In the aftermath of his conviction and sentencing in U.S. District Court, Virginia’s former-Governor Bob McDonnell filed a motion for release pending appeal. On January 6, 2015, the district court sentenced him to a two year active sentence, and his counsel filed the motion pursuant to 18 U.S.C. § 3143(b). In relevant part, that statute states:
(b) Release or detention pending appeal by the defendant.
(1) Except as [otherwise] provided…the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds--
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released…; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in
(i) reversal
(ii) an order for a new trial[.]
If the judicial officer makes such findings, such judicial officer shall order the release of the person[.] (Clarification added).
The presiding U.S. District judge, Senior Judge James R. Spencer, initially denied the motion for release. Bob McDonnell’s defense team promptly appealed the ruling to the United States Court of Appeals for the Fourth Circuit. On January 26, 2015, the Fourth Circuit countermanded the district court’s decision and granted the motion. The appeals court found, by the required clear and convincing evidentiary standard:
[T]hat the appellant is not likely to flee or pose a danger to the safety of any other person or the community if released. The court further finds that the appeal is not for the purpose of delay and raises a substantial question of law or fact that, “if decided in favor of the accused” is “important enough” to warrant reversal or a new trial. United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991) (per curiam).
The Fourth Circuit’s decision to grant the motion, at least at first glance, seems relatively straightforward. The former governor possesses no prior criminal record. Nor did the federal charges against him bespeak of violent or other conduct posing a direct threat to any person or the public safety. On the flight risk issue, surely no one could reasonably argue that Bob McDonnell might flee during the pendency of his appeal. Where would he go? Virginia has been the focal point of existence. His personal residency, and his family’s presence here, spans nearly his entire life. A number of family members and notable persons testified on behalf of the former governor at the January 6, 2015 hearing. Many more wrote favorable letters to the court.
Significantly, as the January 6th sentencing proceeding concluded, Judge Spencer made compassionate remarks about former-Governor McDonnell. As he pronounced the prison sentence, Judge Spencer also said, “Unlike Pontius Pilate, I can’t wash my hands of it all…A meaningful sentence must be imposed.” Numerous media commentators deemed the two year sentence quite minimal. The commentators cited the more lengthy sentencing range suggested by the federal sentencing guidelines.
By contrast, the government prosecutors staunchly opposed the motion for release. They did so after strenuously arguing for the district court to impose an active sentence exceeding six years. Why take such a hard line approach toward what amounts to continued bail pending the outcome of an expedited appellate process?
It appears that the prosecutors’ opposition primarily stemmed from the “substantial question” element of 18 U.S.C. § 3143(b). As quoted above, that subpart requires the movant to prove, in addition to the flight- and public safety-related factors, that, “the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in” reversal or a new trial. Throughout the former governor’s prosecution, the government took the position that his alleged conduct clearly evinced graft and criminality under applicable federal law. In effect, the government premised its opposition to the motion for release upon a contention that the former-governor’s appeal does not raise a “substantial question” within the meaning of §3143(b).
What, then, is the legal standard applicable to the “substantial question” issue? In Steinhorn, the case cited by the Fourth Circuit in granting Bob McDonnell’s motion to release, the court considered the proper interpretation of 18 U.S.C. §3143(b). A jury convicted Steinhorn of criminal offenses relating to money laundering. The district court thereupon denied his motion for release pending appeal. That court ruled that Steinhorn did not appeal for delay purposes; however, it concluded that his appeal did not raise a substantial question of law or fact likely to result in reversal of the conviction or a new trial. In overruling the district court’s decision, the Steinhorn court undertook to adopt both a controlling procedure and a substantive rule by which to interpret the relevant language of §3143(b).
In Steinhorn, the court first adopted the procedure favored by most other federal circuits, to the effect:
In applying § 3143(b)…the court must make two inquiries after finding that the appeal is not taken for the purpose of delay. First, whether the question presented on appeal is a "substantial" one. Second, if decided in favor of the accused, whether the substantial question is important enough to warrant reversal or a new trial on all counts for which the district court imprisoned the defendant.
The court then articulated what character of issue presents a “substantial question.” It concluded that such a question is, “a close question or one that very well cold be decided the other way. Further, there are no blanket categories…[w]hether a question is “substantial” must be determined on a case-by-case basis." The Steinhorn court did not discuss the “important enough” factor, yet, by definition, the appellate issue must be sufficiently material to implicate reversal or a new trial.
Steinhorn provides a relatively flexible, case-specific standard for interpretation of the “substantial question” issue of 18 U.S.C. §3143(b). It does not require a court to pre-determine the merits of a movant’s appeal. Rather, the applicable standard requires the court to consider whether an appeal raises a “close” issue of law or fact, and one of material importance, such that if decided in favor of the movant, may result in the reversal of the conviction, or a new trial.
Without question, the government has taken a consistent position, since the time of the former-governor’s indictment, on the definitive criminality of his alleged conduct. Yet, it has done so notwithstanding the McDonnell defense team’s producing five former Virginia attorneys general to opine that Bob McDonnell’s alleged conduct broke no Virginia law, and did not constitute prosecutable “official acts.” The federal criminality of that alleged behavior will constitute the core issue of the pending appeal to the Fourth Circuit. In the meantime, pending appellate resolution, the former governor will continue to enjoy personal liberty.
So, does Bob McDonnell’s appeal raise a “substantial question” under 18 U.S.C. §1343(b)? That is, did Judge Spencer correctly decide to deny the motion for release pending appeal? Or, did the Fourth Circuit correctly decide to grant that motion, and allow Bob McDonnell to enjoy continued liberty pending his appeal? I’d enjoy knowing my readers’ thoughts on this hotly contested issue!