Five Key Questions That Will Determine Bob McDonnell’s Sentence

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Update as of noon, Jan. 6:  The sentencing hearing is still going on.  McDonnell’s lawyers have had some success on the Guidelines issues discussed below.  On the value of the bribes the judge apparently split the baby, ruling the full face value of the loans should not be included but that the value was still substantially higher than the defense claimed.  Judge put the total value of the bribes at between $70,000 and $120,000, which reduced the Guidelines by two levels.  On the question of Obstruction of Justice, as noted below judges are sometimes reluctant to impose this enhancement based solely on a defendant’s testimony at trial.  Judge declined to impose it here, saying he didn’t think it was fair to penalize McDonnell for putting on his defense.  Net result:  Guidelines adjusted offense level of 28, rather than 32, and a recommended sentencing range of 78-97 months – a pretty substantial reduction for McDonnell.  Still remains to be seen whether judge will sentence with that range or depart from the Guidelines.

Update, Jan. 6, 3:00 pm – the judge has departed from the Sentencing Guidelines and sentenced McDonnell to only two years in prison.  A surprisingly lenient sentence that has to be considered a big win by his defense team.

Former Virginia Governor Robert McDonnell will be sentenced on Tuesday, January 6 on eleven felony counts of corruption. The federal probation department has made its sentencing recommendations and the parties have submitted nearly 1,000 pages of briefs and supporting documents. But although the legal issues have been beaten to death, a lot of uncertainty remains concerning the sentence that Judge James R. Spencer will impose.

The starting point in every federal sentencing is the U.S. Sentencing Guidelines. Determining the recommended Guidelines sentence involves analyzing and applying a series of offense characteristics, each of which has a numerical value associated with it. These calculations result in an “adjusted offense level” which, when combined with the defendant’s criminal history, yields the recommended sentencing range expressed in a term of months. (For more on the history behind the Guidelines and how they work, see my earlier post here.)

McDonnell’s sentencing involves the application of Sentencing Guideline 2C1.1, which covers corruption offenses. The probation department has run the numbers under 2C1.1 and came up with an adjusted offense level of 32. For a defendant like McDonnell with no criminal history, level 32 results in a recommended sentence of 121-151 months.

The government agrees with these calculations and has asked the judge to impose a sentence within this recommended range.

McDonnell’s defense team contends that, properly calculated, Guideline 2C1.1 results in an adjusted offense level of only 20, which would call for a dramatically lower sentence of 33-41 months. They further argue that, whatever the Guidelines range, the judge should depart from the Guidelines, sentence McDonnell to no jail time at all, and impose a sentence of probation and substantial community service.

From more than ten years in prison to probation and community service is a pretty wide range of possibilities. How McDonnell’s sentence actually comes out will depend primarily on how the judge resolves the following five questions: the first four relate to the Guidelines calculations, and the fifth is a wild card.

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#1:  What Was the Value of the Bribes?

The defense’s most significant Guidelines challenge concerns the value of the bribes. In bribery cases, points are added to the adjusted offense level based on the dollar value of the bribes that were paid – the higher the value, the more points are added. In this case, the value of the bribes is the disputed sentencing factor that leads to the single greatest increase in the Guidelines sentence.

The probation department calculated the value of the bribes received by McDonnell to be about $175,000. That includes now well-known items such as the wedding catering, Rolex watch, shopping spree and golf outings, but the lion’s share of the total is the $120,000 in no-paperwork loans that Jonnie Williams made to the McDonnells. The full amount of those loans is included the probation department’s calculation.

The defense claims that including the full face value of the loans is inappropriate. Where loans are provided as a bribe payment, they argue, the true value of the bribe is only the amount by which the terms of the loan were more favorable than a loan the defendant could have received from another source. For example, if I bribe a public official by giving him a one-year loan of $100,000 at 2%, but he could have obtained the same loan from a bank at 4%, the value of that bribe is not $100,000 but only $2,000 – the actual amount of interest the defendant saves as a result of the bribe.

Using this analysis, the defense argues that the value of the loans to the McDonnells was actually relatively trivial – less than $1,000. If they succeed in convincing the judge on this point, they will dramatically reduce the value of the bribes and, accordingly, the length of the recommended Guidelines sentence.

