•Follow live updates: Cannon sentencing hearing
Disgraced former Charlotte Mayor Patrick Cannon, who pleaded guilty to accepting more than $50,000 in bribes while in office, on Tuesday will become the first chief executive in the city’s history to be sentenced to prison.
By as early as lunchtime, Cannon, who once joked with undercover FBI agents that he looked good “in an orange necktie but not an orange suit,” will know how long he will wear one and when he will slip it on.
Federal guidelines place the Democrat’s punishment at four to five years in federal prison. But those rules are only advisory. U.S. District Judge Frank Whitney of Charlotte gets the final say.
Before announcing his decision, Whitney will consider witness testimony, along with an independent sentencing report from the U.S. Probation Office and any remarks Cannon may give.
Whitney will also give weight to the punishments handed down in other public corruption cases around the country, such as the recent sentencing of former New Orleans Mayor Ray Nagin.
Those cases, though a small sample, carry a clear warning: Go to trial at your own risk.
Federal sentencing guidelines offer a strong incentive for pleading guilty and cooperating with federal prosecutors. In Cannon’s case, it may cut two years off his time in prison.
Those who fought the charges in court and lost – like Nagin – generally received much longer prison sentences than the public officials who accepted a plea.
But sometimes it’s not that simple.
The 2007 sentencing of former North Carolina legislator Michael Decker shows the limited benefits of accepting a plea. There, U.S. District Judge James Dever doubled the sentence prosecutors had recommended for Decker, ruling that the lawmaker had caused too much damage to the state and received far too many benefits to get off lightly. He then cut a year off the sentence to note Decker’s cooperation.
Whitney, too, must weigh Cannon’s betrayal of the voters who elected him. The youngest man ever elected to the City Council almost single-handedly undermined Charlotte’s image for honest government.
“We thought our politics were pristine,” says former Mayor Richard Vinroot, a Republican. “Even as a young lawyer, even today, I would hear about this happening in places like New Orleans, Detroit, even Atlanta, and hoping we never got to that, and it’s stunning that we have.
“I hate it for our community. I hate it for Mayor Cannon. It’s not who we are. It’s not who we want to be.”
In 2011, when hearing the courts-martial of U.S. soldiers in Iraq, Whitney earned the nicknames of “The Hammer” and “Forever Frank.”
Yet attorneys who practice before him say Whitney consistently stays within the recommended sentences of the federal guidelines. That is balanced, they say, by a lifelong distaste for violations of public trust.
“He does not brook public corruption,” says Richard Myers, a UNC law school dean who worked for Whitney when he was U.S. Attorney in Raleigh a decade ago.
If he were Cannon, Myers said, “I would not expect an outcome on the lenient side of the sentencing range.”
In the end, Cannon’s sentence could swing dramatically on what the judge uses to make his decision.
A $1 million question
For starters, the amount of illegal money tied to Cannon’s crime could profoundly affect the sentence he receives.
Cannon’s plea agreement and the supporting documents put the bribes he took at between $50,000 and $70,000.
That’s the bribes and other legal payments Cannon received from two sources: undercover FBI agents posing as real estate investors, and strip-club mogul David “Slim” Baucom.
According to an FBI affidavit released at the time of Cannon’s arrest on March 26, the former City Council member and mayor took five payments from FBI agents over a 13-month period. He also accepted a trip and spending money for himself and his wife, and was given the key to a SouthPark apartment for his personal use.
Baucom, according to court documents, kept Cannon on virtual retainer – paying him monthly, then throwing in extra when he needed Cannon’s help at City Hall.
But on one level, Cannon’s potential tab is more than $1 million short. In February, during a closed-door meeting at the Government Center, Cannon accepted $20,000 in cash from an FBI agent. He also sought a $1.25 million kickback from the fictitious project the agent was fronting.
That figure is nowhere to be found in the agreement Cannon signed with prosecutors before pleading guilty to a single corruption charge in June.
To get Cannon’s guilty plea, the office of U.S. Attorney Anne Tompkins dropped additional charges of theft, bribery and extortion. In return for Cannon’s cooperation with the ongoing investigation, they also promised not to push for a tougher sentence than what is recommended on the guidelines.
Had the higher sum been included in the charge, legal experts say Cannon’s recommended punishment would have tripled, to between 11 and 14 years.
“That was a huge concession from the prosecutors. That’s a 10-year negotiation,” Myers says.
A spokeswoman for Tompkins said Monday that the prosecutor would not comment on the Cannon case.
Pleading vs. trial
Cannon possibly carved two years from his imprisonment by pleading guilty and taking responsibility for his crime. That moved him three levels down on the guidelines. And judges often put significant weight on a defendant’s willingness to cooperate, experts say.
