Rod Blagojevich: Appeals Court Tosses Some Counts

It took 17 months for the 7th Circuit Court of Appeals to rule on former Gov. Illinois Governor Rod Blagojevich's appeal. The decision came down July 21, and the Court threw out a few counts. He will have to be resentenced. Here's the crux of the opinion:

A problem in the way the instructions told the jury to consider the evidence requires us to vacate the convictions on counts that concern Blagojevich’s proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to
the Cabinet.


A jury could have found that Blagojevich asked the President-­‐‑elect for a private-­‐‑sector job, or for funds that he could control, but the instructions permitted the jury to convict even if it found that his only request of Sen. Obama was for a position in the Cabinet. The instructions treated all proposals alike. We conclude, however, that they are legally different: a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.

Because the instructions do not enable us to be sure that the jury found that Blagojevich offered to trade the appointment for a private salary after leaving the Governorship, these convictions cannot stand.

Shorter version in plain English: Log-rolling is not bribery.

So will this make a difference in his sentence? Blagojevich was convicted on 18 counts at the second trial and one false statement count at the first trial. The Court tossed Counts 5, 6, 21, 22, and 23, but the Appeals Court says even without them, his guidelines would be higher than 168 months (the 14 1/2 year sentence he received.)

Blagojevich, in his appeal brief, says that at sentencing, the Judge found his advisory guideline range to be 188 to 235 months. He says the Judge sentenced him to to 168 months for counts 3, 5-13,15-17, 21 and 23 which carried a 20 year maximum; 60 months on counts 18 and 22; and 36 months on count 24 -- all to run concurrently.

The district court sentenced Blagojevich to 168 months’ imprisonment on the counts that authorize 20 year maximum terms, and lesser terms on all other counts. All sentences run concurrently, so the total is 168 months.

But, the guidelines are advisory, not mandatory. It's possible the Judge would have given him less than 14.5 years, but for the tossed counts, especially since they were among the most serious charges. It's really up to the Judge.

One way to approach it: Considering the appeals court tossed 28.5% of the counts carrying 20 years (4 of 14), the judge could decide he should get a 28.5% lower sentence. That would bring his sentence down from 168 months to 120 months or 10 years.

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    On remand (none / 0) (#1)
    by Reconstructionist on Mon Jul 27, 2015 at 09:27:46 AM EST

    The government could retry him on those 5 counts with the jury being instructed it can only convict if it finds the quid pro quo was money or a thing of tangible value and the appeal court expressly stated: "The evidence that Blagojevich sought money in exchange for appointing Valerie Jarrett to the Senate is sufficient to convict..."

       I very much doubt it will bother, even though the appeals court expressly stated "The evidence that Blagojevich sought money in exchange for appointing Valerie Jarrett to the Senate is sufficient to convict...," in its opinion.

      As for sentencing, the district court can reduce the sentence, or not, so long as the sentence is procedurally and substantively reasonable. I have no idea what the court will do, but I doubt the  court it will base its decision on the number of counts of conviction and am pretty close to certain it won't do so on a superficial pro rata method.

       Whether the district court reduces the sentence or not it needs to make findings stating its position why the § 3553 (a) factors support the sentence imposed, otherwise, even though a sentence might be substantively reasonable a strong argument that the sentence is not procedurally reasonable would exist.

    What Rod Blagojevich (none / 0) (#2)
    by KeysDan on Mon Jul 27, 2015 at 10:07:06 AM EST
    did (with respect to the decision to throw out five of the 13 counts) was politics, and the judge's instructions to the jury did not provide for it.   The "logrolling" (from the old West, where everyone helps each other in rolling big logs) is a swap of one political act for another.

    It does not seem likely that there will be a re-trial, since 13 counts were affirmed on appeal. The remaining issue is the effect, if any, on the length of sentencing given that five counts were tossed out. Another trial would be a costly and unproductive spectacle.  If the prosecutors are so unhappy will the results of the appeals court, they should appeal the appeals court ruling to the Supreme Court.

    The appellate court decision was 17 months after oral arguments, and the district judge who presided over the trial, Judge James Zagel,  will,once again, have a wack at sentencing in view of the appeals court findings concerning the legal shortcomings of his instructions to the jury.

    The counts dismissed were among the most serious.  The 14.5 year sentence, while within guidelines, seemed much too much at the time.  Blago was not an entirely likable personality and a corrupt governor.  But, not reducing his sentence in light of the appellate court ruling would be unjust.  My feelings are that a sentence of seven years would be ample and adequate.

    That's a bit of an understatement (none / 0) (#3)
    by Reconstructionist on Mon Jul 27, 2015 at 10:26:34 AM EST
    Blago was not an entirely likable personality

      Why would it be unjust for the district court not to reduce his sentence?

      His advisory guidelines remain the same; his conduct will be the same as at the time of the initial sentencing; and, the appeals court has rather bluntly stated it believed the evidence was sufficient to support conviction based on facts showing he did seek money for the Jarrett appointment (in essence it just said it's possible the jury convicted him for the "logrolling" not the money due to the way it was instructed)?

