AP Photo/M. Spencer Green
Former Gov. Rod Blagojevich speaks to reporters as his wife, Patti, listens at the federal building in Chicago in this file photo from Dec. 7, 2011. Today, the U.S. Supreme Court declined to hear Blagojevich’s appeal of his corruption conviction, which included his attempt to sell the vacant Senate seat once occupied by President Barack Obama. 
Posted March 28, 2016 2:43 PM

Supreme Court refuses Blago’s appeal

By Patricia Manson
Law Bulletin staff writer

Former Gov. Rod R. Blagojevich hit another roadblock today in his battle against his conviction on corruption charges.

Without comment, the U.S. Supreme Court declined to review Blagojevich’s case.

“It’s disappointing,” said Blagojevich attorney Leonard C. Goodman of Len Goodman Law Office LLC. “It wasn’t totally unexpected.”

He said the Supreme Court’s refusal to hear the matter doesn’t necessarily mean it is the end of the line for Blagojevich.

Federal prosecutors argued in filings with the high court that the case was not ready for review because a new sentencing hearing ordered by the 7th U.S. Circuit Court of Appeals has not been held, Goodman said.

He said Blagojevich will have the option to again ask the Supreme Court to consider his case after he is resentenced.

And he said Blagojevich may receive a prison sentence at resentencing that is lower than the 14 years initially imposed by U.S. District Judge James B. Zagel.

“I think the case is in a very different posture now,” said Goodman, noting the 7th Circuit vacated Blagojevich’s conviction on five of 18 counts.

The five counts stemmed from Blagojevich’s attempt to get a Cabinet position by appointing a friend of then-President-elect Barack Obama to the U.S. Senate seat Obama had vacated.

Blagojevich also may eventually have the benefit of a ruling in an unrelated case pending before the Supreme Court, Goodman said.

In January, the court agreed to hear an appeal from former Virginia Gov. Bob McDonnell.

Like Blagojevich, McDonnell was accused of abusing the power of his office. Also like Blagojevich, McDonnell contends his actions involved political horse-trading, not corruption.

Blagojevich’s case, Goodman contended, “is about campaign fundraising.”

“I think Judge Zagel will see it’s a very different case before him,” following the 7th Circuit’s decision to vacate the conviction on the five counts, Goodman said.

He said he also thinks Zagel will see “a different Rod Blagojevich.”

Blagojevich has been a model prisoner, Goodman said, speaking to his family every day and teaching his fellow inmates.

Blagojevich, who is being held in the Englewood Federal Correctional Institution in Littleton, Colo., has served four years of his sentence.

Goodman said Blagojevich’s wife, Patti, is disappointed by the Supreme Court’s denial of cert.

“We do have a very good issue for the Supreme Court,” Goodman said. “But she does understand this is a hurdle we had to overcome.”

Patti Blagojevich said she hopes the high court will take up the case following her husband’s resentencing.

“This was, of course, not the outcome that Rod, our daughters Amy and Annie, had hoped and prayed for,” she said in a written statement. “But we continue to have faith in the system and an unshakable love for Rod.”

Spokesman Joseph Fitzgerald of the U.S. attorney’s office declined to comment.

In 2011, a federal jury found Blagojevich guilty of 17 counts that stemmed from such crimes as scheming to shake down executives for campaign contributions and trying to sell or trade Obama’s Senate seat.

A different jury in a previous trial deadlocked on most charges but did convict Blagojevich on one count of lying to the FBI.

Last year, the three-judge panel of the 7th Circuit that upheld Blagojevich’s conviction on the 13 counts denied his motion for a rehearing.

None of the active judges on the appeals court voted to hold a rehearing en banc.

The 7th Circuit gave prosecutors the option of either retrying Blagojevich or holding a new sentencing hearing on the remaining 13 counts.

Prosecutors have not sought a new trial. The statute of limitations on the five counts has expired.

The Supreme Court’s rejection of Blagojevich’s bid to challenge his conviction came as no surprise to legal observers.

Patrick J. Cotter, a former federal prosecutor who is now a partner at Greensfelder, Hemker & Gale P.C., is less certain about the sentence that likely will be imposed in the new sentencing hearing.

“It’s hard to predict, because sentencing is about so much more than your conviction,” Cotter said.

He said a defendant’s health, family circumstances and a slew of other matters — many of them private — are considered by a judge when imposing a sentence.

“There’s a lot of factors the public can’t know about that goes into the sentencing decision,” he said.

Another former federal prosecutor, T. Markus Funk of Perkins, Coie LLP in Denver, also noted that “not all resentencings are created equal.”

However, he said the 7th Circuit’s ruling indicated that Blagojevich “may well face an uphill battle if he is hoping to persuade Judge Zagel that a significant reduction in his sentence is in order.”

In its ruling, the 7th Circuit said the evidence against Blagojevich was “overwhelming” and that it was “not possible to call the 168 months unlawfully high for Blagojevich’s crimes,” Funk wrote in an e-mail, quoting the court’s decision.

Also, he continued, the 14-year sentence “fell considerably below what the government was asking for.”

The case before the Supreme Court was Rod Blagojevich v. United States, No. 15-664.

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