Sentencing In Political Corruption Cases
By: Michael A. Collora and Jennifer M. Ryan
Dwyer & Collora LLP
Boston, MA
I. Introduction
Jack Abramoff: his name has become synonymous with political corruption. “Operation Rainmaker,” the FBI’s broad investigation of Abramoff’s Washington lobbying ring, has already led to a handful of convictions, including Congressman Bob Ney’s guilty plea. The inquiry was one reason for the resignation of Tom Delay, who also faces state campaign finance charges. FBI agents are currently investigating about a dozen members of Congress, including as many as three senators.
What do we know about Operation Rainmaker? Take Ney, the congressman named in court papers by prosecutors. Ney entered into a plea agreement on September 13, 2006, agreeing to plead guilty to one count of conspiracy to violate the federal laws governing mail and wire fraud, making false statements and post-employment restrictions for former Congressional staff members, and one count of making false statements. See United States v. Ney, No. 06-cr-00272 (D. D.C. Sept. 13, 2006). Ney’s plea agreement stipulated that he and unnamed co-conspirators engaged in a conspiracy to deprive the public of the honest services of Ney and members of his staff, to commit false statements, and to aid and abet Ney’s former employee’s violation of his one year lobbying ban. It also claimed that Ney and member of his staff “corruptly solicited and accepted a stream of things of value from Abramoff” and others with the intent to take a series of official actions.
Ney got among other things (a) an all expense paid and reduced price golf trip to Scotland with seven others with trip costs exceeding $160,000, a gambling vacation with three others to New Orleans with trip costs exceeding $7,000, a trip to Lake George with four others with trip costs exceeding $3,500; (b) numerous meals and drinks at Washington, D.C. area restaurants; (c) numerous tickets to use Abramoff’s box suites to attend sporting events and concerts; (d) substantial campaign contributions from Abramoff’s clients for whom Ney had agreed to perform official acts; and (e) in kind campaign contributions in the form of the free use of, catering for, and tickets to Abramoff’s luxury box suites.
In exchange, Ney agreed (a) garner support for, support and oppose legislation at Abramoff’s request including inserting amendments at Abramoff’s request into the election reform legislation known as the Help America Vote Act; (b) to insert statements into the Congressional Record at Abramoff’s employee’s request; (c) support the application of and ultimately issued a license to one of Abramoff’s lobbying clients, allowing that client to win a multi-million dollar contract with wireless telephone companies; (d) contact personnel in United States Executive Branch agencies and offices in an effort to influence decisions of those agencies and offices at the request of Abramoff and his lobbyists; and (e) and meet with and praise Abramoff to Abramoff’s actual and potential clients.
Both parties to this illegal agreement pled guilty. Abramoff pled guilty to conspiracy to violate the following laws: a) honest services wire and mail fraud, b) mail and wire fraud, c) bribery and honest services fraud of public officials in violation of 18 USC §§ 201(b) 1341, 1343 and 1346, and d) post employment restrictions for former Congressional staff members. He additionally plead guilty to one count of honest services mail fraud, and one count of evasion of federal income tax. United States v. Abramoff, No. 06-cr-00001 (D. D.C. Jan. 3, 2006). Abramoff also plead guilty to conspiracy to commit wire fraud and mail fraud, and wire fraud in Florida. United States v. Abramoff, No. 05-60204 (S.D. Fla. March 29, 2006). Abramoff’s factual proffer provides: “[b]eginning as early as 2000, Abramoff, Michael Scanlon (a former employee of Abramoff), and others engaged in a course of conduct through which one or both of them offered and provided a stream of things of value to public officials in exchange for a series of official acts and influence and agreements to provide official action and influence.” In 2001, Scanlon started a grass roots, public relations and election campaign support company, Capital Campaign Strategies LLC (“CCS”). A former press aid to Tom DeLay, Scanlon was a secret partner in Abramoff’s efforts to defraud various parties. According to the factual proffer, Abramoff urged clients to hire Scanlon at hugely inflated prices and then Scanlon would kick back half of the money to Abramoff. Abramoff has agreed to fully cooperate in this and any other case or investigation with both the prosecutors and law enforcement agencies. Scanlon also has pled guilty and is cooperating. See U.S. v. Scanlon, No. 05-CR-00411 (D. D.C., Nov. 23, 2005).
As of this writing, Abramoff’s sentencing has been postponed twice, likely to encourage his cooperation at his sentencing which is currently scheduled for March of 2007. Ney was sentenced on January 19, 2007, to 30 months, a slightly longer sentence than asked for by prosecutors. United States v. Ney, No. 06-cr-00272 (D. D.C. Jan. 19, 2007). Abramoff and Ney will not be the only individuals charged with public corruption as a result of Operation Rainmaker. Notably, Alice Fisher, head of the Justice Department’s criminal division said at a press conference that “[T]he corruption scheme with Mr. Abramoff is very extensive.”
