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Is the Virginia Governor and First Lady McDonnell criminal case another B***S**** federal case like FedEx...?

by George Hook on 09/23/14

Is the Virginia Governor and First Lady McDonnell criminal case another B***S**** federal case[1] like FedEx, Blago, Ryan, Kerner, Stratton, Quinn (a rumored current federal grand jury target), Walker,[2] and the many imprisoned minions of Marking Time[3]?  I believe so.  May I tell you why?  In the McDonnell indictment are 107 paragraphs of assertions, none of which describe anything that any rational person would characterize as criminal conduct.   Then come the Counts to explain why the assertions constitute criminal conduct. Being a Governor subjects Bob McDonnell to federal charges for deprivation of his honest services as such, but a First Lady is such merely by virtue of marriage.  So how does the prosecution snare her?  By alleging a conspiracy, which is how anyone might be snared!  However, that contemplation might freak out the jurors by its generality and potential application to everyone, including each of them for what they would perceive, like everyone, except the Feds, to be ordinary conduct.   To avoid this potential disaster for the prosecution, Count One is mistitled Conspiracy to Commit Honest Services Wire Fraud, [4]in my humble estimation to avoid the actual section title, Attempt and Conspiracy, so to keep the jurors from freaking out.  But if the First Lady is a conspirator isn't every wife as to her husband?  In olden times when the common law obtained, marriage created a spousal unity of identity which prevented a charge of spousal conspiracy!  But an end was put to that by US v. Dege et Vir, 364 U.S. 51 (1960), possibly among the earliest federal dings at the institution of marriage. How does the husband-wife privilege sort out with Federal Rule of Evidence 505 gone too? The relevant judiciary committee note states: "   privilege based on a confidential relationship and other privileges should be determined on a case-by-case basis." Why that's the same as stating there is no privilege!  Seems a lot like the Congressional Negligence that made US the World's most Criminal Nation by passing all-encompassing laws and leaving their application to "prosecutorial discretion."  Not surprisingly therefor, the McDonnells' devoted much effort to an all too clever defense that their marriage was a sham and so they could not have conspired to accept bribes, fashioned, no doubt, by a very junior DC law firm associate of that same ilk that had asserted in Clinton's behalf against Paula Jones  that he was protected from suit by the Soldiers and Sailors Civil Relief Act while on active duty as Commander-in-Chief.

Aside from Governor and First Lady, who were the alleged conspirators?  None are identified by name, just "others known and unknown," which is the official moniker for snitches and schnitzes[5]   

After the foregoing analysis, imagine the surprise of Counts Two through Four.[6]  The First Lady is charged along with her husband for the substantive offense even though she is not an elected official and owes no duty of honest services to anyone (except, perhaps, in the old fashioned spousal sense, to her husband).  This should have been a real turn-off for the women grand jurors, if there were any, which we cannot know because, identities are not disclosed with the exception of the foreperson, who signs the indictment; not done in this case as the indictment is merely signed on behalf of Dana Boente, Acting US Attorney, by one or more of Michael Dry, Jessica Aber, and Ryan Faulkener, Assistant US Attorneys, which signing not clear because of lousy handwriting; and on behalf of Jack Smith, Chief of the Public Integrity Section, DOJ, by Deputy Chief David Harbach,II.   Of course, this is contrary to Federal Rule of Criminal Procedure 6(c) which mandates "The foreperson   will sign all indictments."  If not so signed, is it an indictment and is everything that follows a nullity?  (Is it possible that US District Judge James Spencer ordered a so excised version to be filed?  If so that evokes public trial constitutional issues in addition to the violation of Rule 6(c).  The jury verdict may be signed by the foreperson, but that is blacked out.  So again, one who was not present may not know the jury's gender make-up, but for the post-verdict voluntary statement of Kathleen L. Carmody who voted for him to be Virginia's governor and a federal convict.

The essence of this B***S***FEDERAL CASE was "taking bribes to promote a dietary supplement," according to post-trial press reports.  However, "bribery" under federal statute [18 USC 201] requires a federal public official, which obviously, the Virginia Governor is not.  That is why federal prosecutors use "honest services" to go after State officials, in my opinion, beyond their jurisdictional bounds as the Supreme Court has intimated several times. The essence of the Governor's defense was that he provided nothing more than routine political courtesies to the former CEO of Star Scientific, a Virginia-based dietary supplements company.  Being courteous or even promoting a dietary supplement is improbable of depriving the citizens of Virginia of the honest services of its Governor or First Lady, especially since Skilling held that "honest services fraud" applies only to “bribery and kickback schemes,” not to “undisclosed self-dealing by a public official or private employee,” 561 US 358 (2010).

