(Posted June 3, 2024) A panel of the Court of Appeals for the Fourth Circuit today affirms the convictions of a former Norfolk Sheriff on charges involving bribery, fraud, and conspiracy. In US v. McCabe, the court reviews and rejects four separate challenges to the convictions and the sheriff’s twelve-year prison sentence.

The case centered on allegations of corrupt bargains for contracts to provide food services and medical care at the Norfolk Jail during McCabe’s 23-year tenure. Prosecutors laid out extensive evidence of clandestine arrangements by two vendors to undercut competitors’ bids for the public contracts. In exchange, they delivered gifts, contributions, and travel luxuries to the sheriff.

The indictment charged McCabe and an individual who was a principal of one of the vendors. The individual sought and obtained a separate trial; the district court set McCabe’s trial first. The sheriff objected that this decision abused the court’s discretion, because he hoped to secure favorable testimony from the co-conspirator after the latter’s trial. The appellate court rejects this contention because the individual defendant’s counsel told the district court that his client would not testify and would exercise his right not to self-incriminate.

McCabe also challenged several jury instructions, and some of those arguments looked promising. But his trial lawyers hadn’t raised any objections in the charge conference. That means that the court of appeals reviews those for plain error, and you can guess how that goes.

One such issue merits mention here: The defense argued, pursuant to the SCOTUS doctrine in the appeal by former Gov. Bob McDonnell, that he couldn’t be convicted for a long string of gifts without a specific quid pro quo for each. Here’s how today’s opinion characterizes that contention:

The ruling that Sheriff McCabe seeks today — that the stream-of-benefits theory of bribery cannot be legally pursued post-McDonnell — would simply reward corrupt bribery schemes that involve multiple exchanges over a period of time, as opposed to the so-called “one-and-done handshake deal.” Sheriff McCabe seems to even suggest that his involvement in bribery schemes spanning more than 20 years should mitigate in his favor.

McCabe also assailed his 18-level sentencing enhancement, attributable to the amount of the bribes. He contended that any enhancement should be tied to the amount that the government showed that he received, about $260,000 over 20+ years. The court instead applied a higher enhancement based on the vendors’ $3 million profits on the corrupt contracts.

The appellate court concludes that this was well within the judge’s discretion. It also notes that despite the hefty enhancement, the district court departed substantially downward; the guidelines indicated a twenty-year prison sentence — on each of eleven counts — instead of the twelve years that he received, with all sentences served concurrently.

McCabe has two remaining avenues for appellate review. He can seek en banc rehearing from the Fourth Circuit, or file a cert petition in Washington. Both are long shots; but the alternative is to accept a 12-year prison term.