Just this morning, Governor McDonnell’s appeal to the Fourth Circuit was denied by a unanimous three Judge Panel in Richmond. The chances of overturning his convictions are now minimal.[read_more]
The three judge panel hearing Governor McDonnel’s case denied his appeal stating, most importantly, that the definition of “official acts” utilized in the jury instructions was not overinclusive. McDonnell now has two (bad) options to still pursue.
An appeal to the U.S. Supreme Court: The Supreme Court faces approximately 10,000 cases per term but grant only approximately 100 writs of certiorari per term. Even if you weed out the thousands of frivilous pro se appeals (I am not saying all pro se appeals are frivilous) we are still talking about a less than 1% grant rate. Given the timing we would be looking at a grant or denial of appeal in late fall, early winter.
A petition for rehearing en banc(the entire court): This is a request to be heard before the entire Fourth Circuit Court of Appeals. Under Rule 35 of the Federal Rules of Appellate Procedure in order to obtain a rehearing en banc, the litigant must convince a majority to hear the case (three have already suggested they would say no) and must either show 1. that the decision of the Court is in conflict with a decision from another Court of equal importance (No.), or 2. that the case presents a question of “exceptional importance.” “Exceptional Importance” is a legal term of art suggesting that the case will have wide reaching effect on other jurisprudence. It does not mean “really really important” as any case can be “really really important” to a subset of people.
In other words, McDonnell’s convictions are highly likely to stand, and he will be forever branded as a corrupt felon.
I have previously opined about how this conviction occurred.
Prior thorough coverage from TBE’s Dave Webster for the oral argument can be found here.
It may be of interest that all three Judges on the panel were appointed by Democrat Presidents, one by Clinton and two by Obama.
The Washington Post’s article on the denial of McDonnell’s appeal, with a great series of photographs from his trials is here.
38 comments
McDonnell had a lousy case from the beginning and should have taken the plea deal.
What the new and old Virginia ‘Ethics’ law civilly permits is still and has been CRIMINALLY illegal.
Gifts to the OFFICE are legal.
Gifts to the officER are CRIMINAL.
Consider:
(18USC1951(b)(2) “RACKETEERING (EXTORTION = personally receiving property under the color of office )” – https://www.law.cornell.edu/uscode/text/18/1951 )
OR
its unconvicted Virginia equivalent in one meaning of (VA18.2-111 “EMBEZZLEMENT, LARCENY” –
http://law.lis.virginia.gov/vacode/title18.2/chapt…
“If any person wrongfully and fraudulently use, dispose of, conceal or embezzle any”. . .”personal
property, tangible or intangible, which he shall have received”. .” by virtue of his office, trust, or employment” “shall be guilty of embezzlement.” )
The customary felonies by the officers of Virginia’s government make it a RICO according to Virginia law.
Those customary felonies include daily counts of VA18.2-481(5) TREASON by EVERY officer of its courts.
Given that this is a 3-0 opinion the rehearing on banc seems less likely although not improbable given the unique nature of the case. The Supreme Court has shown interest in the past in limiting the operation of the Honest Services Fraud Statute, 18 U.S.C. § 1346, namely in the Skilling case so it wouldn’t surprise me to see the Supreme Court granting a writ of certiorari. In Skilling, Scalia, Thomas, and Kennedy would have struck down 18 U.S.C. § 1346 as being unconstitutionally vague. This case gives them the opportunity to revisit that matter.
The case only APPEARS unique. The criminal perfidy of the courts’ officers has not the authority to actually make it unique – no matter how much they don’t want the judgement against McDonnell to be even more applicable to them.
So three Democrat judges denied McDonnell’s appeal. Why am I NOT surprised?
Did you read the 89 page opinion? I did, and it’s carefully and well grounded in the law. In this case, there is no basis for blaming anything on the assumed politics of the judges.
I read it. The opinion should be overturned.
Why?
See United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998). “It is universally recognized that bribery occurs only if the gift is coupled with a particular criminal intent. That intent is not supplied merely by the fact that the gift was motivated by some generalized hope or expectation of ultimate benefit on the part of the donor.”
What professional or experience related qualifications do you possess that would allow you to professionally second guess, or question, a 3 judge panel at the a Fourth U.S. Circuit Court level?
Have you read some of the recent Supreme Court rulings ? I’m not sure it takes a law degree to know that some of these rulings are screwed up.
Yes, and a few years ago SCOTUS said that according to our Constitution people and Corporations could throw as much money as they wanted to at politicians. Remember? Limiting the amount of money they could spend would be limiting their right to free speech, or something like that. Republican’s loved the courts ruling. Obama no.
And now comes the courts other side of the coin. The corporations and rich can throw the money at politicians, yes. But the politicians better be careful about what they do in exchange for said money.
