Thoughts on the Fourth Circuit’s Ruling in the McDonnell Case

For a while things were going well for former Virginia Governor Bob McDonnell’s appeal of his convictions for corruption related offenses.  The Court allowed him to remain out of custody while the appeal was pending and the panel who heard his case – Judges Motz, King, and Thacker – was pretty favorable by Fourth Circuit standards.

But the Court ruled against him on every issue.  In a published decision issued last Friday.

The media has (appropriately) given most of its attention to the Fourth Circuit’s decision to uphold the relatively broad definition of “official act” given to the jury by district judge Spencer.  This case makes it clear that in corruption prosecutions the government is not required to prove that the public official discharged some duty explicitly assigned to him by law in exchange for a benefit – merely exercising his or her influence may be enough.  This holding will undoubtedly have its effect on future prosecutions and the behavior of public officials in general.

There are some other interesting takeaways as well.  Appellate practitioners take note – one of McDonnell’s assignments of error related to the district court’s denial of his motion to sever was deemed waived because it was raised in his reply brief at the trial level.  Definitely a word to the wise.

The Court also passed up an opportunity to critique the pitiful voire dire practices common in federal courts.  McDonnell’s lawyers challenged the district judge’s decision to conduct group voire dire on most questions, rather than individual.  In many state courts, the individual voire dire is the rule, rather than the exception, even in cases much less sensational than the prosecution of a former governor.  But the Fourth Circuit found no error in the jury selection.

Finally, it should be noted that McDonnell’s legal team had a tough job on appeal.  With only one exception, the issues they raised were subject to the “abuse of discretion” standard of review, which entitles the trial judge to great deference on appeal.  Even with great lawyers, that standard is hard to overcome on appeal.


Three years in prison for FBI agent who stole heroin

We wrote yesterday about the impeding sentencing of the former FBI agent who pled guilty to stealing heroin seized as evidence.

His sentence is three years, about halfway between the requested sentences of the defense and prosecution.

When you take into account good behavior and credit for participating in drug treatment while in prison, the defendant could potentially be released much earlier.

Notes on Johnson v. United States and the Armed Career Criminal Act

In Johnson v. US, SCOTUS struck down part of the Armed Career Criminal Act – a federal law which imposes enhanced penalties (a fifteen year mandatory minimum sentence) on those convicted of certain federal firearms charges based on their criminal histories.

One of the ways the ACCA’s enhanced penalties can be triggered is if the defendant has three or more “violent felonies” in their criminal history.  Without getting too much into the weeds, Johnson greatly reduces the number of offenses which can qualify as violent.  So a lot of defendants who might otherwise be subject to the Act will now be able to avoid it.

The cases raises some interesting questions.  Will prisoners serving ACCA sentences be able to now get reductions?  Is the career offender guideline section, which has similar language but somewhat different requirements and penalties, also void for vagueness?  Will this case trigger a revival of void for vagueness challenges to other laws?

SCOTUS decision on criminal threats in United States v. Elonis

We have previously commented on United States v. Elonis, a criminal threats case before the Supreme Court this term.  The decision came down today, in favor of the defendant.

The defendant had been convicted at trial of threatening several individuals on Facebook.  The trial judge refused to instruct the jury that a conviction required proof that the defendant intended to make a threat.  Although the jury was told that the government must prove that a reasonable person would interpret the defendant’s words (or “posts”) as a threat, it did not have to prove the defendant meant his words to be taken that way.

The Supreme Court decided these instructions were error and that the statute required proof of the defendant’s intent to threaten.  The ruling was based on the Court’s long tradition of interpreting criminal statutes to require intent unless the legislature clearly intended otherwise.  The question of whether proof of “recklessness” was sufficient to meet this burden was left open.

Unfortunately for state court practitioners, the Court did not decide whether the First Amendment requires proof of intent to threaten.  Because federal law required proof of intent, it was not necessary for the Court to decide if the Constitution did as well.  The case will therefore have limited application outside the federal courts.

No new health care contractor for DC jail

The Washington Post describes the contentious political process which led to the rejection of a new health services contractor for the detention center.  Here is how the votes broke down:

Ultimately, the deciding vote Tuesday belonged to freshman lawmaker Brianne Nadeau (D-Ward 1), who voted against Corizon along with Mendelson, Charles Allen (D-Ward 6), Cheh , Grosso and Silverman.

Council members Yvette Alexander (D-Ward 7), Anita Bonds (D-At Large), Evans, Kenyan McDuffie (D-Ward 5), and Orange voted for Corizon.

Plea juries

Here is a slate review of a new book, which proposes reforming the jury system by establishing “plea juries” which would review plea bargains and accept or reject them.

The idea is not as unrealistic as it sounds at first.  In states like Virginia, where the juries do the sentencing, the jury sometimes functions somewhat like the plea jury described in the article.  At our firm, we have on several occasions taken cases to trial in Virginia that we knew we would lose, based on the calculated risk that the jury would give a fairer sentence than the government would agree to in a plea bargain.  So far, the strategy has never failed.