The general proposition makes sense and there is some law to support it, but the defense faces two problems. First, you can only compare the value of a “bribe loan” to the value of a legitimate loan if in fact the defendant could have obtained a legitimate loan. There was considerable evidence at trial about the dire financial situation the McDonnells were in. As the government points out, it likely would have been extremely difficult for them to obtain a similar loan from a legitimate source – which is probably precisely the reason they turned to someone like Williams. In such cases, courts have held it is appropriate to consider the value of the bribe to be the full face amount of the loan.

Second, the defense approach to valuing the “bribe loan” only applies to legitimate, legally enforceable loans. The “loans” from Williams involved no collateral, no paperwork, and only a verbal understanding of the terms. With no legally enforceable loan document, Williams would have been hard-pressed to collect, and certainly could not have done so without exposing the very financial arrangements that both sides wanted to keep a secret. Although both sides throughout the case referred to these payments as loans, had the case never been prosecuted it is far from clear they would ever have been repaid. If bribe payments appear to be more like gifts and are “loans” in name only, the full amount will be included as the value of the bribe.

I expect the judge to agree with the government and the probation department on this point and to include the full face value of the loans when calculating the value of the bribes.

 #2:  Did the Conduct Involve More than One Bribe?

The second defense challenge to the Guidelines concerns whether McDonnell should be given the two level increase under 2C1.1(b)(1) for conduct that involved more than one bribe, as the probation department recommends. The defense argues that this case essentially involved a single bribe scheme under which McDonnell agreed to promote Anatabloc in exchange for a series of payments. In other words, the defense characterizes the case as one continuing bribe, with installment payments spread out over a period of time.

The government counters that the evidence at trial established a number of different bribes involving a number of different things of value (payment for the wedding caterer, golf outings, undocumented loans, and more) and a series of different official acts by the Governor, all taking place over a nearly two-year period. The different bribes may have had a similar goal, but that does not transform multiple transactions into a single bribe.

What may be most significant here is that the jury actually convicted McDonnell of nine different counts of bribery-related offenses involving multiple things of value. Ultimately the number of bribes is a factual question, and the facts underlying the jury verdict make it very tough to argue there was only a single bribe here.

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#3:  Did McDonnell Lie on the Stand?

The defense’s third Guidelines challenge is to the two-level increase for Obstruction of Justice under Guideline 3C1.1. The probation department recommends this enhancement based on its conclusion that McDonnell was untruthful on the stand when he denied a corrupt relationship with Williams. The presentence report apparently identifies eight separate instances in which it appears McDonnell committed perjury during his testimony.

The defense argues that the enhancement should not be applied because McDonnell admitted to many of the facts underlying the government’s case, including his relationship with Williams and the gifts that he and his family received. He should not be penalized for testifying in his own defense, they argue, simply because the jury disagreed with McDonnell as to the legal significance of those facts.

The government counters that McDonnell did not admit key facts and simply disagree with the government as to their legal significance. On the contrary, they say, the jury verdict necessarily means that McDonnell lied about a number of critical points, such as whether he was aware of certain gifts from Williams or aware of their true value, or whether he ever did anything for Williams in exchange for the gifts.

Judges are sometimes reluctant to penalize a defendant who testifies at his own trial and is subsequently convicted. Although no defendant has a right to commit perjury, imposing this obstruction enhancement can feel like punishing a defendant for exercising his constitutional right to put on a defense. Given the probation department identification of eight instances of perjury, however, it will be tough for the defense to convince the judge that this upward adjustment is not appropriate.

 #4:  Did McDonnell Accept Responsibility for His Conduct?

The final dispute in the Guidelines calculations concerns the adjustment for acceptance of responsibility. This is a two-level reduction typically granted to a defendant who pleads guilty and acknowledges his criminal conduct. It’s rarely granted to a defendant who denies culpability, goes to trial, and puts the government to its proof. The probation department did not recommend it in this case.

