Download sentencing position of the United States

Case 3:14-cr-00012-JRS Document 639 Filed 02/06/15 Page 1 of 15 PageID# 18853
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
UNITED STATES OF AMERICA
v.
MAUREEN G. MCDONNELL,
Defendant.
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No. 3:14cr12
SENTENCING POSITION OF THE UNITED STATES
The United States respectfully asks this Court to adopt the factual findings and
Guidelines calculation of 63 to 78 months set forth in the draft Presentence Report (“PSR”). The
majority of the sentencing factors set forth in 18 U.S.C. § 3553(a) support imposition of a
Guideline sentence here. However, given the significant downward variance imposed on Mr.
McDonnell, whose Guidelines range was 78–97 months, a comparable downward variance is
necessary for Mrs. McDonnell in order to avoid unwarranted sentencing disparities and to
promote respect for the law. But because Mrs. McDonnell was a full participant in a bribery
scheme that sold the Governor’s office in exchange for luxury goods and sweetheart loans, many
of which she solicited personally, and because she repeatedly attempted to thwart the
investigation through false representations, it would be unjust for her not to serve a period of
incarceration for her crimes. As such, the United States respectfully asks this Court to sentence
Mrs. McDonnell to a term of imprisonment of 18 months, which would represent the same
approximately 70% downward variance from the low end of the Guidelines that her husband
received.
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I.
Guidelines Calculation
As this Court is aware, “in imposing a sentence after Booker, the district court must
engage in a multi-step process. First, the court must correctly determine, after making
appropriate findings of fact, the applicable guideline range.” United States v. Moreland, 437
F.3d 424, 432 (4th Cir. 2006). In doing so, the Court must make factual findings, supported by a
preponderance of the evidence, to support any pertinent Guidelines enhancements. See United
States v. Grubbs, 585 F.3d 793, 803 (4th Cir. 2009); United States v. Harvey, 532 F.3d 326, 337
(4th Cir. 2008); United States v. Quinn, 359 F.3d 666, 680 (4th Cir. 2004). “Next, the court must
‘determine whether a sentence within that range serves the factors set forth in § 3553(a) and, if
not, select a sentence [within statutory limits] that does serve those factors.’” Moreland, 437
F.3d at 432 (quoting United States v. Green, 436 F.3d 449, 455 (4th Cir. 2006)).
The United States has no additions, corrections, or objections to the PSR. The United
States asks the Court to adopt the PSR’s findings and overrule the defendant’s objections to its
factual summary, as well as to its application of enhancements for (i) an offense involving more
than one bribe and (ii) an offense involving bribes or official action worth more than $70,000.
A.
The defendant’s factual objections do not identify factual inaccuracies in the
PSR, seek to relitigate side issues already litigated at trial, and are
unnecessary to resolve in any event pursuant to Fed. R. Crim. P. 32(i)(3)(B).
This Court rejected Mr. McDonnell’s efforts to litigate the minutiae of the factual section
of the PSR at his sentencing and should reject this defendant’s similar invitation. The Federal
Rules of Criminal Procedure provide that the Court does not have to rule on a disputed matter in
the PSR if it “determine[s] that a ruling is unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in sentencing.” Fed. R. Crim. P.
32(i)(3)(B). The United States thus asks that the Court find that (i) the PSR’s findings are amply
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supported by a preponderance of the evidence at trial and (ii) the defendant’s remaining
objections are either overruled as factually inaccurate or unnecessary to resolve because they will
not affect the sentencing or be considered in sentencing the defendant.1
B.
The PSR appropriately applied a two-level enhancement pursuant to
U.S.S.G. § 2C1.1(b)(1) because the offense involved more than one bribe.
This Court already has found that Mr. McDonnell’s scheme involved more than one bribe
and thus applied U.S.S.G. § 2C1.1(b)(1)’s two-level enhancement to his offense conduct, and the