Although cases involving a public official are commonly referred to as “public corruption”, there is no standard indictment for a political official. Rather, the Government has many theories of prosecution at its disposal. Section II explores how “crooked politicians” may be charged, and discuss in detail the most quintessential public corruption charge: bribery.
Although the Supreme Court recently held the Sentencing Guidelines are not mandatory, the Court went on to explain that “[t]he district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.” United States v. Booker, 543 U.S. 220, 264 (2005). Therefore, the article will go on to discuss sentencing of public corruption under the United States Sentencing Guidelines in Section III.
Defense attorneys are not only dealing with potential jail sentences in political corruption cases but also money in the form of fines, forfeiture, restitution, and special assessments. Thus, Section IV will discuss the financial implications of political corruption cases, and Section V will conclude the article with a discussion of various methods that a defense attorney may impose to achieve a better result for his or her client.
II. Political Corruption: Theories of Prosecution
Prosecutions have included charges of conspiracy, mail fraud, wire fraud, post employment restrictions for government officers and employees, false statements, bribery, illegal gratuity, campaign finance violations, extortion, RICO violations, racketeering, perjury and money laundering and criminal conflict of interest. This articles takes an in depth look at the quintessential public corruption offense: bribery.
Title 18 U.S.C. § 201 governs the offense of bribery of public officials and witnesses. A subsection, 201(a) defines “public official,” “person who has been selected to be a public official” and “an official act” for the purposes of the bribery statute. 201(b)(1) then sets forth the elements of the bribery offense applicable to the bribe giver and 201(b)(2) does so with respect to the bribery recipient.
To prove the offense of bribery, the government must establish that (1) a thing of value was given, offered or promised (or demanded, sought, received or accepted by); to (2) a public official or one who has been selected to be a public official; (3) with the corrupt intent or intent to influence (or be influenced); (4) an official act, or to commit or aid in committing or collude in, or allow, any fraud or make opportunity for the commission of any fraud, on the United States, or to do or omit an act in violation of present or future public official’s lawful duty. Section 201(b) contains a penalty of not more than three times the monetary equivalent of the thing of value or under this title, whichever is greater, or imprisonment for not more than fifteen years, or both, and the recipient may be disqualified from holding any office or honor, trust or profit under the United States. See e.g. United States v. Stephenson, 895 F.2d 867, 876 (2nd Cir. 1990) (referencing the maximum penalty under 18 U.S.C. § 201(b).)
201(c)(1)(a) and (b) sets forth the elements for another type of bribery, commonly referred to as illegal gratuity. An illegal gratuity is a lesser included offense of bribery, and to prove it the government must establish that (1) a thing of value was given, offered or promised (or demanded, sought, received or accepted by); (2) to a present, former or future public official; (3) “for or because of any official act performed or to be performed by such public official.” United States v. Sun Diamond Growers of Cal., 526 U.S. 398, 404 (1999) (outlining elements of § 201(c)(1)).
The key distinguishing factor is that the gratuity offense has a lesser element of intent. Bribery requires a specific intent to give or receive something in exchange for a specific official act while illegal gratuity only requires that the gratuity be given for or because of an official act. Id. (stating that key difference is intent). In addition to the intent to influence, illegal gratuity applies to former public officials, in addition to present and future public officials. Bribery additionally applies to attempts to influence the commission of fraud against the United States or any act in violation of a legal duty, while both bribery and illegal gratuity may involve attempts to influence “official acts.”
1. Thing of Value
Pursuant to 18 U.S.C. § 201, something of value must be given, offered or promised (or demanded, sought, received or accepted by). Courts have broadly defined a “thing of value” to include monetary or intangible payments and also intangible benefits. See e.g. United States v. Biaggi, 909 F.2d 662, 684-85 (2d Cir. 1990) (promises of future employment); United States v. Persico, 2000 WL 145750 at *6 (S.D.N.Y. 2000) (several vacation trips); United States v. Couto, 119 Fed. Appx. 345, 347 (2d Cir. 2005) (illegal green card); United States v. Williams, 705 F.2d 603, 622-23 (2d Cir. 1983) (shares of stock); United States v. Gorman, 807 F.2d 603 1299, 1305-06 (6th Cir. 1986) (unsecured, quickly arranged loans). The “thing of value” may be conveyed before or after the official act takes place. See United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998) (stressing intent, rather than timing of payment as important factor).
Abramoff pled guilty to conspiracy to commit bribery, in violation of § 201 (b). United States v. Abramoff, 06-CR-00001 (D. D.C.) In the factual portion of the plea agreement, the “things of value” included: foreign and domestic travel, golf fees, frequent meals, entertainment, election support for candidates of public office, employment for relatives of officials, and campaign contributions. In particular, the factual proffer noted specific items offered and given to a Member of Congress (“Representative #1”) and members of his staff such as an all expenses paid trips to the Super Bowl in Tampa and a golf trip to Scotland; numerous tickets for entertainment including concerts and sporting events; fundraising events, including providing box suites and food at various sport and concert venues and at a Washington D.C. area restaurant owned by Abramoff; campaign contributions including $4000 to Representative #1’s campaign committee, and $10,000 to the National Republican Campaign Committee at Representative #1’s request; regular meals and drinks at an upscale Washington D.C. restaurant owned by Abramoff; and frequent golf and related expenses at courses in the Washington, D.C. area.
