Bob and Maureen McDonnell are facing a 14-count indictment (one of those charges is just against Bob, and one is just against Maureen). The indictment can be broken roughly into three pieces:
- The first 11 counts that deal with Jonnie Williams and Star Scientific and allegations of conspiracy and bribery;
- Counts 12 and 13, which deal with false statements that they made on loan applications when they did not disclose to the banks loans the fact that Jonnie Williams had made them loans; and
- Count 14, which alleges that in March, 2013, Maureen wrote a note to Jonnie Williams that falsely claimed that she and Jonnie had agreed that she “would return certain designer luxury goods rather than keep them permanently.”
There are a few basic principles of federal sentencing:
- If you are found guilty of ANYthing, you can get sentenced for EVERYthing, even if the jury found you not guilty of the charge. This is a pretty bizarre aspect of federal sentencing, and it will be discussed at length later.
- Federal sentencing is done within the framework of the U.S. Sentencing Guidelines. Since 2005, these guidelines have not been mandatory on the judge; Judge Spencer could sentence above or below the guidelines.
- All sentences can be appealed in the federal system if either side thinks that the sentence handed down either understates or overstates the seriousness of the offense, fails to promote respect for the law, doesn’t provide just punishment for the offense, doesn’t protect society from further crimes of the defendant, or isn’t likely to deter others from doing the same thing.
The U.S. Sentencing Guidelines assign points for each offense and each offender — from 1 to 43 points. Each offender then is assigned a Criminal History score (both McDonnells will be a Criminal History I — as good as it gets). Then the judge looks at a grid, with the Offense Level going down and the Criminal History score going across, to determine the guideline range, which will be expressed in months.
To see how this works, let’s look at Bob McDonnell, and let’s assume that he is found guilty of everything in the indictment.
If he is convicted of the conspiracy and bribery allegations, he would be sentenced under Section 2C1.1 (see p. 129) of the Guidelines, and he would start with an offense level of 14 under §2C1.1(a)(1). The judge would presumably find that there had been more than one bribe given, so 2 more points would be added on, under §2C1.1(b)(1). If the judge decided that the value of the bribes given was more than $120,000 but less than $200,000, 10 more points would be added on, under §2C1.1(b)(2) and §2B1.1. Then, because Bob McDonnell was a “public official in a high-level decision-making position,” 4 more points would be added on under §2C1.1(b)(3), to get to 30 points. Someone with an Offense Level of 30 and a Criminal History Score of I would have a sentencing range of 97 to 121 months. There is no parole in the federal system, though there is some good time (it usually works out to about 13% of the time off). So if the judge agreed with these calculations, Bob McDonnell would actually spend somewhere between 90 and 105 months in prison. Maureen McDonnell’s sentencing guidelines would probably be similar.
That doesn’t mean that I am predicting that Bob or Maureen McDonnell would get a prison sentence that long, even if convicted of everything. The judge has the right to sentence them to anything he finds appropriate, provided that he can justify it based on the purposes of punishment. He could go below the guidelines if he finds that some of the gifts had nothing to do with corruption, or if he decides that the usual kind of bribery case that such a long sentence would attach to is a lot more serious than this case. For example, if Bob McDonnell were found guilty, his lawyer could say, “Judge, the Sentencing Guidelines would apply just as strongly if, as a result of these loans, Governor McDonnell had ordered that Anatabloc be sold over the counter in the cafeterias in public buildings. Here all he did was to try to get people to talk to Mr. Williams. Maybe he shouldn’t have done that, but it’s not the same as actually making something happen for Star Scientific.” On that basis, the judge could find that this case was “outside the heartland” of bribery cases, in the words of the Sentencing Guidelines, and could find that a lower sentence was appropriate.
Or the defense could argue, “Judge, if Bob McDonnell had walked into a bank with a gun and had taken $165,000, he’d only get 87-108 months, so this long a sentence is ridiculous. Surely the Court doesn’t mean to equate this sort of bribery with bank robbery.”
Of course, they might get lower sentences if they present well, are apologetic, etc.
Now, about that odd characteristic of federal sentencing law that you can be sentenced on the basis of conduct that you were not convicted of…
In United States v. Watts, 519 U.S. 148 (1997), the Supreme Court made clear that although the jury must find the defendant guilty beyond a reasonable doubt, the judge, in imposing sentence, does so by a preponderance of the evidence, a lower standard of proof. It is entirely possible that the jury could say “We’re not persuaded beyond a reasonable doubt that you had a gun when you robbed that bank, so we’ll just find you guilty of the robbery, and not guilty of using a firearm in the commission of that robbery.” But the judge, sentencing on the robbery, might decide that HE is persuaded by a preponderance of the evidence that you DID have the gun, and he can then give you an enhanced sentence for having had a gun. In Watts, the defendants screamed “That’s not fair,” but the Supreme Court said that it was OK.
The practical effect of this rule is that if the jury acquits on some charges and convicts on some, the McDonnells might be sentenced as though they had done everything anyway. And if the judge believes the government’s evidence, the fact that there were acquittals on some of the charges might not reduce the sentence much.