Court should apply the same enhancement to this defendant.
As previously briefed, the PSR properly applied a two-level enhancement because the
offenses involved more than one bribe or extortion. See § 2C1.1(b)(1). Here, the jury convicted
the defendant of four separate counts of extorting four different things of value from Jonnie
Williams. Moreover, the evidence at trial established by a preponderance of the evidence that
the defendant and her family members received numerous other bribes and extorted other items
of property as part of the charged conspiracy. None of those items was extorted or accepted by
the defendant or her family members as part of one lump sum financial transaction. To the
contrary, over the duration of the charged conspiracy, the defendant went back time and again to
1
To be clear, the United States disagrees with the factual hair-splitting in which the
defendant engages. For example, she claims that although her email account scheduled events
on her electronic calendar, the United States failed to present evidence that she actually typed the
event onto her calendar. See, e.g., ¶¶ 48, 68. In addition, the United States disagrees with the
factual accuracy of several of the suggested “omissions” that the defendant wishes to include, as
many of them either selectively quote the record or cite to discredited testimony. As stated
above, however, it is unnecessary for the Court to resolve those objections so long as the Court
makes appropriate factual findings with respect to the sentencing enhancements at issue and
explains its weighing of the 18 U.S.C. § 3553(a) factors.
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extort or solicit new, previously undiscussed bribes from Mr. Williams—each time committing a
new and separate offense. As a result, § 2C1.1(b)(1) plainly applies.2
C.
The PSR appropriately applied an 8-level enhancement pursuant to U.S.S.G.
§§ 2C1.1(b)(2) and 2B1.1(b)(1)(E) because the greater of the value of the
things obtained by the defendants or the official action to be received in
return for those things of value exceeded $70,000.
Next, the defendant raises what are essentially two different types of objections to the
PSR’s calculation of the greater of the bribes received or official action to be received pursuant
to U.S.S.G. § 2C1.1(b)(2). First, she joins her husband’s litany of objections to those
calculations that the Court has already rejected—e.g., that the value of the bribes should be
limited to convicted conduct and should not include things of value not explicitly charged as
substantive counts, or that the value of the loans obtained from Mr. Williams is essentially no
value at all. The Court should reject those objections for the same reasons it rejected Mr.
McDonnell’s. Second, the defendant raises only one new objection—that because she was
acquitted of substantive counts related to two particular things of value, the range applicable to
her should be different. As discussed in greater detail below, however, the Court should reject
this objection both because the things of value related to the counts on which this defendant was
acquitted are properly included as relevant conduct and because the dollar amounts that would
apply to those things of value are immaterial to the bribe valuation in any event.
First, the United States and Mr. McDonnell extensively litigated the appropriate bribe
value for § 2C1.1(b)(2)’s enhancement, and the United States will not belabor those prior
2
Likewise, for the same reasons the United States set forth in its sentencing pleadings
with respect to Mr. McDonnell, the three-factor test set forth in United States v. Arshad, 239
F.3d 276 (2d Cir. 2001), for applying § 2C1.1(b)(1) is easily satisfied here, as the payments and
things of value were made for several official actions, did not bear any hallmarks of installment
payments, and did not come in the same form over time. See Doc. No. 591, at 3–4; Doc. No.
597, at 3–5.
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pleadings here. See Doc. No. 591, at 4–13; Doc. No. 597, at 6–18; Doc. No. 600, at 3–7. In
sum, both defendants’ PSRs relied on the value of twelve items given by Mr. Williams to the
defendants in calculating the value of the bribes received. Those were:

$19,289.28 for the April 2011 shopping spree;

the $50,000 loan in May 2011 (Count 6);

the $15,000 wedding check in May 2011 (Counts 2 and 7);

$2,380.24 in golf in May 2011 (Count 8);

$2,268 for a boat rental in July 2011 at Smith Mountain Lake;

$6,500 for the Rolex Mrs. McDonnell solicited in August 2011;

$868.99 in golf in August 2011;

$1,368.91 in golf in January 2012 (Count 9);

the $50,000 loan in March 2012 (Counts 3 and 10);

the $20,000 loan in May 2012 (Counts 4 and 11);

$7,383.14 for the Chatham Bars vacation in September 2012; and

$1,685.50 for work performed by Donnie Williams at the McDonnells’ home.
At the time of Mr. McDonnell’s sentencing, the draft PSR valued the total items above at
greater than $120,000, thus applying a 10-level enhancement. At Mr. McDonnell’s sentencing,
the Court had essentially two factual issues to resolve—first, whether to include items listed
above that were not the subject of specific substantive counts, and second, how to value the three
Williams loans. Mr. McDonnell’s chief arguments against inclusion of the former category were
that he did not know about certain items (e.g., the shopping spree or the Rolex) or that they were,
unlike the items charged in the substantive counts, not bribes. See Sentencing Tr. for Robert F.
McDonnell (“RFM Sent’g Tr.”), at 5–6. In response, the United States argued that there was no
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distinction between the items charged in substantive counts and the other things of value given
by Williams in terms of being bribes, and the United States further argued that the Court need
not find that Mr. McDonnell’s was specifically aware of each item so long as each item was a
reasonably foreseeable part of the bribery conspiracy, as judged by a preponderance standard.
Id. at 14–16.
With respect to the loans, Mr. McDonnell argued that the value of the loans was no more
than $939.92 based on a comparison to an Internal Revenue Service interest rate. Id. at 6–7. In
the alternative, Mr. McDonnell argued that a comparison to a hypothetical private loan rate
would provide a total value of the Williams loans of $12,841.53, which would only be sufficient
when combined with the “uncharged” items to warrant a 6-level enhancement. Id. at 8–9. The
United States argued that the loans should be valued at their full face amount but also that a
comparison of the loan terms to convenience checks available to the defendants would still result
in a 10-level enhancement. Id. at 16–21. In the alternative, the United States argued that even a
conservative comparison to credit card rates or other private loan options the defendants had
actually received on prior occasions (rather than the hypothetical rate Mr. McDonnell offered at
sentencing) would result in an 8-level enhancement and “end up with the immediately adjacent
97 to 121 range.” Id. at 21.
After hearing argument, the court imposed an 8-level enhancement, ultimately finding a
total value of the bribes received of greater than $70,000 and less than $120,000. Id. at 27. In its
ruling, the Court stated, “In my estimation, when we are trying to determine what would be
reasonably foreseeable, the government has the best analysis.” Id. In other words, the Court
agreed with the United States’ emphasis on reasonable foreseeability with respect to the
“uncharged” items. As set forth in the United States’ sentencing pleadings, the value of those
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items was $56,744.06, which would result without any inclusion of the loans in a 6-level
enhancement for value of the bribes. See Doc. No. 600, at 5. With respect to the loans, the
Court decided to “give the defendant the benefit of the doubt” and applied the “plus eight
enhancement rather than the ten.” RFM Sent’g Tr. at 27. In other words, the Court utilized the
United States’ alternative proffered calculation for the loans as compared to the credit card or
private loan options the defendants had previously been able to obtain.3 As set forth in the
United States’ sentencing pleadings, those alternative proffered calculations resulted in an
addition of between $24,103.91 and $31,738.71 for the loans, thus resulting in a total bribe
valuation of between approximately $80,847.97 and $88,482.77. See Doc. No. 597, Att. 1, at
¶¶ 18, 20; Doc. No. 597, at 17 n. 14; Doc No. 600, at 7 n. 6.4 After sustaining Mr. McDonnell’s
objection to the draft PSR’s application of an enhancement for obstruction of justice, the Court
found an advisory Guidelines range of 78–97 months. RFM Sent’g Tr. at 27–28.
The Court should overrule this defendant’s objections to the “uncharged” things of value
and the valuation of the loans to the extent those objections rely on her husband’s reasoning for
the same reasons the Court has already rejected that reasoning. Indeed, for two of the items that
Mr. McDonnell asked the Court to exclude—the shopping spree and the Rolex—there is even
less reason to exclude them for this defendant, who solicited them. Similarly, with respect to