2. Public Official
Similarly, courts have interpreted the term “public official” broadly. The Supreme Court stated, “the proper inquiry is not simply whether the person has signed a contract with the United States or agreed to contract with the United States or agreed to serve as the Government’s agent, but rather whether the person occupies a position of public trust with official federal responsibilities.” Dixson v. United States, 465 U.S. 482, 496 (1984). The Court’s definition captures both federal and non-federal officials because state, county, municipal and even private employees often have official responsibility for implementing and executing federal programs and policies. See id. at 497-98 (stating that Congress intended local officials to be covered by the statute and that employment by the United States is not a prerequisite for prosecution). However, most local corruption is prosecuted under mail/wire fraud or the Hobbs Act (if interstate travel is implicated).
Abramoff’s proffer specifically identified a “Representative #1” and members of his staff to fulfill the public official prong of the bribery offense. However, the proffer also referred generally to “public officials,” and specified that one course of conduct involved Representative #1.
3. Official Act
An “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such public official’s official capacity or in such official’s place of trust or profit.” 18 U.S.C. § 201(a)(3). To prove a bribe or an illegal gratuity, a “particular official act [must] be identified.” United States v. Sun Diamond Growers of Cal., 526 U.S. 398, 404-405 (1999). Recently, in United States v. Valdes, the Court initially reversed a conviction under the illegal gratuity statute focusing specifically on whether there was any “question, matter, cause, suit, proceeding, or controversy” pending before police officer Valdez; finding none, the court held that the government failed to prove that Valdes engaged in an official act. 437 F.3d 1276 (D.C. Cir. 2006). However, rehearing en banc was granted and the judgment was vacated. Oral argument en banc was heard on September 28, 2006; as of this writing, a decision has not yet issued.
Thus, the activity engaged in by Valdes, logging into the Washington Area Law Enforcement System (WALES) to look up license plate and warrant information, may constitute an official act for purposes of the gratuity statute. See also United States v. Birdsall, 233 U.S. 223, 230-231 (1914) (“Every action that is within the range of official duty comes within the purview” of the bribery statute; official action could be found in “established usage” or “settled practices” not just acts explicitly authorized by the statute.); but see United States v. Muntain, 610 F.2d 964 (D.C. Cir. 1979) (declining to declare a Secretary of Labor’s use of government resources in a private scheme to sell group automobile insurance an official act); see generally Brent Gurney, “United States v. Valdes: ‘Officially’ Defining ‘Official Act’ Under the Federal Gratuities Statute” 30 OCT Champion 22 (2006).
Abramoff’s proffer indicates that the series of official acts and influence in his case included agreements to support and pass legislation, placing statements in the Congressional Record, contacting personnel in the United States Executive Branch agencies and offices to influence decisions of those agencies and offices, meeting with clients of Abramoff and Scanlon’s company Capital Campaign Strategies, LLC (“CCS”), and awarding contracts for services with CCS and Abramoff’s law firms. With respect to Representative #1 (likely a reference to Ney) and his staff, the factual proffer cites numerous examples of specific conduct where they, the latter argued to use and did use their official positions of influence. “Representative #1’s agreement in approximately August 2001 to use his position as Chairman of a Committee of the House to endorse and support a client of Abramoff as the provider of wireless telephone infrastructure to the House of Representatives;” and “Representative #1 at various times, directly and indirectly, contacted public officials at additional government agencies and offices on behalf of clients of Abramoff and CCS in an effort to influence decisions and actions by those officials” are two of those examples.
4. Intent
As noted above, the distinguishing feature of the bribery and illegal gratuity offenses is the intent element. Bribery requires a specific intent to give or receive something in exchange for an official act while illegal gratuity only requires that the gratuity be given for or because of an official act.
The Supreme Court stated, “for bribery, there must be a quid pro quo- a specific intent to give or receive something of value in exchange for an official act.” Sun Diamond, 526 U.S. at 404. To prove bribery under § 201, the government is not required to prove an expressed intention (or agreement) to engage in a quid pro quo; such an intent may be established by circumstantial evidence. United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998). “[A]ll that must be shown is that payments were made with the intent of securing a specific type of official or favor in return.” Id.
To satisfy the element of intent for the bribery charge, Abramoff’s proffer directly links specific “things of value” with “official acts.” For example, paragraph 35 provides, in relevant portion: “Abramoff and others sought Staffer A’s agreement to perform a series of official acts, including assisting in stopping legislation regarding internet gambling and opposing postal rate increases. With intent to influence those official acts, Abramoff provided things of value including, but not limited to, from June 2000 through February 2001, ten equal monthly payments totaling $50,000 through a non-profit entity to the wife of Staffer A. The total amount paid to the wife of Staffer A was obtained from clients that would and did benefit from Staffer A’s official actions regarding the legislation on internet gambling or opposing postal rate increases.”
