ST. THOMAS – The U.S. Court of Appeals for the Third Circuit on Tuesday denied Jenifer O’Neal’s motion for release pending appeal.
A two-judge panel, Circuit Judges Cheryl Ann Krause and Cindy Chung, issued the order without explaining its reasoning. It was signed by Chung and came three weeks after the government and O’Neal’s appellate attorney, Joseph DiRuzzo III, finished briefing the motion.
It’s the former Office of Management and Budget director’s third unsuccessful attempt to remain free while her appeal moves forward, and her first before the appellate court itself. District Judge Mark Kearney denied her requests to stay out of custody, first on procedural grounds and then on the merits. She surrendered to the U.S. Marshals Service July 1 on St. Thomas.
READ MORE: Judge denies O’Neal’s renewed request to remain free pending appeal, expected to surrender Wednesday
O’Neal’s central argument is that the Supreme Court’s 2016 decision in McDonnell v. United States, which narrowed what counts as an “official act” for bribery, applies to the federal funds bribery statute under which she was convicted. DiRuzzo argued the Third Circuit has twice “assumed, but did not decide” the question in other cases, leaving it open. Prosecutors countered that every appeals court to squarely consider the issue has rejected it, and that even if O’Neal won on that point, her honest services wire fraud and money laundering convictions would stand on independent grounds.
O’Neal also disputed whether she acted with the corrupt intent required to prove bribery, pointing to a recorded call in which former Police Commissioner Ray Martinez, unaware he was being taped, was asked whether O’Neal knew a $70,000 payment had come off an inflated invoice.
“She won’t know that,” Martinez said. “’Cause, we never had a conversation with her like that.”
DiRuzzo argued that undercuts trial testimony from businessman David Whitaker that he had told O’Neal the money behind a lease payment to her came personally from Martinez.
O’Neal was convicted last December of bribery concerning programs receiving federal funds, conspiracy to commit money laundering, and two counts of honest services wire fraud. Kearney sentenced her June 11 to seven years in prison, followed by three years of supervised release, and ordered her to pay a $50,000 fine, $34,345.39 in restitution jointly and severally with Martinez, a $400 special assessment, and a forfeiture judgment of $17,730. Tuesday’s order addressed only whether O’Neal can remain free while her appeal is pending; the appeal itself remains before the Third Circuit.
