Maureen McDonnell and Obstruction of Justice
One of the few bright spots for the McDonnell defense team came when the judge threw out Maureen McDonnell’s obstruction of justice conviction. With the operation of the federal Sentencing Guidelines, however, Mrs. McDonnell may end up having won the battle but lost the war.
Former Virginia Governor Robert McDonnell and his wife Maureen were convicted in federal district court in Alexandria, Virginia on September 4, 2014. Mrs. McDonnell was convicted on nine counts: two counts of conspiracy, two counts of honest services fraud, four counts of Hobbs Act extortion, and one count of obstruction of justice. On eight of those nine counts both of the McDonnells were charged and convicted. The obstruction of justice charge, however, applied only to Maureen. The jury found her guilty, but on Dec. 1, 2014 the judge granted a defense motion to overturn her conviction and enter a judgment of acquittal on that count. Her convictions on the other eight counts were not affected and she will be sentenced on those counts on February 20, 2015.
The Basis for the Obstruction of Justice Charge
Of the many gifts and benefits lavished on the McDonnells by businessman Jonnie Williams, one of the more notorious was Maureen McDonnell’s New York shopping spree. The evidence at trial established that in April of 2011, Mrs. McDonnell contacted Williams and asked him to take her shopping. She explained that she needed a dress for a political event to be held in New York City, and that in exchange for the clothing she would arrange for Williams to be seated next to Governor McDonnell at that event.
Williams agreed to meet Mrs. McDonnell in New York and accompanied her to several luxury stores. She told him she needed dresses not only for the New York event but also for her daughter’s upcoming wedding and for her own wedding anniversary party. During the shopping trip Maureen spent nearly $11,000 at Oscar de la Renta, $5,600 at Louis Vuitton, and $2,600 at Bergdorf Goodman, all paid for by Williams. True to Maureen’s word, Williams was seated next to Governor McDonnell at the New York political event that same evening. In March of 2013, when the investigation into the relationship between the McDonnells and Williams was heating up, Maureen gave Williams’ brother a box and a letter and asked him to deliver it to Williams. In the box were some of the dresses that Williams had purchased for Maureen in April 2011, along with a note that read in part:
I truly hope your daughter will now be able to enjoy these lovely outfits and show them off on many grand occasions. If not, I’m sure there are many exemplary charitable organizations like we talked about who would welcome the opportunity to auction them for a wonderful cause having been worn only once by the First Lady of Virginia to her daughter’s Wedding at the Executive Mansion and celebrating her 35th Wedding Anniversary with the Governor.
Williams testified at trial that this note was a “fabrication.” The expectation had always been that Maureen would keep the dresses. He and Maureen had never discussed her returning them for his daughters or donating them to charity; in fact, the dresses were not even close to his daughters’ size. After he received the note and dresses, he testified, he got a “sinking feeling” and promptly called his lawyer. The government’s theory at trial was that Maureen had written the note and returned the dresses in an attempt to throw the government investigators off the trail by suggesting that the gifts from Williams were not really gifts at all. The jury agreed and found her guilty of obstruction of justice.
Obstruction of Justice: The Legal Standards
The statute with which Maureen was charged, 18 U.S.C. § 1512(c)(2), provides a twenty year penalty for anyone who corruptly “obstructs, influences, or impedes any official proceeding, or attempts to do so.” This broad catch-all provision covers a wide range of potentially obstructive behavior, from destroying or tampering with physical evidence to witness tampering or intimidation. “Official proceedings” include proceedings before all three branches of the federal government. It's clear that Mrs. McDonnell attempted to influence or impede the investigation into her and her husband’s relationship with Williams. As the trial judge found, she “undoubtedly attempted to mislead authorities” who were investigating the case. Where the government's charge fell short was in the link between her conduct and the particular proceeding that she was charged with attempting to obstruct. The Supreme Court’s leading case on obstruction of justice is United States v. Aguilar. Aguilar was a federal judge who was suspected of taking part in a criminal conspiracy. FBI agents went to his house to question him and he lied to the agents by denying any involvement. He was later charged with obstructing the grand jury investigation that was going on at the time of that interview. The government’s theory was that by lying to the FBI agents Aguilar was seeking to feed the grand jury false information. The Supreme Court reversed Aguilar's conviction. Although Aguilar was clearly seeking to impede the FBI's inquiries by lying to the agents, the Court held there was an insufficient nexus between his behavior and the grand jury proceeding that he was actually charged with obstructing. Obstruction of justice does not occur in a vacuum; there is no "obstruction in the air." In order to convict someone for endeavoring to obstruct a particular proceeding, the Aguilar Court held, the government must prove the defendant had the requisite corrupt intent. That requires proof that: 1) the defendant knew about the proceeding; and 2) the defendant knew that his endeavor, if successful, would have the "natural and probable effect" of interfering with the due administration of justice in that same proceeding. There must be a connection in “time, causation, or logic” with the proceeding in question. In Aguilar's case, although he knew a grand jury investigation was pending, there was no evidence that the agents who interviewed him were there specifically on behalf of that grand jury or that they intended to relay his information to the grand jury. Aguilar may have been hoping that the false information might somehow make its way into the grand jury, but that was not enough. Criminal liability requires a more direct link between the defendant's conduct and the proceeding he allegedly seeks to obstruct. It could not be said that simply lying to the FBI agents would have the “natural and probable effect” of obstructing a grand jury proceeding in which the agents might never even testify.