“An illegal gratuity, on the other hand, may constitute a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.” Sun Diamond, 526 U.S. at 404-405. However, even with respect to establishing an illegal gratuity pursuant to 18 U.S.C. § 201(c)(1)(A), the Court held that “the Government must prove a link between a thing of value conferred upon a public official and a specific “official act” for or because of which it was given.” Id. at 414. In doing so, the Court rejected the Government’s more sweeping interpretation that the statute would be satisfied by a mere showing that a gratuity was given because of an official position, perhaps, for example to buy favor or generalized goodwill from an official that has been, is, or may be at some unknown, unspecified later time, be in a position to act favorably to the giver’s interests. Id. at 405-06.
III. Typical Sentencing of a Public Official
Although the Sentencing Guidelines are no longer mandatory, the Supreme Court did indicate that the district court judges should consult the Guidelines and take them into account when sentencing. Six circuits have held that a sentence within the properly calculated Guideline range is presumptively reasonable. Final Report of the Impact of United States v. Booker on Federal Sentencing, March 2006, at v. Further, the majority of federal cases continue to be sentenced in conformance with the Guidelines; national data indicates that when within range sentences and government sponsored, below range sentences are combined, the rate of conformance is approximately 90%. Id. at vi. Therefore, the discussion will start with the Sentencing Guidelines.
Guideline 2C.1.1
The primary sentencing guideline is § 2C1.1 which applies to the offering, giving solicitation, or receiving a bribe, extortion, etc and has a baseline of 12. It references Title 15, Section 78dd (prohibited foreign trade practices); 18 U.S.C. section 201(b)(1) and (2); the conspiracy statute, 18 U.S.C. 371, but only if it implicates a scheme involving honest services; 18 U.S.C. § 1341, 1343 and 1346, mail and wire fraud (if an honest services type of scheme) and finally the Hobbs Act, 18 U.S.C. § 1951. §2B1.1 (Theft, Embezzlement, Receipt of Stolen Property, Property Destruction, and Offenses Involving Fraud or Deceit) may also apply. It typically is better to receive a sentence under § 2B1.1 than § 2C1.1 because they both contain the increases in level commensurate with loss but § 2B1.1 starts with a much lower base (6, in comparison to 12). A typical sentencing case implicating some of these provisions is United States v. Spano, 421 F.3d. 599 (7th Cir. 2005) where the former Mayor of the Town of Cicero and others were convicted of RICO and mail fraud through an insurance scheme and received sentences ranging from 41 to 151 months, plus the mayor was ordered to forfeit $3 million even though she received virtually none of the proceeds received by co-defendants. The appellate court affirmed the restitution order and criticized the sentencing court for rounding “down” the loss but indicated post-Booker he could give the same sentences and remanded for re-sentencing.
Let’s take bribery as an example of how a sentence might occur using the Guidelines.
The penalties for bribery are significantly greater than for an illegal gratuity: “[t]he punishments proscribed for the two offenses reflect their relative seriousness: Bribery may be punished by up to 15 years’ imprisonment, a fine of $250,000 ($500,000 for organizations) or triple the value of the bribe, whichever is greater, and disqualification from holding government office. See 18 U.S.C. §§ 201(b) and 3571. Violation of the illegal gratuity statute, on the other hand, may be punished by up to two years’ imprisonment and a fine of $250,000 ($500,000 for organizations). See §§ 201(c) and 3571.” Sun Diamond, 526 U.S. at 405.
In 2004, the Guidelines were amended to increase punishment for bribery and gratuity cases and also provided additional “enhancements” to address previously unrecognized aggravating factors inherent in these offenses. United States Sentencing Commission Federal Sentencing Guidelines Manual, Appendix C, Reason for Amendment 666. The “Reason for the Amendment” provided: “[t]his amendment reflects the Commission’s conclusion that, in general, public corruption offenses previously did not receive punishment commensurate with the gravity of the offense.” Thus, the current Guidelines reflect higher punishments and more nuances for an offense of bribery or gratuity than previous versions. The guideline analysis for bribery will be discussed below.
Section 2C1.1 of the Guidelines should be consulted when a defendant is likely to be convicted of a bribery. The base level is 14 if the defendant was a public official, or 12 otherwise. The commentary to § 2C1.1 provides that the term “public official” will be construed broadly and includes the following: (a) as defined by 18 U.S.C. § 201(a)(1); (b) a member of a State (or commonwealth, territory, or possession) or local legislature; (c) an officer, employee or person acting for or on behalf of a state or local government, or any department, agency or branch of government thereof, in any official function, under or by authority of such department, agency or branch of government, or a juror; (d) any person who has been selected to be a person described in (a), (b) or (c), either before or after such person has qualified; and (e) any individual who, although not otherwise covered by (a) through (d); is in a position of public trust with official responsibility for carrying out a government program or policy, acts under color of law or official right, or participates so substantially in government operations as to possess de facto authority to make governmental decisions.