“It’s one of the largest credits you can get,” says Randall Eliason, a George Washington University law professor and one of the country’s top experts on federal sentencing.
A sampling of other high-profile public corruption cases around the country show the impact a plea can have.
Nagin and former Illinois Gov. Rod Blagojevich rejected plea offers and fought their corruption charges in court. Nagin received 10 years in prison; Blagojevich received 14.
Two mayors targeted by FBI stings similar to Cannon’s bring the comparison of legal strategies into even sharper focus.
Manny Maroño, the mayor of a Miami suburb, started serving a 40-month sentence in February after first accepting a plea deal with prosecutors.
Tony Mack, the mayor of corruption-wracked Trenton, N.J., faced similar charges. But he took them to court and lost.
Mack started serving a 60-month sentence in June.
Within the guidelines
Eliason says more than half the sentences in federal cases stay within the sentencing guidelines.
For now, Cannon’s falls on Level 23 of the guidelines, which carries a sentence of 46-57 months.
“That gives the judge a starting point, and if he stays there that’s a pretty good place to be with the Court of Appeals,” Eliason said. “Anytime judges move off of it, they are going out on a limb.”
But judges can and do move up and down the scale.
Dever, for example, stayed within the guidelines when he doubled Decker’s recommended sentence in 2007.
In 2002, Decker, a Republican, virtually sold his office to former N.C. House Speaker Jim Black, switching political parties in return for Black’s bribes and other favors.
“Decker and his co-conspirator Black engaged in an epic betrayal” of their offices, their oaths and their constituents, the judge wrote. “Citizens expected servant leaders grounded in humility. Decker and Black provided a selfish tyranny grounded in arrogance.”
Decker’s subsequent help to investigators, which an FBI agent called at the time the most extensive he’d seen in his career, mitigated Decker’s crime only so far, the judge ruled.
Last December, Cannon bragged to an undercover FBI agent about his upcoming visit to the White House.
“It will be fun to watch you the next 10, 15, 20 years,” the agent replied. “Watch where you go.”
The ironic answer will begin to unfold Tuesday morning in Whitney’s undersized first-floor courtroom on West Trade Street. Courthouse officials have equipped a nearby room with video equipment to handle the expected overflow of bystanders.
At the start, Whitney will ask Cannon if he understands the implications of his June guilty plea.
The judge will have already studied the pre-sentencing report from the probation office and will give prosecutors and Cannon’s defense team of James Ferguson and Henderson Hill a chance to argue whether it’s fair. (The defense has already filed an objection that has remained sealed up to now.)
Ferguson and Hill almost certainly will ask for a reduction in Cannon’s sentence. They’ll put New York psychiatrist Richard Dudley on the stand to testify. Character witnesses will follow, and members of the community already have written Whitney asking for lenience.
While prosecutors promised Cannon not to ask for a longer sentence if he cooperated with their investigation, it’s not clear whether they will push for a shorter one Tuesday.
No other arrests have been made in the case, and if there were major targets still out there, Cannon’s sentencing likely would have been held up for the additional information he might have been able to provide, Myers and other former prosecutors say.
Whitney has scheduled 45 minutes for Cannon’s hearing, but observers believe it will stretch to lunchtime, perhaps beyond. The judge has had sentencing hearings last as long as 20 hours.
Those familiar with the judge’s workings say one of his last decisions will be whether to allow Cannon to report to prison later or place him in immediate custody. Whitney has done both.
In 2008, he ordered Sallie Saxon’s punishment to begin immediately after the owner of a high-end prostitution ring in Charlotte was caught shoplifting while out on bond.
In Cannon’s case, Whitney can factor in Cannon’s criminal history or whether he is a flight risk, or even if there are pressing family or financial matters Cannon needs time to address.
According to James Wyatt, a prominent Charlotte defense attorney who has worked in Whitney’s court, “the general practice” among federal judges in Charlotte is to allow defendants to self-report.
That would mean Cannon’s sentence could begin in six to eight weeks. Wyatt thinks the former mayor is likely to be sent to the minimum-security prisons in Butner; Edgefield, S.C.; or Beckley, W.Va.
Or Whitney could surprise everyone and go another way. Former prosecutors say he can give added weight to the nature of Cannon’s crime and the damage Cannon has done to the community and order him immediately into custody. Cannon, after all, has been free on bond for almost six months.
“They all have different practices and preferences,” Eliason says. “A judge may figure, ‘Let’s get this started. He’s had plenty of time to prepare himself.’ ” Rick Rothacker and Maria David contributed.