Maureen McDonnell and Obstruction
Maureen McDonnell's obstruction conviction ultimately foundered on the same shoals as Judge Aguilar's. The indictment charged her with endeavoring to obstruct a particular proceeding: the investigation of the grand jury that ultimately indicted her. At the time she wrote the note and sent back the dresses, however, that grand jury investigation had not yet begun.
The fact alone was not necessarily fatal. Aguilar was charged under an older obstruction of justice statute, 18 U.S.C. § 1503, which requires that a proceeding actually be pending at the time of the obstructive conduct. But McDonnell was charged under 18 U.S.C. § 1512(c)(2), a statute of more recent vintage that was passed as part of the Sarbanes-Oxley reforms in 2002. One key difference between the two statutes is that under § 1512 a proceeding need not yet be pending for a defendant to be found guilty of attempting to obstruct that proceeding. But as the Supreme Court held in the case involving accounting giant Arthur Andersen, it is one thing to say that a proceeding does not have to be pending. It is quite another to say that a proceeding does not even need to be contemplated by the defendant. To have the requisite corrupt intent, the defendant must have a particular proceeding in mind that she intends to obstruct, even if that proceeding has not yet officially begun. There was no evidence produced at trial that Mrs. McDonnell was aware of the possibility of the federal grand jury proceeding. Her counsel had informed her at that time that there was no federal grand jury investigation of her, and she had received no grand jury subpoenas. There was simply no basis to conclude that her intent at the time she sent the note was to obstruct that particular proceeding. There was evidence that Mrs. McDonnell at the time knew about a Virginia state investigation of her and the governor and knew about a federal grand jury investigation of Williams. But the former would not be a federal proceeding under the statute, and in any event she was not charged with obstructing either of those investigations. She was charged only with attempting to obstruct the grand jury that ultimately indicted her and her husband. Again, there can be no "obstruction in the air." Maureen did engage in obstructive conduct, but the government produced no evidence that the federal grand jury investigation she was charged with obstructing was even on her radar at the time. Given that lack of evidence, throwing out her conviction simply required a relatively straightforward application of the Aguilar precedent.
Effect of the Sentencing Guidelines
An interesting wrinkle in this case involves the federal Sentencing Guidelines and how they treat obstructive conduct. Even had Maureen's conviction for obstruction of justice been upheld, it would have made no practical difference under the Guidelines. The recommended sentence for the public corruption convictions is so much higher that the conviction for obstruction would have had essentially no additional effect.
However, the Sentencing Guidelines also have their own mechanism for taking into account obstructive behavior. Guideline 3C1.1 provides that the sentencing judge may impose a guidelines offense level increase of two points for obstruction of justice if the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.”
A Guidelines enhancement like 3C1.1 requires the judge to find that the conduct occurred only by a preponderance of evidence, not beyond a reasonable doubt. The sentencing judge could easily find that Maureen attempted to obstruct the investigation of her own case within the meaning of this Guideline. In fact, in the order overturning her obstruction conviction, the judge noted that Mrs. McDonnell acted with a corrupt intent to mislead the authorities investigating her case. That finding alone would seem to support the Guidelines enhancement.
Although it may seem a bit counter-intuitive, the fact that the judge threw out her conviction for obstruction of justice would be no impediment to the same judge imposing this Guidelines enhancement. Unlike the obstruction of justice statute, the Guidelines do not require a precise link to a particular federal proceeding. Her attempts to derail the overall investigation could be sufficient.
That’s why I suggested that in getting her obstruction of justice conviction thrown out Maureen may have won the battle but lost the war. Due to the operation of the Sentencing Guidelines, even without the conviction for violating the obstruction of justice statute, her obstructive conduct revealed at the trial may still result in her receiving a higher sentence.
Of course, Mrs. McDonnell holds the ultimate trump card here: what the Guidelines end up calling for may not matter. When sentencing her husband, the judge departed substantially below the sentence called for by the Guidelines and said he thought the recommended Guidelines sentence was ridiculous on these facts. Assuming he feels the same way about Maureen, her obstructive conduct will end up making no difference because the judge will not follow the Guidelines anyway. I'll discuss all of this in more detail in a post in a couple of weeks previewing Mrs. McDonnell’s sentence. To receive e-mail notifications of future posts, click on the "Follow" button on the upper right.