Additionally, if the “public official” is elected or is in a high-level decision-making (such as a prosecuting attorney, a judge, or an agency administrator) or sensitive (such as a juror, a law enforcement officer or an election official) position, the guidelines mandate an increase of 4. Furthermore, the guidelines provide a mandatory increase to level 18, if the resulting (final offense level after taking into account all adjustments under Chapters 2 and 3) offense would be lower.
Finally, if the public official (A) facilitated entry into the United States for a person, vehicle or cargo; (B) the obtaining of a passport or a document relating to naturalization, citizenship, legal entry, or legal residence status; or (C) the obtaining of a government identification document, the guidelines call for an increase of two levels. Effective as of November 1, 2004, the “immigration” provision “recognizes the extreme sensitivity of these positions in light of heightened threats of international terrorism.” United States Sentencing Commission Federal Sentencing Guidelines Manual, Appendix C, Reason for Amendment 667.
Furthermore, if the offense involves more than one bribe, the Guidelines provide for a 2-level increase. The Commentary provides: “related payments that, in essence, constitute a single gratuity (e.g separate payments for airfare and hotel for the same vacation trip) are to be treated as a single gratuity, even if charged in separate counts. However, a series of bribes, even if made under the umbrella of a larger conspiracy, may be viewed as multiple instances of bribery. See e.g. United States v. Arshad, 239 F.3d 276, 281 (2nd Cir. 2001) (“the fact that different payments are intended to elicit different actions may…warrant treating the payments as multiple bribes and therefore imposing a two-level enhancement.”). In determining whether multiple payments constitute a single bribe, courts look to the following factors: (1) whether the payments were made to influence one single action, (2) whether the pattern and amounts of payment constitute installment payments because they constitute partial payments of a total, fixed sum, and (3) whether the method for making each payment remains the same or changes. Id. at 280-282; see also United States v. Soumano, 318 F.3d 135, 137 (2nd Cir. 2003) (synthesizing factors into one test).
Moreover, if the value of the payment or benefit received (or to be received), the value of anything obtained by the public official or anyone acting with the public official or the loss to the government from the offense, whatever is greatest, exceeds $5,000, the number of levels will increase corresponding to the amount pursuant to the table in § 2B1.1. The largest of the three amounts is used to calculate sentences. See e.g. United States v. Falcioni, 45 F.3d 24, 28 (2nd Cir. 1995) (finding intended loss of $41,000 to government was properly used for defendant who attempted to bribe IRS official in exchange for discharge of friend’s $41,000 tax liability, even though defendant stood to benefit only $3500 and had no apparent knowledge of extent of tax liability).Comment 3 to § 2C1.1 directs courts to apply the definition of loss found in comment 3 of § 2B1.1. Under comment 3 to §2B1.1, loss is either the greater of the actual loss or the intended loss. In calculating the benefit of an illegal payment, the value of the bribe itself is not deducted from the total. See § 2C1.1 comment 3. Benefits accrued by other individuals other than the payer are included in the benefit calculation when the third parties were conspirators. See United States v. Gillam, 167 F.3d 1273, 1279 (9th Cir. 1999) (discussing the decisions of other Circuit Courts to find that the benefits accrued by all participants in the scheme are included in the calculation of the benefit).
For example, a loss of $100,000 would result in an increase of 8. Abramoff’s plea agreement noted that the payment was estimated to be $25,000,000, resulting in an increase of 22 levels from the basic level of 12 (Abramoff was not a public official ).
Additionally, “Offenses involving Public Officials and Violations of Federal Campaign Laws,” such as bribery, contains three cross references. First, “if the offense was committed for the purpose of facilitating the commission of another criminal offense, apply the offense guideline applicable to a conspiracy to commit that other offense, if the resulting offense level is greater than that determined above.” The commentary provides the following example: if a bribe was given to a police officer to allow the smuggling of a large quantity of cocaine, the guideline for conspiracy to import cocaine would be applied if it resulted in a greater offense level. Therefore, if your client’s circumstances present other potential crimes, it is advisable to calculate the potential sentence under every possible scenario or bargain for their exclusion. Second, “if the offense was committed for the purpose of concealing or obstructing justice with respect to another criminal offense, apply §2X3.1 (Accessory after the Fact) or §2J1.2 (Obstruction of Justice), as appropriate, in respect to that other offense, if the resulting offense level is greater than that determined above.” The commentary provides that, for example, if a bribe was given for the purpose of concealing an espionage offense, the guideline for accessory after the fact to espionage would be applied. If the resulting offense level is higher, it will be applied. Finally, “if the offense involved a threat of physical injury or property destruction, apply §2B3.2 (Extortion by Force or Threat of Injury or Serious Damage), if the resulting offense level is greater than determined above.” Thus, a full guideline analysis involves the application of guidelines under other sections to determine the highest potential sentence. Further, undertaking such a guideline analysis early can aid in distinguishing facts and cases in order to persuade the court that the higher offense level is not applicable to your client.
