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September 4, 2014

Former Virginia Gov McDonnell (and wife) now facing high-profile federal sentencing after jury convictions on multiple charges

As detailed in this FoxNews report, headlined "Ex-Virginia governor, wife found guilty on corruption charges," a high-profile federal criminal trial is now over and a high-profile federal sentencing process is about to begin. Here are the basics:

Former Virginia Gov. Bob McDonnell and his wife Maureen were convicted Thursday on a range of corruption charges in connection with gifts and loans they accepted from a wealthy businessman, marking a stunning fall for the onetime rising Republican star.

A federal jury in Richmond convicted Bob McDonnell, 60, of 11 of the 13 counts he faced; Maureen McDonnell was convicted of nine of the 13 counts she had faced. Both bowed their heads and wept as a stream of "guiltys" kept coming from the court clerk. The verdict followed three days of deliberations, after a five-week trial.

Sentencing was scheduled for Jan. 6. Each faces up to 30 years in prison. After the verdict was read, FBI agent-in-charge Adam Lee said the bureau will "engage and engage vigorously in any allegation of corruption."  Assistant Attorney General Leslie Caldwell, head of the Justice Department's criminal division, said the state's former first couple "turned public service into a money-making enterprise."

The former governor, up until his federal corruption case, was a major figure in national politics and had been considered a possible running mate for presidential candidate Mitt Romney in 2012.  The couple, though, was charged with doing favors for a wealthy vitamin executive in exchange for more than $165,000 in gifts and loans.  They also were charged with submitting fraudulent bank loan applications, and Maureen McDonnell was charged with one count of obstruction.

The former governor testified in his own defense, insisting that he provided nothing more than routine political courtesies to former Star Scientific CEO Jonnie Williams. Maureen McDonnell did not testify.  His testimony and that of others exposed embarrassing details about Maureen McDonnell's erratic behavior and the couple's marital woes as the defense suggested they could not have conspired because they were barely speaking....

Prosecutors claimed that the McDonnells turned to Williams because they were grappling with credit card debt that once topped $90,000 and annual operating shortfalls of $40,000 to $60,000 on family-owned vacation rental properties. Two of the loans totaling $70,000 were intended for the two Virginia Beach rent houses.  Williams said he wrote the first $50,000 check to Maureen McDonnell after she complained about their money troubles and said she could help his company because of her background selling nutritional supplements.

My (way-too-quick) rough review of likely applicable sentencing guidelines suggests that the McDonnells are likely facing guideline sentencing ranges of 10 years or even longer based on the offense facts described here. I presume they should be able to get some top-flight attorneys to make some top-flight arguments for below-guideline sentences. But, at least for now, I am inclined to urge former Gov McDonnell to expect to be celebrating his 65th (and maybe also his 70th) birthday in the graybar hotel.

September 4, 2014 at 05:16 PM | Permalink

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Seems to been a noticeable number of corruption convictions in the last few years.

There is a lot of cynicism on the state of politics these days but even with current campaign finance law etc., restraints are present apparently.

Posted by: Joe | Sep 4, 2014 5:19:17 PM

Hi there -- I'm an interested Virginian who's been watching the trial. Can you elaborate on what happens before the sentencing phase on the federal level? The jury isn't called back, I'm assuming, so it comes down to the judge how much time the McDonnells would serve, correct? And do both sides get to present witnesses before the sentencing? Thanks.

Posted by: Kate | Sep 4, 2014 5:42:39 PM

This really is jaw-droppingly astounding. They were offered a plea-bargain to a single count (for the Gov) of a non-corruption-type charge, and no charges for his wife. (Does that completely square with: "engage and engage vigorously in any allegation of corruption.") They turned it down. I'm guessing his sentence would have been just a bit more than a slap on the wrist. Does the fact they they _could_ have gotten off fairly lightly mitigate anything during the sentencing part of this?

Posted by: Sholom | Sep 4, 2014 9:26:52 PM

Kate,

Unlike Virginia state proceedings, in the federal system the jury has no role in sentencing.

There are federal sentencing guidelines, as Doug said, which for offenses like the fraud and public corruption charges here are driven largely by the amount of money involved. I haven't looked at the calculations; I'll take Doug's word for it that the guidelines call for upwards of 10 years. Before 2005, the guidelines were for the most part mandatory. After a 2005 Supreme Court decision called Booker, they are now advisory, and the judge can go higher or lower, but he is supposed to use the guidelines as a starting point and then reason from there.

Before sentencing, the McDonnells and their lawyers will likely solicit friends, relatives, clergy, etc., to write letters to the judge explaining everything good they've done in their lives, and asking for leniency. The lawyers for both sides will submit legal briefs to the judge, part of which will argue what guideline level should apply, and part of which will argue for leniency (from the defense) or against leniency and for the guidelines sentence (from the government). At sentencing, each of the McDonnells can speak if they wish, and the judge may let them present a small number of people to speak on their behalf. But those people would not speak about the facts of the criminal case--they would address only the McDonnells' personal character. The judge will consider the guidelines, the letters, the legal briefs from both sides, any such testimony, and the recommendation of the probation department (which will conduct its own investigation of the McDonnells' personal circumstances) before imposing sentence.

