Barry Pollack Comments on Intent as Key Factor in McDonnell Fraud Case in Richmond Times-Dispatch

"Bob McDonnell case could hinge on his intent"
Richmond Times-Dispatch

Barry Pollack was quoted regarding former Virginia Gov. Bob McDonnell's intent to commit honest services fraud or lack thereof as the critical component of his 14-count federal indictment. "The whole case will come down to intent. It is not a crime to accept a gift from somebody. It is not a crime to accept a gift from somebody who does business with the state," Pollack said. "It's only a crime if you do it with an improper and corrupt intent. ... It all comes down to what was in Governor McDonnell's mind when he was accepting these gifts."

The 2010 Supreme Court Skilling decision ruled that the government must prove there was a bribe or a kickback, however the intent required to establish a bribe is unclear.  If Governor McDonnell agreed to do something in return for receiving gifts, "The key question the court is going to have to resolve in Governor McDonnell's case -- and ultimately the Supreme Court is going to have to resolve -- is does that 'something' have to be something specific, something identified," Pollack said.

Pollack also commented on the inclusion in the indictment of multiple counts charging crimes other than honest services fraud.  "For the government, all of these counts are kind of mutually reinforcing in that they show that this wasn't a single event that can be explained away. It's part of a pattern of conduct that demonstrates that he knew that he was doing something wrong."  Prosecutors often offer juries multiple theories of ways to show that a defendant committed a crime. "It is a cafeteria plan. The government hopes that if the jury does not like Theory A for some reason, maybe they will buy Theory B," he said, "I think the government's going to anticipate, correctly, that Governor McDonnell's defense is going to be:  'I didn’t intend to do anything wrong, I didn't intend to accept any gift I was not permitted to accept.'"

This article was also reprinted in the Roanoke Times on January 22, 2014.

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