Scheme24
    1.
    Contemporaneously with the early part of his involvement
    in the iGate scheme, Representative Jefferson engaged in a
    separate scheme that involved soliciting and receiving bribe
    payments from businessman George Knost and his business
    entities, Arkel International, Arkel Sugar, and Arkel Oil and
    Gas (collectively, "Arkel"). As spelled out in the Count 2 con-
    spiracy charge, Jefferson, in return for such payments, per-
    formed various official acts, including endorsing an Arkel
    venture to officials of the Ex-Im Bank and promoting Arkel’s
    interests to Nigerian government officials.
    2.
    The trial evidence confirmed that Jefferson solicited bribes
    from several American businesses, in addition to iGate, that
    aspired to do business in West Africa. Jefferson spoke favor-
    ably to his African government contacts on behalf of such
    businesses, including Arkel, but demanded that, in exchange,
    they pay members of Jefferson’s family so-called "consult-
    ing" fees. Jefferson’s consulting fee demands amounted to
    millions of dollars.
    The Arkel scheme relates primarily to Jefferson’s Count 2 conspiracy
    24
    conviction and his Count 16 RICO conviction.
    24                UNITED STATES v. JEFFERSON
    One such arrangement between Jefferson and Arkel con-
    cerned a sugar factory feasibility study and construction con-
    tract in Nigeria. Knost, Arkel’s President, first met Jefferson
    in August of 2000 when Knost wanted to travel with a gov-
    ernment delegation to Africa. Knost and Arkel were interested
    in developing sugar factory projects in Nigeria and, as a
    result, contacted Jefferson’s office seeking assistance with
    respect to the delegation. Knost informed Jefferson that the
    sugar projects were worth as much as $300,000,000 each.
    About a year later, in the fall of 2001, Knost met with Jef-
    ferson at Arkel’s offices in Baton Rouge, Louisiana. Those in
    attendance included Ibrahim Turaki, the Governor of Jigawa
    State, Nigeria, and the congressman’s brother, Mose Jeffer-
    son. At that meeting, Representative Jefferson promoted
    Arkel’s proposed sugar projects to Governor Turaki. Knost
    and Jefferson then had a private conversation where, accord-
    ing to Knost, Jefferson said, "‘You need to hire my brother,
    Mose, as a consultant, you know, to handle this deal.’" J.A.
    2995-96. During dinner with Jefferson and Mose, Knost dis-
    cussed with Jefferson the assistance that the congressman
    could provide Arkel in terms of general promotion, facilitat-
    ing the sugar projects’ feasibility study, and securing an Arkel
    contract to construct the Nigerian sugar factories. As Knost
    understood it, Arkel’s hiring of Mose was a "prerequisite" to
    obtaining Jefferson’s assistance on its sugar factory endeavors
    in Nigeria, even though Knost did not expect Mose to perform
    any work on Arkel’s behalf.
    Arkel thereafter agreed with Representative Jefferson that
    Mose Jefferson would be paid four to five percent of Arkel’s
    profits on the sugar contracts, in the event Arkel was selected
    to construct the Nigerian factories. Arkel and Governor
    Turaki then agreed to proceed with the factories’ feasibility
    study in Jigawa, with Arkel to be paid $500,000 for its work.
    For his part, Jefferson assisted Arkel representatives in
    obtaining visas for travel to Nigeria, scheduled meetings for
    Arkel with Nigerian government officials, and sought to
    UNITED STATES v. JEFFERSON                           25
    resolve payment issues that arose between Arkel and Jigawa
    State. On July 27, 2001, Jigawa paid $187,230 to Arkel, after
    Arkel Sugar had been created to develop the Nigerian sugar
    projects. On August 15, 2001, a Mose Jefferson shell entity,
    Providence International, invoiced Arkel for $7489, which
    was paid one week later.25 Jigawa thereafter made further pay-
    ments to Arkel, including $85,000 in December 2001 and
    $260,000 in April 2002. Arkel then paid four percent of each
    of those payments to Providence International.
    In August 2001, Knost also sought the assistance of Jeffer-
    son and his brother Mose for a potential business venture in
    Nigeria to develop so-called "marginal oil fields."26 Knost
    agreed to pay another of Mose’s shell entities, BEP Consult-
    ing Services, to secure Jefferson’s assistance in obtaining
    Nigerian government cooperation with Arkel’s interests in the
    marginal oil field venture. Jefferson then assisted Arkel’s
    efforts, meeting with and seeking aid from foreign and
    domestic government officials and helping to gain financing
    for the venture from the Ex-Im Bank.
    C.    The Melton-TDC Scheme27
    1.
    The conspiracy charged in Count 2 of the indictment
    includes allegations concerning a scheme in which Represen-
    tative Jefferson solicited and received bribes from business-
    man John Melton and a company called TDC Energy
    25
    The sum of $7489 paid to Providence International by Arkel in
    August 2001 was four percent of the $187,230 that Jigawa had paid Arkel
    one month earlier.
    26
    At trial, Knost described a "marginal oil field" as "an oil field that had
    been either discovered and not produced, or discovered and produced
    some period of time and became uneconomic." J.A. 3046.
    27
    The Melton-TDC scheme relates primarily to Jefferson’s Count 2 con-
    spiracy conviction and his Count 16 RICO conviction.
    26                   UNITED STATES v. JEFFERSON
    Overseas, Inc.28 In return for bribe payments from TDC, Jef-
    ferson performed various official acts, including the promo-
    tion of TDC’s interests in the development of the Nigerian
    marginal oil fields with Nigerian government officials and
    with officials of the United States Trade and Development
    Agency (the "USTDA").29 In particular, Jefferson sought to
    have the USTDA provide financial assistance to TDC for its
    marginal oil field ventures.
    2.
    Knost realized in approximately September 2001 that he
    would be unable to successfully pursue Arkel’s marginal oil
    field venture in Nigeria. As a result, he offered John Melton,
    an ex-Arkel employee, the opportunity to take over. Melton
    created TDC for that purpose, but after assessing a proposed
    agreement between Arkel and Mose Jefferson’s firm BEP
    concerning the marginal oil field venture, TDC declined to be
    involved, primarily because BEP’s requested fees were
    thought to be excessive. Melton later decided to further pur-
    sue the oil field venture, however, with two partners, Ramon
    Jarrell and Jim Creaghan. Creaghan, who was a lobbyist from
    Louisiana, was to act as liaison between TDC and Representa-
    tive Jefferson.
    In approximately December 2001, four of the TDC schem-
    ers — Melton, Jarrell, Creaghan, and Jefferson — met in Lou-
    isiana to discuss the marginal oil field venture, as well as
    other potential projects in West Africa. Jefferson proposed a
    trip to Nigeria in January 2002 to meet with Nigerian govern-
    ment officials. Jefferson informed the TDC partners, however,
    28
    In the indictment, Melton and TDC are identified only as "Busi-
    nessperson G" and "Company G."
    29
    The USTDA is an agency established to promote United States private
    sector participation in development projects in developing and middle-
    income countries, with special emphasis on economic sectors with signifi-
    cant U.S. export potential.
    UNITED STATES v. JEFFERSON                    27
    that before he could arrange such a trip they would have to
    agree to hire and pay his brother Mose for consulting services.
    That request was agreed to, and the TDC group prepared for
    the trip to Nigeria.
    Melton, on behalf of TDC, prepared a proposed agreement
    with respect to the venture and other West Africa projects, to
    be executed between TDC and BEP. TDC’s proposal, dated
    January 10, 2002, identified several projects, including an oil
    field project, a pharmaceutical project, and a fertilizer plant
    project. The proposal promised that BEP would receive three
    percent of the net profit on all such projects. When Melton
    presented the proposal to Jefferson, however, the congress-
    man rejected it, simply stating that "this won’t do." J.A. 3497.
    After Melton promised that Mose’s interests in the projects
    would be assured to Jefferson’s satisfaction, Jefferson agreed
    to move forward.
    In January 2002, Melton and his TDC partners accompa-
    nied Representative Jefferson and Mose to Nigeria. That was
    Mose’s first trip to Nigeria, and TDC paid the travel expenses.
    During the trip, Jefferson arranged meetings between TDC
    and the Governor of the Nigerian State of Akwa Ibom. As a
    result, Melton secured a letter of intent from the Governor to
    move forward with TDC on the fertilizer plant project.
    Afterward, in April 2002, Melton, Jarrell, and Creaghan
    applied for a USTDA grant to fund a TDC feasibility study
    for a Nigerian fertilizer plant. Jefferson was instrumental in
    the success of that grant application, having also secured the
    support of the Governor of Akwa Ibom. As a result, TDC
    received a $450,000 grant from the USTDA. At trial, the
    USTDA Director’s Chief of Staff described Jefferson’s
    involvement with TDC’s fertilizer plant grant application as
    "not typical." J.A. 3929.
    D.    The Wilson-Creaghan Scheme30
    30
    The Wilson-Creaghan scheme primarily relates to Jefferson’s Count
    2 conspiracy conviction and his Count 16 RICO conviction.
    28                   UNITED STATES v. JEFFERSON
    1.
    Count 2 of the indictment also alleges that Jefferson,
    through "Lobbyist A" (the coded identification for Creaghan),
    solicited bribe payments from "Businessperson BC" (Noreen
    Wilson), in return for Jefferson’s assistance in resolving a dis-
    pute over oil exploration rights in the waters off Sao Tome
    and Principe.31 For that assistance, Jefferson was promised
    bribe payments by Wilson and Creaghan, either directly or
    through a nominee company.
    The indictment also alleges that Jefferson solicited and
    received bribes from "Company C," an entity called Life
    Energy Technology Holdings, in which Creaghan and Wilson
    were involved. Life Energy was engaged in manufacturing
    and distributing energy-related technology. In return for bribe
    payments from Life Energy, Jefferson travelled to Nigeria,
    Equatorial Guinea, Cameroon, and Sao Tome and Principe.
    He met with several government officials of those countries
    to promote Life Energy’s technology.
    2.
    The trial evidence was that Creaghan first met Wilson, a
    Florida businesswoman, in 2001. In December of that year,
    Creaghan discussed with Wilson the acquisition and develop-
    ment of oil exploration rights near Sao Tome and Principe.