In addition to likely prison time, the sentence may include an order of restitution, and will include a period of supervised release after prison. Any prison time will likely be served at a minimum-security prison "camp." These used to be called "Club Feds," but they're not as cushy as they used to be--they're still prison (though with dorms, not bars). Not all of them have fences, but people don't walk away--if they do, when they're inevitably caught, they get a new escape charge, and they get packed off to medium or high security. No minimum security prisoner wants that.

Posted by: Def. Atty | Sep 4, 2014 9:55:09 PM

P.S. In a case with individual victims, the victims also are permitted to address the court at sentencing if they wish to. In this case, the victim was the public, and the people who speak for the public are the prosecutors.

Posted by: Def. Atty | Sep 4, 2014 10:02:32 PM

Just where was the state or public injured here? Or is this a case of a malum prohibitum, an invention, a fiction of the prosecution, bs by the lawyer?

Here is the real damage. The cost of this farce, where lots of lawyers spend a lot of billable time in a phony theatrical charade, and rip off the taxpayer without giving any benefit in return. I have argued that if the damage of an economic crime exceeds that of the value of a human life, around$6 million, the defendant should get the death penalty. The lawyer most responsible for this lawyer bunco operation is, of course, the filthy lawyer traitor on the bench.

Posted by: Supremacy Claus | Sep 5, 2014 2:43:30 AM

I would demand in discovery the cost of the investigation and prosecution of the case. It is likely in the $millions. Then I would demand the judge sentence itself for suborning, and the prosecutor for committing rent seeking, wasting tax money and returning no benefit. They caused far more damage to the public than the defendants.

Why will defense weasels never say that? They owe their jobs to the lawyer filth on the bench and not to the client.

Posted by: Supremacy Claus | Sep 5, 2014 2:53:10 AM

Nice summary of the process, Def. Atty. Well done.

Posted by: AFPD | Sep 5, 2014 10:00:10 AM

His actual sentence depends in large part on the Federal Sentencing guidelines. Here is my quick read on what Robert McDonnell is facing:
The guideline that applies is probably 2C1.1.
A public official starts out at level 14. He gets bumped up 2 levels if there was more than one transaction. The amount involved (all counts he was convicted of) factors in. Based on the indictments I calculated at least $120K but less than $200K. That is another 10 levels. Then there is another 4-level increase for being a high-level official.
That leaves the ex-governor at level 30. The guideline range for a federal defendant at level 30 with no criminal record is 97-121 months in prison according to the sentencing table.
In retrospect, he probably should have taken the plea offer

Posted by: Bryan Gates | Sep 5, 2014 1:43:21 PM

McDonnell's a deluded, right-wing nut and I have no sympathy for him. Yet his crimes make him a piker in light of what routinely goes on unpunished in Congress. Putting him and his wife in prison for a decade is absurd...bordering on tyrannical.

Face it, what will earn the McDonnell's an unreasonably long prison term (which will cost taxpayers far more than what the McDonnells took in graft) is the trial penalty...which is there waiting for any of us with the temerity to resist the government's strong-arm efforts to coerce confessions.

That's really the only thing being deterred here by the McDonnell's grim fate: trial rights.

Welcome, Mr. McDonnell, to the brutal, draconian justice system created largely over the past four decades by your fellow right-wing, tough-on-crime Republicans.

Posted by: John K | Sep 6, 2014 11:19:05 AM

I am going to demand an investigation by both state and federal ethics panels.

The prosecutor wasted $millions of tax dollars to get his name in the paper and to raise his value as future private firm member. Is this the motivation? Is this an improper motive?

The more correct prosecution would have been to make the governor return the money with some money penalties.

Posted by: Supremacy Claus | Sep 7, 2014 9:36:44 AM

I agree with those who find ten year long (plus) sentences for non-violent crimes of greed and stupidity draconian, Kafkaesque, and a violation of the constitutional prohibition against cruel and unusual punishment. Screw Scalia, these huge sentences are unsustainable and this, like Governor Rod Blagojevich's 14 year term, is a monstrous Federal Sentencing over reach.

Prison is almost never the best possible (rehabilitative, restorative) response to transgressive behavior. It most certainly is not in this instance. So Governor McDonnell and his lovely / disturbed wife should be made to reimburse whomever (?) for the Rolex(s), the free fancy car loans, the disgusting but common influence peddling... Restitution is an entirely appropriate penalty, along with permanent exclusion from all rights to political participation... These are penalties that arguably reflect and respond to the specific transgressive behavior.

I feel the same way regarding drug "crimes" where legalization and harm reduction make the most sense. Throwing human beings away for mandatory minimums because they have dared participate in our thriving “black” market drug economy is another (especially ironic) form of cruel and unusual punishment.
It's time to view the Federal Sentencing Guidelines and our bizarre view that prison is an option and appropriate for “The Other” as the destructive forces they most certainly are. [I’m a human being with a license to steal].

Posted by: briancrime | Sep 9, 2014 5:07:36 PM

Prof. Berman: I am a former AUSA and teach white collar crime at George Washington U. Law School. I recently wrote this blog post on the McDonnell sentence and would be very interested in your thoughts. - Randall Eliason

http://rdeliason.com/2014/10/29/the-sentence-bob-mcdonnell-can-expect/

Posted by: Randall Eliason | Nov 5, 2014 6:00:36 PM

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