McDonnell Defense Motions 081514

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DeIendant Robert McDonnell, by and through undersigned counsel, moves the Court Ior
a judgment oI acquittal on Counts 1-13 oI the Indictment.
The Government has entirely Iailed to prove the most basic element oI Count 12, namely,
that Mr. McDonnell made a Ialse statement to TowneBank. Because Mr. McDonnell was not
personally liable Ior any loan Irom Jonnie Williams, he did not make a Ialse statement by
omitting these loans Irom a Iorm that, by its clear terms, called Ior the disclosure only oI
personal liabilities and assets. For that reason, Mr. McDonnell is entitled to a judgment oI
acquittal on Count 12.
For the same reasons, the Government has also Iailed to prove that Mr. McDonnell
IalsiIied a loan application to Pentagon Federal Credit Union, jointly Iiled with his wiIe, by
omitting $70,000 in loans Irom Mr. Williams to MoBo Real Estate Partners LLC. The
Government also oIIered no testimony establishing that Mr. McDonnell was required to disclose
the $50,000 loan to Mrs. McDonnell. He is accordingly entitled to a judgment oI acquittal on
Count 13.
Case 3:l4-cr-000l2-JRS Document 408 Filed 08/l4/l4 Page l of 4 PagelD# 9386

Finally, the Government has Iailed to show that Mr. McDonnell perIormed or promised
to perIorm any 'oIIicial act Ior Mr. Williams, as required to prove Counts 1-11 oI the
Indictment. The Government has not produced any evidence that would allow a jury to conclude
that Mr. McDonnell promised to exercise (or to inIluence others to exercise) any actual
governmental power to beneIit Mr. Williams. The most the Government can show, granting it
the beneIit oI all reasonable inIerences, is that Mr. McDonnell Iacilitated Mr. Williams` access to
certain government decision-makers so that Mr. Williams could attempt to persuade them to his
cause. But '|i|ngratiation and access . . . are not corruption. Citi:ens United v. Fed. Election
Commn, 558 U.S. 310, 360 (2010). For this reason, Mr. McDonnell is also entitled to a
judgment oI acquittal on Counts 1-11 oI the Indictment.
A proposed Order is submitted herewith Ior the convenience oI the Court.

Case 3:l4-cr-000l2-JRS Document 408 Filed 08/l4/l4 Page 2 of 4 PagelD# 9387

Dated: August 14, 2014

RespectIully submitted,
/s/ Jonathan A. Berry
Henry W. Asbill (pro hac vice)
Mary Ellen Powers (pro hac vice)
Noel J. Francisco (pro hac vice)
Ryan D. Newman (pro hac vice)
James M. Burnham (pro hac vice)
Jonathan A. Berry (VSB No. 81864)
JONES DAY
51 Louisiana Avenue, N.W.
Washington, DC 20001
Telephone: (202) 879-3939
Facsimile: (202) 626-1700

John L. Brownlee (VSB No. 37358)
Timothy J. Taylor (VSB No. 84529)
HOLLAND & KNIGHT LLP
800 17th Street N.W.
Suite 1100
Telephone: (202) 828-1854
Facsimile: (202) 955-5564

Counsel for Robert F. McDonnell

+%*$#-#+)$% ,- (%*/#+%

I, Jonathan A. Berry, am a member oI the Bar oI this Court. I hereby certiIy that on this
14th day oI August, 2014, I caused the Ioregoing to be electronically Iiled with the Clerk oI
Court using the CM/ECF system, causing it to be served on all registered users.

Dated: August 14, 2014 RespectIully submitted,
JONES DAY
Telephone: (202) 879-3939
Facsimile: (202) 626-1700
Email: jberryjonesday.com


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Case 3:l4-cr-000l2-JRS Document 409 Filed 08/l4/l4 Page l of l9 PagelD# 939l
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The Government has now presented all oI the evidence in its case-in-chieI. Its prooI oI
the charges against Mr. McDonnell is deIicient as a matter oI law in two respects.
First, the Government has entirely Iailed to prove the most basic element oI Count 12.
That Count charges Mr. McDonnell with making a Ialse statement to TowneBank by Iailing to
disclose a loan Irom Jonnie Williams on a 'Personal Financial Statement he submitted to the
bank. But the Government has not oIIered any evidence that Mr. Williams ever made a personal
loan to Mr. McDonnell; rather, he extended loans to Mrs. McDonnell and to MoBo Real Estate
Partners, LLC ('MoBo), a Virginia limited liability company. Virginia law clearly establishes
that an individual is not personally liable Ior the debts oI his spouse or an LLC oI which he is a
member. Because Mr. McDonnell was not personally liable Ior any loan Irom Mr. Williams, he
did not make a Ialse statement by omitting these loans Irom a Iorm that, by its clear terms, called
Ior the disclosure only oI personal liabilities and assets. Indeed, the president oI TowneBank
testiIied that Mr. McDonnell was not required to list these loans on his Personal Financial
Statement. The Government, thereIore, has Iailed to prove that Mr. McDonnell made a Ialse
statement to TowneBank, and Mr. McDonnell is entitled to a judgment oI acquittal on Count 12.
The Government has also Iailed to prove that Mr. McDonnell IalsiIied a loan application
to Pentagon Federal Credit Union ('PenFed), jointly Iiled with his wiIe, by omitting $120,000
in loans Irom Mr. Williams. Although pointing out the omissions, the Government has presented
no evidence that the omitted loans were actually required to be disclosed on the loan application.
The $70,000 in loans to MoBo were not personal liabilities oI Mr. McDonnell and thus were not
required to be listed as such. The $50,000 loan to Mrs. McDonnell also was not required to be
Case 3:l4-cr-000l2-JRS Document 409 Filed 08/l4/l4 Page 2 of l9 PagelD# 9392
- 2 -

listed because, as a PenFed oIIicial testiIied, no immediate payments were actually due. Mr.
McDonnell is accordingly entitled to a judgment oI acquittal on Count 13 as well.
Second, the Government has Iailed to show that Mr. McDonnell perIormed or promised
to perIorm any 'oIIicial act Ior Mr. Williams, as required to prove Counts 1-11. The
Government has put on over two weeks oI testimony and admitted many dozens oI exhibits into
evidence. And yet it has not produced any evidence that would allow a jury to conclude that he
promised to exercise (or to inIluence others to exercise) any actual governmental power to
beneIit Mr. Williams. The most the Government can show, granting it the beneIit oI all
reasonable inIerences, is that Mr. McDonnell Iacilitated Mr. Williams` access to certain
government decision-makers so that Mr. Williams could attempt to persuade them to his cause.
But '|i|ngratiation and access . . . are not corruption. Citi:ens United v. Fed. Election Commn,
558 U.S. 310, 360 (2010). For this reason, Mr. McDonnell is also entitled to a judgment oI
acquittal on Counts 1-11 oI the Indictment.
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The standard governing a Rule 29 motion Ior a judgment oI acquittal is 'whether there is
substantial evidence (direct or circumstantial) which, taken in the light most Iavorable to the
prosecution, would warrant a jury Iinding that deIendant was guilty beyond a reasonable doubt.
United States v. Jaensch, 678 F. Supp. 2d 421, 426 (E.D. Va. 2010), affd, 665 F.3d 83 (4th Cir.
2011) (quoting United States v. MacCloskev, 682 F.2d 468, 473 (4th Cir. 1982)). For the
prosecution to withstand a Rule 29 motion, 'the evidence must be suIIicient to support a
reasonable inIerence` that each oI the elements necessary Ior conviction are satisIied beyond a
reasonable doubt. Id. (citing MacCloskev, 682 F.2d at 474). Here, the evidence will not
- 3 -

