Anyone who regularly represents defendants in criminal cases can see that Jim Black and Michael Decker are not typical cases. Both pleaded guilty on the same day they were charged. That suggests that they were each able to negotiate exactly what they were going to plead guilty to. While most criminal defendants are not caught completely by surprise when they are charged, they are not consulted about what the prosecutor will charge them with. The timing of the pleas in both cases, with the news of the charge and the plea getting simultaneous public release, hints at a public show that was scripted weeks in advance and out of the public eye.

In federal court Black faces a maximum of ten years imprisonment. The charge was brought under a federal statute (18 U.S.C. 666), which prohibits bribery in connection with programs that receive federal funds. Black’s actual sentence will be determined by the federal sentencing guidelines. The Guidelines attempt to relate the seriousness of a crime with an “offense level.” Offense levels run from one to 43. Higher offense levels lead to longer sentences. According to the Guidelines, a public official convicted of taking a gratuity starts off at “offense level” 11. If the gratuity occurred on more than one occasion the offense level increases by 2 to 13. If the gratuity is more than $5000, the Guidelines increase the sentence depending on the size of the gratuity. The government alleges that Black received at least $25,000 from chiropractors and the plea agreement specifies that the total amount was less than $30,000. That total amount increases the offense level by 4 levels for a total of 17. If the public official was in a high-level decision making position the offense level goes up another 4 levels for a total of 21. The plea bargain provides that Black is entitled to a 3-level reduction in the offense level for acceptance of responsibility, reducing the offense level to 18. A level 18 offender in a federal case has a guideline range of 27-33 months imprisonment.

According to the factual basis the federal prosecutors filed in the Black case, Black learned that the chiropractors had been subpoenaed to testify before a grand jury. On the day before the chiropractors were supposed to testify, Black visited one of them and suggested that the three tell the grand jury that the payments were “a little bit of money” to help Black with expenses while running around the country. That activity could be considered and obstruction of justice leading to a two-level increase in the offense level. If the sentencing judge finds obstruction the offense level would be 20 and the guideline range would be 33-41 months imprisonment.

The plea agreement provides that Black will cooperate by submitting to interviews, testify against others and submit to a polygraph examination if required to by the federal investigators. This indicates that if the government is happy with the information that Black provides, the government could move for a reduction in his Guideline range for providing “substantial assistance.” Usually the government recommends a specific reduction in the sentence as a reward for providing substantial assistance. The amount of the reduction is ultimately up to the sentencing judge, but it usually is near what the prosecution asks for.

I was initially confused about why Michael Decker pleaded guilty in federal court to agreeing to accept $50,000 in exchange for supporting Black, identified in charging documents as “a particular candidate for speaker.,” but Black was not charged in federal court with that offense. Here is my theory to explain that: the Guidelines consider “relevant conduct” in determining a defendant’s sentence. Relevant conduct consists of any wrongdoing related to the offense of conviction that can be proved by a preponderance of the evidence. There is no requirement that the relevant conduct be charged formally. However, adding the $50,000 amount to the $25,000-$30,000 in the count that Black plead guilty to would increase Blacks offense level by four more levels. Black has denied Decker’s account and pleaded guilty to the Decker connected offense in state court while maintaining his innocence in what is called an Alford plea. Alford pleas are rarely accepted in federal court. A defendant in federal court can lose the reduction for acceptance of responsibility for denying involvement in relevant conduct. So if Black denied paying off Decker in federal court (and the feds have Decker to testify about the deal with Black) Black would lose the 3-point reduction for acceptance of responsibility. That is a seven-level increase.

Initial offense level	11	11
Increase for more than one occasion	+2	+2
Increase based on $ value	+4 ($25K-30K)	+8 (at least $70K)
High level decision maker	+4	+4
Obstruction	+2	+2
Acceptance of Responsibility	-3	(no reduction for denying relevant conduct)
Offense level	20	27
Guideline range	33-41 months	70-87 months

 

The only reason I can think of for Black to plead guilty to related offenses in both state and federal courts is to attempt to argue in federal court at sentencing that since he has pleaded guilty to offenses in state court related to Decker, they should not be considered relevant conduct at his federal sentencing. Black plead guilty to a Class F felony (offering a bribe to Decker) and a Class H felony (obstruction of justice) in state court. Class F felonies for someone with no criminal record carry a presumptive minimum sentence of 13 to 16 months. The presumptive minimum sentence for a class H felony is 5-6 months. Black would be eligible for a suspended sentence in state court.

It would be interesting to see how my prediction turns out. All of the federal sentencing calculations are contained in a pre-sentence report that is sealed and not available to the public. There will be no way to know what, if any, relevant conduct Black is held responsible for. There will be no way to know whether Black gets a reduction for acceptance even though he denies paying off Decker. There will be no way to know if there was an obstruction enhancement for encouraging the chiropractors to mislead the grand jury.

 Jim Black information (charging document)

Jim Black plea agreement

Jim Black factual basis (filed by government)

Black documents from State Court

Federal sentencing guideline for unlawful gratuity

Federal sentencing table

Obstruction of justice guideline

Relevant conduct

Theft guideline (to determine increase based on dollar amounts)

Federal bribery statute 18 U.S.C. 666