What to Expect at Maureen McDonnell’s Sentencing

Update 2/20/15:  Judge Spencer has sentenced Maureen McDonnell to a year and a day in prison.

Judge James Spencer surprised many observers on January 6, 2015 when he sentenced former Virginia Governor Bob McDonnell to only two years in prison. Maureen McDonnell, Virginia’s former First Lady, is now preparing to face the same judge for her sentencing on Friday, February 20.

bob and maureen

The Governor’s sentence was a substantial departure below the roughly 6 to 8 year prison term called for by the federal Sentencing Guidelines. The question now is whether Maureen – considered by many to be the main driver of the corruption scheme – can expect similarly lenient treatment.

Mrs. McDonnell was convicted on a total of nine felony counts: two counts of conspiracy, two counts of honest services wire fraud, four counts of Hobbs Act extortion, and one count of obstruction of justice. On December 1, 2014, Judge Spencer granted a defense motion to overturn the conviction for obstruction of justice for lack of evidence, leaving eight counts on which Mrs. McDonnell will be sentenced on Friday.

The Presentence Report prepared by the U.S. Probation Department concludes that the Sentencing Guidelines call for a sentence of 63-78 months in prison. The prosecution agrees with those calculations but recommends the judge sentence her to only 18 months in prison to avoid an unwarranted disparity between her sentence and that of her husband. Mrs. McDonnell’s attorneys argue that, properly calculated, the Sentencing Guidelines call for only 33-41 months, but urge the judge to depart even further from the Guidelines and sentence her to probation along with 4000 hours of community service.


Mrs. McDonnell’s Role in the Case – “Out, Damned Spot!”

The evidence at trial portrayed Mrs. McDonnell as a willing and eager participant in the corruption scheme involving the Governor’s office. She actively sought out extravagant gifts from businessman Jonnie Williams, including the $19,000 shopping spree in New York for herself and the Rolex watch for the Governor, as well as the large, no-paperwork “loans” that Williams provided. While enjoying expensive dinners, vacations, and other examples of Williams’ largesse, she was described as being “exuberant” or like a “kid in a candy store.” She also took steps to conceal the scheme, including the conduct that later led to her obstruction of justice charge.

Many of the Governor’s supporters, including even some of the couple’s own children, put much of the blame for the entire scheme on Maureen. To hear them tell it, as Scotland had its Lady Macbeth, so Virginia had its Lady McDonnell: an ambitious and perhaps slightly mad woman driving her high-profile husband to his doom. During his four days of trial testimony the Governor himself seemed to place much of the blame on his wife, leading to widespread accusations that the Governor was a cad who had “thrown his wife under the bus.”

Mrs. McDonnell’s attorneys, of course, paint a very different picture of the former First Lady. They portray her as a woman devoted to her family and to public service, who gradually became overwhelmed by the burdens of raising her family, supporting a husband whose career frequently kept him away from home, and dealing with a public role and spotlight she had never desired. These combined stresses, her lawyers argue, ultimately led to the “mistakes in judgment” that resulted in the couple’s downfall.

The Sentencing Guidelines Calculations

In the wake of Bob McDonnell’s sentencing both sides in Maureen’s case are probably less concerned about the Sentencing Guidelines, because it seems clear the judge is not going to follow them. During the former Governor’s sentencing the judge said he thought the sentence called for by the Guidelines was “ridiculous under these facts.” Nevertheless, in any federal case the judge is required to use the Guidelines as a starting point. Those calculations still provide an important baseline, as well as a potential indication of how the judge feels about Mrs. McDonnell’s culpability.

As in Bob McDonnell’s case, the applicable Guideline is 2C1.1, which covers public corruption offenses. The probation department calculated the adjusted offense level as 26, based on the following:

Base offense level: 12 (for a person not a public official – 2C1.1(a)(2)

Offense involved more than one bribe: add 2 – 2C1.1(b)(1)

Value of bribes between $70K and $120K: add 8 – 2C1.1(b)(2)

Offense involved high-ranking public official: add 4 – 2C1.1(b)(3)

Total: 26

Offense level 26 with no criminal history results in a Guidelines sentencing range of 63-78 months.

The prosecution agrees with these calculations and has asked the judge to adopt them.

The defense makes a couple of half-hearted objections. First, they argue that the value of the bribes is less than $70,000 and the Guidelines should be reduced accordingly. Although the judge already determined the value of the bribes when he sentenced the former Governor, Mrs. McDonnell argues that the total in her case should be less because she was acquitted on two counts on which Bob was convicted and which involved bribes worth about $21,000. But because Maureen was convicted on the conspiracy counts, the value of all the bribes that furthered the conspiracy should still be held against her and this argument is unlikely to prevail.

The second defense argument is that the case really involved only a single bribe spread out over a series of payments and the two-level increase for more than one bribe is not appropriate. This argument was already rejected in Governor McDonnell’s sentencing and there is no reason to expect the judge would reach a different result here.