Just ask McDonnell. This case is not about McDonnell. It is about our entire system of campaign finance corruption.
I’ll take no answer to mean, “absolutely none”?
But as the opinion says: Williams did want and intend to get something specific — studies at the universities, inclusion in the state health plan, and gubernatorial endorsement & prestige. Williams only actually got the last one, but the law does not require a briber actually get what the briber intends to get, and McDonnell did actually take official acts toward all 3.
And even granting that reasonable minds could differ doesn’t help McDonnell because the jury found against him, and appellate courts don’t overturn juries because of the mere possibility of reasonable disagreement about what the evidence shows.
I don’t begrudge you second-guessing the jury or the appellate court — it’s everyone’s constitutional right to question governmental action by any of the 3 branches — but nothing you’ve said establishes a reason for the 4th Circuit opinion to be overturned.
I am not second guessing. The endorsement and prestige argument is exactly the sort of vagueness that the Supreme Court disagreed with in Skilling. Governor McDonnell never promised nor did he deliver the studies or inclusion in the state health plan. I detail what the “official acts” were, as alleged by the DOJ, in my previous article and none of them come close to being actual official acts.
In August 2011, Maureen McDonnell organized a luncheon at the Executive Mansion where one of Star Scientific’s products, Anatabloc, was at every table setting. The Governor appeared briefly to say a few words.
Governor McDonnell asked a subordinate to send a staffer to a meeting with Williams, immediately after which the staffer sent Williams a “blow-off email.” (I wish more people had done this.) Nothing else happened.
Governor McDonnell suggested to two subordinates that they meet with a representative of Star Scientific. The subordinates disagreed about whether Governor McDonnell made the suggestion, they never met with anyone, and they never heard about it again.
Governor McDonnell’s wife invited Williams, and private doctors recommended by Williams, to a reception for “Healthcare Leaders” and at which Anatabloc was not promoted or otherwise featured. Nothing else happened.
Governor McDonnell sent an email to his chief counsel asking the counsel to “see me about Anatabloc issues at VCU and UVA.” The counsel did not recall actually seeing him and nothing else happened.
You are second guessing both the law (where the trial judge and 4th Circuit apparently disagree with you about the meaning of the Skilling decision) and the facts (where the jury and the judges all disagree with you).
Anyone who wants to see the more persuasive factual narrative that
you’re second guessing can read the first part of the 4th Circuit
opinion. It is damning. (If McDonnell had a lick of sense, he would not have gone to a jury with those facts, much less adopted the ridiculous marital-focused defense that dragged his wife and family through the mud in a lost cause.)
It’s your right to second-guess, but at this point you can’t pretend that you’re clearly right and the jury and judges clearly wrong. At best, you can say it’s arguable, but arguable doesn’t get a jury overturned. You’re also misstating some of the facts (or at least cherry-picking
from the evidence), which is, again, not a reason to overturn the jury verdict or this
opinion.
Finally, you are ignoring the law that McDonnell was not required to actually deliver everything Williams wanted before being guilty of bribery.
I didn’t ignore the law on McDonnell not being required to actually make good on any alleged promise. I said he neither promised nor delivered. I am also not misstating the facts regarding exactly what “official acts” the DOJ claims were at issue. Incidentally, the appellate decision in Skilling was also “damning” until it was overturned.
And if the en banc 4th or SCOTUS overturns McDonnell’s conviction, I’ll be the first to acknowledge your foresight. Neither is probable, but neither is impossible either.
Quite true. Overturning the jury verdict is not probable but possible. I rate this as less than 50% but more than 25% for an ultimate McDonnell victory. His sand is running low. Sad to say because I think the jury decision was unjust but I can’t alter the reality.
Particularly since God will have the last word on the matter – Re VA18.2-111 “Embezzlement, Larceny” See “Thou Shalt Not Steal”
This case is similar to Blago, like it or not. If McDonnell walks so too should Blago. The differences in sentencing between the two are just plain wrong.
Maureen organized, the Gov. asked a subordinate, the Gov. made the suggestion, over and over it goes in your comment, the Gov. did this and that.
The timing of “asking” 6 minutes after a Williams phone call.
A unanimous jury decision, a unanimous decision by the court today upholding the jury decision.
The real question is why the judge did not follow the guide lines for sentencing McDonnell?
Gov. Blago did not actually trade that Senate seat either. Is he innocent?
Who you trying to fool with your BS? Everybody got it wrong but you, eh?
The law under which grounds of CONVICTION were found beyond a reasonable doubt are the only relevant grounds that may be appealled – the rest is distraction as used by magicians and defrauders.