    Wilson was involved in a South African business called
    Procura Financial ("Company B") that dealt with oil drilling
    off the coast of West Africa. In pursuing the Sao Tome and
    Principe oil exploration venture, Creaghan and Wilson
    approached Jefferson in late 2001, on behalf of Procura
    Financial, and sought his assistance in overcoming barriers
    that were holding up their oil contracts. These barriers
    included ownership disputes among various oil companies
    Sao Tome and Principe is a small island republic off the coast of the
    31
    West African nation of Gabon.
    UNITED STATES v. JEFFERSON                     29
    and problems among the governments of several African
    nations. Jefferson sought to assist in resolving these disputes,
    but informed Creaghan and Wilson that, in exchange for his
    help, it was necessary for them to assign an ownership interest
    in the ventures to members of Jefferson’s family. Subse-
    quently, Creaghan, Wilson, and Jefferson arranged for Mose
    Jefferson to receive an ownership interest in the Sao Tome
    and Principe venture.
    Notwithstanding Jefferson’s efforts, the barriers and dis-
    putes were never resolved, and the Sao Tome and Principe oil
    exploration venture failed. Creaghan and Wilson continued to
    work together, however, and in 2003 became involved with
    Life Energy, which manufactured a product called "Bio-
    sphere," a waste treatment plant that produced electricity and
    potable water from waste. When Creaghan and Wilson sought
    to market Biosphere in West Africa, they contacted Jefferson
    for assistance. Jefferson was interested in their request, but
    again demanded that Mose be involved. Life Energy agreed
    to pay Mose — through Providence International — ten per-
    cent of each Biosphere project that was sold (a Biosphere
    project was priced at $6,500,000). Mose was also to receive
    an ownership interest in the Biosphere business in West
    Africa. As a result, Jefferson agreed to assist Life Energy in
    selling its products to West African countries. Creaghan, Jef-
    ferson, and Mose travelled again to Nigeria in February 2003
    to promote the marketing of Biosphere. During their meetings
    with officials of several Nigerian states, Jefferson encouraged
    those governments to invest in Life Energy’s Biosphere units.
    E.   The International Petroleum Scheme32
    The International Petroleum scheme relates primarily to Jefferson’s
    32
    Count 16 RICO conviction.
    30                UNITED STATES v. JEFFERSON
    1.
    The indictment specifies that, in 2002, Jefferson solicited
    bribes from "Businessperson A" (Noah Samara) and a com-
    pany called International Petroleum (which Jefferson caused
    to be formed), in exchange for Jefferson advancing Samara’s
    efforts to obtain oil concessions from the government of
    Equatorial Guinea. In furtherance of that bribery and fraud
    scheme, Jefferson flew to Equatorial Guinea and met with
    high-ranking government officials.
    2.
    The trial evidence revealed that Samara, who founded a sat-
    ellite radio business called WorldSpace, Inc., first met Jeffer-
    son in the late 1990s. The two men became friends, and
    Samara was a contributor to Jefferson’s political campaigns.
    In the fall of 2001, Samara agreed to lend Jefferson $50,000
    after the congressman falsely promised he would properly dis-
    close the loan. Jefferson also promised to repay the loan by
    September 2004, though he never did.
    In May 2002, Samara visited several countries in Africa to
    pursue a project by which WorldSpace would deliver satellite-
    based educational services to African countries. Samara
    expected WorldSpace’s revenue from the project to be
    approximately $3,000,000. Jefferson accompanied Samara on
    portions of this trip, including visits to Equatorial Guinea, the
    Democratic Republic of the Congo, and Botswana. In prepar-
    ing for his trip to Africa, Samara did not intend to visit Equa-
    torial Guinea, the Congo, or Botswana, and only agreed to do
    so at Jefferson’s suggestion. Their visits to those additional
    African countries required the charter of an aircraft, which
    cost WorldSpace more than $70,000. During the side trip, Jef-
    ferson proposed that Samara get involved in an oil drilling
    project in Equatorial Guinea, even though Samara had no
    experience in the oil business. After visiting Equatorial
    Guinea, Jefferson made a proposal to Samara under which
    UNITED STATES v. JEFFERSON                  31
    Equatorial Guinea would grant Samara an oil concession.
    Notwithstanding Samara’s discomfort with the proposal, Jef-
    ferson recommended that Samara form International Petro-
    leum and pursue the Equatorial Guinea oil venture. Jefferson
    also suggested that Samara hire one of Jefferson’s daughters,
    an attorney, to assist with International Petroleum’s legal
    work, and that Samara give Jefferson’s daughter an ownership
    interest in the business. Jefferson abandoned the oil conces-
    sion venture, however, because Samara refused to give Jeffer-
    son’s daughter an interest in it. Samara also never accepted
    the oil concession from Equatorial Guinea.
    In July 2002, after their trip to Africa, Samara met with Jef-
    ferson and his wife to discuss the WorldSpace educational ini-
    tiative. That meeting primarily involved conversations
    between Samara and Representative Jefferson, and resulted in
    Samara agreeing to hire ANJ. During the meeting, Jefferson
    prepared a proposed consulting contract between WorldSpace
    and ANJ, under which WorldSpace, "[i]n the event that ANJ
    makes a material contribution to the procurement of an agree-
    ment between WorldSpace and any developing country to
    provide educational offerings through the satellite receiver
    technology," would compensate ANJ with four percent of the
    gross amount paid under any such agreement. J.A. 3422.
    Samara understood that the agreement would obligate ANJ to
    assist WorldSpace in procuring contracts in Botswana, Equa-
    torial Guinea, and the Democratic Republic of the Congo, but
    that ANJ would not provide consulting services for the educa-
    tional content of any project. Notably, Samara understood that
    only Representative Jefferson — and neither his wife nor ANJ
    — would be assisting with those contracts. Consistent with
    Samara’s understanding, Jefferson wrote several letters to the
    President of the Democratic Republic of the Congo, using his
    congressional letterhead, urging consideration of the World-
    Space satellite education proposal. According to Samara, the
    WorldSpace venture "slowed down" after the summer of
    2002, and he did not further pursue any educational initiatives
    in Africa with Jefferson. Id. at 3434.
    32                UNITED STATES v. JEFFERSON
    III.
    A.
    Turning to Jefferson’s first contention of error, we must
    assess whether the district court improperly and erroneously
    instructed the jury on what constitutes an "official act" under
    the federal bribery statute. We review de novo the claim that
    a jury instruction failed to correctly state the applicable law.
    See Al-Abood ex rel. Al-Abood v. El-Shamari, 
    217 F.3d 225
    ,
    235 (4th Cir. 2000). In conducting such a review, "we do not
    view a single instruction in isolation; rather we consider
    whether taken as a whole and in the context of the entire
    charge, the instructions accurately and fairly state the control-
    ling law." United States v. Rahman, 
    83 F.3d 89
    , 92 (4th Cir.
    1996).
    1.
    As background for our assessment, we identify and discuss
    the relevant legal principles underlying the parties’ conflicting
    contentions regarding the proper definition of an "official
    act." The official act issue requires our assessment of the via-
    bility and applicability of the Supreme Court’s century-old
    decision in United States v. Birdsall, 
    233 U.S. 223
     (1914).
    There, the Court recognized, under a predecessor bribery stat-
    ute, that for a public officer’s action to be "official,"
    it was not necessary that it should be prescribed by
    statute; it was sufficient that it was governed by a
    lawful requirement of the department under whose
    authority the officer was acting. Nor was it necessary
    that the requirement should be prescribed by a writ-
    ten rule or regulation. It might also be found in an
    established usage which constituted the common law
    of the department and fixed the duties of those
    engaged in its activities. In numerous instances,
    duties not completely defined by written rules are
    UNITED STATES v. JEFFERSON                            33
    clearly established by settled practice, and action
    taken in the course of their performance must be
    regarded as within the provisions of the above-
    mentioned statutes against bribery.
    
    Id. at 230-31
     (emphasis added) (citations omitted).33
    In the Birdsall case, Thomas Brents and Everett Van Wert
    were "special officers, duly appointed by the Commissioner
    of Indian Affairs, under the authority of the Secretary of the
    Interior, for the suppression of the liquor traffic among the
    Indians." 
    233 U.S. at 228
    . The two men were indicted in Iowa
    for accepting bribes, in violation of § 117 of the Criminal
    Code. Id. at 227. Another defendant, attorney Willis Birdsall,
    was indicted separately for giving bribes to Brents and Van
    Wert, in violation of § 39 of the Criminal Code, in exchange
    for their actions as Indian Affairs special officers, in advising
    the Commissioner of Indian Affairs (contrary to the truth) that
    leniency should be applied to individuals convicted for liquor
    trafficking with Indians. Id. at 229-30. Brents and Van Wert
    were charged with receiving bribes from Birdsall with the
    intent that their official actions be influenced, in contraven-
    tion of the applicable statute. Id.
    The district court in Iowa ruled that each of the indictments
    was defective and sustained the defendants’ demurrers to
    33
    When Birdsall was decided, the pertinent bribery statute provided, in
    relevant part, that
    "whoever, being an officer of the United States, or a person act-
    ing for or on behalf of the United States, in any official capacity,
    under or by virtue of the authority of any department or office of
    the government thereof," accepts money, etc., "with intent to
    have his decision or action on any question, matter, cause, or pro-
    ceeding which may at any time be pending, or which may by law
    be brought before him in his official capacity, or in his place of
    trust or profit, influenced thereby," shall be punished as stated.
    Birdsall, 
    233 U.S. at 230
     (quoting Crim. Code § 117, 35 Stat. at L. p.
    1109, chap. 321, U. S. Comp. Stat. Supp. 1911, p. 1623).
    34                UNITED STATES v. JEFFERSON
    them, agreeing that no offenses were charged. In the trial
    court’s view, there was no act of Congress that conferred a
    duty on the Department of the Interior or its Bureau of Indian
    Affairs to make recommendations of leniency to the executive
    or judicial branches. As a result, the court concluded, Brents’s
    and Van Wert’s recommendations could not constitute official
    acts under the bribery statute.