      If you were his lawyer what would you assert to support the argument  that his sentence should be  lesser now or that it should have been lesser then?

    It is futile at this point, (none / 0) (#4)
    by KeysDan on Mon Jul 27, 2015 at 10:58:49 AM EST
    to argue over the length of the initial sentence.  Although, at the time, I was of the opinion that a six-year sentence would be appropriate.  Blagojevich was impeached and removed from office.  Some of the charges did not seem unlike the horse trading that goes on, for good or evil, in politics these days.  The appellate court agreed in the sense of jury instructions. Moreover, some of the crimes for which Blago was charged were in the "thought crime" category--not effected, and no money yet changed hands.  

    Now, my argument for reduction in sentence would rely on the 7th Circuit Court ruling and its wording in which convictions on Counts 5, 6,21, 22, and 23 "were vacated."   "the remaining convictions are affirmed."  "The sentence is vacated"   And, the case is remanded for retrial on the vacated counts.  

    "If the prosecutors drop the charges, the Court should proceed with re-sentencing."  it is noted by Easterbrook that the guidelines would still cover the remaining convictions and a release of Blago at this time is not warranted, but  the consideration seems to be allowed to rise.  Certainly, the possibility of a reduced sentence for vacating the serious and headline grabbing charge of selling Obama's US senate seat.  

    To me, it would be unjust to obtain justice in the vacating of five convictions (that were not re-tried, or appealed to the SC, if that is what happens) and retain the previous sentence. Guidelines, in this case, are just that, guidelines.  And inoperable ones given the circumstances.  


    Those arguments (none / 0) (#5)
    by Reconstructionist on Mon Jul 27, 2015 at 11:10:16 AM EST
      while not invalid directed at  basic features of the federal sentencing regime as applied to all defendants. every day people are sentenced by courts which review and consider uncharged conduct, conduct relating to counts for which people are not convicted and even acquitted conduct. See: link to discussion of 7th cir. precedent, post-booker)

       I don't personally agree with you as to the broader issues, but I was really looking for what would you would argue that this specific defendant deserves a lesser sentence in light of current law.


    I meant don't DISAGREE (none / 0) (#6)
    by Reconstructionist on Mon Jul 27, 2015 at 11:11:42 AM EST
     (without the double negative, agree with you)

     as to the broad issues.


    I hoped to provide (none / 0) (#7)
    by KeysDan on Mon Jul 27, 2015 at 12:55:14 PM EST
    a framework for an argument for a lesser sentence based upon the appellate court's vacating five counts, remand for retrial on those vacated counts, and, if dropped, the call to proceed with re-sentencing.  

    The 14.5 year sentence was for all convictions, and, it seems reasonable that the five now vacated were somehow weighed in the totality, not just thrown-in for good measure.

    Blago is, essentially,  at the mercy of the judge and his rendering of the guidelines. The argument can only take into account the law and mitigating factors, such as Blago's age, family needs, lack of criminal history, public service as Congressman and governor, and a determination of an appropriate sentence that may deter crimes, especially ones of abuse of public trust.

     It  seems clear that Blago did not wind up enriching himself, since he is broke, lost his governorship, and is in jail doing time.   The appellate court, in my reading, does seem to believe a shorter sentence would be inappropriate.  And, as I mentioned, the fact that Easterbrook saw "logrolllng," and referred to instances such as Eisenhower appointing Earl Warren to the SC, suggests a Blago defense for sentence abatement based on the vacated convictions.  


    My turn, (none / 0) (#9)
    by KeysDan on Mon Jul 27, 2015 at 01:07:57 PM EST
    meant to write:  "...a shorter sentence would be appropriate, or at least, not inappropriate."

    well (none / 0) (#8)
    by Reconstructionist on Mon Jul 27, 2015 at 01:05:26 PM EST
     collateral consequences such as the one you list (loss of job, future prospects, public shame, etc.) may be considered by the court but, those haven't really changed from the ones that existed at the time of the of the initial sentencing.

      The same goes for mitigating factors (including criminal history which is built into the guidelines), with the exception that it is possible that he has done some good works or otherwise shown "exceptional" rehabilitation since sentencing.

      I would not do quite so far as to say the appeals court implied a lesser sentence would be inappropriate. I think it did strongly imply that the same sentence would likely be affirmed on subsequent appeal, but that doesn't mean a lesser one would not also be affirmed.

    The point is that no particular (none / 0) (#10)
    by Jeralyn on Mon Jul 27, 2015 at 01:56:01 PM EST
    sentence is required on remand, the Judge can do whatever he wants -- reduce it or not. If he doesn't want to reduce it, he can say the guidelines are the same and the vacated counts don't change his mind about the final sentence. Or he could decide to give him a lesser sentence, down to time served.

    My orinal point (none / 0) (#11)
    by Reconstructionist on Mon Jul 27, 2015 at 02:01:00 PM EST
      was not counter to that but merely suggesting that doing so based on the percentage of counts confirmed basis you suggested  would raise serious issues of procedural reasonableness.

      The judge could definitely reach the same result employing unquestionably proper procedures but I do think that approach is highly dubious.