support a jury Iinding that Mr. McDonnell committed any oI the crimes charged in the
Indictment.
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:4 Count 12 oI the Indictment charges Mr. McDonnell with violating 18 U.S.C.
1014 by knowingly making a Ialse statement to TowneBank on October 3, 2012, when he
submitted a 'Personal Financial Statement to the bank in connection with the annual review oI
two loans. In order to establish a violation oI 1014, the Government must prove (1) that Mr.
McDonnell made a Ialse statement, (2) that he made that statement in order to inIluence a bank`s
action respecting a loan to him, and (3) that he made the statement knowingly. See Elliott v.
United States, 332 F.3d 753, 759 (4th Cir. 2003). The Government`s prooI with regard to Count
12 oI the Indictment Iails at the Iirst step. The Government has introduced no evidence
whatsoever showing that Mr. McDonnell made any Ialse statement in the documents he
submitted to TowneBank. In Iact, the evidence in the record, especially the testimony Irom the
president oI TowneBank, proves the opposite: Mr. McDonnell`s disclosures on the Personal
Financial Statement were lawIul and accurate, and the inIormation that the Government claims
he wrongIully omitted was not required by the bank to be included. His alleged omission
thereIore does not constitute a Ialse statement.
The Government`s theory is that Mr. McDonnell deliberately IalsiIied his Personal
Financial Statement by omitting inIormation that he was required to disclose. An omission, to be
sure, can render a statement Ialse. See, e.g., United States v. Deutsch, 2012 U.S. Dist. LEXIS
64798, at *4 (S.D. W. Va. May 8, 2012) (reviewing cases and holding that 'an omission can be
a Ialse statement under 1014). But iI the inIormation is not required to be on the Iorm in the
Iirst place, then its omission is not a Ialse statement. United States v. Fontenot, 665 F.3d 640
- 4 -

(5th Cir. 2011), illustrates this commonsense point. In that case, the FiIth Circuit addressed
whether the deIendant`s Iailure to list an illegal $100,000 transaction as an 'outstanding debt||
on a mortgage reIinance application was a Ialse statement. 665 F.3d at 642; see also id. at 645
('The question initially beIore us is whether the request that applicants list all outstanding debts`
could have included the $100,000 loan` between Fontenot and the two businessmen; stated
diIIerently, the question is whether the transaction created a debt.`). The reIinance application
had a heading entitled 'Liabilities and Pledged Assets and directed applicants to list
'outstanding debt. Id. at 645 n.6. The court Iound that the 'plain language oI the loan
application indicates that the loan application speaks only to recognized, enIorceable debts under
the law. Id. ThereIore, '|i|I the loan constituted a debt, his certiIication |was| Ialse, but iI his
loan did not constitute a debt, his certiIication |was| not Ialse. Id. at 645. The district court
concluded that the statement with the omitted inIormation was 'literally true because the
missing loan was not a debt. Id. at 642. The circuit court aIIirmed. Applying Louisiana law,
which governed the enIorceability oI the omitted 'loan, the court concluded 'that, because the
money Fontenot received . . . did not create a debt,` Fontenot did not make Ialse statements on
the loan applications when he Iailed to list the $100,000 as an outstanding debt.` Id. at 647.
The Government contends here that, at the time Mr. McDonnell`s Personal Financial
Statement was submitted, Mr. McDonnell 'owed at least $50,000 to |Mr. Williams| and that
Mr. McDonnell, with knowledge oI this debt, omitted it Irom the Personal Financial Statement in
violation oI 1014. Indictment 118-19. These loans, however, were not loans made to Mr.
McDonnell personally. Instead, the Government`s own evidence establishes that, during the
course oI his relationship with the McDonnells, Mr. Williams extended one $50,000 loan to Mrs.
McDonnell on May 23, 2011, see GX-120, GX-122, GX-123; RM-2058; one $50,000 loan to
- 5 -

MoBo on March 6, 2012, see GX-352, GX-355; and another $20,000 loan to MoBo on May 22,
2012, see GX-386. None oI these loans were made to Mr. McDonnell, nor was he personally
obligated to repay any oI them under Virginia law. Accordingly, the loans were not liabilities oI
Mr. McDonnell, and he had no obligation to report them as such.
>4 The loan to Mrs. McDonnell, to state the obvious, was not made to Mr.
McDonnell. The $50,000 check was made out to 'Maureen McDonnell; Mrs. McDonnell
deposited the Iunds in her personal checking account; and Starwood Trust ledgers identiIy the
transaction as a loan to Mrs. McDonnell. See GX-120, GX-122, GX-123; Aug. 13, 2014 Tr. at
3087:3-10. The Government has introduced no evidence purporting to show that, despite these
Iacts, the loan was somehow made to Mr. McDonnell personally. Mr. Williams testiIied that
Mrs. McDonnell (not Mr. McDonnell) told him that 'she needed to borrow $50,000. July 30,
2014 Tr. at 680:22-23 (emphasis added). And Mr. Williams conIirmed that the loan was to Mrs.
McDonnell when he said that he was 'not writing |Mr. McDonnell`s| wiIe checks without |Mr.
McDonnell| knowing about it. Id. at 682:5-6 (emphasis added). Jerri Fulkerson, Mr. Williams`
assistant, also testiIied that, based on what Mr. Williams had told her, the loan was to Mrs.
McDonnell. See id. at 525:11-16. There is no evidence that Mr. McDonnell agreed to be jointly
liable on the loan.
In light oI this, Mr. McDonnell was not personally obligated to repay this loan. It is
blackletter Virginia law that 'a spouse shall not be responsible Ior the other spouse`s contract . . .
liability to a third party, whether such liability arose beIore or aIter the marriage.
1
Va. Code

1
There are limited exceptions to this rule that can, in certain narrow circumstances, allow
a creditor oI one spouse to reach the assets oI the other. See, e.g., Va. Code Ann. 55-37
(providing that '|t|he doctrine oI necessaries as it existed at common law shall apply equally to
both spouses). But the Government has not even hinted, let alone established, that any oI these
exceptions apply hereand in any event, these exceptions are irrelevant in the context oI Mr.
- 6 -

Ann. 55-37. See also, e.g., In re Wickham, 130 B.R. 35, 39 (Bankr. E.D. Va. 1991) (rejecting
creditor`s claim that wiIe assumed liability Ior her husband`s debt where the relevant reIinancing
agreement 'Iail|ed| to impose any liability on |the wiIe|). Mr. McDonnell, thereIore, was not
liable Ior the $50,000 loan to his wiIe.
Because the loan to Mrs. McDonnell was not a personal liability oI Mr. McDonnell, he
was not required to disclose it on his Personal Financial Statement. The Iorm Mr. McDonnell
submitted to TowneBank makes clear that only the liabilities oI the person submitting the Iorm
must be listed, unless the person is Iiling jointly with a spouse. The Iorm is speciIically designed
to allow individuals to speciIy whether they are disclosing their individual personal assets and
liabilities or their joint spousal assets and liabilities. On the Iirst page, the Iorm asks Iilers to
check one oI two boxes: by checking the Iirst, the Iiler indicates that the Iorm represents an
'Individual Iinancial statement (does not include jointly held assets), while by checking the
second, the Iiler indicates that the Iorm is a 'Joint Iinancial statement with spouse. See GX-
416. Mr. McDonnell checked the 'Individual Iinancial statement box. By doing so, he clearly
indicated that the Iorm would not reIlect assets or liabilities oI his wiIe. Mr. McDonnell`s
omission oI any oI Mrs. McDonnell`s liabilities Irom this Iorm, thereIore, could not possibly
constitute a 'Ialse statement under 1014.
Testimony Irom a TowneBank oIIicial, moreover, conIirms what the Iorm itselI makes
clear: Mr. McDonnell was not obligated to disclose a loan to Mrs. McDonnell on his individual
Personal Financial Statement. William Sessoms, the president oI TowneBank, testiIied that Mr.

(continued.)

