United States v. McCabe

103 F.4th 259

UNITED STATES of America, Plaintiff - Appellee, v. Robert James MCCABE, Defendant - Appellant.

No. 22-4309

United States Court of Appeals, Fourth Circuit

Argued: October 25, 2023

Decided: June 3, 2024

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda L. Wright Allen, District Judge. (2:19-cr-00171-AWA-DEM-1)

ARGUED: Laura Pellatiro Tayman, LAURA P. TAYMAN, PLLC, Newport News, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia; Jacqueline R. Bechara, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Anthony Mozzi, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

Before KING and GREGORY, Circuit Judges, and Joseph R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Gregory and Judge Goodwin joined.

KING, Circuit Judge:

Former Sheriff Robert James McCabe of the City of Norfolk, Virginia, appeals from his convictions and related sentences for carrying out wide-ranging fraud and bribery schemes with contractors concerning medical and food services for prisoners in the Norfolk Jail. For more than 20 years, McCabe assisted favored contractors by providing them with inside information about competing bids for the Jail's contracts, as well as unilaterally altering and extending contracts for the benefit of those contractors. In exchange, McCabe received various things of substantial value, including campaign contributions, sums of cash, and a stream of so-called "gifts." Indicted in 2019 in the Eastern District of Virginia with the CEO of a jail contractor — that is, Gerard Francis Boyle — McCabe was tried alone by a jury in Norfolk in 2021. McCabe was convicted of 11 federal offenses, including charges of conspiracy, honest services mail fraud, Hobbs Act extortion, and money laundering. In May 2022, McCabe was sentenced to 144 months in prison, plus supervised release.

On appeal, Sheriff McCabe pursues four contentions of error arising from his convictions and sentences. First, he presents a trial sequence issue, maintaining that his trial was erroneously unfair because it was conducted before a trial of codefendant Boyle. Second, McCabe contends that the trial court fatally erred by admitting hearsay statements made by a so-called "Undersheriff." Third, McCabe contests jury instructions of the trial court. That is, relying primarily on the Supreme Court's decisions in McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991), and in McDonnell v. United States, 579 U.S. 550, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016), McCabe disputes certain of the court's instructions pertaining to bribery which, according to McCabe, fatally undermine each of his convictions. Finally, McCabe challenges the court's application of an 18-level sentencing enhancement.

As explained herein, we are satisfied that each of Sheriff McCabe's appellate contentions lacks merit, and we affirm his convictions and sentences.

I.

Before reviewing and assessing the legal issues presented, we will summarize the pertinent facts underlying those issues. The pertinent facts and reasonable inferences drawn therefrom are recited in the light most favorable to the Government, as the prevailing party at trial. See United States v. Burgos, 94 F.3d 849, 854 (4th Cir. 1996).

A.

In 1993, defendant McCabe was elected Sheriff of the City of Norfolk. He served in that capacity from 1994 through 2017. Under Virginia law, a Sheriff is "charged with the custody, feeding and care of all prisoners confined in the county or city jail." See Va. Code Ann. § 15.2-1609. As the Sheriff of Norfolk, McCabe exercised broad discretion over the Jail's contracts providing, among other things, medical care and food services for prisoners. More specifically, McCabe was involved with and responsible for, inter alia, contract negotiations, renewals, and extensions. The primary constraint on Sheriff McCabe's discretion over Jail contracts was a competitive bidding process, which involved the City of Norfolk's issuance of "Requests for Proposals," also known as "RFPs."¹

During his extended tenure as Sheriff of Norfolk, McCabe maintained and carried out corrupt relationships with at least two major jail contractors. One of them, ABL Management, Inc. ("ABL"), was the City's primary provider of food services for Jail prisoners from 1994 until 2017.² John Appleton was ABL's CEO, and Appleton became a cooperating unindicted coconspirator and witness for the prosecution. The second major contractor — named Correct Care Solutions, LLC ("CCS") — provided medical services for Jail prisoners, and it was operated by coconspirator and codefendant Boyle, its founder and CEO.³

