US v. McCabe: McCabe was elected Sherriff of the City of Norfolk in 1993 and served in that office until 2017. For most of that time, he engaged in a mutually beneficial relationship with suppliers of goods and services (food and medical care) to the jail he oversaw. In return for various financial rewards, McCabe would help his preferred providers bypass the open bidding process or help tailor the bidding process to benefit the suppliers. Eventually, McCabe was charged in a multi-count indictment, along with Boyle (who ran the medical provider) with numerous offenses, including conspiracy, honest services fraud, and extortion. McCabe went to trial first, was convicted, and sentenced to 144 months in prison.
On appeal, the Fourth Circuit affirmed McCabe’s conviction, rejecting several challenges. Primarily, McCabe argued that the district court erred by forcing him to go to trial first, instead of Boyle, arguing that this deprived him of the opportunity to use Boyle as a defense witness in his trial. The court disagreed, noting that nothing in the record suggested that even after a trial and conviction Boyle would have waived his Fifth Amendment rights and testified at McCabe’s trial. McCabe also challenged a district court ruling allowing two employees from testifying that McCabe’s “undersheriff” had told them that McCabe had requested that had directed provide confidential information about bids to the two providers. The court agreed with the district court that the statements were non-hearsay under Rule 801(d)(2)(D) because they were made within the scope of the undersheriff’s employment. Finally, McCabe also challenged his jury instructions as running afoul of recent Supreme Court decisions narrowing the applicable fraud and bribery offenses. Finding first that McCabe had not properly objected to the instructions given, the court found no error in them, much less plain error.
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