Finally, applicable adjustments from Chapter Three, Parts A-D must be taken into account before a final guideline calculation can be determined. Note that the commentary provides that §3B1.3 (Abuse of Position of Trust or Use of Special Skill) is inapplicable and should not be applied. However, other “adjustments” may apply depending on the nature of the offense. § 3A1.2 applies if an “official victim” was involved; § 3A1.4 applies if the felony involved or intended to promote a federal crime of terrorism; §3.B1.1 applies if the defendant had an aggravating role in the offense; 3C1.1 will apply if the defendant obstructed or impeded the administration of justice; and there may be adjustments pursuant to 3D if multiple counts are involved.
Ending on a positive note, consult § 3B1.2 if the defendant had a mitigating role in the offense, in order to decrease levels. Further, consult § 3E1.1 to decrease the offense level if the defendant demonstrates an acceptance of responsibility for the offense.
B. Example 1: Abramoff
Abramoff’s plea provides the following analysis for the “Corruption Offenses” which included the bribery offense. The parties agreed that the 2003 Sentencing Guidelines governed the Guideline Calculation in this case. The plea agreement contained the following guideline calculation for corruption offenses: base offense level (§ 2C1.1):10; § 2C1.1(b)(1) adjustment for more than one bribe: 2; no longer existing § 2C1.1(b)(2)(B) adjustment for an offense involving a high level public official: 8; and § 3B1.1(a) organizer or leader involving more than five participants or otherwise extensive: 4; for a grand total of 24.
The calculation for the fraud offenses also in the D.C. conviction provided: base offense level (§ 2B1.1): 6; loss for more than $20,000,000 (§ 2B1.1(b)(1)(L)): 22; adjustment for organizer or leader (3B1.1(c)):2; and an adjustment for abuse of trust (3B1.3):2 for a total of 32.
The calculation for the tax offense was as follows: base offense level for tax loss of more than $1,000,000 but less than $2,500,000 (§ 2T4.1): 22; adjustment for failure to identify the source of income from criminal activity (§ 2T1.1(b)(1)): 2; and an adjustment for sophisticated means (§ 2T1.1(b)(2): 2; for a total of 26.
The calculation went on to note an upward adjustment of two for treatment of multiple counts under §3D1.4, and that an expected downward adjustment of three under § 3E1.1. If applied to the highest of the three offenses, the fraud offense, the grand total would be 31 (108-135 months).
Note that for Abramoff, the sentencing calculation applied § 2C1.1(b)(2)(B) (high level official) rather than 2C1.1(b)(2)(A) (value of payment and benefits received). If he were sentenced under the Current Guidelines, his calculation would have been a base of 12 plus 2 (more than one bribe), plus 22 for loss (assuming the loss was equivalent to the loss for the fraud) and another 4 for an offense involving a high level official for a grand total of 40 before adjustment for a plea.
The parties had agreed that the 2003 Sentencing Guidelines governed the Guideline Calculation in this case. As noted above, the Guidelines were amended (effective November 1, 2004) to provide for increased penalties for public corruption. Therefore, Abramoff was subject to lesser penalties by virtue of being sentenced under an earlier version of the guidelines. Second, the calculations were done for offenses of tax, fraud and corruption. The fraud offense contained the adjustment for the loss of more than $20,000,000, adding 22 levels. Otherwise, the fraud offense would have been lower (base of 6) with an adjustment of 2 pursuant to § 3B1.1(c), organizer or leader, and an adjustment of 2 under § 3B1.3 for abuse of trust, for a total of 10. The adjustment of loss under §2B1.1(b)(1)(L) (currently also applicable to public corruption charges under 2C1.1(b)(2)) would have increased the levels from 10 to 32, if it has been considered under 2C1.1.
C. Example 2: Randy “Duke” Cunningham
Former Congressman Randy “Duke” Cunningham pled guilty of a count of conspiracy to commit bribery of a public official and honest services mail and wire fraud, plus one count of tax evasion. His plea agreement contemplated use of the November 2004 Guideline Manual. His agreed upon guideline calculation under § 2C1.1 was as follows: a base level offense (§ 2C1.1(a)(1)): of 14; more than one bribe (§ 2C1.1(b)(1)): +2; value of payments and benefits received (§ 2C1.1(b)(2)): +16; elected public official ((§ 2C1.1(b)(3)): +4; minus acceptance of responsibility (§ 3E1.1): -3 for a total offense level of 33 and a guideline range of 135 to 168 months (assuming that the defendant falls within Criminal History Category I). Apparently not cooperating he received a sentence of 60 months as to the conspiracy count, and forty months as to the tax evasion count, to run consecutively. United States v. Cunningham, 05-CR-2137 (S.D. Cal. April 6, 2006). There has been follow up from that investigation, although no one else has been indicted. An ex-CIA official is an apparent target. See Scott J. Paltrow, “Secrets Stall a Probe” W.S. Journal, A4 (Jan. 9, 2007).
