Blagojevich then turned to supporters of Rep. Jesse Jackson, Jr., offering the appointment in exchange for a $1.5 million “campaign contribution.” (We put “campaign contribution” in quotation marks because Blagojevich was serving his second term as Governor and had decided not to run for a third. A jury was entitled to conclude that the money was for his personal benefit rather than a campaign.) Blagojevich broke off negotiations after learning about the wiretaps, and he was arrested before he could negotiate with anyone else.
The indictment charged these negotiations as attempted extortion, in violation of 18 U.S.C. §§ 2 and 1951, plus corrupt solicitation of funds (18 U.S.C. §§ 371 and 666(a)(1)(B)) and wire fraud (18 U.S.C. §§ 1343 and 1346). The indictment also charged Blagojevich with other attempts to raise money in exchange for the performance of official acts, even though federal law forbids any payment (or agreement to pay), including a campaign contribution, in exchange for the performance of an official act. See McCormick v. United States, 500 U.S. 257 (1991). We give just two examples.
First, when lobbyists for Children’s Memorial Hospital sought an increase in reimbursement rates for Medicaid patients, Blagojevich (through intermediaries) replied that he would approve an extra $8 to $10 million of reimbursement in exchange for a “campaign contribution” of $50,000. Blagojevich initially approved a rate increase but delayed and then rescinded it when waiting for a contribution; he was arrested before any money changed hands.
Second, after the state legislature had approved an extension of a program that taxed casinos for the benefit of racetracks—see Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722 (7th Cir. 2011) (en banc); Empress Casino Joliet Corp. v. Johnston, 763 F.3d 723 (7th Cir. 2014)—but before Blagojevich signed the bill, he attempted to ensure that John Johnston, who owned interests in two of the racetracks, fulfilled a $100,000 “campaign” pledge. Blagojevich had intermediaries inform Johnston that the bill would not be signed until the money arrived. Blagojevich was arrested before he signed the bill (and before Johnston signed a check). […]
Blagojevich now asks us to hold that the evidence is insufficient to convict him on any count. The argument is frivolous. The evidence, much of it from Blagojevich’s own mouth, is overwhelming. […]
The district judge concluded that the Sentencing Guidelines recommend a range of 360 months to life imprisonment for Blagojevich’s offenses, and the actual sentence is 168 months. Instead of expressing relief, Blagojevich maintains that the sentence is too high because the range was too high. […]
Any error in the Guidelines calculation went in Blagojevich’s favor. After calculating the 360-to-life range, the judge concluded that it is too high and began making reductions, producing a range of 151 to 188 months. […]
The prosecutor has not filed a cross-appeal in quest of a higher sentence but is entitled to defend the actual sentence of 168 months (and to ask for its re-imposition on remand) without needing to file an appeal. Removing the convictions on the Cabinet counts does not affect the range calculated under the Guidelines. It is not possible to call 168 months unlawfully high for Blagojevich’s crimes, but the district judge should consider on remand whether it is the most appropriate sentence. […]
If the prosecutor elects to drop these charges, then the district court should proceed directly to resentencing. Because we have affirmed the convictions on most counts and concluded that the advisory sentencing range lies above 168 months, Blagojevich is not entitled to be released pending these further proceedings.