3
In its ruling, the Court stated, “I think we easily get into the range of 97,000 to
121,000,” RFM Sent’g Tr. at 27, which clearly referred to the range of 97–121 months that
would result from a finding that the value of the bribes would be more than $70,000 but less than
$120,000. Indeed, that is exactly what the final PSR and statement of reasons filed by the Court
found. See, e.g., Doc. No. 609 (Final PSR for defendant Robert F. McDonnell) ¶¶ 123, 133;
Doc. No. 628 (statement of reasons for defendant Robert F. McDonnell), at 1.
4
It appears that the United States’ prior calculations included an immaterial addition
error that resulted in a low end under this alternative calculation of $25,328.07 instead of the
$24,103.91 reflected here, but that addition error did not affect any of the pertinent calculations.
The United States has nonetheless corrected that error here, and it again does not affect any of
the pertinent calculations.
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those items that this defendant may not have personally solicited or received—such as the golf—
the reasonable foreseeability argument is the same. Either Mrs. McDonnell knew about those
items or they were reasonably foreseeable to her; either way, they should be included.
This defendant’s only new argument, then, is that because the jury acquitted her of the
substantive counts related to two of the items—the $1,368.91 in golf in January 2012 (Count 9)
and the $20,000 loan in May 2012 (Counts 4 and 11)—her bribe valuation should not include
those items. But for the reasons explained below, that argument is both irrelevant and wrong.
First, based on the alternative loan valuation methodology that the Court accepted at Mr.
McDonnell’s sentencing, the additional value added for the May 2012 loan for which the
defendant was acquitted was either $8,249.28 as compared to the defendants’ available credit
card rates or $2,397.62 as compared to the private loan the defendants previously obtained from
Dr. Paul Davis. See Doc. No. 597, Att. 1 at ¶¶ 14 (Williams loan interest), 18 (credit card
interest), 20 (Davis loan interest). When combined with the value of the $1,368.91 in golf for
which the defendant was acquitted in Count 9, that totals between approximately $3,766.53 and
$9,618.19 in total value for the things of value related to substantive counts for which this
defendant was acquitted. Even subtracting out those values from the respective amounts found
for her husband would result in a total bribe valuation for this defendant of between
approximately $77,081.44 and $78,864.58. Thus, an eight-level enhancement is appropriate
even if this Court excludes the acquitted conduct.
Of course, it is well-settled in the Fourth Circuit that “a sentencing court may consider
uncharged and acquitted conduct in determining a sentence, as long as that conduct is proven by
a preponderance of the evidence.” Grubbs, 585 F.3d at 799. That is because like all Chapter 2
and 3 enhancements, application of § 2C1.1(b)(2) must be determined on the basis of all
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“relevant conduct” as defined by U.S.S.G. § 1B1.3. Thus, “in the case of a jointly undertaken
criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in
concert with others, whether or not charged as a conspiracy),” relevant conduct includes “all
reasonably foreseeable acts and omission of others in furtherance of the jointly undertaken
criminal activity.” § 1B1.3(a)(1)(B). Here, the most reasonable reading of the jury’s verdict is
that it decided that the United States did not prove beyond a reasonable doubt that Mrs.
McDonnell knew about or solicited the specific things of value charged in Counts 4, 9, and 11.
But given the reduced standard applicable at sentencing, it is more likely than not that her
husband’s receipt of those two things of value were reasonably foreseeable to her, just as her
solicitation and receipt of the shopping spree and Rolex were reasonably foreseeable to him. The
PSR thus accurately included them in calculating the value of the bribes in this case. In any
event, as stated above, inclusion of the things of value related to the acquitted counts is
unnecessary to apply an 8-level enhancement, and this Court thus need not resolve this factual
dispute to overrule this defendant’s objection to the advisory Guidelines range of 63–78 months.
II.
The Sentencing Factors of Section 3553(a)
In the vast majority of cases, the United States requests a sentence within the Guidelines
range because it is reluctant to substitute its judgment for that of the Sentencing Commission and
because the United States seeks to ensure that its sentencing recommendations are independent
of the particular prosecutor assigned to a case. In a small percentage of cases, however, fair
application of the sentencing factors in 18 U.S.C. § 3553(a) necessitates a recommendation
above or below the advisory Guidelines range. Here, the nature and seriousness of the offense,