McDonnell`s preparation oI the Personal Financial Statement, which asked him to list his
existing personal liabilities. Not until a court held that such an exception was applicable would
the deIault rule that spouses` liabilities are separate be displaced and Mr. McDonnell become
liable Ior his wiIe`s debts.
- 7 -

McDonnell`s Personal Financial Statement was an individual statement, not a joint statement,
and that, as a result, it only required inIormation pertaining to Mr. McDonnell, not his wiIe.
August 13, 2014 Tr. at 3085:2-9. Mr. Sessoms Iurther testiIied that a loan to Mrs. McDonnell
would not need to be included on the Iorm, unless there was a written guarantee by Mr.
McDonnell. Id. at 3087:16-22, 3108:6-10; see also Aug. 13, 2014 Tr. at 3239:8-11 (testimony oI
JeIIrey Creekmore that a loan to one spouse need not appear on the personal Iinancial statement
oI the other spouse).
84 The same is true with respect to the two MoBo loans. These loans were not made
to Mr. McDonnell. The March 6, 2012 loan took the Iorm oI a check to MoBo, which was
deposited in MoBo`s bank account. See GX-352 (check Irom 'Starwood Trust to 'MoBo
Realty, to the attention oI Maureen Uncapher, Mr. McDonnell`s partner in MoBo); GX-355
(statement showing $50,000 deposited in a MoBo account at TowneBank). The May 22, 2012
wire transIer was made directly into MoBo`s account. See GX-386 (BB&T wire transIer
statement showing transIer oI $20,000 to the account oI MoBo Real Estate Partners LLC at
TowneBank, to the attention oI Michael Uncapher).
2
Once again, the Government has
introduced no evidence showing that, despite these Iacts, the loans were made to Mr. McDonnell
personally. Mr. Williams testiIied that he instructed his assistant Ms. Fulkerson to write the
check to MoBo Realty, a legal entity that he understood to be owned by Mr. McDonnell and his

2
The Personal Financial Statement is dated April 30, 2012. Its omission oI the May 22,
2012 loanwhich was made after the date the Personal Financial Statement was completed
thereIore cannot be the basis oI criminal liability under 1014. Omitting a loan that did not yet
exist Irom a disclosure Iorm obviously cannot be a 'Ialse statement. To be sure, the Statement
was submitted to TowneBank on October 3, 2012, but it clearly bore the April 30, 2012 date and
did not purport to give a summary oI Mr. McDonnell`s Iinances in October. Assuming Ior the
sake oI argument, however, that the May 22, 2012 loan is somehow relevant to Count 12, Ior the
reasons set Iorth in the text, the Government has not shown that Mr. McDonnell`s Iailure to list it
on the Personal Financial Statement amounts to a violation oI the statute.
- 8 -

sister, Maureen Uncapher. See July 31, 2014 Tr. at 802:4-25. He Iurther testiIied that the
purpose oI the loan was to help with 'the beach propertyan investment property managed by
MoBo. See id. at 803:14-16; see also id. at 755:7-756:10. Mr. Williams also testiIied that he
agreed to extend another $20,000 loan Ior the Sandbridge propertiesinvestment properties
managed by MoBo. See id. at 804:23-809:9. And he understood the terms oI the $20,000 loan
to be the same as the earlier $50,000 loan to MoBo. See id. at 807:20-808:1. No reasonable jury
could Iind beyond a reasonable doubt that the loans were made to Mr. McDonnell, instead oI
MoBo.
In light oI this, Mr. McDonnell was not personally obligated to repay these loans. MoBo
is a Virginia limited liability company. See Aug. 11, 2014 Tr. at 2682:11-16. Mr. McDonnell is
a member oI that company, but under Virginia law, a limited liability company 'is an
independent entity . . . and its members are not personallv liable Ior the debt or actions oI the
company. Hagan v. Adams Prop. Assocs., 253 Va. 217, 220 (1997) (emphasis added); see also
Va. Code Ann. 13.1-1019 (providing that 'no member, manager, organizer or other agent oI a
limited liability company shall have any personal obligation Ior any liabilities oI a limited
liability company, whether such liabilities arise in contract, tort or otherwise, solely by reason oI
being a member, manager, organizer or agent oI a limited liability company).
3
MoBo`s
liabilities, thereIore, cannot be imputed to Mr. McDonnell personally.
Because the MoBo loans were not personal liabilities oI Mr. McDonnell, he was not
required to disclose them on his Personal Financial Statement. The Iorm Mr. McDonnell used

3
Again, there are limited exceptions to this ruleIor example, Virginia courts have held
that the corporate veil aIIorded by LLCs may be pierced 'on rare occasions to promote justice,
Mid Atl. Engg Tech. Servs. v. Miller Hardman Designs, LLC, 86 Va. Cir. 337, 338 (Va. Cir. Ct.
2013)but no such exception is relevant to the accuracy oI Mr. McDonnell`s disclosures at the
time that he submitted his Personal Financial Statement. See supra note 1.
- 9 -

Ior his Personal Financial Statement asks Iilers to list 'Liabilities oI Proprietorships and
'Liabilities oI Partnerships/Joint Ventures. See GX-416. This is consistent with Virginia law,
under which proprietorships and partnerships are not independent entities; individuals are
personally liable Ior the debts oI any proprietorship or partnership through which they do
business. See Recalde v. ITT Hartford, 254 Va. 501, 505 (1997) (stating that '|e|ven when an
individual does business as a sole proprietorship under a diIIerent name, the individual remains
personally liable Ior all obligations oI the business); Hagan, 253 Va. at 220 (stating that 'a
partnership is not an entity separate Irom the partners themselves). In contrast, the Personal
Financial Statement Iorm does not ask Iilers to list liabilities oI LLCs, see GX-416, because
under Virginia law, the liabilities oI LLCs are not personal liabilities oI their members. Mr.
McDonnell did not make a 'Ialse statement in violation oI 1014 by omitting MoBo`s debts
Irom a Iorm that is clearly designed to set Iorth a summary oI a borrower`s personal Iinances.
Indeed, Mr. McDonnell`s Personal Financial Statement would have been Ialse had he
(erroneously) identiIied MoBo`s debts as his own.
4
The testimony oI Mr. Sessoms conIirms that
Mr. McDonnell was not obligated to disclose the loans to MoBo. Mr. Sessoms made clear, Ior
instance, that corporate or LLC debts are not required to be disclosed on a personal Iinancial
statement in the absence oI a written personal guarantee. Aug. 13, 2014 Tr. at 3093:16-22,
3107:4-9; see also id. at 3241:3-22 (testimony oI Mr. Creekmore that a loan to an LLC need not
be included on a personal Iinancial statement, unless the loan is guaranteed in writing); id. at
3240:7-19 (testimony oI Mr. Creekmore that LLC liabilities are not equivalent to proprietorship
liabilities, partnership liabilities, or joint venture liabilities).

4
The Government insinuated that Mr. McDonnell was required to list the MoBo loans
under the part oI the Iorm that asks Ior 'contingent liabilities. See Aug. 13, 2014 Tr. at 3243:6-
17. As explained, however, see supra at 8, the liabilities oI an LLC are not personal liabilities
contingent or otherwiseoI the individual members oI the LLC.
Case 3:l4-cr-000l2-JRS Document 409 Filed 08/l4/l4 Page l0 of l9 PagelD# 9400
- 10 -

;4 Indeed, the only circumstance under which Mr. McDonnell would have been
obligated to list a loan to MoBo or Mrs. McDonnell on his Personal Financial Statement is iI he
were a guarantor oI the loan. See id. at 3092:12-15. But the Government has not oIIered any
evidence that Mr. McDonnell agreed to guarantee either loan. Under Virginia law, a guarantee
agreement must be in writing to be valid. See Va. Code Ann. 11-2 (providing that '|u|nless a
promise, contract, agreement, representation, assurance, or ratiIication, or some memorandum or
note thereoI, is in writing and signed by the party to be charged or his agent, no action shall be
brought . . . |t|o charge any person upon a promise to answer Ior the debt, deIault, or misdoings
oI another); McDonald v. Natl Enters., Inc., 262 Va. 184, 189 (2001) ('This Court has deIined
a guaranty as an independent contract, by which the guarantor undertakes, in writing, upon a
suIIicient undertaking, to be answerable Ior the debt, or Ior the perIormance oI some duty, in
case oI the Iailure oI some other person who is primarily liable to pay or perIorm. (internal
quotation marks omitted; emphasis added)). The Government has oIIered no written instrument
purporting to commit Mr. McDonnell to guarantee the loans to his wiIe and MoBo. See July 31,
2014 Tr. at 803:23-25 (Mr. Williams testiIying that there was no loan paperwork associated with
the $50,000 loan to MoBo); id. at 808:2-4 (Mr. Williams testiIying that there was no written loan
agreement Ior the $20,000 loan to MoBo). Nor has any witness testiIied that Mr. McDonnell
ever made such a commitment, whether orally or in writing. There is thereIore no sense in
which Mr. McDonnell was personally liable Ior the loans that the Government now (erroneously)
alleges he improperly Iailed to disclose as personal liabilities.
5