IV. Money, Money, Money
While the fines in political corruption cases are no higher in political corruption cases than in other cases of fraud, the defendant often faces a restitution order, forfeiture or tax payment that could wipe out his or her net worth. Title 18 U.S.C. § 3663A orders restitution for convictions relating to charges for any offense against property under Title 18, including any offense committed by fraud or deceit and in which an identifiable victim or victims has suffered a physical injury or pecuniary loss. “The Mandatory Victims Restitution Act (“MVRA”) limits recovery to amounts directly caused by the conduct composing the offense of conviction, or those amounts expressly agree[d] to pursuant to a plea agreement.” United States v.Saxton, 53 Fed. Appx. 610, 613 (3rd Cir. 2002) (internal quotations omitted); see 18 U.S.C. § 3663A. The restitution amount must be definite, supported by the evidence and limited by the amount actually lost by the victims. United States v. Pomazi, 851 F.2d 244, 249-50 (9th Cir. 1988) Furthermore, the amount of loss caused by the offense may be proved in one of three ways: by proof at trial, by judicial determination, or through the consent of defendant. United States v. Harris, 761 F.2d 394, 404 (7th Cir. 1985) citing United States v. Gering, 716 F.2d 615 (9th Cir. 1983). In bribery cases, restitution may be the amount of bribes received. United States v. Gaytan, 342 F.3d 1010, 1011-1012 (9th Cir. 2003) (upholding restitution of amount of bribes received under theory that so long as the defendant retained those funds, the government suffers a loss in that amount). Because the statute provides that the restitution amount may be limited to the amount in a plea agreement, defense attorneys have a strong incentive to negotiate with prosecutors as to the amount of restitution.
Regardless of the ability to negotiate, plea agreements in public corruption cases contain large restitution amounts. Michael Scanlon’s plea agreement provides that restitution to victims of this offense was mandatory, and that the loss to the victims was estimated to be $19,698, 644.” United States v. Scanlon, 05-CR-00411 (D. D.C. Nov. 21, 2005). Jack Abramoff’s agreement estimated that the loss to victims as a result of the conspiracy to violate the laws of honest services wire and mail fraud, mail and wire fraud, bribery and honest services fraud of public officials and post-employment restrictions for former Congressional staffers to be approximately $25,000,000. United States v. Abramoff, 06-CR-00001 (D. D.C. Jan. 1, 2006). Further, Abramoff also agreed that additional restitution would include the amount of criminal tax computation in the amount of $1,724,054.
In former Governor Ryan’s case, where he was convicted of RICO after a hard fought trial, the parties agreed to a forfeiture of $1.7 million regardless of the outcome of any appeal- an obvious compromise of the parties. See U.S. v. Ryan, 02-CR-506-4 (N.D. Ill.) (docket entry on Sept. 16, 2006).
In Cunningham’s case, he agreed to a restitution order of $1,804,031 to the IRS (which he did not have). And pursuant to the plea agreement, Cunningham forfeited his interest in certain real estate and furniture. In a separate civil case, his wife contested an assessment of liability and liens on the family home; she eventually gave up and the Cunningham’s home was forfeited to the federal government to pay their taxes. See U.S. v. One Residential Property Located at 7094 Via Del Charo, Rancho Santa Fe, California, and All Improvements and Appurtenances Affixed Thereto, 05-CV-01450 (S. D. Cal. Oct. 10, 2006).
John Rowland, the former Governor of Connecticut pled guilty to a single federal felony: conspiracy to deprive the State of Connecticut and its citizens of the intangible right to the honest services of its Governor. He received a year and one day of jail time and he paid $82,000.00 in fines to be paid in two segments: 1) $72,000.00 to the State of Connecticut as disgorgement of the gratuities unlawfully received, and 2) $10,000.00 to be paid within six months. United States v. Rowland, 04-CR-00367 (D. Conn. March 18, 2005). Both fines were to come out of his Self Employed Pension Fund. Id.
V. Ploys and Variations
As noted, the Sentencing Guidelines continue to significantly color how defendants are sentenced in federal court. Thus, defense attorneys must continue to consult the Guidelines early and often when a client is being investigated for public corruption. A thorough analysis of the guidelines and the different calculations that can occur will help frame all communications with the probation officer, the Government and the Court.
