Prominent Black Attorney Denied the Same Relief Granted to Former White Governor

By Megan E. Coleman

On September 7, 2022, the Fourth Circuit issued an order denying reconsideration en banc of Kenneth Ravenell’s petition for reconsideration of the three-judge panel’s affirmance of the district court’s denial of his motion for bail and stay of sentence pending appeal.

Judge Wynn issued a dissenting opinion, joined by Judges Motz, King, and Thacker, questioning why the full court refused to reconsider the denial of Mr. Ravenell’s motion for release pending appeal when the court was willing to reconsider the denial of former Virginia Governor Robert McDonnell’s motion for release pending appeal.

Kenneth Ravenell was a prominent African American attorney in Baltimore who argued cases all over Maryland, the United States, and before the United States Supreme Court. In December, 2021, Mr. Ravenell was convicted of federal conspiracy to commit money laundering. In June, 2022, he was sentenced to 57 months in federal prison.

Mr. Ravenell filed an appeal in which he alleged that the district court committed reversible error by refusing to instruct the jury on the statute of limitations because the government was required to prove that the alleged money laundering conspiracy “continued into” the applicable limitations period.

Mr. Ravenell not only noted an appeal, but he also filed a motion requesting bail or release pending the appeal. That request was denied by the district court and appealed by Mr. Ravenell to the Fourth Circuit. The three-judge panel affirmed the denial Mr. Ravenell’s motion to release pending appeal. Mr. Ravenell sought en banc review, which was subsequently denied.

Judge Wynn was “puzzle[d]…that this same Court had no problem with granting the former Governor of Virginia, Robert McDonnell, the very same relief that Ravenell seeks even though there is no relevant factual difference between the two defendants’ motions.”

Recall that Governor McDonnell was convicted in 2014 of corruption-related felony counts including extortion and honest services fraud (convictions which would ultimately be vacated by the Supreme Court). Governor McDonnell was sentenced to two years in prison. Following sentencing, Governor McDonnel requested bail pending appeal, which the trial judge denied. Governor McDonnel appealed to the Fourth Circuit for relief, a three-judge panel affirmed the denial of bail pending appeal, but the full court agreed to consider the issue, and ultimately granted Governor McDonnell release pending appeal.

18 U.S.C. § 3143(b) governs the defendant’s request for release pending appeal. The status quo is that the court shall order a defendant who has been found guilty and sentenced to a term of imprisonment, and filed an appeal, to be detained, unless certain circumstances are demonstrated by the defendant by clear and convincing evidence. First, it must be established that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released. Second, the appeal must not be for the purpose of delay. Third, the appeal must raise a “substation question” of law or fact likely to result in reversal, a new trial, a sentence that does not include imprisonment, or a reduced sentence less than the total time already served by the defendant.

In Mr. Ravenell’s case, it was undisputed that he was not likely to flee or pose a danger to the safety of any other person or the community if released. Nor was there any contention that Mr. Ravenell’s appeal was brought for the purpose of delay. The question for the Court was whether Mr. Ravenell’s appeal raises a substantial question of law or fact likely to result in an order for a new trial.

A “substantial question” is “a close question that could be decided either way.” United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991) (per curiam).

“Herein lies the rub,” said Judge Wynn, because the issue of whether a substantial question is present is far more evident in Mr. Ravenell’s case than it was in Governor McDonnell’s case.

In Mr. Ravenell’s appeal he points to “an extraordinarily close question” of whether the trial judge should have instructed the jury on the statute of limitations on the basis of significant evidence that the statute of limitations bars all of the conduct related to Mr. Ravenell’s offense from criminal prosecution.

When a “substantial question” was raised in Governor McDonnell’s appeal, the Fourth Circuit granted release pending an appeal because “if [the substantial question is] decided in favor of the accused” the issue is important enough to warrant reversal or a new trial. Order Granting Release Pending Appeal at 2, U.S. v. McDonnell, No. 15-4019 (4th Cir. Jan. 26, 2015).

Judge Wynn could not find any “discernible difference that justifies granting release pending appeal to Governor McDonnell and denying it to Ravenell.” This was an “inconsistency” that Judge Wynn’s “good colleagues decline to confront;” an inconsistency that is “not fair.”

For now, Mr. Ravenell must serve his sentence until the Fourth Circuit issues its opinion on the merits of the underlying appeal. That opinion may not come for six months to a year.