Who Put the Quo in Quid Pro Quo?: Why Courts Should Apply McDonnell ’s “Official Act” Definition Narrowly

Fordham Law Review Volume 85 | Issue 4 Article 10 2017 Who Put the Quo in Quid Pro Quo?: Why Courts Should Apply McDonnell ’s “Official Act” Definition Narrowly Adam F. Minchew Fordham University School of Law Recommended Citation Adam F. Minchew, Who Put the Quo in Quid Pro Quo?: Why Courts Should Apply McDonnell ’s “Official Act” Definition Narrowly, 85 Fordham L. Rev. 1793 (2017). Available at: http://ir.lawnet.fordham.edu/flr/vol85/iss4/10 This Note is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact . WHO PUT THE QUO IN QUID PRO QUO?: WHY COURTS SHOULD APPLY MCDONNELL’S “OFFICIAL ACT” DEFINITION NARROWLY Adam F. Minchew* Federal prosecutors have several tools at their disposal to bring criminal charges against state and local officials for their engagement in corrupt activity. Section 666 federal funds bribery and § 1951 Hobbs Act extortion, two such statuary tools, have coexisted for the past thirty-six years, during which time § 666 has seen an increasing share of total prosecutions while the Hobbs Act’s share of prosecutions has fallen commensurately. In the summer of 2016, the U.S. Supreme Court decided McDonnell v. United States—a decision that threatens to quicken the demise of Hobbs Act extortion in favor of § 666. If McDonnell is interpreted to apply to Hobbs Act extortion but not to § 666, we can expect the latter to become the unchallenged favorite of federal prosecutors as well as increased litigation over whether § 666 bribery contains a quid pro quo requirement. This is likely to occur given § 666’s coverage of the same corrupt behavior, expansive jurisdictional hook, and, following McDonnell, lower difficulty of proving violations within some circuits. To avoid this eventuality, lower courts should distinguish McDonnell because of its unique procedural posture and continue to apply the existing quid pro quo framework. Before meaningful change to our federal bribery statutes can take place, the courts of appeals must first find consensus over whether and when § 666 requires the government to prove the existence of a quid pro quo. INTRODUCTION ........................................................................................ 1795 I. STATUTORY BACKGROUND OF FEDERAL EXTORTION AND BRIBERY 1797 A. Hobbs Act Extortion: 18 U.S.C. § 1951 ................................. 1798 B. Federal Funds Bribery: 18 U.S.C. § 666 ............................... 1799 C. Contrasting § 666 and Hobbs Act Extortion .......................... 1800 II. HOBBS ACT EXTORTION: QUID PRO QUO? ....................................... 1801 A. McCormick v. United States: Is Proof of a Quid Pro Quo Necessary for Hobbs Act Extortion Convictions?................. 1802 * J.D. Candidate, 2018, Fordham University School of Law; B.A., 2012, Hamilton College. I would like to thank Professor Marc Arkin for lending her expertise and support throughout this process; Jacobus van der Ven for his guidance; the editors and staff of the Fordham Law Review for their assistance; and, of course, my friends and family. 1793 1794 FORDHAM LAW REVIEW [Vol. 85 B. Evans v. United States: Clarifying the Quid Pro Quo Standard? .............................................................................. 1804 C. Circuit Confusion over the Hobbs Act’s Extortion Quid Pro Quo Requirement After Evans v. United States: What Does “Official Act” Mean? ........................................................... 1806 1. Is a Quid Pro Quo Showing Required in All Hobbs Act Extortion Prosecutions? .................................................. 1807 2. Most Courts of Appeals Adopt a Two-Tiered Approach to the Quid Pro Quo Requirement ................................... 1807 III. SECTION 666: QUID PRO QUO? ........................................................ 1809 A. A Brief Detour into the Federal Bribery Statute: § 201 ........ 1810 B. Circuits Requiring a Quid Pro Quo in § 666 Prosecutions .... 1811 C. Circuits with No Quid Pro Quo Requirement ........................ 1812 IV. MCDONNELL: CLARITY ON HOBBS ACT EXTORTION QUID PRO QUO REQUIREMENT?.................................................................... 1813 A. Virginia Governor Received More Than $175,000 from Pharmaceutical CEO ............................................................ 1813 B. Criminal Prosecution.............................................................. 1814 C. McDonnell Appeals His Conviction to the Fourth Circuit ..... 1816 D. The Supreme Court’s Opinion ................................................ 1816 V. POSSIBLE INTERPRETATIONS OF MCDONNELL BY THE LOWER COURTS AND THEIR EFFECT ON FUTURE FEDERAL PROSECUTIONS OF STATE AND LOCAL CORRUPTION .................. 1818 A. Courts May Interpret McDonnell Broadly to Apply to All Federal Antibribery Statutes, Including Both Hobbs Act Extortion and § 666 Bribery ................................................. 1818 B. Courts May Interpret McDonnell as Requiring a Specific Quid Pro Quo in Hobbs Act Extortion Prosecutions but Not in § 666 Prosecutions............................................................ 1819 C. Courts May Treat the McDonnell Decision Like SunDiamond and Decline to Apply the Court’s Statutory Interpretation of § 201 “Official Acts” to Hobbs Act Extortion or § 666 Bribery .................................................... 1820 VI. IN DEFENSE OF A BOUNDED INTERPRETATION OF MCDONNELL ...... 1821 A. The Problems Inherent in Applying McDonnell to Hobbs Act Extortion but Not to § 666 .................................................... 1822 B. The “Stream of Benefits” Quid Pro Quo Standard Is Worth Protecting Until the Supreme Court Issues a More Definitive Statement on Its Continued Existence .................. 1823 C. An Illustration: What If McDonnell Was Re-charged with Committing § 666 Bribery Instead of Hobbs Act Extortion and Federal Funds Bribery? ................................................. 1824 CONCLUSION ........................................................................................... 1825 2017] WHO PUT THE QUO IN QUID PRO QUO? 1795 INTRODUCTION From 2009 to 2012, Virginia Governor Robert McDonnell accepted over $175,000 in gifts and loans from Jonnie Williams, the CEO of a Virginiabased nutritional supplement company.1 At the same time, Williams sought state-sponsored research of a new product.2 Federal prosecutors charged McDonnell, and a jury found him guilty of honest services fraud and Hobbs Act extortion under color of official right.3 On June 27, 2016, however, a unanimous U.S. Supreme Court vacated McDonnell’s conviction and remanded due to an erroneous jury instruction regarding the meaning of “official act”—the quo component of a quid pro quo.4 On September 8, 2016, the U.S. Attorney’s (...truncated)