5
The Government suggested in its examination oI Mr. Sessoms that an unwritten
'handshake agreement could not bind MoBo as an LLC and thereIore must have been an
obligation oI Mr. McDonnell. See Aug. 14, 2014 Tr. at 3109:23-3110:5. But the Government
has oIIered no authoritybecause there is noneIor the proposition that the contracts or loan
obligations oI LLCs must be in writing. To the contrary, all members oI an LLC can act as
Case 3:l4-cr-000l2-JRS Document 409 Filed 08/l4/l4 Page ll of l9 PagelD# 940l
- 11 -

I4 The Personal Financial Statement did not call Ior Mr. McDonnell to list either
Mrs. McDonnell`s or MoBo`s liabilities, and the Iact that he did not list them cannot, as a matter
oI law and logic, be an omission amounting to a 'Ialse statement under 1014. The
Government has not provenand could not provethat Mr. McDonnell made a Ialse statement
by Iailing to list debts Ior which he was not personally liable under Virginia law on his tellingly-
named 'Personal Financial Statement. Mr. McDonnell is thereIore entitled to a judgment oI
acquittal on Count 12.
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Count 13 oI the Indictment charges Mr. McDonnell and his wiIe with violating 1014 by
knowingly making a Ialse statement to PenFed on February 1, 2013 when they submitted a joint
UniIorm Residential Loan Application to reIinance one oI their properties. The Government
alleges that the McDonnells Iailed to list at least $120,000 in loans Irom Mr. Williams on the
application. See Indictment 121. For the same reasons articulated above, however, see supra
Part I.3-4, the $70,000 in loans Irom Starwood Trust to MoBo are not liabilities oI the
McDonnells; they are liabilities oI MoBo. And under Virginia law, the liabilities oI an LLC
cannot be imputed to its members absent a written personal guarantee, which there is absolutely
no evidence oI in this case. See Hagan, 253 Va. at 220; McDonald, 262 Va. at 189; Va. Code
Ann. 11-2; 13.1-1019. The loan application only requires borrowers to list 'liabilities,
'monthly payment & months leIt to pay, and 'unpaid balance. See GX-476 at 2. Because the
loans to MoBo are not liabilities oI the McDonnells, they were not required to list the loans. The

(continued.)

agents oI the company, and their acts, when done Ior the purpose oI carrying out the company`s
business, bind the company. See Va. Code Ann. 13.1-1021.1
- 12 -

omission oI those loans cannot thereIore constitute a Ialse statement as a matter oI law. It would
have been a Ialse statement to include them.
The omission oI Mrs. McDonnell`s $50,000 loan also was not a Ialse statement. The
Government has oIIered no testimony establishing that Mr. McDonnell was required to disclose
that loan. Indeed, the only relevant testimony in the case on this issue is Irom PenFed employee
Nanette Bolt, who testiIied that the bank excluded this loan Irom Mr. McDonnell`s Iinal
application because '|t|here were no immediate payments due at that time. Aug. 13, 2014 Tr. at
3211:10-19. Based on this testimony, and the absence oI any evidence to the contrary, the jury
can reach only one conclusion: that Mrs. McDonnell`s $50,000 loan was not required on the
Iorm and that its omission was not a Ialse statement. Mr. McDonnell is thus entitled to a
judgment oI acquittal on Count 13.
###4 1*4 1+&,""%66 #( %"$#$6%& $, ) ?!&01%"$ ,- )+E!#$$)6 ,"
+,!"$( :<:: 5%+)!(% .% &#& ",$ @%*-,*1 ,* @*,1#(% $,
@%*-,*1 )"J K,--#+#)6 )+$(L $, 5%"%-#$ 1*4 G#66#)1(4
:4 In order to prove both the honest services wire Iraud charges (Counts 1-4) and the
Hobbs Act extortion charges (Counts 5-11) against Mr. McDonnell (including the corresponding
conspiracy charges), the Government must establish that he agreed (or conspired) to perIorm
'oIIicial acts in exchange Ior receiving things oI value Irom Mr. Williams. See Skilling v.
United States, 561 U.S. 358, 368, 412-13 (2010) (holding that to obtain a conviction Ior honest
services Iraud, the Government must prove that the oIIicial engaged in a 'bribery |or| kickback
scheme||); Evans v. United States, 504 U.S. 255, 268 (1992) (holding that in order to establish a
charge oI Hobbs Act extortion under color oI oIIicial right, the Government must prove that the
targeted oIIicial 'obtained a payment to which he was not entitled, knowing that the payment
was made in return Ior official acts (emphasis added)). See also Mem. in Support oI DeI.
Robert F. McDonnell`s Mot. to Dismiss Counts 1-11 oI the Indictment, Dkt. 106 ('Motion to
- 13 -

Dismiss), at 7-13. Federal law deIines 'oIIicial act as 'any decision or action on any question,
matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may
by law be brought beIore any public oIIicial, in such oIIicial`s oIIicial capacity. 18 U.S.C.
201(a)(3).
>4 Not everything a public oIIicial does is an 'oIIicial act that can constitute a quo
in an illegal quid pro quo bribery scheme. As the Supreme Court made clear in United States v.
Sun-Diamond Growers, 526 U.S. 398, 407 (1999), some 'actions |taken by government
oIIicials|while they are assuredly oIIicial acts` in some senseare not oIIicial acts` within
the meaning oI Iederal anti-bribery laws. The Supreme Court gave the examples oI 'receiving
|| sports teams at the White House, visiting |a| high school, and speaking to || Iarmers about
USDA policy as actions that, though they may be undertaken by a public oIIicial in the course
oI his public duties, are not 'oIIicial acts. Id. Federal bribery laws are not intended to police
interactions between state oIIicials and supporters when those decisions do not involve actual
'governmental decision-making, United States v. Carson, 464 F.2d 424, 434 (2d Cir. 1972), or
exercising 'oIIicial government power, United States v. Mandel, 591 F.2d 1347, 1362 (4th
Cir.), affd in relevant part, 602 F.2d 653 (4th Cir. 1979) (en banc), but rather involve mere
'access to government oIIicials, Citi:ens United v. Fed. Election Commn, 558 U.S. 310, 360
(2010). See Motion to Dismiss at 8-13.
For example, in Jaldes v. United States, a policeman took payments in exchange Ior
perIorming searches (Ior license plates, outstanding warrants, and the like) on the police
department database. 475 F.3d 1319, 1321-22 (D.C. Cir. 2007) (en banc). The Government
argued 'that the bribery . . . statute should be construed broadly, to encompass essentially any
action which implicates the duties and powers oI a public oIIicial. Id. at 1322. The en banc
- 14 -

D.C. Circuit rejected the Government`s broad construction, noting that the Supreme Court`s
opinion in Sun Diamond, 'like the rule oI lenity, | | works to protect a citizen Irom punishment
under a statute that gives at best dubious notice that it has criminalized his conduct. Id. at 1323.
The court held that the 'oIIicial act concept does not subsume 'oIIicials` moonlighting, or their
misuse oI government resources, or the two in combination; rather, the Government must allege
and prove that the deIendant exerted 'inappropriate inIluence on decisions that the government
actually makes. Id. at 1324-25.
Similarly, in United States v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978), abrogated on other
grounds bv McNallv v. United States, 483 U.S. 350 (1987), superseded bv statute, 18 U.S.C.
1346, the Eighth Circuit reversed a state legislator`s Hobbs Act conviction on grounds that the
legislator had no authority to secure state contracts Ior an architecture Iirm and that the Iirm had
no reasonable belieI that he did have such authority. Id. at 1028. The most the legislator could
do, the court held, 'was recommend them to state contractors as qualiIied architects and thereby
gain them a Iriendly ear. Id. Though the legislator`s 'inIluence obviously helped, the court
concluded that 'no testimony established that any state contracting oIIicer awarded any contract
to |the architecture Iirm| because oI the |legislator`s| inIluence or that |the Iirm| believed |his|
introduction was enough to secure the work. Id. As the Eighth Circuit has more recently
explained, the conviction in Rabbitt was reversed because the 'oIIicial in Rabbitt promised only
to introduce the Iirm to inIluential persons and 'did not promise to use his oIIicial position to
inIluence those persons. United States v. Loftus, 992 F.2d 793, 796 (8th Cir. 1993) (emphasis
added).
84 In contrast, virtually every reported bribery conviction that has been upheld in the
Fourth Circuit involves actual exercises oI the regulatory power oI the state, in terms oI casting
- 15 -