    The Supreme Court reversed the district court’s judgment,
    explaining that acts reached by the bribery statute extend
    beyond those acts that are "prescribed by a written rule."
    Birdsall, 
    233 U.S. at 231
    . The Birdsall Court thus held that
    "[e]very action that is within the range of official duty comes
    within the purview of these sections." 
    Id. at 230
    .
    The federal bribery statute was revised in 1962, nearly fifty
    years after the Birdsall decision, to its current provision in 
    18 U.S.C. § 201
    (b). The only notable distinction between the
    bribery statute as it existed in 1914 and the present version is
    that the predecessor version, instead of using the term "offi-
    cial act," employed the phrase "decision or action on any
    question, matter, cause, or proceeding which may at any time
    be pending, or which may by law be brought before him in
    his official capacity, or in his place of trust or profit." See
    Birdsall, 
    233 U.S. at 230
    . Although § 201(b)(1)(A) replaces
    that phrase with the two words "official act," the bribery stat-
    ute now uses the substance of the predecessor’s phrase to
    define an "official act" under § 201. That is, the present defi-
    nition of an official act, spelled out in § 201(a)(3), draws spe-
    cific definitional language from its 1914 predecessor. Put
    succinctly, there is simply no distinction in substance between
    an official act as defined by Birdsall, and an official act under
    Jefferson’s indictment. See United States v. Carson, 
    464 F.2d 424
    , 433 (2d Cir. 1972) (recognizing that "[t]he terms of the
    written definition of official act have not been altered to any
    substantial extent since their origin in the Act of July 13,
    1866, ch. 184, § 62, 
    14 Stat. 168
    ").
    UNITED STATES v. JEFFERSON                           35
    In light of the foregoing, the government relied on the Bird-
    sall decision to support its position on the "official act" issue
    raised in this case. And the district court agreed with the gov-
    ernment’s position, as explained in the court’s Jefferson III
    opinion. Accordingly, the court instructed the jury as follows:
    An act may be official even if it was not taken pursu-
    ant to responsibilities explicitly assigned by law.
    Rather, official acts include those activities that have
    been clearly established by settled practice as part
    [of] a public official’s position.
    J.A. 5149.
    2.
    On the other hand, Jefferson contended in the district court,
    and continues to maintain on appeal, that the Supreme Court’s
    more recent decision in United States v. Sun-Diamond Grow-
    ers, 
    526 U.S. 398
     (1999), forecloses the use of a "settled prac-
    tice" instruction on official acts under the bribery statute. In
    Sun-Diamond, rather than examining the bribery statute, the
    Court examined the requirements for a violation of the illegal
    gratuity statute, found in 
    18 U.S.C. § 201
    (c) — the bribery
    statute’s lesser included offense and close cousin.34
    The defendant in Sun-Diamond was a trade association that
    gave thousands of dollars worth of gifts (i.e., tickets to sport-
    ing events, luggage, and meals) to the Secretary of Agricul-
    ture when his Department had matters pending that would
    affect the trade association and its members. The Sun-
    Diamond decision began its discussion by distinguishing the
    34
    The illegal gratuity statute provides, in relevant part, as follows:
    "Whoever . . . directly or indirectly gives, offers, or promises anything of
    value to any public official . . . for or because of any official act performed
    or to be performed by such public official [shall be guilty of a crime
    against the United States]." 
    18 U.S.C. § 201
    (c)(1)(A).
    36                 UNITED STATES v. JEFFERSON
    illegal gratuity statute from the bribery statute. As the Court
    recognized, although they are subsections of the same statu-
    tory scheme — and subject to the same definitions — an act
    of bribery requires the giving of something of value in
    exchange for an official act. See Sun-Diamond, 
    526 U.S. at 404
    . On the other hand, an illegal gratuity "may constitute
    merely a reward for some future act that the public official
    will take (and may already have determined to take), or for a
    past act that he has already taken." 
    Id. at 405
    .
    The Sun-Diamond Court declined, therefore, to read the
    illegal gratuity statute so broadly as to prohibit "gifts given by
    reason of the donee’s office." 
    526 U.S. at 408
    . To do so, the
    Court reasoned, "would criminalize, for example, token gifts
    to the President based on his official position and not linked
    to any identifiable act — such as the replica jerseys given by
    championship sports teams each year during ceremonial
    White House visits[.]" 
    Id. at 406-07
    . Warning against an
    expansion of the illegal gratuity statute to prohibit such gifts,
    the Court advised that "a statute in this field that can linguisti-
    cally be interpreted to be either a meat axe or a scalpel should
    reasonably be taken to be the latter." 
    Id. at 412
    . Thus, the
    Court ruled that gifts by a trade group of farmers to the Secre-
    tary of Agriculture, at a time when matters affecting the farm-
    ers were pending in the Department, were not barred by the
    illegal gratuity statute, because such offerings were not
    directly connected to any specific official act or acts taken or
    to be taken on the matters of interest to the farmers. 
    Id. at 414
    .
    3.
    Jefferson claims to find support for his reading of Sun-
    Diamond in Valdes v. United States, a 2007 en banc decision
    of the District of Columbia Circuit. See 
    475 F.3d 1319
     (D.C.
    Cir. 2007). Valdes, a police officer, was charged with contra-
    vening the bribery statute by accepting money from an under-
    cover informant in exchange for accessing the police database
    for information such as license plate numbers, addresses, and
    UNITED STATES v. JEFFERSON                           37
    outstanding warrants. Although Valdes was indicted on brib-
    ery charges, a jury convicted him on three counts of the lesser
    included offense of receipt of an illegal gratuity. 
    Id. at 1322
    .
    The D.C. Circuit reversed Valdes’s convictions because his
    actions amounted to "moonlighting," or misusing government
    resources, and did not fit into the statutorily required "ques-
    tion, matter, cause, suit, proceeding or controversy." Valdes,
    
    475 F.3d at 1323-24
    . The Valdes court relied on the Sun-
    Diamond decision, seizing on the Supreme Court’s discussion
    of the customary activities of a public official that do not con-
    stitute official acts, and asserting that the Sun–Diamond Court
    "reached its conclusion ‘through the definition of’ [official
    act,]" Valdes, 
    475 F.3d at
    1323 — a proposition we are
    unwilling to accept.35 The D.C. Circuit recognized Birdsall’s
    ruling that an "official act" need not be prescribed by statute,
    but concluded that Birdsall did not "stand for the proposition
    that every action within the range of official duties automati-
    cally satisfies § 201’s definition; it merely made clear the cov-
    erage of activities performed as a matter of custom." Valdes,
    
    475 F.3d at 1323
    .
    4.
    At bottom, Jefferson contends that the definition of an offi-
    cial act used by the trial court, particularly its inclusion of the
    "settled practices" of a public official, is "hopelessly indeter-
    minate" and overly general, rendering the bribery statute "un-
    constitutionally vague." See Br. of Appellant 18.36 As a result,
    he maintains that each of his convictions is fatally flawed.
    35
    As we discuss further below, see infra Part III.A.5, our reading of
    Sun-Diamond reveals that the Court did not rely on the official act defini-
    tion to the exclusion of the rest of the illegal gratuity statute. Rather, the
    Court merely referenced that definition to defeat any potential argument
    that Sun-Diamond’s narrowing of an illegal gratuity would be miscon-
    strued as overly inclusive. See Sun-Diamond, 
    526 U.S. at 408
     (recognizing
    that any overly inclusive or "absurd" results of narrowing ambit of illegal
    gratuity may be eliminated "through the definition of [official act]").
    36
    Though Jefferson suggests that the district court’s construction of the
    bribery statute renders the statute "unconstitutionally vague," he does not
    38                     UNITED STATES v. JEFFERSON
    The boundaries fixed by the Supreme Court in Birdsall fall
    well within the bribery statute, however, and have never been
    altered. See United States v. Moore, 
    525 F.3d 1033
    , 1041
    (11th Cir. 2008) (deeming Birdsall "relevant Supreme Court
    precedent" on definition of official act); United States v. Par-
    ker, 
    133 F.3d 322
    , 326 (5th Cir. 1998) (citing Birdsall for
    proposition that official act may be found in "established
    usage"); United States v. Biaggi, 
    853 F.2d 89
    , 97 (2d Cir.
    1988) (relying on Birdsall to rule that official acts in the brib-
    ery statute "encompass[ed] all of the acts normally thought to
    constitute a congressman’s legitimate use of his office");
    United States v. Morlang, 
    531 F.2d 183
    , 192 (4th Cir. 1975)
    (recognizing Birdsall’s holding that, under the bribery statute,
    "the official action sought to be influenced need not be pre-
    scribed by statute but may be governed by a lawful require-
    ment of the executive department under whose authority the
    official is acting"). We must, as explained below, reject Jef-
    ferson’s challenge to the district court’s official act instruction
    because it squares with the Birdsall precedent. The Sun-
    Diamond decision does not require us to rule otherwise, and
    Jefferson’s acts are encompassed in both the Birdsall "settled
    practices" and the statutory definitions of an official act.
    5.
    Jefferson argues that the link between a specific official act
    and a thing of value, required by Sun-Diamond, cannot be
    squared with the "settled practices" instruction used in this
    provide any argument regarding the elements of an impermissibly vague
    statute, but instead poses a series of sixteen rhetorical questions. See
    Giovani Carandola, Ltd. v. Fox, 
    470 F.3d 1074
    , 1079 (4th Cir. 2006) (rec-
    ognizing that "[a] statute is impermissibly vague if it either (1) fails to pro-
    vide people of ordinary intelligence a reasonable opportunity to
    understand what conduct it prohibits or (2) authorizes or even encourages
    arbitrary and discriminatory enforcement" (internal quotation marks omit-
    ted)); Br. of Appellant 18. We therefore deem it unnecessary to conduct
    a vagueness analysis with respect to the bribery statute.
    UNITED STATES v. JEFFERSON                   39
    case. He asserts that the bribery statute, if read to encompass
    a public official’s settled practices, would criminalize such
    customary activities as the President receiving sports teams at
    the White House, and "the Supreme Court definitively has
    said otherwise." Br. of Appellant 26. Jefferson’s contention,
    however, misses the mark. There is simply no indication that
    Sun-Diamond sought to undermine Birdsall’s holding. Indeed,
    Sun-Diamond did not mention Birdsall at all — a curious
    omission if the Court intended to overturn its landmark deci-
    sion on the definition of "official act." In Sun-Diamond, the
    Court was concerned with an unwarranted extension of the
    illegal gratuity statute to prohibit any gifts to public officials.