So Williams IS provably GUILTY of attempted VA18.2-438 Bribery to Officers or Candidates and may be indicted and tried at some future date. Also accessory-before-the-fact & conspiracy to McDonnell’s VA18.2-111 “EMBEZZLEMENT, LARCENY”.
McDonnell was never convicted of BRIBERY even though that was the crime he appealled against. There is a reason for this if you will look.
Party to the felonies customary to Bob McDonnell, Eh? Too special a person to be criminal? VA18.2-482 at the very least. Making you accessory-before-the-fact to a legion of other felonies. May God Have Mercy On You – You will need it – in my humble but very diligent opinion. Care to debate your felonious customs?
Mr. Davis, a comment like this makes clear that you’re unhinged. Whether you are accusing McDonnell or Dave Webster, the fact remains that there is no treason here.
You attack the arguer not the argument. Logical fallacy is not inherently a lie but it is VERY close to one and may be one. And you do lie with respect to VA18.2-481(5) treason in the matter of McDonnell – and Dave Webster’s well evidenced VA18.-482 “Misprision of Treason” by which he given his law deemed professional competence at ‘Notice of the Law” makes hime accessory-before-the-fact to hundreds of VA18.2-481(5) “TREASON” felonies of “Resisting the execution of the (true, duly authorized) laws under the (mere) color of its authority. That you squeak does not unhinge my argument from fact of law and mater.
Dave Webster is too craven to defend his own honor – because he knows his own legion of felonies but is not ready to repent and be forgiven. The alternative may catch him by surprise and catch him without recourse as it does many.
Like Chad Ballard and Leroy Hassell.
Hey folks . . . . You are falling for the criminal scam put on you by the Democrats, the Republicans and by every officer of the courts of Virginia.
The scam is in plain sight.
Regardless of ALL the official talk after the trial the McDonnell’s were NEVER convicted of public-corruption-bribery: (18USC201 –
http://www.law.cornell.edu/uscode/text/18/201 )
OR
(VA18.2-438 Bribery to Officers or Candidates
http://law.lis.virginia.gov/vacodefull/title18.2/chapter10/article2/)
OR
( §18.2-178. Obtaining money or signature, etc., by
falsepretense. http://law.lis.virginia.gov/vacode/title18.2/chapter6/section18.2-178/)
Those crimes of public officer corruption are those that the competent criminals know how to avoid while STILL taking the bait and PERPETRATING their customary VRICO CRIME.
The CRIMES that they want you to forget are statutory crimes they almost ALL conclusively
evidence in the public record are the SAME as MCDONNELL was convicted of:
(18USC1951(b)(2) “RACKETEERING (EXTORTION = personally receiving property under the color of office )” – https://www.law.cornell.edu/uscode/text/18/1951 )
OR
its unconvicted Virginia equivalent in one meaning of (VA18.2-111 “EMBEZZLEMENT, LARCENY” –
http://law.lis.virginia.gov/vacode/title18.2/chapter5/section18.2-111/
“If any person wrongfully and fraudulently use, dispose of, conceal or embezzle any”. . .”personal
property, tangible or intangible, which he shall have received”. .” by virtue of his office, trust, or employment” “shall be guilty of embezzlement.” )
Mr. Davis, I’ve read your comment a couple of times at the different sites where you’ve posted it, and I still have no idea what “scam” you’re referring to and what point you’re making.
It’s up to prosecutors what charges to bring. They brought a bunch here, they secured convictions, and now they have successfully defended those convictions on appeal. Could McDonnell have been charged with other crimes? Perhaps — there are many broad, vague, and overlapping criminal laws these days. But the fact is that Bob McDonnell is currently a felon, that he’s likely to remain so, that being a felon carries various serious collateral consequences, and that there’s no reason for us to question the prosecutors at this point. There comes a point of diminishing returns and a point at which further punishment is pointless.
DavidH, The statement of indictment is not equal to the Judgment of conviction. This matter is much more significant than McDonnell’s punishment. The significance is in the cause for punishment. The only lawfully relevant grounds for appeal is on the grounds and due process of conviction – NOT INDICTMENT.
If you have motive not to see you cannot be made to. Realize that an ‘Appeal to Authority’ is a logical fallacy that carries no truth unless incidentally – which is not causation.
DavidH, Under Virginia courts not tainted by VA18.2-481(5) felony it is not solely “up to prosecutors what charges to bring.” as you say it is.
Consider this in VA19.2-216 :
“A presentment is a written accusation of crime prepared and returned by a grand jury from their own knowledge or observation, without any bill of indictment laid before them.”
What, three Liberal judges denied the appeal of one of the biggest fiscal Liberal’s ever?
McAullife should pardon him. Terry will probably need the favor returned in a couple of years.
Gov. McAulliffe does not have the power to pardon a federal case.
Well he could still call out the national guard! j/k