the defendant’s lack of true remorse, and the genuine need to afford general deterrence militate
in favor of a Guideline sentence. But one factor—“the need to avoid unwarranted sentence
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disparities among defendants . . . who have been found guilty of similar conduct,” § 3553(a)(6),
militates in favor of a downward variance. Mrs. McDonnell’s codefendant was given a sentence
of 24 months, which amounts to a downward variance of approximately 70% below the low end
of his advisory Guidelines range. In order to promote respect for the law, while still recognizing
the § 3553(a) factors that militate towards a Guideline sentence, the United States respectfully
asks this Court to give this defendant a comparable 70% downward variance to her codefendant
and sentence her to 18 months of imprisonment.
A.
Nature and Seriousness of the Offense
The Court is well aware of the facts underlying the defendant’s criminal conduct, and the
United States will not restate them here. But of particular note is the degree to which the
defendant unhesitatingly participated in the scheme to sell the Governor’s office to satisfy her
desire for a luxurious lifestyle. For example, even though it was Mr. McDonnell who sold his
office, Mrs. McDonnell benefited from the bribery scheme by personally receiving a $19,289.28
shopping spree and by participating in multiple expensive dinners and vacations at Mr.
Williams’s expense. As she did so, she was at times “exuberant,” Trial Tr. 1041, and “[l]ike a
kid in a candy store,” Trial Tr. 1933. And she had no hesitation in ordering her state-paid staff to
take action to further the scheme. See, e.g. Trial Tr. 1828–33, 1856–59, 1884–91, 1895–1909,
2044–45, 2055–62, 2068–84.
Also of note is that the defendant’s conduct was neither isolated nor the product of a
single criminal choice. The defendant fully participated in a bribery conspiracy with her
husband that lasted nearly two full years, and she repeatedly made conscious decisions to
continue that conspiracy time and again over that time. See, e.g., Exh. 581 (outlining phone calls
between defendant and Mr. Williams during the Smith Mountain Lake trip); Exhs. 312, 314
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(emailing Mr. McDonnell and Jasen Eige in attempt to facilitate official action by Mr.
McDonnell)
Finally, while the defendants and their supporters have repeatedly tried to downplay the
seriousness of this bribery scheme by claiming that it was a victimless crime, or that Mr.
Williams did not ultimately get the studies he wanted, the Eleventh Circuit recently held:
Bribery cannot properly be seen as a victimless crime, for in a sense it threatens
the foundation of democratic government. Putting aside the financial havoc it can
cause, bribery tears at the general belief of the citizenry that government officials
will carry out their duties honestly, if not always competently. And that harm,
though it may at times appear intangible, is real.
United States v. Hayes, 762 F.3d 1300, 1309 (11th Cir. 2014). In other words, even bribery
schemes such as this one that do not succeed or that are caught before they result in a public
disbursement of funds greater than that present here erode the public’s already tenuous faith in
their elected officials. And that is even more so where, as here, the office that is sold belongs to
the most powerful official in the Commonwealth.
B.
The Defendant’s Lack of True Remorse
The defendant has not expressed true remorse for the crimes of which she was convicted.
See, e.g., PSR ¶ 163 (on page 40, noting that “I never attempted to or did commit any crimes,
conspire with anyone to deprive the people of this Commonwealth of the honest services of their
governor, to influence Bob in his official acts, or to obstruct justice”). It is well-settled that “lack
of remorse certainly is a fact that a district court can consider in its evaluation of the § 3553(a)
factors.” United States v. Sweat, 573 F. App’x 292, 298 (4th Cir. 2014); see also United States v.
Keskes, 703 F.3d 1078, 1090–91 (7th Cir. 2013) (“A lack of remorse is a proper sentencing
consideration because it speaks to traditional penological interests such as rehabilitation (an
indifferent criminal isn’t ready to reform) and deterrence (a remorseful criminal is less likely to
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return to his old ways).” (internal quotation omitted)); United States v. Mitchell, 681 F.3d 867,
884–85 (6th Cir. 2012) (bribery case; distinguishing lack of remorse, where defendant persisted
in denying his involvement following jury verdict, from exercise of trial right); United States v.
Cruzado-Laureano, 527 F.3d 231, 236–37 (1st Cir. 2008) (rejecting argument that including lack
of remorse in § 3553 analysis was unfair “double counting” where court also denied downward
offense level adjustment for acceptance of responsibility); United States v. Smith, 424 F.3d 992,