Sentencing Guidelines aficionados may be interested in a couple of points on which the probation department seems to have been more generous to Mrs. McDonnell than she arguably deserved. First, 2C1.1 provides a base offense level of 14 for defendants who are public officials but only 12 for those who are not. The probation department concluded that Mrs. McDonnell was not a public official.

There’s a reasonable argument that this is wrong. The Guidelines expressly state that “public official shall be construed broadly” and the definition goes far beyond just those who are elected or employed by the government. In particular, it includes any person acting “for or on behalf” of a government “in any official function,” or someone in a “position of public trust” with responsibility for “carrying out a government program or policy.”   2C1.1, App. Note 1.

Given the official and ceremonial duties of a First Lady and the many government programs in which she was involved, she arguably fits this definition. Her own sentencing memorandum goes into great detail about all of her work on various government initiatives in areas such as aid to military families, health care, and economic development of the Virginia wine, film, and tourism industries.

The second interesting point is the absence of any adjustment for obstruction of justice. As I discussed in an earlier post, Maureen was actually indicted for and convicted of obstruction. The charge was based on her efforts to conceal the fact that Jonnie Williams had purchased expensive designer clothing for her by returning the clothing to him with a note suggesting they had discussed donating the clothes to charity. Williams testified at trial that the note was a fabrication, and the jury clearly agreed.

The judge dismissed the obstruction of justice conviction because her conduct wasn’t sufficiently linked to the grand jury investigation, which is how the government had framed the charge. But the Guidelines provide their own two-level enhancement under 3C1.1 for any defendant who attempts to obstruct the investigation, prosecution, or sentencing of her own case.   Unlike the criminal conviction, the obstructive behavior does not have to be linked to any particular federal proceeding but can be connected simply with the overall investigation. And as a sentencing enhancement, the judge need only find that the conduct occurred by a preponderance of the evidence, not beyond a reasonable doubt.

When dismissing her obstruction of justice conviction, Judge Spencer wrote that Mrs. McDonnell had acted with corrupt intent and “undoubtedly attempted to mislead authorities” investigating her case. This finding alone would seem to be enough to impose the two-level enhancement for obstruction.

I’m a little surprised that neither the probation department nor the prosecution raised the possibility of the enhancement for obstruction. This seems like a case where it would be appropriate. Perhaps again it’s simply a matter of everyone feeling that the Guidelines calculations are not all that important, given the judge’s apparent inclination not to follow them.

What to Expect at the Sentencing

 Once the Sentencing Guidelines are calculated, the judge is required to consider all of the sentencing factors listed in 18 U.S.C. § 3553(a) and fashion a sentence that is reasonable and appropriate. The Guidelines provide the starting point but the judge, as demonstrated in Bob McDonnell’s case, is not strictly bound by them. Other factors to be considered under§ 3553(a) include the nature and seriousness of the offense, the defendant’s personal and criminal history, the need for deterrence, the need to protect the public, and the need to avoid any sentencing disparities among similarly-situated defendants.

In Mrs. McDonnell’s case the government has taken the very unusual step of requesting a sentence below that called for by the Sentencing Guidelines. The sole reason is the sentence that Bob McDonnell received. His sentence of only two years was about a 70% reduction from the bottom of the recommended Guidelines range in his case. In order to avoid any unwarranted disparity in sentencing, the government recommends a similar 70% reduction for Mrs. McDonnell, which would result in a sentence of 18 months in prison.

This must be a bitter pill for the prosecutors to swallow, but it seems like the right decision. The government (along with many others) clearly believed that the former Governor deserved a much more substantial sentence than he received. But given the reality of his sentence, prosecutors made the right call in requesting something less for Mrs. McDonnell. Maureen’s recommended sentence was always going to be less than her husband’s because she was not an elected public official, and that’s as it should be.

The defense, of course, requests that the judge sentence Mrs. McDonnell to no jail time at all and instead impose a substantial period of community service.

The actual sentence will depend in large part on how the judge feels about Mrs. McDonnell’s role in the overall corruption scheme. He gave some indication of that during the former Governor’s sentencing, when he remarked, “although Mrs. McDonnell may have brought the serpent into the mansion, the Governor knowingly brought him into his business and financial affairs.” Contrary to many of Bob McDonnell’s supporters, the judge seems to believe that responsibility rests squarely with the former Governor, not with anyone else. Bob McDonnell was the elected public official, lawyer, and former attorney general, and he should have held himself to a higher standard.

It therefore seems very likely the judge will sentence Maureen McDonnell to something less than the two years her husband received. Can she hope to receive probation and community service, as her lawyers requested? Given her active, vigorous involvement in encouraging and soliciting the bribes from Williams, as well as her own attempts to obstruct and derail the investigation, it would be very surprising if the judge did not conclude that at least some jail time is appropriate.

Of course, this judge has surprised everyone before when it comes to the McDonnells. That fact alone must give Mrs. McDonnell some hope.

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