    Rather than ruling on what constitutes an official act, the
    Court simply embraced a narrow reading of the illegal gratu-
    ity statute, deciding that a connection between the payment or
    gift and a specific official act was required, as opposed to
    those gratuities given simply because of status or in order to
    "create a reservoir of goodwill." See Sun-Diamond, 
    526 U.S. at 405
    .
    The only analysis by Sun-Diamond of the definition of an
    official act comes as a rebuttal to the hypothetical impact of
    the Court’s narrow reading of the illegal gratuity statute. See
    
    526 U.S. at 407
    . The Court addressed the possibility that its
    narrow interpretation could lead to "absurd" results, in that
    gifts could be regarded as having been given to the President
    or the Secretary of Agriculture "for or because of" the official
    acts of "receiving the sports teams at the White House . . . and
    speaking to the farmers about USDA policy, respectively." 
    Id.
    The Court responded that such an absurd result would be
    "eliminated through the definition of [official act.]" 
    526 U.S. at 408
    . The Court explained, "[T]he answer to this objection
    is that those actions — while they are assuredly ‘official acts’
    in some sense — are not ‘official acts’ within the meaning of
    the statute . . . ." 
    Id. at 407
    . Bolstering this conclusion, Sun-
    Diamond explained that, when a gratuity is not linked to a
    specific official act "and the giving of gifts by reason of the
    40                 UNITED STATES v. JEFFERSON
    recipient’s mere tenure in office constitutes a violation, noth-
    ing but the Government’s discretion prevents the foregoing
    example[ ] [of the sports jerseys] from being prosecuted." 
    Id. at 408
    . Without a more explicit directive, we are unwilling to
    translate Sun-Diamond’s brief discussion of the "official act"
    definition into an unqualified exclusion of all settled practices
    by a public official from the bribery statute’s definition of an
    official act. And we have no authority to nullify Birdsall’s
    time-tested ruling that an official act need not be specifically
    prescribed by law.
    Put simply, we agree with Sun-Diamond and Valdes that
    the bribery statute does not encompass every action taken in
    one’s official capacity, and we also agree with Valdes that
    Birdsall did not so hold. Although Birdsall recognized that
    every act within the range of official duty comes within the
    purview of an "official act," the inquiry does not end there,
    and such an act must yet adhere to the definition confining an
    official act to a pending "question, matter, cause, suit, pro-
    ceeding or controversy." § 201(a)(3). We thus part company
    with Jefferson’s broad assertion that Sun-Diamond supersedes
    Birdsall.
    The trial evidence showed that Jefferson, as a congressman,
    had long-standing relationships with businesspersons and
    investors, and it was his practice to request and receive favors,
    gifts, and beneficial business deals in exchange for his actions
    in promoting such businesses, both abroad and domestically,
    and in ensuring the success of specific business ventures. The
    acts performed by Jefferson in exchange for the various bribe
    payments included, inter alia:
    •   Granting requests for assistance to business ven-
    tures by corresponding and visiting with foreign
    officials;
    •   Attempting to facilitate and promote ventures
    between foreign governments and the businesses
    who were paying him and his family;
    UNITED STATES v. JEFFERSON                       41
    •   Scheduling and conducting meetings with Army
    officials and representatives, at which he pro-
    moted iGate;
    •   Travelling to Nigeria and Ghana, and meeting
    with representatives of the Ex-Im Bank to
    endorse, assist, and promote the iGate scheme;
    and
    •   Vouching for Arkel in Nigeria and seeking to
    secure construction contracts for the Arkel enti-
    ties.37
    Importantly, the various individuals and businesses that
    were paying Jefferson — by delivering money and things of
    value to enterprises owned by his family members — were
    doing so with the specific understanding that he would assist
    in their business ventures. Notably, the Valdes court qualified
    its decision, in a manner that is material here, by emphasizing
    that
    today’s decision is in no way at odds with numerous
    other cases finding liability under § 201. By focusing
    on those questions, matters, causes, suits, proceed-
    ings, and controversies that are decided by the gov-
    ernment, our interpretation of the statute easily
    covers [inter alia] a congressman’s use of his office
    to secure Navy contracts for a ship repair firm, as in
    United States v. Biaggi[, 
    853 F.2d 89
    , 96-99 (2d Cir.
    1988)].
    Valdes, 
    475 F.3d at 1325
     (emphasis added). To be sure, the
    37
    Under the evidence, Jefferson’s bribery schemes resulted in him and
    his family receiving, inter alia, at least $449,300 through ANJ; approxi-
    mately $21,000 though BEP; 30.7 million shares of iGate stock issued to
    ANJ; 1.5 million shares of W2-IBBS stock issued to Global; and 1.5 mil-
    lion shares of IBBS stock issued to Global.
    42                 UNITED STATES v. JEFFERSON
    D.C. Circuit explained that the contested act in Biaggi — a
    decision substantially identical to this case — was "clearly
    covered by the statute because [it] concern[ed] inappropriate
    influence on decisions that the government actually makes."
    Id.
    6.
    Here, after reading the § 201(a)(3) "official act" definition
    to Jefferson’s jury, the trial court instructed that
    [a]n act may be official even if it was not taken pur-
    suant to responsibilities explicitly assigned by law.
    Rather, official acts include those activities that have
    been clearly established by settled practice as part
    [of] a public official’s position.
    J.A. 5149. This instruction was entirely consistent with the
    Birdsall principle, which has never been overruled or called
    into question by the Supreme Court. And the instruction did
    not in any way supplant the statutory definition of what con-
    stitutes an official act; it simply explained to the jury that an
    official act need not be prescribed by statute, but rather may
    include acts that a congressman customarily performs, even if
    the act falls outside the formal legislative process.
    Inasmuch as the trial court gave its "settled practice"
    instruction in tandem with the statutory definition of "official
    act," the jury was not authorized to ignore the directive that
    Jefferson’s official acts must pertain to a pending question,
    matter, or cause that was before him. In other words, the jury
    could not rely exclusively on Jefferson’s settled practices.
    Finally, it is notable that the prosecution tried Jefferson’s
    case under both "settled practice" and "pending question" the-
    ories. For example, the government presented expert testi-
    mony on the nature of congressional duties, utilizing the
    experience and knowledge of former multi-term Representa-
    UNITED STATES v. JEFFERSON                           43
    tive Matthew F. McHugh. Former congressman McHugh
    confirmed that Jefferson’s obligations as a
    congressman included constituent services, which "involves
    people who live in your own congressional district coming to
    you or to your staff, asking for assistance on matters which
    relate to the Federal Government." J.A. 3825. McHugh also
    testified that the duties of a congressman include addressing
    various concerns that relate to committee assignments, and
    that such actions are performed in a congressman’s official
    capacity pursuant to the settled practices and customs of Con-
    gress. The government presented additional evidence that Jef-
    ferson was largely responsible for promoting trade in Africa
    and reaching out to African government officials to foster
    commercial relationships between those countries and the
    United States. Thus, the jury was free to find, first of all, that
    performing constituent services was a settled official practice
    of Jefferson’s congressional office and, second, that African
    trade issues were "matters" or "causes" that were pending
    before him.38 The jury was then entitled to conclude that Jef-
    ferson’s actions in connection with both constituent requests
    and the promotion of trade in Africa fall under the umbrella
    of his "official acts."39
    38
    Although Jefferson’s primary defense theory at trial and on appeal is
    that what he did in connection with the multiple bribe payments did not
    constitute criminal acts under the bribery statute, that was certainly not his
    view of those actions while the bribery schemes were ongoing. As he
    advised Mody in 2005, "these damn notes we’re writing to each other, as
    if we thought . . . [the] FBI’s watching us." J.A. 2321. More damning, his
    criminal mindset was established beyond peradventure by his statement to
    Jackson that same year that "We’ve got to do this shit right, though. I
    mean, otherwise, we’re going to all be in the goddamn pokey somewhere,
    fooling with . . . shit like this." J.A. 783-84. Finally, the jury was entitled
    to conclude — as it did — that the concealment of $90,000 of a cash bribe
    provided further confirmation of Jefferson’s view that he was involved in
    criminal activity.
    39
    Though we discern no error in the official act instruction, it bears not-
    ing that, even if the "settled practice" instruction was erroneously given,
    it was harmless because the prosecution presented ample evidence to the
    jury that Jefferson’s acts related to the bribe payments were acts on "mat-
    ters" or "causes" that were pending before him — such as acts in further-
    ance of his congressional duties to promote trade with Africa.
    44                 UNITED STATES v. JEFFERSON
    Viewed in context, the "settled practice" instruction did not
    impermissibly expand the term "official act." See Cupp v.
    Naughten, 
    414 U.S. 141
    , 146–47 (1973) (recognizing proposi-
    tion that "a single instruction to a jury may not be judged in
    artificial isolation, but must be viewed in the context of the
    overall charge"). Therefore, we reject Jefferson’s contention
    that the trial court improperly instructed the jury on the defini-
    tion of an official act.
    B.
    Jefferson next contends, with respect to the bribery charges
    in Counts 3 and 4, that the district court erred when it
    instructed the jury that the prosecution was obliged to prove
    that, in exchange for bribe payments, Jefferson performed
    unidentified official acts "on an as-needed basis." Again, we
    review de novo the claim that a jury instruction failed to cor-
    rectly state the applicable law. See El-Shamari, 
    217 F.3d at 235
    . The instruction at the center of this challenge relates to
    the "quid pro quo" element of the bribery offense, and the
    court advised the jury that
    the quid pro quo requirement is satisfied if you find
    that the government has established beyond a rea-
    sonable doubt that the defendant agreed to accept
    things of value in exchange for performing official
    acts on an as-needed basis, so that [when]ever the
    opportunity presented itself, he would take specific
    action on the payor’s behalf.
