Appeals court upholds Hamilton's convictions

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Associated Press

Posted on December 13, 2012 at 7:31 PM

Updated Friday, Dec 14 at 9:39 AM

RICHMOND (AP) -- A federal appeals court on Thursday upheld the bribery and extortion convictions of a former Virginia legislator who solicited a job as director of a teacher training center he helped create with taxpayer money.

Former Del. Phillip A. Hamilton of Newport News was sentenced to 9 1/2 years in prison last year. The Republican was vice chairman of the powerful House Appropriations Committee in 2007 when he successfully sponsored a $500,000 budget amendment for the center at Old Dominion University, which then gave him the $40,000-a-year part-time job as director without interviewing other applicants.

U.S. Attorney Neil MacBride said he was pleased that the appeals court upheld the jury's verdict and Hamilton's sentence.

"We hope this case serves as a reminder to every legislator that bribery and extortion are never just the cost of doing business in government," MacBride said in a statement.

Hamilton's attorneys, Lawrence H. Woodward Jr. and Charles B. Lustig, did not immediately return telephone messages.

The former lawmaker's chief claim on appeal was that the jury should not have been allowed to view emails to and from his wife. Hamilton's attorneys argued that emails discussing the couple's shaky personal finances and the delegate's efforts to land the ODU job were protected by a legal doctrine known as "marital privilege." The emails were sent, received and stored on the computer system operated by Hamilton's employer, the Newport News Public Schools, which later adopted a policy limiting the system's use to school business. 

Government attorneys argued that Hamilton waived the marital privilege by failing to delete the emails. U.S. District Judge Henry Hudson and the appeals court agreed, saying Hamilton had no expectation of privacy -- especially after the school system put employees on notice that emails stored in its computers were subject to search.

Appeals court Judge Diana Gribbon Motz said the governing U.S. Supreme Court precedent was a 1934 case in which a man waived the marital privilege by using a stenographer to take down a letter to his wife.

"In Hamilton's case, email has become the modern stenographer," Motz wrote.

The Supreme Court held in the 1934 case that the man could have maintained the privilege by communicating directly to his wife rather than involving a third party. Hamilton, too, could communicate with his wife without using a work email account on an office computer, the appeals court said.

Hamilton also argued that the evidence was insufficient to convict him. The court said Hamilton may be correct that the government provided no evidence that Hamilton communicated to anyone that he would not support funding for the center unless he received a job in return.

"But intent can be implied -- and it is the jury's role to make such factual inferences," Motz wrote.

The court also rejected Hamilton's claims that Hudson improperly failed to instruct the jury on the difference between a bribe and a gratuity, and that the sentence should have been calculated based on the approximately $87,000 Hamilton earned rather than the amount of the appropriation to ODU.

Hamilton was defeated for re-election in 2009 as news of the scandal broke, ending a 21-year legislative career. Under federal rules, Hamilton must serve at least 85 percent of his sentence. 

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