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Richmond, Va. • Prosecutors and defense attorneys aren't through fighting over the fate of former Virginia Gov. Bob McDonnell and his wife, Maureen.
Now that the verdicts are in guilty on 11 public corruption counts for him, nine for her attention turns to their Jan. 6 sentencing and subsequent appeal. A multitude of issues will come into play that will determine how much prison time the McDonnells receive and whether the convictions will stand, legal experts said Friday, the day after the end of the nearly six-week trial.
Bob McDonnell's attorney, Henry Asbill, responded emphatically when asked if he planned to appeal: "You can be sure of that."
U.S. District Judge James S. Spencer will enter a final order in the case shortly after sentencing. The McDonnells have up to 10 days after that to file an appeal to the Richmond-based 4th U.S. Circuit Court of Appeals.
The former governor and his wife, whose lawyer declined to comment after the verdicts, were convicted of performing "official acts" to promote former Star Scientific Inc. CEO Jonnie Williams' dietary supplement products in exchange for more than $165,000 in gifts, trips and loans.
According to legal experts, the chief issue on appeal likely will be Spencer's instructions to the jury on the definition of "official acts."
"Essentially, he took the much broader view, that it was pretty much anything the governor did other than opening his Christmas cards," said Richard Kelsey, assistant dean of the George Mason University School of Law. He said the defense attorneys will likely argue that "official acts" means duties a governor is required by law to perform.
Kelly Kramer, a white-collar defense lawyer in Washington, D.C., said the honest services fraud statute that was the basis for four of the former governor's convictions has been criticized by courts as unclear. That gives defense attorneys an opportunity to "write a great appeal brief," he said.
"Is it fair to criminalize conduct that is not particularly well described?" he said.
Jeff Bellin, a professor at the College of William and Mary Law School and a former federal prosecutor, said one looming legal question is whether Spencer's instructions would permit conviction of a politician who simply received a campaign contribution and then did something to benefit the donor.
"The defense will argue that if so, then the statutes that convicted McDonnell make all of American politics illegal, something that will make the courts uncomfortable," Bellin said.
While defense attorneys lay the preliminary groundwork for their appeal, they also have sentencing issues to consider. The convictions call for a maximum sentence of 20 years on each count, but federal sentencing guidelines as calculated by the U.S. probation office will produce a recommended range that will be lower than that. Spencer can sentence outside the range if he believes he has good reason to do so.
Barry J. Pollack, a white-collar defense attorney in Washington, said the guidelines will take into consideration the value of the gifts received by the McDonnells and the value of the benefits they provided to Williams. While the former has been documented by authorities and went unchallenged by the defense, the latter will be harder to pinpoint, Pollack said.
"There is a tremendous amount of subjectivity in trying to put a value on benefits such as having access to the governor or having the governor make favorable statements about your product," Pollack said.
Prosecutors will argue that the benefits were substantial while defense attorneys will claim they were minimal, he said, adding that the result will have a big impact on the sentence.
The guidelines will add time to Bob McDonnell's recommended sentence for being an elected official. But he also will get credit for his previously clean record.
Pollack said McDonnell also could get a stiffer sentence because the conviction suggests jurors believe he lied on the witness stand. Former state lawmaker Phillip A. Hamilton received the "obstruction enhancement" in his 2011 bribery and extortion case. Hamilton was sentenced to 9½ years in prison.
"Even though you have a constitutional right to testify in your own defense, if you are unsuccessful you can pay an additional price," Pollack said.
Kelsey said he doubts that enhancement will be applied in McDonnell's case because the former governor simply offered his own version of what happened.
He said defense attorneys also are likely to argue that McDonnell, whose case was based largely on circumstantial evidence, warrants a lighter sentence than public officials convicted of more blatant offenses. He cited the case of former U.S. Rep. William Jefferson of Louisiana, who was convicted of bribery, racketeering and other charges after FBI agents investigating corruption found $90,000 in his freezer. Jefferson was sentenced to 13 years in prison.