United States v. William Jefferson , 674 F.3d 332 ( 2012 )

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
1
In this appeal, Jefferson challenges his aggregate sentence of 156
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-
3
In addition to alleging sixteen criminal offenses, the indictment made
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,
19
For example, Jefferson advised Jackson by letter of December 27,
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.
24
The Arkel scheme relates primarily to Jefferson’s Count 2 conspiracy
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
31
Sao Tome and Principe is a small island republic off the coast of the
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
32
The International Petroleum scheme relates primarily to Jefferson’s
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 John McHugh, the current Secretary of the Army. Secre-
tary 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