votes, awarding contracts, awarding jobs, and the like, in exchange Ior payment. See United
States v. Hamilton, 701 F.3d 404, 406 (4th Cir. 2012), cert. denied, 133 S. Ct. 1838 (2013) (Vice
Chairman oI the Appropriations Committee oI the Virginia House oI Delegates obtained
legislative Iunding Ior a new center at Old Dominion University in exchange Ior appointment as
the center`s director); United States v. Jefferson, 674 F.3d 332, 339-51 (4th Cir.), cert. denied,
133 S. Ct. 648 (2012) (Congressman personally interceded with numerous agencies oI the
Iederal government and Ioreign governments to obtain contracts, regulatory approvals, and
Iinancial assistance Ior private companies that paid him bribes and kick-backs); United States v.
Harvev, 532 F.3d 326, 331 (4th Cir. 2008) (deIendant orchestrated the award oI a sole-source
government contract to a company owned by a close Iriend, who Iunneled money back to the
deIendant); United States v. Hedgepeth, 418 F.3d 411, 415 (4th Cir. 2005) (Richmond City
Councilwoman agreed to sell her Council votes in exchange Ior cash and a donation retiring 'her
campaign debt); United States v. Quinn, 359 F.3d 666, 671-72 (4th Cir. 2004) (oIIicial awarded
lucrative public contracts to companies that would then kick back some oI the proceeds by
employing her paramour or issuing sub-contracts to a Iriend); United States v. Jennings, 160
F.3d 1006, 1011 (4th Cir. 1998) (oIIicial assigned valuable government building contracts to a
contractor in exchange Ior bribes); United States v. Hairston, 46 F.3d 361, 366-72 (4th Cir.
1995) (alderman solicited bribes in exchange Ior votes on public contracts, rezoning, and
contract penalty decisions pending beIore the Board oI Aldermen); United States v. Grubb, 11
F.3d 426, 430 (4th Cir. 1993) (oIIicial orchestrated scheme in which a campaign donation was
made in exchange Ior two years oI part-time public employment). See also, e.g., United States v.
Warner, 498 F.3d 666, 675 (7th Cir. 2007) (Illinois Governor, when serving as Secretary oI
State, improperly awarded leases and contracts in exchange Ior valuable beneIits); United States
- 16 -

v. Edwards, 303 F.3d 606, 609-12 (5th Cir. 2002) (Louisiana Governor with long history oI
corruption allegations convicted Ior demanding massive bribes in exchange Ior assistance
securing valuable licenses).
;4 In short, the Government must prove that Mr. McDonnell promised to himselI
exercise, or pressure another government oIIicial to exercise, the sovereign, regulatory power oI
the Commonwealth in exchange Ior payments. This Court acknowledged as much in holding
that the question Ior the jury is whether Mr. McDonnell`s 'conduct in Iact constituted the
corruption oI oIIicial positions through misuse oI inIluence in governmental decision-making.`
May 5, 2014 Order, Dkt. No. 175, at 2 (quoting Carson, 464 F.2d at 434). But there is not a
shred oI evidence in the record that he improperly inIluenced a governmental decision. Mr.
McDonnell never asked or directed any other oIIicial to give Mr. Williams the governmental
action that he desired. Instead, even drawing every inIerence in Iavor oI the Government, the
most the Government has shown is that Mr. McDonnell Iacilitated Mr. Williams` access to
certain Virginia oIIicials and researchers by arranging or encouraging meetings or by inviting
Mr. Williams and his colleagues to a luncheon and reception. See, e.g., July 31, 2014 Tr. at
719:11-721-3 (Mr. Williams` August 1, 2014 meeting with HuIIstetler); id. at 727:18-734:19
(August 30, 2014 event at Mansion); id. at 760:18-763:18 (Mr. Williams inviting doctors and
Star employees to healthcare leaders reception at the Mansion); id. at 783:3-787:10 (healthcare
leaders reception); see also Aug. 11, 2014 Tr. at 2654:17-2658:11, 2675:14-2677:5 (Mr.
McDonnell mentioning Anatabloc at a meeting with government employees and recommending
that the employees meet with Star representatives). But granting access is not enough. To make
its case against Mr. McDonnell, the Government must also prove, at the very least, that Mr.
McDonnell promised to pressure, or did pressure, these individuals to make an actual
- 17 -

governmental decision in Iavor oI Mr. Williams. Anything short oI that is not a decision or
action on a matter pending beIore the oIIicial. Because the Government has Iailed to prove this
key element oI the honest services wire Iraud and Hobbs Act extortion claims, this Court should
dismiss Counts 1-11 oI the Indictment.
+,"+6!(#,"
For the Ioregoing reasons, the Court should grant Mr. McDonnell a judgment oI acquittal
on all counts oI the Indictment.

Dated: August 14, 2014

RespectIully submitted,
Henry W. Asbill (pro hac vice)
Mary Ellen Powers (pro hac vice)
Noel J. Francisco (pro hac vice)
Ryan D. Newman (pro hac vice)
James M. Burnham (pro hac vice)
JONES DAY
Washington, D.C. 20001
Telephone: (202) 879-3939
Facsimile: (202) 626-1700

John L. Brownlee (VSB No. 37358)
Timothy J. Taylor (VSB No. 84529)
HOLLAND & KNIGHT LLP
800 17th Street, N.W.
Suite 1100
Telephone: (202) 828-1854
Facsimile: (202) 955-5564


+%*$#-#+)$% ,- (%*/#+%

I, Jonathan A. Berry, am a member oI the Bar oI this Court. I hereby certiIy that on this
14th day oI August, 2014, I caused the Ioregoing to be electronically Iiled with the Clerk oI
Court using the CM/ECF system, causing it to be served on all registered users.

Dated: August 14, 2014 RespectIully submitted,
JONES DAY
Telephone: (202) 879-3939
Facsimile: (202) 626-1700
Email: jberryjonesday.com


1

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES of AMERICA,

v.

ROBERT F. MCDONNELL
MAUREEN G. MCDONNELL

Case No. 3:14-cr-12 (JRS)
Judge James R. Spencer

DEFENDANT MAUREEN G. MCDONNELLS
MOTION # 23 MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO
RULE 29 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE

Defendant Maureen G. McDonnell, through undersigned counsel, respectfully moves
pursuant to Federal Rule of Criminal Procedure 29 for a judgment of acquittal on Counts 1-11
and 13-14 of the Indictment. As set forth in the memorandum supporting Robert F. McDonnells
Motion for Judgment of Acquittal, Dkt. Nos. 408 & 409, the Government has failed to show that
Governor McDonnell performed or promised to perform any official act for Mr. Williams, as
required to prove Counts 1-11 of the Indictment. Since Mrs. McDonnell was not a public official
and thus cannot be convicted of honest services wire fraud or Hobbs Act violations in her own
right, the Governments failure to produce any evidence that would allow a jury to conclude that
her husband promised to exercise (or to influence others to exercise) any actual governmental
power to benefit Mr. Williams is fatal as to Mrs. McDonnell as well. With respect to Count 13,
the Government has offered no evidence as to Mrs. McDonnell beyond the fact that she signed
the loan application to Pentagon Federal Credit Union. This is insufficient to establish that Mrs.
Case 3:l4-cr-000l2-JRS Document 4l0 Filed 08/l5/l4 Page l of 3 PagelD# 94l0
2

McDonnell made a false statement to the bank in order to influence the banks action respecting
a loan to her, or that she made such a statement knowingly. Finally, as to the obstruction charge
alleged in Count 14 of the Indictment, the Government has failed to offer evidence showing (1)
that the letter Mrs. McDonnell gave to Jonnie Williams was false; (2) that in giving the letter to
Jonnie Williams, Mrs. McDonnell intended to obstruct, influence or impede a federal grand jury
proceeding; or (3) that Mrs. McDonnells conduct, if successful, would have the natural and
probable effect of interfering with the due administration of justice.
The grounds for this motion are set forth more fully in the accompanying Memorandum.
A proposed Order is submitted herewith for the convenience of the Court.