1016–17 (9th Cir. 2005) (approving district court’s above-Guidelines sentence in a tax protestor
fraud case based in part on defendant’s lack of remorse).
Indeed, when she was questioned by law enforcement about her conduct in February
2013, the defendant falsely claimed that she had signed a loan agreement with Mr. Williams, that
she was making periodic payments on the first $50,000 loan, and that her husband had met Mr.
Williams years before was actually the case. See PSR ¶ 120. Similarly, after being questioned
by law enforcement, the defendant returned the clothing she had received from Mr. Williams
along with a note that this Court found “undoubtedly attempted to mislead authorities to believe
that Mrs. McDonnell had previously discussed returning the dresses to Mr. Williams” and
amounted to “substantial evidence” of “corrupt intent.” Doc. No. 569, at 4, 5; see also PSR
¶ 123.5 And the defendant engaged in that conduct despite having previously been employed at
the FBI and having a father who was an FBI agent. See PSR ¶¶ 150, 151. The defendant’s
efforts to thwart the investigation despite clearly knowing better is reason alone to impose a term
of incarceration in this case.
5
The defendant had not objected to ¶ 120 or ¶ 123 of the PSR. And although the Court
acquitted Mrs. McDonnell of the conduct underlying Count 14’s obstruction charge, that ruling
was based on a legal distinction that does not undercut the false and misleading nature of this
defendant’s interactions with law enforcement.
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C.
Need for General Deterrence
It is unlikely that the defendant will ever again be in a position to exert influence over an
elected official. But again, like her codefendant, any sentence imposed on her will affect others
who may be in positions to affect those in a position of public trust. Thus, the sentence imposed
must also be sufficient to deter others. See United States v. Phinazee, 515 F.3d 511, 515–16 (6th
Cir. 2008) (deterrence for § 3553(a) purposes includes both specific and general deterrence). Put
differently:
We need not resign ourselves to the fact that corruption exists in government.
Unlike some criminal justice issues, the crime of public corruption can be
deterred by significant penalties that hold all offenders properly accountable. The
only way to protect the public from the ongoing problem of public corruption and
to promote respect for the rule of law is to impose strict penalties on all
defendants who engage in such conduct, many of whom have specialized legal
training or experiences. Public corruption demoralizes and unfairly stigmatizes
the dedicated work of honest public servants. It undermines the essential
confidence in our democracy and must be deterred if our country and district is
ever to achieve the point where the rule of law applies to all—not only to the
average citizen, but to all elected and appointed officials.
United States v. Spano, 411 F. Supp. 2d 923, 940 (N.D. Ill. 2006).
D.
Need to Avoid Unwarranted Sentencing Disparities
Despite the § 3553(a) factors discussed above, a Guidelines sentence in this case would
erode respect for the law because it would lead to an unwarranted sentencing disparity given the
70% downward variance imposed on Mr. McDonnell. A colorable argument could be made that
Mrs. McDonnell should receive the same sentence as her husband given her central role in all
that happened and her attempts to conceal her crimes from law enforcement. But as the
Guidelines recognize, the public official who sells an office should receive a greater sentence
than similarly culpable bribery conspirators who do not hold public office. See § 2C1.1(a)(1)–
(2). As such, the United States recommends that the Court apply a downward variance
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comparable to Mr. McDonnell’s—i.e., 70% of the low end of the Guidelines—and sentence this
defendant to 18 months of imprisonment.
III.
Conclusion
The United States respectfully asks the Court to impose a variant sentence of 18 months
of imprisonment in this case.
Respectfully submitted,
DANA J. BOENTE
United States Attorney
RAYMOND N. HULSER
Acting Chief, Public Integrity Section
Criminal Division
U.S. Department of Justice
By:
14
/s/
.
Michael S. Dry
Ryan S. Faulconer
Jessica D. Aber
David V. Harbach, II
Counsel for the United States
U.S. Attorney’s Office
600 E. Main Street, Suite 1800
Richmond, VA 23219
Phone: 804-819-5400
Fax: 804-771-2316
Email: [email protected]
[email protected]
[email protected]
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CERTIFICATE OF SERVICE
I hereby certify that on February 6, 2015, I will electronically file the foregoing with the
Clerk of Court using the CM/ECF system, which will then send a notification of such filing
(“NEF”) to all counsel of record.
By:
15
/s/
.
Ryan S. Faulconer
Counsel for the United States
U.S. Attorney’s Office
600 E. Main Street, Suite 1800
Richmond, VA 23219
Phone: 804-819-5400
Fax: 804-771-2316
Email: [email protected]