First, consult all versions of the Guidelines that may be applicable to your client. The general rule is that earlier versions of the guidelines will likely yield lower sentences, since the Guidelines have tended to add aggravating factors rather than mitigating factors over the years. Amendment 666, effective November 1, 2004, provided additional enhancements to bribery, gratuity and “honest services” cases “to address previously unrecognized aggravating factors inherent in some of these offenses.” Federal Sentencing Guidelines Manual, Appendix C, Amendment 666 (2006 edition). Also, various levels have been increased over time, as Congress wants to appear tough on crime. For example, the levels for bribery were increased in November, 2004. Federal Sentencing Guidelines Manual, Appendix C, Amendment 666 (2006 edition) (“This amendment reflects the Commission’s conclusion that, in general, public corruption offenses previously did not receive punishment commensurate with the gravity of such offenses).
However, newer versions of the Guidelines may result in lower penalties for some offenders. The levels for loss provides for higher step increases for lower amounts in past versions of the Guidelines. Prior to 2001, §2B1.1 provided for increases for losses more than $100. Currently, § 2B1.1 provides for increases for losses more than $5000. The levels were effective as of November 1, 2001. Thus, although current versions may be better for offenders accountable for relatively low dollar amount losses, on the whole earlier versions will produce lower guideline calculations, because the guidelines have increased penalties and added more aggravating factors over time.
Second, conduct a guidelines analysis for other theories of prosecution that could cover your client’s conduct. For example, if you can confine the charges to a monetary and not honest services scheme, ordinary mail fraud begins at a significantly lower baseline (6), see 2B1.1, than public corruption for an official (14). Furthermore, a gratuity offense starts at a baseline at 11 (not 14) for a public official and contains fewer aggravating factors. A complete analysis may demonstrate that a plea to a different or lesser included charge may result in a lower guideline calculation. Therefore, your discussions with the probation officer and prosecutors may be guided by that knowledge.
Third, familiarize yourself with how each offense and aggravating factor has been interpreted particularly in your District. For example, if conducting a bribery analysis, determine how courts have determined whether a bribe or a gratuity offense has been committed. Further, research how courts have analyzed offenses involving more than one bribe. An agreement to limit the charged offense (and agreed upon related conduct) to one bribe can result in eliminating an increase. Also, try to massage the loss on proffer downward to your client’s advantage. Consult with the prosecutor as to the amount of loss and provide an alternative loss calculation if you can adequately support a lower amount.
Fourth, ensure that mitigating factors are included. Although the guidelines tend to focus on aggravating factors rather than mitigating factors, some mitigating factors do exist. Be sure that the involved parties (probation officer, prosecutor, Court) are aware of the mitigating factors and include them in the guideline calculation.
Fifth, articulate other factors that the Court should consider in imposing the sentence. For example, if sentences for a similar offense in state court tend to be much shorter, present evidence of those sentences. Courts have left open the possibility that federal- state sentencing disparities could be considered as grounds for departure. See United States v. Wilkerson, 411 F.3d 1, 10 n.** ((1st Cir. 2005) (“we express no opinion at this time about whether federal-state sentencing disparities may be considered under the post-Booker advisory guidelines.”); United States v. Clark, 434 F.3d 684, 687-8 (4th Cir. 2006) (“Though in the vast majority of cases the creation of disparities among federal defendants that results from the consideration of state sentencing practices will similarly render the sentence unreasonable…., the consideration of state sentencing practices is not necessarily impermissible per se.”) Moreover, conduct a through analysis of what Courts have considered in departing from the Guidelines in the past. Any legal precedent will be very persuasive. Further, develop new rationale for imposing shorter sentences. Begin with identifying factors that are not considered within the Guidelines. Furthermore, distinguish a particular client’s circumstances and situation from the cases that would have been considered by the Sentencing Commission in formulating the Guidelines. In preparation for this task, gather information regarding the personal characteristics of a client that are both addressed and ignored by the guidelines.
Sixth, participate in the presentencing investigation process. The presentence report will often be the first document that the Court will read regarding your client. Getting involved early in the process ensures that your factual and legal analysis is included in the presentence report. Contacting the probation officer and submitting information (both legal and factual) on a disk in the format typically used by that particular probation officer will enable the officer to cut and paste from your document into the presentence report. Further, include your guideline calculation and support for why your calculation is correct. The probation officer will conduct an analysis and your careful presentation of the guideline calculation could encourage adoption of your position with respect to aggravating and mitigating factors.
Seventh, request that your client gather letters of support and have the authors available at the sentencing. The Court may or may not wish to take individual testimony but the quality and quantity of the witnesses and their potential testimony can impact the Sentence. Finally, compile all of the factual and legal investigation above into an effective sentencing memorandum. See e.g. the filing in United States v. Abramoff, 05-CR-602004 (S.D. Fla. March 27, 2006).
V. Conclusion
Political corruption presents defense attorneys with a growing field of clients. While the Government has many theories of prosecution in its arsenal, early involvement of a defense attorney can shape and massage the prosecution into the most favorable outcome for the defendant. An effective defense attorney will enter each case equipped with a familiarization of the guidelines, potential sentences and a thorough analysis of previous grounds for departure as well as factors not considered by the Sentencing Commission.