Dated: August 15, 2014 Respectfully submitted,

By: /s/ Heather H. Martin
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
William A. Burck (pro hac vice)
Stephen M. Hauss (pro hac vice)
Heather H. Martin (VSB No. 65694)
Daniel Koffmann (pro hac vice)
777 Sixth Street NW, 11
th
Floor
Telephone: (202) 538-8000
Facsimile: (202) 538-8100
williamburck@quinnemanuel.com
stephenhauss@quinnemanuel.com
heathermartin@quinnemanuel.com
danielkoffmann@quinnemanuel.com

Attorneys for Maureen G. McDonnell

Case 3:l4-cr-000l2-JRS Document 4l0 Filed 08/l5/l4 Page 2 of 3 PagelD# 94ll
3

CERTIFICATE OF SERVICE

I, Heather H. Martin, am a member of the Bar of this Court. I hereby certify that I caused
the foregoing Motion to be filed with the Courts CM/ECF system this 15
th
day of August, 2014,
thereby causing it to be served on all registered users.
/s/ Heather H. Martin
Heather H. Martin (VSB # 65694)
SULLIVAN LLP
777 6th Street NW, Suite 1100
(202) 538-8000
(202) 538-8100 (fax)

Case 3:l4-cr-000l2-JRS Document 4l0 Filed 08/l5/l4 Page 3 of 3 PagelD# 94l2
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
UNITED STATES of AMERICA,
v.
ROBERT F. MCDONNELL
MAUREEN G. MCDONNELL
Case No. 3:14-cr-12 (JRS)
Hon. James R. Spencer
MEMORANDUM IN SUPPORT OF DEFENDANT MAUREEN G. MCDONNELLS
MOTION # 23 MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO
RULE 29 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
Case 3:l4-cr-000l2-JRS Document 4l3 Filed 08/l5/l4 Page l of l4 PagelD# 963l
TABLE OF CONTENTS
Page
INTRODUCTION..........................................................................................................................1
ARGUMENT..................................................................................................................................2
I. MRS. MCDONNELL IS ENTITLED TO A JUDGMENT OF ACQUITTAL
ON COUNTS 1-11 BECAUSE HER HUSBAND DID NOT PERFORM OR
PROMISE TO PERFORM ANY OFFICIAL ACTS TO BENEFIT MR.
WILLIAMS, AND AS A PRIVATE CITIZEN, SHE CANNOT BE GUILTY
IN HER OWN RIGHT. .....................................................................................................2
II. MRS. MCDONNELL IS ENTITLED TO A JUDGMENT OF ACQUITTAL
ON COUNT 13 BECAUSE THERE IS NO EVIDENCE THAT SHE
KNOWINGLY MADE A FALSE STATEMENT TO PENTAGON
FEDERAL CREDIT UNION IN ORDER TO INFLUENCE THE BANK. ................3
III. MRS. MCDONNELL IS ENTITLED TO A JUDGMENT OF ACQUITTAL
ON COUNT 14 BECAUSE THERE IS NO EVIDENCE THAT SHE
INTENDED TO OBSTRUCT A GRAND JURY PROCEEDING. ..............................4
A. The Note Contains No False Assertions of Fact. .................................................5
B. There Was No Existing or Prospective Federal Grand Jury
Proceeding. .............................................................................................................6
C. The Government Has Not Presented Any Evidence of a Nexus
Between Mrs. McDonnells Note and Obstruction of Any Grand Jury
Proceeding. .............................................................................................................7
CONCLUSION ............................................................................................................................11
Case 3:l4-cr-000l2-JRS Document 4l3 Filed 08/l5/l4 Page 2 of l4 PagelD# 9632
1
INTRODUCTION
After nearly three weeks of trial, the Government has rested its case-in-chief without
presenting sufficient evidence as to any of the charges made against Maureen G. McDonnell in
the Indictment. As set forth in the memorandum supporting Robert F. McDonnells Motion for
Judgment of Acquittal, Dkt. Nos. 408 & 409,
1
the Government has failed to show that Governor
McDonnell performed or promised to perform any official act for Mr. Williams, as required to
prove Counts 1-11 of the Indictment. This failure to produce any evidence that would allow a
jury to conclude that the Governor promised to exercise (or to influence others to exercise) any
actual governmental power to benefit Mr. Williams is fatal as to the charges against Mrs.
McDonnell, since Mrs. McDonnell was not a public official and cannot be convicted of honest
services wire fraud or Hobbs Act violations in her own right. With respect to Count 13, the
Government has offered no evidence as to Mrs. McDonnell beyond the fact that she signed the
loan application to Pentagon Federal Credit Union ("PenFed"). This is insufficient to establish
that Mrs. McDonnell made a false statement to the bank in order to influence the banks action
respecting a loan to her, or that she made such a statement knowingly. Finally, as to the
obstruction charge alleged in Count 14 of the Indictment, the Government has failed to offer
evidence showing (1) that the letter Mrs. McDonnell gave to Jonnie Williams was false; (2) that
in giving the letter to Jonnie Williams, Mrs. McDonnell intended to obstruct, influence or
impede a grand jury proceeding; or (3) that Mrs. McDonnells conduct, if successful, would have
had the natural and probable effect of interfering with the due administration of justice.
For these reasons, Mrs. McDonnell is entitled to a judgment of acquittal on Counts 1-11
and 13-14 of the Indictment.

