If past practice is any guide, former Gov. Bob McDonnell and his wife, Maureen, have only a limited chance of staying out of prison during their appeals of multiple public corruption convictions.
But it’s not impossible.
After U.S. District Judge James R. Spencer sentences the McDonnells on Jan. 6 at the federal courthouse in Richmond, he likely will allow them to self-report to prison at a later date, to give the U.S. Bureau of Prisons time to decide where they should serve their terms, legal observers say.
That could take a couple of weeks to a month, possibly longer.
But staying out of prison for the duration of their appeals process is far less likely, say lawyers familiar with the federal court system in Virginia.
“What it boils down to is, I think the presumption is going to be that they’re going to have to report” to prison, said Kelly Kramer, a white-collar defense attorney at Mayer Brown, based in Washington. “I think that they have an uphill battle in convincing” Spencer or the 4th U.S. Circuit Court of Appeals that they should be released pending appeals.
“There’s not zero possibility, though,” he added.
The McDonnells’ attorneys have already signaled that they plan to appeal the 20 combined criminal charges on which a federal jury found them guilty Thursday after a six-week trial and 17 hours of deliberations.
The jury found the McDonnells conspired to trade access to the governor’s office for $177,000 in gifts and loans from businessman Jonnie R. Williams Sr., the then-CEO of Star Scientific, which sold the dietary supplement, Anatabloc.
In most cases like this, in which the defendants are not a serious flight risk or danger to the community, they “as a matter of course would be permitted to self-report (to prison) a month or two after the sentencing,” said Barry J. Pollack, a Washington attorney who has represented clients in public corruption cases.
However, that’s not a foregone conclusion in the Eastern District of Virginia, which includes Richmond, Pollack said.
Also, it’s rare that defendants are allowed to remain free on bond for the duration of their appeals process, Pollack added.
Phillip A. Hamilton, a former Republican delegate from Newport News who is in federal prison on his own corruption convictions, is weighing in on the guilty verdicts against Bob and Maureen McDonnell.
Former Gov. Bob McDonnell was found guilty on 11 of 13 charges in the six-week corruption trial and his wife, Maureen McDonnell, on nine of 13. Sentencing is set for Jan. 6.
A defendant must convince the court that he or she has a substantial issue to appeal and is likely to prevail, Kramer and Pollack said.
Among other issues, attorneys for the McDonnells likely will argue that prosecutors failed to prove the former first couple engaged in what’s known as “honest services fraud” by accepting gifts from Williams in return for tangible, official acts by the governor.
“The honest services fraud theory has always been controversial, and there are cases in the D.C. Circuit and others that arguably conflict with the very broad approach adopted in Judge Spencer’s instructions” to the jury, said Andrew McBride, a former assistant U.S. attorney for the Eastern District of Virginia and now a partner at the Wiley Rein law firm.
“Judge Spencer does not have to say he was wrong to let them out pending appeal,” McBride said. “He could say the issue is subject to considerable controversy and should be decided on appeal before they are forced to serve.”
But Kramer and several other attorneys said it’s highly unlikely Spencer will do so, “because he’s rejected the argument that there was no official act performed here on multiple (defense) motions and the jury instructions.”
However, if Spencer refuses to release the McDonnells during their appeals, they can “take an immediate emergency appeal of (his) order” to the 4th Circuit and ask that court to order their release during the appeals process, Pollack said.
“If the appeals court agrees to allow the defendants out pending appeal, that means the appeals court thinks there is a real chance it will reverse the trial court decision and the defendants should not have to serve time pursuant to a conviction that will ultimately be overturned,” Pollack explained.
“It’s a high standard, but it depends largely on the strength of the appellate arguments,” Kramer said. “There are reasonable arguments here.”
McBride sees a potential opening.
“I do think it somewhat more likely that the [former] governor will be able to show a substantial legal issue on appeal and possibly stay out pending appeal,” he said. But McBride added it could be a “toss-up.”
Other attorneys aren’t so sure. “All of this is uncommon,” Kramer said. “It used to be in the old days that getting bail pending appeal was not so hard. But these days … it’s very much an unusual case.”
Unless the appeals process is expedited for the McDonnells, it could take months to unfold, with a decision taking until the end of this year or the beginning of next year, Kramer said.
Kramer represents former U.S. Rep. Rick Renzi, an Arizona Republican who is appealing his conviction on 17 criminal charges related to a land swap that Renzi said benefited the interests of the state and prosecutors said ultimately benefited him.
Prosecutors based their case in part on the same honest services wire fraud statute that the Justice Department relied on in the case against the McDonnells, Kramer said.
Kramer successfully argued in the 9th U.S. Circuit Court of Appeals for Renzi’s release pending his appeal. His three-year prison sentence is on hold.
Charles E. “Chuck” James Jr., a former federal prosecutor who now is a white-collar defense attorney at Williams Mullen, said it’s difficult at this stage to predict what may happen at the McDonnells’ sentencing hearing because the case is in “unchartered territory.”
“I don’t think we have a lot of precedent for this, if any,” James said.
James noted that there are still a number of factors that the judge will take into consideration before sentencing that have not yet come to pass, such as pre-sentence reports for both defendants and what is argued at their hearing.
“Depending on the litigation that goes on there, that could affect the court’s decision — depending on how vigorously the defendants attack certain elements of the prosecution, and how [the McDonnells] are deemed being contrite or not, or whether they [appear] defiant,” he said. “Those things could all play in.”
Where the McDonnells will serve their time — should they lose their appeals, or be ordered to prison pending that process — will not be decided until after they are sentenced Jan. 6.
They likely will serve time — separately — at one of several minimum-security federal prison facilities within 500 miles of Richmond.
“Typically what happens is, once someone is sentenced to a term of incarceration, we’ll look at their background, including the crime they’re convicted of, their criminal history and a whole bunch of different social variables, and we’ll assign a security level to them,” said Chris Burke, a U.S. Bureau of Prisons spokesman.
Burke said there are no federal prison units designated for specific offenses or even categories of offenses, like white-collar crime. “It’s all tied to security level,” he said.
McDonnell could possibly be assigned to the federal prison complex for male inmates in Petersburg, which has medium- and low-security facilities, as well as an adjacent medium-security camp. There also are minimum- and medium-security facilities for men in Beckley, W.Va., Burke said.
The closest minimum-security prison for women is at Alderson, W.Va., where businesswoman and television personality Martha Stewart served five months for insider trading-related convictions a decade ago.
“We don’t have co-located camps that have males in one and females in another,” Burke said, when asked whether there are federal prison facilities where the McDonnells could serve their time at the same location, should their convictions stand.
Former Gov. Bob McDonnell has made history in a way Virginians do not want their history made.
“Bob will rise again.” That was the opinion of a woman unloading bags of Food Lion groceries Thursday afternoon at the western Henrico County home of former Gov. Bob McDonnell and his wife, Maureen.