McDonnell argues he should receive this two-level reduction, again based on the claim that he essentially admitted the conduct that makes up the heart of the government’s case. The flaw here is that McDonnell did not admit the single most critical fact underlying the guilty verdicts: that there was a quid pro quo and a corrupt relationship between himself and Williams. Absent his acknowledgment of this essential fact, he cannot truly be said to have accepted responsibility.

The government points out that, far from accepting responsibility, McDonnell has consistently failed to acknowledge his criminal conduct and has only admitted to exercising “bad judgment.” He has blamed others for his failings and has blamed the “gift culture” of Virginia politics but has never truly admitted his own criminal acts.

This is the longest of long shots. If McDonnell’s defense team somehow convinces the judge to give McDonnell credit for acceptance of responsibility in a case like this, they should all be nominated for lawyer of the year. In fact, I think they risk losing credibility by even making the argument.

 #5:  Will the Judge Impose a Sentence Within the Guidelines Range?

Now we get to the real wild card. Once all the battles over the Sentencing Guidelines calculations are completed, that still provides only the starting point. The judge has the power to impose a sentence outside the Guideline range – either higher (unlikely in this case) or lower – if such a sentence would be just under the circumstances and would best serve the overall goals of criminal sentencing. So the big unknown is: will the judge sentence within the Guidelines, or venture outside of them?

The defense claims that, properly calculated, the Guidelines call for a sentence of only 33-41 months. They go on, however, to argue that the judge should depart from the Guidelines and impose a sentence of probation with 6000 hours of community service and no jail time at all. This would essentially require McDonnell to work full time for the next three years at an organization such as Operation Blessing or the Catholic Diocese of Richmond, both of which have offered to give McDonnell a position.

The defense claims a number of factors support this sentence, including McDonnell’s long career of public service, lack of any criminal record, and strong community and family ties. They note that McDonnell has already been severely punished simply by the investigation, prosecution, and trial. His political career is over, his family has been publicly humiliated, and his finances have been exhausted. His experience would already serve as a deterrent to other public officials even if he did not go to jail.

These same factors, of course, apply to many high-profile public corruption defendants and do not make the McDonnell case particularly unusual. There is one additional factor, however, that might give the defense a bit more traction.

Although the gifts provided by Williams were extraordinary, the actions taken by McDonnell in return were relatively minor, such as introducing Williams to state officials and hosting a product launch event at the Governor’s mansion. McDonnell did not steer any big state contracts to Williams, or direct large sums of grant money his way, or push through legislation to benefit Williams. The evidence at trial did not establish that the actions taken by McDonnell were particularly aggressive or extensive or that they resulted in any financial harm to the Commonwealth.

The government responds that the reason this is true is simply because McDonnell’s efforts to promote Williams’ product were not successful. Had McDonnell gotten his way, they argue, Williams could have received government research grants worth millions of dollars. McDonnell should not benefit simply because, despite his best efforts, other government officials declined to follow through on his requests to research and promote Anatabloc.

Nevertheless, in terms of a quid pro quo, it’s true that while the quid here – the gifts and loans by Williams – were extraordinary, the quo – the actions taken by McDonnell in exchange – were not. That’s been an unusual characteristic of this case from day one. That doesn’t mean the conduct wasn’t bribery. On the other hand, the Sentencing Guidelines don’t necessarily take into account all of the possible variations in the actions that may be undertaken by a public official in exchange for the bribes. If I were the sentencing judge, the limited nature of the actions taken by McDonnell would give me some pause when considering whether a ten-year sentence is really called for.

The Bottom Line 

Any objective observer would have to conclude that McDonnell faces an uphill battle. The judges in the Eastern District of Virginia tend to follow the Guidelines in most cases, and Judge Spencer has not seemed particularly sympathetic to other defense arguments throughout this case. The smart money would still say that the most likely outcome is the judge adopting the probation department recommendations and sentencing McDonnell to at least 121 months. On the flip side, there seems to me almost zero chance that the judge will adopt the defense request of probation and community service.

The most intriguing question is whether Judge Spencer will impose a compromise sentence that still involves prison but is below the Guidelines recommendation. Fashioning the appropriate sentence in each individual case is at the heart of the judicial role, and the judge has a great deal of discretion. How he chooses to exercise that discretion will determine Bob McDonnell’s fate.

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