    J.A. 5151. Again relying primarily on the Sun-Diamond deci-
    sion, Jefferson asserts that this instruction contravenes the
    bribery statute’s requirement that there be "a specific intent to
    give or receive something of value in exchange for an official
    act." Br. of Appellant 43 (citing Sun-Diamond, 
    526 U.S. at 404-05
    ). Although we have already discussed the Court’s
    Birdsall decision (which arose in the bribery context), as well
    as its Sun-Diamond opinion (in an illegal gratuity case), we
    UNITED STATES v. JEFFERSON                     45
    again emphasize the material distinction between a bribery
    offense and an illegal gratuity offense.
    Although both the bribery and illegal gratuity statutes relate
    to giving a thing of value to a public official, or a public offi-
    cial accepting a thing of value, the illegal gratuity statute, on
    its face, is one-sided. That is, an illegal gratuity does not
    require an intent to influence or be influenced. The gratuity is
    a reward for an action that a public official has already taken,
    or for an action that the public official has committed to take
    in the future. The bribery statute, however, requires proof of
    a quid pro quo, that is, an intent on the part of the public offi-
    cial to perform acts on his payor’s behalf. In other words, the
    public official’s intent to perform acts for the payor —
    required for a bribery offense — is the exchange, or quid pro
    quo, missing from the illegal gratuity scenario.
    In this situation, Jefferson intended to promote, for exam-
    ple, iGate, Mody, and Arkel, in his official capacity as a con-
    gressman, in exchange for money and things of value paid
    through his family’s businesses. The fact that he promised to
    promote certain business ventures on an as-needed basis (and
    then followed through) does not take this case beyond the
    ambit of the bribery statute. As we held in United States v.
    Quinn, the government need not
    prove "that the defendant intended for his payments
    to be tied to specific official acts (or omissions) . . . .
    Rather, it is sufficient to show that the payor
    intended for each payment to induce the official to
    adopt a specific course of action." . . . In other
    words, "[t]he quid pro quo requirement is satisfied so
    long as the evidence shows a course of conduct of
    favors and gifts flowing to a public official in
    exchange for a pattern of official actions favorable to
    the donor."
    
    359 F.3d 666
    , 673 (4th Cir. 2004) (quoting United States v.
    Jennings, 
    160 F.3d 1006
    , 1014 (4th Cir. 1998)). Here, the
    46                 UNITED STATES v. JEFFERSON
    congressman was soliciting ongoing bribe payments — from
    iGate, NDTV, Mody, Arkel, and others — to his family’s
    businesses, in exchange for promoting and facilitating lucra-
    tive deals between, for example, iGate and the Army, or
    between iGate, Mody, or Arkel and various African govern-
    ments. In that context, it would be impossible — and it is
    unnecessary — to link every dollar paid to one of the Jeffer-
    son family companies to a specific meeting, letter, trip, or
    other action by Jefferson to fulfill his end of a corrupt bargain.
    We have not and do not read the bribery statute or Sun-
    Diamond to compel any such link.
    The trial court’s quid pro quo instruction is strongly sup-
    ported by the Second Circuit’s decision in United States v.
    Ganim, 
    510 F.3d 134
     (2d Cir. 2007). We agree with that
    court’s explanation that, "in order to establish the quid pro
    quo essential to proving bribery, the government need not
    show that the defendant intended for his payments to be tied
    to specific official acts (or omissions)." 
    Id. at 148
     (internal
    quotation marks omitted). Rather, "bribery can be accom-
    plished through an ongoing course of conduct." 
    Id. at 149
     (cit-
    ing Jennings, 
    160 F.3d at 1014
    ); see also United States v.
    White, 
    665 F.3d 560
    , 568 (3d Cir. 2012) (explaining that
    "[t]he bribery theory does not require that each quid, or item
    of value, be linked to a specific quo, or official act. Rather,
    a bribe may come in the form of a stream of benefits" (inter-
    nal quotation marks omitted)).
    There was, in this case, an ongoing course of illicit and
    repugnant conduct by Jefferson — conduct for which he was
    compensated considerably by those on whose behalf he was
    acting. An absurd result would occur if we were to deem Jef-
    ferson’s illicit actions as outside the purview of the bribery
    statute, simply because he was rewarded by periodic pay-
    ments to his family’s businesses. Given the choice between a
    "meat axe or a scalpel" when interpreting a statute, we, like
    the Supreme Court, favor the scalpel. See Sun-Diamond, 
    526 U.S. at 412
    . We will not, however, carve from the bribery
    UNITED STATES v. JEFFERSON                            47
    statute a criterion that depends on the public official’s pre-
    ferred method of payment.
    C.
    In his third appellate contention, Jefferson maintains that
    his honest services wire fraud convictions must be vacated
    because of an erroneous jury instruction on the self-dealing
    theory of honest services wire fraud that was repudiated by
    the Supreme Court in Skilling v. United States, 
    130 S. Ct. 2896
     (2010).40 In response, the government concedes that an
    instructional error occurred, but maintains that the error was
    harmless beyond a reasonable doubt. Jury instructions are
    reviewed holistically for abuse of discretion on claims of ade-
    quacy, but, as explained above, Jefferson’s contention that the
    instruction failed to correctly state the applicable law is
    reviewed de novo. See United States v. Jeffers, 
    570 F.3d 557
    ,
    566 (4th Cir. 2009); El-Shamari, 
    217 F.3d at 235
    . Where the
    jury has been instructed on two theories of guilt, and one of
    those theories is erroneous, we further apply a harmless error
    standard of review. See Hedgpeth v. Pulido, 
    555 U.S. 57
    ,
    60–61 (2008) (per curiam); United States v. Hornsby, 
    666 F.3d 296
    , 305 (4th Cir. 2012).
    1.
    Importantly, the honest services wire fraud allegations
    rested on alternative theories: (1) that Jefferson solicited
    bribes in exchange for his official acts in the iGate scheme;
    and (2) that Jefferson had failed to disclose his conflicts of
    interest and self-dealing in the iGate scheme. On appeal, Jef-
    ferson initially maintains that the first alternative theory is
    fatally defective because it relied on the erroneous "official
    40
    Jefferson’s contention on the Skilling decision is that the erroneous
    instructions fatally infect six of his convictions, that is, his conspiracy con-
    victions under Counts 1 and 2, his honest services wire fraud convictions
    under Counts 6, 7, and 10, and his Count 16 RICO conviction.
    48                    UNITED STATES v. JEFFERSON
    act" bribery instruction — a contention we today reject. See
    supra Part IV.A. Jefferson then contends that the govern-
    ment’s reliance on the second alternative — his undisclosed
    conflicts of interest and self-dealing in the iGate scheme —
    is foreclosed by the Court’s decision in Skilling.
    The Skilling decision limited the scope of the honest ser-
    vices wire fraud statute, found in 
    18 U.S.C. § 1346
    , by confin-
    ing its application to bribes and kickbacks only.41 The
    Supreme Court thereby declined to construe the scope of
    § 1346 to include "undisclosed self-dealing by a public offi-
    cial or private employee — i.e., the taking of official action
    by the employee that furthers his own undisclosed financial
    interests while purporting to act in the interests of those to
    whom he owes a fiduciary duty." Skilling, 
    130 S. Ct. at 2932
    .
    Inasmuch as Jefferson’s convictions rest on multiple theo-
    ries of guilt, only one of which is flawed, we must assess
    whether the honest services wire fraud instruction given to the
    jury in Jefferson’s trial was "harmless beyond a reasonable
    doubt, such that it is clear that a rational fact finder would
    have found [the defendant] guilty absent the error." United
    States v. Poole, 
    640 F.3d 114
    , 120 (4th Cir. 2011). As
    explained below, we are satisfied that the error was necessar-
    ily harmless.
    2.
    Counts 1 and 2 each charged a conspiracy with multiple
    objects, in violation of 
    18 U.S.C. § 371
    , and the jury was
    instructed that it only had to find that Jefferson had conspired
    to commit one of the substantive offenses identified. Count 1
    41
    Section 1346 of Title 18, which was enacted in 1988, responded to the
    Supreme Court’s 1987 decision in McNally v. United States, 
    483 U.S. 350
    .
    Section 1346 specifies that a "‘scheme or artifice to defraud’ includes a
    scheme or artifice to deprive another of the intangible right of honest ser-
    vices."
    UNITED STATES v. JEFFERSON                         49
    charged Jefferson with conspiring to commit bribery, to com-
    mit honest services wire fraud, and to violate the Foreign Cor-
    rupt Practices Act, and Count 2 charged him with conspiring
    to commit bribery and honest services wire fraud. Counts 6,
    7, and 10 charged Jefferson with honest services wire fraud,
    in contravention of 
    18 U.S.C. §§ 1343
     and 1346, under the
    alternative theories identified above. Finally, in the 
    18 U.S.C. § 1962
    (c) RICO charge of Count 16, eleven of the twelve
    racketeering acts specified in the indictment fell under two
    alternative theories: bribery and honest services wire fraud.
    The trial court properly instructed the jury that, in order to
    convict on Count 16, it had to find that Jefferson had commit-
    ted two or more of those racketeering acts.
    Jefferson therefore relies on the Skilling decision as a basis
    for reversal of his convictions on the conspiracy, honest ser-
    vices wire fraud, and RICO offenses.42 In Skilling, however,
    the Supreme Court simply limited the ambit of § 1346 to
    those fraud schemes involving bribes or kickbacks, excluding
    undisclosed conflicts of interest and self-dealing. See 
    130 S. Ct. at 2931
     (explaining that "we now hold that § 1346 crimi-
    nalizes only the bribe-and-kickback core of the pre-McNally
    case law"). Importantly, the trial court properly instructed the
    jury on both of the alternative honest services wire fraud theo-
    ries alleged in the indictment: bribery and self-dealing. And,
    only one of those theories is erroneous.
    Pursuant to the Supreme Court’s decision in Yates v. United
    States, when a general verdict on a single criminal charge
    rests on alternative theories, one valid and the other invalid,
    the verdict must be set aside if it is "impossible to tell which
    ground the jury selected." 
    354 U.S. 298
    , 312 (1957); see also
    United States v. Ellyson, 
    326 F.3d 522
    , 531 (4th Cir. 2003).