1
Mrs. McDonnell joins in Robert F. McDonnells Motion for Judgment of Acquittal.
2
ARGUMENT
The standard governing a Rule 29 motion for a judgment of acquittal is whether there is
substantial evidence (direct or circumstantial) which, taken in the light most favorable to the
prosecution, would warrant a jury finding that defendant was guilty beyond a reasonable doubt.
United States v. Jaensch, 678 F. Supp. 2d 421 (E.D. Va. 2010) (quoting United States v.
MacCloskey, 682 F.2d 468, 473 (4th Cir. 1982)). For the prosecution to withstand a Rule 29
motion, the evidence must be sufficient to support a reasonable inference that each of the
elements necessary for conviction is satisfied beyond a reasonable doubt. Id. (citing
MacCloskey, 682 F.2d at 474). Here, the evidence will not support a jury finding that Mrs.
McDonnell committed the crimes charged in Counts 1-11 or 13-14 of the Indictment. A
judgment of acquittal should therefore be entered on all of these counts.
I. MRS. MCDONNELL IS ENTITLED TO A JUDGMENT OF ACQUITTAL ON
COUNTS 1-11 BECAUSE HER HUSBAND DID NOT PERFORM OR PROMISE
TO PERFORM ANY OFFICIAL ACTS TO BENEFIT MR. WILLIAMS, AND
AS A PRIVATE CITIZEN, SHE CANNOT BE GUILTY IN HER OWN RIGHT.
It is undisputed in this case that [a]s First Lady of Virginia, defendant Maureen G.
McDonnell was not a public official. See Stipulation 1, 17, Dkt. 301. As a mere volunteer,
Mrs. McDonnell cannot herself be guilty of either honest services wire fraud (Counts 1-4) or
Hobbs Act extortion (Counts 5-11), since she did not owe any honest services to the citizens of
Virginia and had no public office to corrupt. Rather, the Governments theory in this case is that
Mrs. McDonnell conspired with her husband to corrupt his public office. Thus, the corruption
charges against Mrs. McDonnell necessarily rise or fall with the Governments case against Mr.
McDonnell.
As shown in the memorandum accompanying Robert F. McDonnells concurrently filed
Motion for Judgment of Acquittal, Dkt. Nos. 408 and 409, the Government has failed to establish
3
that Governor McDonnell agreed (or conspired) to perform official acts in exchange for
receiving things of value from Mr. Williams, as required to prove honest services wire fraud and
Hobbs Act extortion. Nor is there any evidence that Mrs. McDonnell attempted to influence her
husband to corrupt his office. See July 30, 2014 Tr. 680:25681:6 (Q: Well, to be clear, shes
saying that shes going to help you, but shes not promising you that the Governor is going to
help you, right? A: No. Q: And she never tells you at this meeting, Ill get Bob to do X, Y,
or Z if you give us the money? A: No.). The Governments proof as to Counts 1-11 of the
Indictment is therefore deficient as to both Mr. and Mrs. McDonnell.
II. MRS. MCDONNELL IS ENTITLED TO A JUDGMENT OF ACQUITTAL ON
COUNT 13 BECAUSE THERE IS NO EVIDENCE THAT SHE KNOWINGLY
MADE A FALSE STATEMENT TO PENTAGON FEDERAL CREDIT UNION IN
ORDER TO INFLUENCE THE BANK.
Count 13 of the Indictment charges Mrs. McDonnell and her husband with violating 18
U.S.C. 1014 by knowingly making a false statement to PenFed on February 1, 2013 when they
submitted a joint Uniform Residential Loan Application to refinance one of their properties.
Specifically, the Government alleges that the McDonnells failed to list at least $120,000 in loans
from Mr. Williams on the application. See Indictment 121. In order to establish a violation of
1014, the Government must prove (1) that Mrs. McDonnell made a false statement, (2) that she
made that statement in order to influence a banks action respecting a loan to her, and (3) that she
made the statement knowingly. See Elliott v. United States, 332 F.3d 753, 759 (4th Cir. 2003).
The evidence offered by the Government in this case is insufficient to establish either the second
or third elements.
The PenFed representative, Nanette Bolt, could not recall whether Maureen McDonnell
was on the initial January 23, 2013 conference call in which Ms. Bolt collected general financial
information in order to prepare the McDonnells loan application. See August 13, 2014 Tr. at
4
3128:2-5 (Q. And who was on the call from the Governors family side? A. The Governor
was, I think Ms. McDonnell, I dont recall, and the sister, Maureen McDonnell.); id. at
3130:1117 (MR. BURCK: The witness doesnt recall if Ms. McDonnell is on the phone call.
He is referring to both McDonnells. THE COURT: Is that what you said? That you didnt
recall whether she was, Ms. McDonnell, was on the call or not? THE WITNESS: Correct.).
The Government proffered no evidence showing that Mrs. McDonnell participated in the
preparation of the loan application, nor did they demonstrate that she actually reviewed the
application after it had been prepared. See August 13, 2014 Tr. 3213:58 (Q: Is it fair to say
that even though she was on the call, that you dont recall her saying anything on that call? A:
Correct.); 3213:183214:5 (Q: Okay. Now, the -- youve testified about a number of
conversations and e-mails you had with Governor McDonnell today. And do you recall having
any specific conversations with Ms. McDonnell, Maureen McDonnell, the wife, about this
application? A: Not very much. Q: Okay. Is it fair to say that Governor McDonnell was the
person you were dealing with with respect --" A: "Point of contact, right. Q: And getting
information during the various iterations of the application, that information came from
Governor McDonnell, right? A: Correct.). Rather, the sum total of the Governments
evidence against Mrs. McDonnell is that her signature appears on the document. This is
insufficient to establish that Mrs. McDonnell knowingly made a false statement with the intent to
influence the banks actions.
III. MRS. MCDONNELL IS ENTITLED TO A JUDGMENT OF ACQUITTAL ON
COUNT 14 BECAUSE THERE IS NO EVIDENCE THAT SHE INTENDED TO
OBSTRUCT A GRAND JURY PROCEEDING.
Finally, the Court should grant a judgment of acquittal in relation to Count 14 because the
Government (a) has not presented any evidence that Mrs. McDonnell made any false assertion of
fact; (b) has not presented any evidence that Mrs. McDonnell had knowledge or notice of
5
existing or prospective grand jury proceedings; and (c) has not presented, and cannot present,
any evidence of the nexus requirement necessary to establish intent to influence a grand jury
proceeding under 18 U.S.C. 1512(c)(2). Thus, the Government has failed to adduce evidence
to establish the elements it bears the burden of proving to support a conviction for obstruction,
namely, (1) knowledge or notice of the grand jury proceedings, and (2) that the defendant acted
with corrupt intent, (3) to obstruct, influence, or impede an official proceeding. See United
States v Hymer, 6:09-CR-00199-02, 2011 WL 672069 (S.D. W. Va. Feb. 14, 2011) (citing
United States v. Crandle, 274 F. Appx 324, 327 (4th Cir. 2008) and United States v. Brooks,
111 F.3d 365, 372 (4th Cir. 1997)); United States v Reynolds, 178 F. Appx 281, 287 (4th Cir.
2006).
A. The Note Contains No False Assertions of Fact.
The note Mrs. McDonnell sent to Mr. Williams when she returned the dresses to him
cannot constitute obstruction because it contains no false assertions of fact. The note states:
Dearest Celeste & Jonnie, I cant begin to thank you how special
[sic] you made me feel on Cailins wedding day and on our 35th
wedding anniversary day all dressed up in the beautiful outfits you
adorned me in on both momentous occasions. Im so happy weve
been able to share so many significant milestones in our lives with
you both! I truly hope your daughter will now be able to enjoy
these lovely outfits and show them off on many grand
occasions. If not, Im sure there are many exemplary charitable
organizations like we talked about who would welcome the
opportunity to auction them for a wonderful cause, having been
worn only once by the First Lady of Virginia to her daughters
wedding at the Executive Mansion and celebrating her 35th
wedding Anniversary with the Governor! Actually, if that happens
I think Ill be there to bid on them myself! Please know that we
cherish our friendship with you and look forward to many more
wonderful memories together ahead! Xoxo! Maureen McDonnell.
See GX-3 (emphasis added). There is no statement in this note that the Government has shown
to be false. The Government alleges that Mrs. McDonnell and Mr. Williams never agreed that
6
Mrs. McDonnell would return the dresses that she included with this note, and to be sure, Mr.
Williams testified to this effect. See, e.g., August 1, 2014 Tr. at 1025:1518 (This is a
fabrication right here . . . . Whats not true is that this -- these clothes were never intended to be
returned to me. I purchased these clothes for Maureen McDonnell.). But Governments
Exhibit 3 does not claim Mrs. McDonnell and Mr. Williams had an agreement to return the
dresses. The Government apparently focuses on two aspects of the note: (1) Mrs. McDonnells
hope that Mr. Williamss daughter will now be able to enjoy these lovely outfits and show them
off on many grand occasions and (2) Mrs. McDonnells statement that there are many
exemplary charitable organizations like we talked about who would welcome the opportunity to
auction them for a wonderful cause. As a simple matter of grammar, there is no possible
construction of these statements that amounts to a claim that Mrs. McDonnell and Mr. Williams
previously had agreed that Mrs. McDonnell would return the dresses. No amount of textual
exegesis can draw such a statement out of the words that appear on the face of Government
Exhibit 3. It is impossible for an accurate statement to obstruct a grand jury. See, e.g., United