 The essence of the First Lady's defense was that this schnitzing CEO preyed on her vulnerability as a woman with a "crush" on him.  That defense alone might have elicited a vote of guilt by the women  What a suffragette!  There can be no doubt, however, that bribery was an essential element of this B***S*** FEDERAL CASE:  bribery by the prosecution for the testimony of the CEO against the Governor and First Lady. But this sort of thing was held to be okay in the Singleton case.   On the other hand, one could assert that the prosecution extorted testimony from the CEO by threatening criminal charges against him, possibly violating 18 USC 873 and 18 USC 875(d).  Do the Feds get a pass on that too?  (The US Attorney began looking into the company’s private stock transactions last year, applying legal pressure that resulted in the CEO’s cooperation with prosecutors in fabricating the case against the McDonnells.  In aid of the cause, the Federal Drug Agency spread its style crock of B***S*** to the same purpose [http://www.fda.gov/ICECI/EnforcementActions/WarningLetters /2013/ ucm379639.htm].)

One wonders why the prosecutors did not charge under the devil's own—18 USC 666—which straight forwardly criminalizes bribery involving State officials of States that receive federal grants in any one year totaling in excess of $10,000.  What State doesn't?  Virginia is among the tops on that list of disciples due, probably, to its propinquity to the District but, not likely its (and Maryland's) gift of land in 1791 to an otherwise homeless Fed because Virginia's land grant was retroceded in1847.  

Counts Two and Three take unity of identity to a whole new virtual level because internal bank transfers from one account to another are treated as if they were interstate. DANGER, DANGER EVERYONE!!! EVERYTHING IS SUBJECT TO THE DANGERS OF FEDERAL JURISDICTIO!!! At least Count Four involved different banks and interbank transactions.  However, neither Governor nor First Lady effected any of these transactions.  So the testimony of the CEO schnitz that one or the other of the alleged conspirators devised or intended to devise a scheme to defraud  and either transmitted or caused to be transmitted instructions for transfers of funds in interstate commerce had to suffice.[7]  

Count Five is even more ludicrous in its charge of Conspiracy to Obtain Property under Color of Official Right!   It alleges that the Governor and First Lady extorted property from the schnitz CEO to which the Governor was not entitled and this affected commerce. In their attempt to give the least credibility to this ridiculous charge, the prosecutors add that the terms used in the Count  are as those terms are defined in [18 USC 1951], which is one of the RICO US criminal code sections, perhaps, the most blatantly abusive and misused bases for frivolous prosecutions in the federal prosecutorial trick bag. Under that provision, extortion includes the non-violent obtaining of property from another, with his consent   under color of official right.  With such a definition the mere request of a person of status could be prosecuted as extortion in violation of 18 USC 1951, all within the discretion of federal prosecutors, of course.  It is difficult to argue that the Governor did not violate this insidious section, or, indeed, even the First Lady, just as it is difficult to conceive that the President, each Senator, Congressman, and other person of any status, whether in office or not could not also be prosecuted; not to urge such wide spread prosecutions, but rather to suggest retroactive repeal of RICO, or, at least, this one provision of it.

Counts Six through Eleven allege that checks received by or on the behalf of the Governor from the schnitz CEO constituted extortion under this section. The First Lady is corralled via 18 USC 2, the male fides of which I have discussed in a prior blog, Challenge 18 USC 2 in Every Indictment Possible, so won't reiterate here.

Making materially false statements to influence federally insured institutions to lend substantially more than they would otherwise may be a legitimate premise for federal prosecution, but 18 USC 1014 makes any false statement for the purpose of influencing in any way the action of [as for Count 12 against the Governor:] any institution the accounts of which are insured by the Federal Deposit Insurance Corporation and [as for Count 13 against him and the First Lady:] any person or entity that makes in whole or in part a federally related mortgage loan.  What made the Governor's statement to TowneBank false was his not adding to the $2,075,000 of debts reported, the $50,000 loan from the schnitz CEO.  What made their joint application to PenFed false was that the $120,000 of loans from the schnitz CEO was not added to the $2,837,226 reported.  The statute criminalizes influencing the action of these institutions, presumably, the lending they did, not any action, as, for example, getting the bank staff to beam while the Governor and First Lady submitted their applications.[8]  Therefore, query whether the admittedly overbroad and overbearing 18 USC 1014 was actually violated by either the Governor or the First Lady. Although the petit jury failed on all other Counts against the Governor, they did see through these two and entered a finding of not guilty.

The final Count, solely against the First Lady, without a doubt, is the most ludicrous of all, for Count Fourteen accuses her of obstructing justice by delivering a note, along with return of the gowns the schnitz CEO had provided for the Governor's inauguration and their daughter's wedding, thanking him for their loan.  Restitution becomes obstruction?  Enough said?    The petit jury cherry picked among the Counts against the First Lady, finding her guilty of Counts 1-3, 5-8, 10 and this most ludicrous 14, to their intellectual shame.  To their credit, they found her not guilty of Counts 4, 9, 11, and that next most ludicrous against her: Count 13.