    42
    Jefferson does not claim any spillover prejudice by contending that the
    Skilling error on the conspiracy, honest services wire fraud, or RICO
    counts tainted his separate convictions for money laundering and bribery
    offenses.
    50                UNITED STATES v. JEFFERSON
    Jefferson asserts that, under Yates, a new trial on the conspir-
    acy, honest services wire fraud, and RICO counts is man-
    dated, because "there is no doubt that the jury could easily
    have taken the legally invalid path to conviction (i.e., self-
    dealing honest services wire fraud)." Br. of Appellant 49-50.
    Unfortunately for Jefferson, however, that is not the applica-
    ble standard for our evaluation of the Skilling error. Rather, as
    the Court recognized in Hedgepeth v. Pulido, a Yates
    alternative-theory error is subject to ordinary harmlessness
    review, and the relevant appellate inquiry is whether the error
    was harmless beyond a reasonable doubt. See Hedgpeth, 
    555 U.S. at 61
    ; see also Skilling, 
    130 S. Ct. at
    2934 & n.46 (recog-
    nizing that harmless error analysis applies to alternative-
    theory error cases on direct appeal); Black v. United States,
    
    130 S. Ct. 2963
    , 2970 (2010) (same). Accordingly, a review-
    ing court is not entitled to reverse a conviction that could rest
    on either a valid or invalid legal theory if the court can con-
    clude "beyond a reasonable doubt that a rational jury would
    have found the defendant guilty absent the error." Neder v.
    United States, 
    527 U.S. 1
    , 18 (1999). Put another way, the
    Yates error is harmless if it appears "beyond a reasonable
    doubt that the error complained of did not contribute to the
    verdict obtained." 
    Id. at 15
     (internal quotation marks omitted).
    By way of example, if the evidence that the jury "necessarily
    credited in order to convict the defendant under the instruc-
    tions given . . . is such that the jury must have convicted the
    defendant on the legally adequate ground in addition to or
    instead of the legally inadequate ground, the conviction may
    be affirmed." United States v. Hastings, 
    134 F.3d 235
    , 242
    (4th Cir. 1998).
    In several recent decisions, the federal courts have applied
    the harmless error test to uphold convictions that were chal-
    lenged under Skilling. In United States v. Black, for example,
    the Seventh Circuit affirmed fraud convictions where the jury
    had been instructed on a valid pecuniary fraud theory as well
    as an invalid "intangible right of honest services" fraud the-
    ory. See 
    625 F.3d 386
    , 388 (7th Cir. 2010). Relying on
    UNITED STATES v. JEFFERSON                  51
    Hedgepeth, the Black court explained that, "if it is not open
    to reasonable doubt that a reasonable jury would have con-
    victed [defendants] of pecuniary fraud, the convictions on the
    fraud counts will stand." 
    Id.
     After closely examining the
    underlying facts, the court affirmed, finding that "[n]o reason-
    able jury could have acquitted the defendants of pecuniary
    fraud on this count but convicted them of honest-services
    fraud." 
    Id. at 393
    . In so ruling, the Seventh Circuit also relied
    on the fact that the evidence and closing arguments had
    focused on the pecuniary fraud theory. 
    Id.
    Similarly, in Ryan v. United States, an Illinois district court
    upheld several convictions, including racketeering and mail
    fraud, in the face of a Skilling challenge, finding that the facts
    underlying the invalid conflict-of-interest honest services wire
    fraud theory would nevertheless have supported convictions
    under a bribery honest services wire fraud theory. See 
    759 F. Supp. 2d 975
    , 991-93 (N.D. Ill. 2010); see also United States
    v. Wilkes, 
    662 F.3d 524
    , 544 (9th Cir. 2011) (affirming honest
    services wire fraud conviction where jury was instructed on
    both bribery and self-dealing theories, and conviction of sub-
    stantive bribery offense "confirm[ed] beyond any reasonable
    doubt that the jury would have convicted [defendant] of hon-
    est services fraud if the court’s definition had been limited to
    the bribery basis that Skilling expressly approved"); United
    States v. Cantrell, 
    617 F.3d 919
    , 921 (7th Cir. 2010) (ruling
    that Skilling did not disturb honest services wire fraud convic-
    tion that rested on kickback scheme). But see United States v.
    Wright, 
    665 F.3d 560
    , 570-72 (3d Cir. 2012) (vacating honest
    services wire fraud conviction where verdict encompassed
    both bribery theory and defective conflict-of-interest theory).
    3.
    Turning specifically to this case, the jury’s guilty verdict on
    Counts 3 and 4 — the two substantive bribery offenses —
    demonstrates beyond a reasonable doubt that Jefferson was
    guilty under the valid bribery theory underlying Counts 1, 6,
    52                UNITED STATES v. JEFFERSON
    7, 10, and 16, and that the Skilling error in the jury instruc-
    tions was necessarily harmless. See Neder, 
    527 U.S. at 15, 18
    .
    By convicting Jefferson of those bribery offenses (Counts 3
    and 4), the jury necessarily found that Jefferson had commit-
    ted the bribery object of the Count 1 conspiracy charge, since
    — as described in both the indictment and the instructions —
    the bribery object was co-extensive with the bribery conduct
    charged in Counts 3 and 4.
    The foregoing analysis also applies to the Count 16 RICO
    conviction, in that two of the racketeering acts that the jury
    found proven were identical to the bribery acts underlying
    Counts 3 and 4. In this regard, the jury was provided with a
    verdict form that required it to specify the alleged racketeer-
    ing acts it found Jefferson had committed. The jury was also
    provided with Court Exhibit 5, which identified the twelve
    alleged racketeering acts, eleven of which identified the two
    alternative theories of liability: bribery of a public official
    (prong "a") and deprivation of honest services by wire fraud
    (prong "b"). Two of the racketeering acts that the verdict
    found as proven were identical to the bribery offenses in
    Counts 3 and 4. Finally, racketeering act 12, which the jury
    also found as proven, described monetary transactions in nine
    separate racketeering acts, including three that corresponded
    to the money laundering counts (Counts 12-14) on which Jef-
    ferson was also convicted. Notably, the verdict on racketeer-
    ing act 12 is not challenged on appeal.
    Nor does Skilling provide Jefferson with any basis for relief
    as to Counts 6, 7, and 10, the honest services wire fraud
    counts. Although the trial court, on those counts, instructed
    the jury on both the bribery theory and the erroneous self-
    dealing theory, Jefferson’s convictions on Counts 3 and 4 ren-
    der the Skilling error harmless beyond a reasonable doubt,
    because, in finding Jefferson guilty of the substantive bribery
    violations, the jury necessarily found facts that would have
    supported his convictions under the bribery honest services
    theory of Counts 6, 7, and 10. Those charges allege wire com-
    UNITED STATES v. JEFFERSON                  53
    munications in furtherance of the iGate scheme, the very brib-
    ery scheme outlined in Counts 3 and 4 as well as Count 1 —
    where Jefferson solicited and received bribes from Jackson,
    Mody, and iGate. Put another way, the bribery theory under-
    lying the honest services wire fraud counts was that Jefferson
    had deprived American citizens and the House of Representa-
    tives of his honest services by soliciting bribe payments from
    Jackson, Mody, and iGate — conduct the jury found he had
    committed when it convicted him on Counts 3 and 4.
    4.
    We turn finally to Count 2, which charges a § 371 conspir-
    acy offense with two statutory objects: bribery and honest ser-
    vices wire fraud. Although the bribery schemes alleged as
    objects in Count 2 were not charged as substantive bribery
    offenses, the record establishes beyond a reasonable doubt
    that the alternative-theory error resulting from the inclusion of
    the self-dealing wire fraud instruction "did not contribute to
    the verdict obtained." See Neder, 
    527 U.S. at 15
     (internal quo-
    tation marks omitted). First, the primary focus of the prosecu-
    tion’s evidence and argument — overall and with respect to
    Count 2 specifically — concerned the conspiracy’s bribery
    object, not self-dealing honest services wire fraud. And the
    evidence presented in support of Jefferson’s systemic bribery
    schemes was overwhelming. Second, any reasonable jury that
    found Jefferson guilty of self-dealing honest services wire
    fraud would also have found that he conspired to commit
    either bribery or bribery-related honest services wire fraud.
    The prosecution’s evidence on Count 2 conclusively estab-
    lished that Jefferson and his brother Mose entered into a brib-
    ery scheme whereby Jefferson would solicit bribes from
    various business persons and entities in exchange for his offi-
    cial acts on behalf of such persons and entities, including,
    inter alia, George Knost and Arkel; John Melton and TDC;
    and James Creaghan and Noreen Wilson. On the evidence, we
    are readily satisfied, beyond a reasonable doubt, that the
    54                  UNITED STATES v. JEFFERSON
    guilty verdict on the Count 2 conspiracy rests on a finding
    that Jefferson conspired with others to commit the bribery
    object of the conspiracy, as well as the bribery component of
    honest services wire fraud.
    At its core, this prosecution was about bribery. In denying
    Jefferson’s motion to dismiss the honest services wire fraud
    charges, the district court observed that "the honest services
    fraud allegations contained in Counts 5-10, and referenced in
    Counts 1, 2, and 16, explicitly frame the alleged deprivation
    of honest services as a consequence of defendant’s alleged
    solicitation and receipt of bribes." United States v. Jefferson,
    No. 1:07-cr-00209, slip op. at 7 (E.D. Va. July 8, 2008). Fur-
    thermore, the primary thrust of the prosecution’s evidence, as
    well as its jury arguments, concerned Jefferson’s involvement
    in bribery schemes.
    In sum, the prosecution’s evidence on Count 2 readily
    proved the conspiracy between Jefferson, his brother Mose,
    and others, in which Jefferson would perform official acts to
    benefit bribe payors in exchange for their payments to entities
    controlled by Mose. Moreover, Jefferson’s self-dealing was
    primarily used as a means to conceal the multiple bribe pay-
    ments. Even if the jury believed that Jefferson had engaged in
    a conspiracy to conceal his self-dealing on behalf of the enti-
    ties and persons involved in the Count 2 conspiracy, it neces-
    sarily found that he had conspired to commit bribery and
    bribery honest services wire fraud, because those alternative
    theories of liability were co-extensive.