States v. Thomas, 916 F.2d 647, 65354 (11th Cir. 1990) (reversing conviction where statement
was not established to be false and where determining falsity would require conjecture and
innuendo). On this basis alone, there is no evidence to support a conviction of Mrs. McDonnell
on Count 14.
B. There Was No Existing or Prospective Federal Grand Jury Proceeding.
The absence of an existing or pending federal grand jury proceeding at the time Mrs.
McDonnell returned the dresses similarly requires acquittal on Count 14. According to
testimony from the Governments own witness, there was no federal grand jury investigation into
the McDonnells at the time the charged conduct occurred. August 12, 2014 Tr. at 2992:24
2993:6 (Q: At the time you went to interview Ms. McDonnell in February of 2013, was there a
7
federal grand jury investigation open into the McDonnells for public corruption? A: No, there
was not.). Indeed, no federal officials attended the February 15 interview of Mrs. McDonnell,
see August 12, 2014 Tr. at 2971:1317 (Q: Now, you show up at the Mansion. Do you show up
with Special Agent Kennedy? A: No, I did not. Q: So it was just yourself and -- A:
Special Agent Lyons.), so Mrs. McDonnell clearly had no inkling of federal
involvement. Although no state of mind need be proved with respect to the circumstance that the
proceeding sought to be obstructed was, in fact, federal, 1512(g), or that the federal proceeding
sought to be obstructed was pending at the time, 1512(g), the Government nevertheless must
show that what Mrs. McDonnell purportedly intended to obstruct, in fact, was a federal official
proceeding. United States v. Dunn, 434 F. Supp. 2d 1203, 120510 (M.D. Ala. 2006) (finding
defendant did not obstruct where defendant only knew about the local murder investigation, not
the federal investigation). Because the Government has not adduced any evidence that Mrs.
McDonnell had the intent to obstruct a federal proceeding, a judgment of acquittal as to Count 14
is required.
C. The Government Has Not Presented Any Evidence of a Nexus Between Mrs.
McDonnells Note and Obstruction of Any Grand Jury Proceeding.
As the Government has conceded, it must show a nexus in time, causation, or logic with
the judicial proceedings. . . . In other words, the endeavor must have the natural and probable
effect of interfering with the due administration of justice. See United States v Aguilar, 515
U.S. 593, 599 (1995); United States v Reich, 479 F.3d 179, 186 (2d Cir. 2007) (applying nexus
requirement to 1512(c)(2)); see also United States v Wein, 521 F. Appx 138, 141 (4th Cir.
2013) (same); United States v. Johnson, 553 F. Supp. 2d 582, 626 (E.D.Va. 2008) (citing
Aguilar); Governments Response in Opposition to Maureen McDonnells Motion to Dismiss,
Dkt No. 147, at 7 ([I]t is true that at trial, the Government will have to establish the so-called
8
nexus requirement in connection with the intent element). Courts have held that this means
that the Government must show that Mrs. McDonnell wrote the note and provided it to Mr.
Williams with the specific intent to obstruct the federal grand jury. Schwarz, 283 F.3d at 107
(emphasis added). This is the minimum required. See id.
The Supreme Courts decision in Aguilar made clear that conduct is punishable where
the defendant acts with an intent to obstruct justice, and in a manner that is likely to obstruct
justice. Id. at 601 (emphasis added); United States v. Blair, 661 F.3d 755, 766 (4th Cir. 2011)
(defendant must be aware that success in the allegedly obstructive conduct is likely to obstruct an
official proceeding). In Aguilar, the defendant (a federal district court judge) lied to FBI agents
about his participation in an embezzlement case and his knowledge of a wiretap authorized by
another district court judge. 515 U.S. at 597. At the time that the defendant lied to the agents, he
was aware that a grand jury was investigating an alleged conspiracy to influence the
embezzlement case. Id. at 60001. There was no indication, however, that the grand jury had
authorized or directed the FBI investigation, nor that the grand jury had even summoned the
particular agents to testify. Id. at 600. Therefore, the Court held that it was speculative as to
what use would be made of the defendants false statements and that it could not be said that the
natural and probable effect would be the interference with the due administration of justice.
Id. at 601 (But what use will be made of false testimony given to an investigating agent who has
not been subpoenaed or otherwise directed to appear before the grand jury is far more
speculative.). In rejecting Justice Scalias dissent, the Court in Aguilar said:
Justice SCALIA also apparently believes that any act, done with
the intent to obstruct . . . the due administration of justice, is
sufficient to impose criminal liability. Under the dissents theory,
a man could be found guilty under 1503 if he knew of a pending
investigation and lied to his wife about his whereabouts at the time
of the crime, thinking that an FBI agent might decide to interview
Case 3:l4-cr-000l2-JRS Document 4l3 Filed 08/l5/l4 Page l0 of l4 PagelD# 9640
9
her and that she might in turn be influenced in her statement to the
agent by her husbands false account of his whereabouts. The
intent to obstruct justice is indeed present, but the mans
culpability is a good deal less clear from the statute than we
usually require in order to impose criminal liability.
515 U.S. at 602.
In United States v. Schwarz, the defendant was aware of a federal grand jury investigation
relating to the charges at issue in that case. 283 F.3d 76, 107 (2d Cir. 2002). The defendant was
himself served with a federal grand jury subpoena and then interviewed two days later by federal
investigators about the conduct then being investigated by a federal grand jury. Id. Indeed, the
defendant initiated the meeting with the very same federal law enforcement officers that served
him with the federal grand jury subpoena. Id. It was during this interview that he made the
allegedly false statements that were the basis of the obstruction charge. Id. Nonetheless, the
Court of Appeals determined that there was insufficient evidence to enable a rational trier of fact
to conclude that the defendant knew that his false statements would be provided to the federal
grand jury "or that he entertained any expectations on that score that were based on such
knowledge." Id. This is so because the Court of Appeals determined the defendant "had not
himself been called to testify and there is no evidence that the investigators gave him any
indication that they would repeat his statements to the grand jury." Id.
Count Fourteen cannot withstand scrutiny under Aguilar or Schwarz. There is no
evidence in this case that Mrs. McDonnell was called to testify at the time she sent the note to
Mr. Williams, or even at any time thereafter. Nor is there any evidence that Mr. Williams had
been called to testify or that Mrs. McDonnell was given any other indication that the note would
be provided to a prospective federal grand jury.
Mrs. McDonnell did not receive a federal grand jury subpoena for documents until after
she sent the note. And unlike the defendants in Aguilar and Schwarz, with respect to whom the
Case 3:l4-cr-000l2-JRS Document 4l3 Filed 08/l5/l4 Page ll of l4 PagelD# 964l
10
courts determined there was insufficient evidence to support the nexus element of obstruction,
the evidence in this case, at the time she sent the note, is that:
Mrs. McDonnell had received no federal grand jury subpoena for documents or
testimony;
Mrs. McDonnell had received no indication that the note would be provided to the
federal grand jury, which did not exist at the time;
Mrs. McDonnell was not aware of any federal grand jury proceeding; and
There was, in fact, no federal grand jury proceeding.
It is a fatal defect in the governments case that there was no showing that [Mrs.
McDonnell] . . . knew that the allegedly false [note] she sent to Mr. Williams would be
conveyed to a federal grand jury. See Schwarz, 283 F.3d at 109; see also Aguilar, 515 U.S. at
599. The government has therefore failed to offer sufficient evidence of [Mrs. McDonnells]
intent to obstruct the federal grand jury for if the defendant lacks knowledge that his actions are
likely to affect the judicial proceeding, [s]he lacks the requisite intent to obstruct. Id.; see also
Aguilar.
If the defendants in Aguilar and Schwarz could not be convicted of obstruction of justice,
it must be true that under the evidence presented in this case, Mrs. McDonnell is entitled to a
judgment of acquittal as a matter of law.
11
CONCLUSION
For the foregoing reasons, the Court should grant Mrs. McDonnell a judgment of
acquittal on Counts 1-11 and 13-14 of the Indictment.
Dated: August 15, 2014 Respectfully submitted,
By: /s/ Heather H. Martin
SULLIVAN, LLP
William A. Burck (pro hac vice)
Stephen M. Hauss (pro hac vice)
Heather H. Martin (VSB No. 65694)
Daniel R. Koffmann (pro hac vice)
777 Sixth Street NW, 11
th
Floor
Telephone: (202) 538-8000
Facsimile: (202) 538-8100
williamburck@quinnemanuel.com
stephenhauss@quinnemanuel.com
danielkoffmann@quinnemanuel.com
Attorneys for Maureen G. McDonnell
12
CERTIFICATE OF SERVICE
I, Heather H. Martin, am a member of the Bar of this Court. I hereby certify that I caused
the foregoing Motion to be filed with the Courts CM/ECF system this 15
th
day of August, 2014,
thereby causing it to be served on all registered users.
/s/ Heather H. Martin
Heather H. Martin (VSB # 65694)
SULLIVAN LLP
777 6th Street NW, Suite 1100
(202) 538-8000
(202) 538-8100 (fax)

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