[1]Defined in Marking Time @ pp. 715-6, exampled @ pp. 279-80, 468-9, 487, 492-4, 511, 519, 524.   

[2]Not Wisconsin Governor Scott, who is fighting a bogus State investigation for campaign funding violations, but rather former Illinois Governor Dan who, out-of-office, pleaded guilty to a bogus federal bank fraud charge of obtaining a loan from one of his bank's borrowers, a violation of internal policy rather than law.  Go to Marking Time, p. 103, for Grosz and Masaccio examples and analysis of this abuse by federal prosecutors.  Similarly here: Virginia has among the nation's weakest political ethics laws. The Governor repeatedly stressed that he did nothing to violate them. But this case was federal, and both prosecutors and FBI officials said the verdicts send a message that state laws provide no shelter from corruption prosecutions.  "The FBI will… engage [sic] vigorously to [sic] any credible allegation of corruption," said Adam S. Lee, special agent in charge of Richmond's FBI bureau.

[3]Federal Cases as so defined: Amish, The Feds Fail to Make a Schnitz out of Z, Masaccio, How US Stole a Million and GotchY?all, Brewer, Worse than Pornography?, Jugador Lothario, Kennelnoir, I Didn't Start the Fires!!!!, Rolemand Smokzem, Joe Grosz, Who Killed Joy?, Otak, Leiurus Quinquestriatus

Cassouno, Babiychuk & Khilchenko, Cantacrusly (Languoria &Puml), US vs. Christ, Seward's Folly,

Twice Into the "Hole? (Rabboni & Burke).

[4]A violation of 18 USC 1349 which merely provides that any attempt or conspiracy shall be subject to the same penalties as the substantive offense, in the McDonnells' case   

[5]See definitions in Marking Time, p. 726, both identified throughout.

[6]Combined instead of separately stated—contrary to FRCRP 7(c) and 8(a)?  The same disregard occurs for Counts Six through Eleven.

[7]May one ask what is the difference between  banks effecting these transfers and FedEX transporting drugs alleged in an indictment not to have been properly prescribed?

[8]Cf. Seward's Folly from Marking Time, pp. 523-534, whereof at p. 525:  "As that bow tie wearing aficionado Supine Court Justice John Paul Stevens observed in a dissent: merely buttering up your banker by lying to him that you like his bow tie may be sufficient to establish bank fraud."  

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HEADLINE NEWS--Watching Tommy Chong tell of his worst year on DancingWithTheStars (9 months in federal prison for internet transport of drug paraphernalia), recalled my going to Iwan Ries to buy a pipe for Father's Day, being too young to buy a tin of their new Three Star tobacco, the time too early for internet transactions.  That led to ponderig the difference between their respective distributions.  Chong touted his pipes and bongs for marihuana (or is it marijuana—the fed's confusion); Ries their pipes and hookahs for tobacco.  Is Ries' Internet selling a violation of federal law?  Were their sales illegal when I bought based on US' overreaching Commerce Clause? The answer is no; as it could have been for Chong, possibly, had he gotten proper legal counseling.  21 USC 863 makes it In general, unlawful to offer or sell drug paraphernalia or to import or export drug paraphernalia.  Drug paraphernalia is anything which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful, such as marijuana, cocaine, hashish, hashish oil, PCP, methamphetamine, or amphetamines, such as—"(1) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; (2) water pipes;… (5) roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand; …(7) chamber pipes; (8) carburetor pipes; (9) electric pipes; (10) air-driven pipes;… (12) bongs;…" In determining whether an item constitutes drug paraphernalia, in addition to all other logically relevant factors, the following may be considered: (1) instructions, oral or written, provided with the item concerning its use; (2) descriptive materials accompanying the item which explain or depict its use; (3) national and local advertising concerning its use; (4) the manner in which the item is displayed for sale; (5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products; (6) direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise; (7) the existence and scope of legitimate uses of the item in the community; and (8) expert testimony concerning its use. (f) This section shall not apply to—(1) any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items; or (2) any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory.”  Presumably, exemption (f)(1) would permit Chong and anyone else who possessed or distributes pipes and hookahs to do so without officious federal interference as a result of the many local, and State marihuana laws in and coming into effect.  While Chong is out, there are many still in federal prisons for doing the same thing Chong did and, in actuality, what Iwan Ries have been doing legally since 1857 and are still doing. The FED goes after notables like Chong "to send a message" of fear, also knowing that threatening family extracts guilty pleas, and, possibly, creates schnitzes for the FED to perpetuate its entrapments and fear mongering. Understand and avoid this pattern before it's too late for you by reading  Marking Time.  Learn the remedy by reading  Marking Time.