    As the prosecution emphasized in its trial argument, the
    "interests" that Jefferson failed to disclose were the bribe pay-
    ments he had received in exchange for his actions as a congress-
    man.43 Indeed, there could be no legitimate purpose or valid
    43
    By way of example, see J.A. 258 ("[Jefferson] concealed [his] bribe
    payments from public view by funneling those payments, shares of stock,
    and other beneficial interests through bogus companies nominally owned
    UNITED STATES v. JEFFERSON                         55
    explanation for those payments. Central to the prosecution’s
    evidence and argument on Count 2 was the notion that the
    entities and agreements that Representative Jefferson caused
    to be created were at the core of his bribery schemes with
    Mose, and that they were created as vehicles for the bribe
    payments Jefferson had solicited. In these circumstances, the
    Skilling instructional error on the Count 2 conspiracy offense
    was harmless, as it is clear that any rational fact finder would
    have found Jefferson guilty of that offense absent the error.
    D.
    Finally, Jefferson contends that there was a lack of venue
    in the Eastern District of Virginia for Count 10 of the indict-
    ment, which alleges an honest services wire fraud offense, in
    violation of 
    18 U.S.C. §§ 1343
     and 1346. The wire transmis-
    sion underlying Count 10 is a simple event: a July 6, 2005
    telephone call made by Jefferson "in Accra, Ghana, to Vernon
    Jackson in Louisville, Kentucky, discussing, among other
    things, the progress of meetings taking place in Ghana and a
    letter sent by Defendant Jefferson to Nigerian Official A."
    J.A. 121. That phone call related to the aspect of the iGate
    scheme in which Mody was also involved. We review de
    novo the contention that a district court lacked venue over a
    criminal charge. United States v. Newsom, 
    9 F.3d 337
    , 338
    (4th Cir. 1993).
    and operated by his family members through companies that were set up
    for the sole purpose of receiving the bribe payments."); 
    id.
     ("The evidence
    will show these sham agreements for what they really were: A means to
    conceal bribes."); id. at 4903 ("Again and again, you have seen evidence
    of the shell companies set up by Congressman Jefferson at his direction,
    frequently by the taxpayer paid staff, for the sole purpose of hiding the
    fact that the congressman was trading his official influence for cash pay-
    ments and percentages and profits."); id. at 5083 ("To the casual observer,
    these agreements looked legitimate. And that, ladies and gentlemen was
    the entire purpose."); id. at 5088 ("No matter what shell company or what
    agreement or what nominee, the purpose was always the same: covering
    up bribes, period.").
    56                    UNITED STATES v. JEFFERSON
    1.
    Article III of the Constitution provides for the venue of a
    criminal prosecution, directing that trial "shall be held in the
    State where the said Crimes shall have been committed." U.S.
    Const. art. III, § 2, cl. 3.44 Rule 18 of the Federal Rules of
    Criminal Procedure mandates that "the government must
    prosecute an offense in a district where the offense was com-
    mitted." And, under § 3237(a) of Title 18, "any offense
    against the United States begun in one district and completed
    in another or committed in more than one district may be
    inquired of and prosecuted in any district in which such
    offense was begun, continued, or completed."
    It is settled that, in a criminal case, venue must be narrowly
    construed, see United States v. Johnson, 
    323 U.S. 273
    , 276
    (1944), abrogated by statute on other grounds, and venue
    must be proper for each separate count of a multi-count
    indictment, see United States v. Ebersole, 
    411 F.3d 517
    , 524
    (4th Cir. 2005). Moreover, we have recognized that where —
    as here — Congress has not specifically provided for venue
    in the statute defining an offense, venue lies only where the
    essential conduct elements of the offense took place:
    When a criminal offense does not include a specific
    venue provision, venue must be determined from the
    nature of the crime alleged and the location of the act
    or acts constituting it. This inquiry is twofold. We
    must initially identify the conduct constituting the
    offense, because venue on a count is proper only in
    a district in which an essential conduct element of
    the offense took place. We must then determine
    where the criminal conduct was committed.
    44
    The Sixth Amendment also alludes to venue, specifying that, "[i]n all
    criminal prosecutions, the accused shall enjoy the right to a speedy and
    public trial, by an impartial jury of the State and district wherein the crime
    shall have been committed." U.S. Const. amend. VI (emphasis added).
    UNITED STATES v. JEFFERSON                 
    57 Smith, 452
     F.3d at 334-35 (internal quotation marks omitted);
    see also Ebersole, 
    411 F.3d at 524
     (same). The foregoing
    decisions serve to implement the clear directive of the
    Supreme Court for resolution of a venue issue — to first
    ascertain "the conduct constituting the offense (the nature of
    the crime) and then discern the location of the commission of
    the criminal acts." United States v. Rodriguez-Moreno, 
    526 U.S. 275
    , 279 (1999).
    2.
    The parties agree that venue for the prosecution of a federal
    criminal offense is proper only in a district where an "essen-
    tial conduct element" of the offense took place. The disagree-
    ment on Count 10 arises from the application of the foregoing
    principle to the charged wire fraud offense. Jefferson con-
    tends that the use of a wire communication is the offense’s
    sole essential conduct element, and there was thus no venue
    in the Eastern District of Virginia, because the phone call
    underlying Count 10 was neither begun nor completed in that
    district. For its part, the government maintains that the "de-
    visal and participation in a scheme to defraud" is also an
    essential conduct element of the wire fraud offense, and that
    the "Count 10 evidence was sufficient to prove venue as it
    showed [Jefferson] participat[ed] in the fraudulent scheme to
    deprive citizens of honest services [i.e., the iGate scheme] in
    the Eastern District of Virginia." Br. of Appellee 38, 95. The
    district court endorsed the government’s position, ruling that
    venue was appropriate in the district because Jefferson had
    there performed "acts directly or causally connected to the
    wire transmission." Jefferson I, 562 F. Supp. 2d at 703-04.
    In maintaining that venue is proper on Count 10 in the
    Eastern District of Virginia, the government relies primarily
    on the Supreme Court’s decision in United States v.
    Rodriguez-Moreno, 
    526 U.S. 275
     (1999), and the Seventh
    Circuit’s opinion in United States v. Pearson, 
    340 F.3d 459
    (7th Cir. 2003), vacated on other grounds by Hawkins v.
    58                     UNITED STATES v. JEFFERSON
    United States, 
    543 U.S. 1097
     (2005). In Rodriguez-Moreno,
    the Supreme Court ruled that venue for a charge of carrying
    a firearm in relation to a kidnapping, in violation of 
    18 U.S.C. § 924
    (c), was proper in New Jersey. Although the underlying
    kidnapping offense occurred partly in that state, the defendant
    had used and carried the firearm only in Maryland. The Court
    explained that "where a crime consists of distinct parts which
    have different localities the whole may be tried where any
    part can be proved to have been done." Rodriguez-Moreno,
    526 U.S. at 281 (internal quotation marks omitted). In Pear-
    son, the Seventh Circuit deemed venue to be proper in a wire
    fraud prosecution in the district where the defendants per-
    formed acts manifesting their intent to defraud, but where the
    wire communication neither originated nor terminated. Pear-
    son, 
    340 F.3d at 466-67
    . The government thus argues that,
    because the iGate scheme underlying Count 10 was devised
    and partially carried out in the Eastern District of Virginia,
    venue for wire fraud was proper there.
    3.
    The wire fraud statute provides for the punishment of who-
    ever "transmits or causes to be transmitted" a wire communi-
    cation to execute a scheme or artifice to defraud. 
    18 U.S.C. § 1343
    . The essential elements of a wire fraud offense are "(1)
    the existence of a scheme to defraud and (2) the use of . . .
    a wire communication in furtherance of the scheme." United
    States v. Curry, 
    461 F.3d 452
    , 457 (4th Cir. 2006).45
    45
    The district court instructed the jury in rather more detail, however,
    directing that it could convict on Count 10 only if it found: (1) that Jeffer-
    son knowingly devised or participated in a scheme to defraud; (2) that the
    scheme to defraud involved a material misrepresentation or concealment
    of material fact; (3) that Jefferson acted with intent to defraud; and (4) that
    in carrying out the scheme to defraud, Jefferson transmitted or caused to
    be transmitted a wire communication. Although the court charged the jury
    in four elements rather than two, its instruction probably favored Jeffer-
    son, and certainly covered the essential aspects of a wire fraud offense. In
    any event, neither Jefferson nor the government has contested the propri-
    UNITED STATES v. JEFFERSON                           59
    The scheme to defraud is clearly an essential element, but
    not an essential conduct element, of wire (or mail) fraud. See
    United States v. Ramirez, 
    420 F.3d 134
    , 144-145 (2d Cir.
    2005); see also United States v. Pasquantino, 
    336 F.3d 321
    ,
    332 n.5 (4th Cir. 2003) (recognizing that, "[b]ecause the mail
    and wire fraud statutes share the same language in relevant
    part, we apply the same analysis to both offenses"). Rather,
    "the essential conduct prohibited by § 1343 [is] the misuse of
    wires as well as any acts that cause such misuse." United
    States v. Pace, 
    314 F.3d 344
    , 349 (9th Cir. 2002); see also
    Ebersole, 
    411 F.3d at 527
     ("Here, the nature of the offense
    alleged was the act of causing a wire to be transmitted in fur-
    therance of a fraud." (internal quotation marks omitted));
    United States v. Condolon, 
    600 F.2d 7
    , 8 (4th Cir. 1979)
    ("The gravamen of the [wire fraud] offense is simply the mis-
    use of interstate communication facilities to execute ‘any
    scheme or artifice to defraud.’"). Similarly, the essential con-
    duct element in mail fraud is "the misuse of the mails." See
    Ramirez, 
    420 F.3d at 144
     (holding that the essential conduct
    element of mail fraud "encompasses the overt act of putting
    a letter into the postoffice" (internal quotation marks omit-
    ted)).