Relevant here, Sheriff McCabe assisted ABL and CCS in three corrupt ways: (1) he ensured that ABL and CCS could obtain lucrative Jail services contracts — paid for by the City — by providing Appleton and Boyle with important inside information that enabled them to undercut other bidders in the City's competitive bidding processes; (2) McCabe exercised his authority to modify terms of the Jail's medical and food services contracts to financially benefit ABL and CCS — and thus also benefit Appleton and Boyle — without corresponding benefits for the City; and (3) McCabe unilaterally extended Jail contracts and thereby allowed ABL and CCS to avoid the competitive bidding process. In exchange for the foregoing, McCabe routinely expected and received substantial benefits from ABL and CCS, including, inter alia, campaign contributions, free catering of McCabe's personal events, fully-expensed travel, entertainment expenses, cash payments, gift cards, and other valuable benefits.

1.

a.

The various benefits provided to Sheriff McCabe by Appleton and ABL began in about 1994, when ABL received a one-year emergency services contract to provide food for the Norfolk Jail. Shortly before the emergency contract was to expire in 1995, the City issued an RFP for bids from potential food service vendors. Seeking to continue its business of providing food services for the Jail, ABL submitted a bid proposal in 1995 to the City and its evaluation committee.

After ABL's 1995 food services proposal was submitted, Sheriff McCabe met with Appleton in McCabe's office. During their meeting, McCabe advised Appleton that something of "interest" had been left for Appleton on McCabe's desk. See J.A. 1560.⁴ McCabe then left his office, and Appleton looked on the desk. Appleton found that the something of "interest" placed there for him by McCabe was a major competitor's bid sheet. Appleton then used the competitor's bid sheet to modify ABL's bid proposal, undercutting the competition and ensuring that ABL would obtain the Jail's 1995 food services contract. That contract — worth approximately 1.3 million dollars — was only for a single year, but it gave McCabe the right to renew for two additional years.

b.

Sheriff McCabe and Appleton continued their illicit relationship through at least 2016, that is, for a period of more than 20 years. Even though there were other bidders for the Jail's food services contract during that period, McCabe consistently favored Appleton and ensured that ABL would continue as the food contractor for the Norfolk Jail. In return, Appleton provided McCabe with numerous benefits of substantial value. For example, following the Jail's emergency food contract being awarded to ABL in 1994, and the City's subsequent award to ABL of the renewable 1995 contract, Appleton did the following, inter alia, for McCabe:

• Routinely provided free continental breakfasts and lunches for McCabe and his employees;

• Provided and paid for catering of a Christmas party at McCabe's home, with about 100 attendees, in December 1998;

• Paid for and escorted McCabe to a "Black Tie" party in New Orleans during Mardi Gras;

• Paid McCabe's travel expenses for a trip to San Francisco, including a tour of Alcatraz Island and a flight in a glass-bottom helicopter; and

• Provided complimentary catering of food and drinks for annual golf tournaments — from 2000 to 2016 — hosted by McCabe.

In 2003, when Sheriff McCabe could no longer unilaterally extend the Jail's food contract with ABL, the City issued a new RFP for the Jail's food services. Unsurprisingly, Sheriff McCabe caused the 2003 contract to be awarded to ABL. And in 2004, McCabe exercised his discretionary authority to renew ABL's Jail contract. Thereafter, McCabe assisted ABL in other ways by making the Jail's food contract more profitable. For example, when McCabe extended the Jail's food contract in June 2005, it was revised to include a 3.1% increase in the price per meal. Between 2006 and 2008, Sheriff McCabe re-awarded and extended ABL's food contract, and he also increased the price per meal two more times.

During the period when ABL was receiving those lucrative contract terms from Sheriff McCabe, Appleton provided McCabe with tickets to the 2004 college football National Championship game in New Orleans. Appleton also paid for McCabe's associated travel expenses to the big football game. At no cost to McCabe, Appleton catered about $1500 worth of food for a Sheriff's Association function in 2006, and ABL provided food worth at least $600 for a 2006 Christmas party at McCabe's home.

From 2009 to 2016, Sheriff McCabe unilaterally renewed the Jail's food contract with ABL at least five times. McCabe also continued to make the Jail's food contracts more lucrative for ABL, increasing the price per meal on at least three more occasions. McCabe supported ABL's expenses by having his office budget reimburse the salary of an ABL...