    In a mail or wire fraud prosecution, the mailing or wire
    transmission itself — i.e., misuse of the mail or wire — has
    consistently been viewed as the actus reus that is punishable
    by federal law.46 In such prosecutions, it is settled that each
    ety of the wire fraud instruction. See United States v. Hornsey, 
    666 F.3d 296
    , 310 (4th Cir. 2012) (reciting circuit precedent that no error commit-
    ted where, "taken as a whole, the instruction fairly states the controlling
    law" (citation omitted)).
    46
    The actus reus is the "guilty act" required for the imposition of crimi-
    nal sanctions, and is distinguishable from the mens rea, i.e., the guilty
    mind. See United States v. Muzii, 
    676 F.2d 919
    , 920, 923 (2d Cir. 1982)
    (recognizing that the "guilty act . . . must be contemporaneous with the
    guilty mind" and "an attempt to punish evil thoughts alone would cast the
    net of the criminal law too widely").
    60                UNITED STATES v. JEFFERSON
    mailing or wire transmission in furtherance of the fraud
    scheme constitutes a separate offense, and it may be sepa-
    rately punished. See Badders v. United States, 
    240 U.S. 391
    ,
    394 (1916) (recognizing that "there is no doubt that the law
    may make each putting of a letter into the postoffice a sepa-
    rate offence" when multiple mailings relate to the same
    scheme); United States v. Williams, 
    527 F.3d 1235
    , 1241
    (11th Cir. 2008) (determining that, "[w]here one scheme or
    artifice to defraud involves multiple wire transmissions, each
    wire transmission may form the basis for a separate count"
    because "Section 1343 targets not the defendant’s creation of
    a scheme to defraud, but the defendant’s execution of a
    scheme to defraud"); United States v. Allen, 
    491 F.3d 178
    ,
    181-84 (4th Cir. 2007) (affirming convictions on multiple
    counts of wire fraud arising from single scheme).
    The treatment of multiple transmissions as separate
    offenses is linked inexorably to the legal principles applicable
    to issues of double jeopardy. As the Supreme Court explained
    long ago, in Blockburger v. United States, the separate pun-
    ishment test implicates the question of "whether the individ-
    ual acts are prohibited, or the course of action which they
    constitute. If the former, then each act is punishable sepa-
    rately . . . . If the latter, there can be but one penalty." 
    284 U.S. 299
    , 302 (1932) (internal quotation marks omitted). As
    the Eighth Circuit recognized in United States v. Gardner, an
    indictment that charges multiple mail fraud offenses based on
    a single fraud scheme does not contravene the Double Jeop-
    ardy Clause under Blockburger, because "it is not the plan or
    scheme that is punished." 
    65 F.3d 82
    , 85 (8th Cir. 1995). The
    Gardner court emphasized that the criminal acts being pun-
    ished are, as here, each separate mailing (or wire transmis-
    sion). Id.; see also Badders, 
    240 U.S. at 394
    .
    Applying these principles, the multiple wire fraud charges
    in Jefferson’s indictment do not pose a double jeopardy issue
    — and none is raised — because § 1343 criminalizes each
    wire transmission in furtherance of a single fraud scheme. It
    UNITED STATES v. JEFFERSON                  61
    is the physical act of transmitting the wire communication for
    the purpose of executing the fraud scheme that creates a pun-
    ishable offense, not merely "the existence of a scheme to
    defraud." As the Second Circuit explained in Ramirez, a con-
    duct element is one of action, such as the act of putting a letter
    in the mailbox or making a telephone call. See 
    420 F.3d at 144-45
    . On the other hand, the element of devisal of the
    scheme "connotes contemplation, not action." 
    Id. at 144
    .
    The government’s argument for venue on the basis of Jef-
    ferson’s "devisal and participation in a scheme to defraud," if
    accepted, would constrict the application of the wire fraud
    statute, which requires only that the subject scheme be
    devised, not that it be participated in. As the Ramirez court
    pointed out with respect to the identical element of the analo-
    gous mail fraud statute, "devising a scheme to defraud [ ] is
    not itself conduct at all (although it may be made manifest by
    conduct), but is simply a plan, intention or state of mind,
    insufficient in itself to give rise to any kind of criminal sanc-
    tions." 
    420 F.3d at 145
    . Requiring an additional showing of
    participation in the scheme impermissibly engrafts a conduct
    component onto a pure intent element, confusing the issue
    before us. The district court therefore erred in relying on Jef-
    ferson’s "acts directly or causally connected to the wire trans-
    mission" as providing venue, because aside from the
    transmission itself, there are no acts necessary to establish the
    crime of wire fraud.
    That the devisal of a scheme relates only to establishing the
    mens rea element of the wire fraud offense provides a critical
    distinction between Jefferson’s situation and the one
    addressed by the Court in Rodriguez-Moreno. In the latter
    case, both of the essential elements — using or carrying a
    firearm and committing a crime of violence — were conduct
    elements requiring physical acts. It was therefore of no
    moment that the defendant, prosecuted in one state where he
    engaged in the predicate kidnapping, used or carried a firearm
    only in another state, after he took the victim there:
    62                    UNITED STATES v. JEFFERSON
    Since one of the essential conduct elements of the
    offense had occurred in New Jersey, venue was
    proper there . . . even though the other essential con-
    duct element had occurred elsewhere. The govern-
    ment would have us conclude that "having devised
    or intending to devise a scheme or artifice to
    defraud" . . . is comparable to "during a crime of vio-
    lence" under § 924(c)(1). But whereas a crime of
    violence such as kidnaping is an act, and thus may
    qualify as an essential conduct element, . . . "having
    devised or intending to devise a scheme or artifice to
    defraud" is not.
    Ramirez, 
    420 F.3d at 146
     (citation omitted).
    The government’s position on venue ignores that the crime
    charged in Count 10 was not the bribery scheme, but the
    offense of wire fraud occasioned by a single telephone call.
    Its distinct parts — the making and completion — occurred
    in two different localities, neither of which was within the
    Eastern District of Virginia.47
    47
    The government’s argument for venue on Count 10 would invite the
    dismissal of the indictment’s wire fraud charges for multiplicity — a con-
    stitutional doctrine implicating both the Double Jeopardy Clause and Fifth
    Amendment due process. See United States v. Colton, 
    231 F.3d 890
    , 909-
    10 (4th Cir. 2000) (deeming bank fraud charges to be multiplicious);
    United States v. Mancuso, 
    42 F.3d 836
    , 847 n.11 (4th Cir. 1994) (explain-
    ing that "[m]ultiplicity is charging a single offense in more than one count
    in an indictment" (internal quotation marks omitted)). If, as the govern-
    ment contends on appeal, Jefferson’s scheme to defraud was itself an
    essential conduct element, and thus sufficient to establish venue for a wire
    fraud charge in every district touched by the scheme, the Jefferson indict-
    ment could be deemed multiplicious. That is, if the crime of wire fraud
    were defined by the single underlying scheme and not by the individual
    acts of wire transmission, the indictment could be said to charge the same
    offense in each of Counts 6 though 10.
    UNITED STATES v. JEFFERSON                         63
    4.
    In determining that venue was proper on Count 10, the dis-
    trict court relied on the Seventh Circuit’s Pearson decision,
    which concluded that, under the wire fraud statute, venue is
    proper in any district where the defendant’s acts "provided
    critical evidence of the ‘intent to defraud,’ an element of the
    crime of wire fraud." 
    340 F.3d at 466
    ; see Jefferson I, 562 F.
    Supp. 2d at 702-04. That position runs contrary to the deci-
    sions of at least two of our sister circuits. See Ramirez, 
    420 F.3d at 144
     (mail fraud; rejecting government’s argument that
    "venue is proper . . . in any district where any aspect of the
    scheme or artifice to defraud was practiced"); Pace, 
    314 F.3d at 349
     (wire fraud; "Although a fraudulent scheme may be an
    element of the crime of wire fraud, it is using wires and caus-
    ing wires to be used in furtherance of the fraudulent scheme
    that constitutes the prohibited conduct. Therefore, venue is
    established in those locations where the wire transmission at
    issue originated . . . or was received . . . ." (internal quotation
    marks omitted)).48 In sum, we agree with the Second and
    Ninth Circuits, and we are satisfied to adhere to the venue
    principles enunciated and applied in their Ramirez and Pace
    decisions.
    48
    The district court incorrectly perceived that the Seventh Circuit’s
    Pearson decision could somehow be reconciled with the Pace and
    Ramirez principles. See Jefferson I, 562 F. Supp. 2d at 703-04. Notably,
    the Pearson court itself did not think so. See Pearson, 
    340 F.3d at
    467 n.3
    ("declin[ing] to adopt the analysis" in Pace). Nor does the government so
    believe, as it argues that Pace and Ramirez were wrongly decided. See Br.
    of Appellee 97 n.34 ("[T]he narrow view of venue espoused in [Pace and
    Ramirez] is contrary to Rodriguez-Moreno."). Contrary to the govern-
    ment’s position, however, neither Pace nor Ramirez is in any way adverse
    to Rodriguez-Moreno. To adopt the government’s venue theory, we would
    be called upon to approve a type of "pendent venue" for wire fraud
    offenses, or otherwise agree that a "substantial contacts" test could be
    applied. Because both those propositions run counter to the Constitution
    and Rule 18, we are unwilling to adopt either of them.
    64                UNITED STATES v. JEFFERSON
    Representative Jefferson could have been — and perhaps
    yet could be — prosecuted on Count 10 in the district in Ken-
    tucky where his phone call was received. If the call had origi-
    nated domestically (rather than in Africa), he might also have
    been prosecuted in the district from which the phone call had
    been made. See Ebersole, 
    411 F.3d at 527
     (explaining that
    wire fraud is continuing offense under § 3237(a) and thus may
    be prosecuted in any district where offense was begun, contin-
    ued, or completed). But Jefferson could not, on these facts, be
    properly prosecuted on Count 10 in the Eastern District of
    Virginia. As a result, we are obliged to vacate Jefferson’s con-
    viction and sentence on that charge.
    IV.
    Pursuant to the foregoing, we affirm each of Jefferson’s
    convictions in this case except his Count 10 wire fraud con-
    viction and sentence, which we vacate and remand for such
    further proceedings as may be appropriate.
    AFFIRMED IN PART,
    VACATED IN PART,
    AND REMANDED