Abortion Practitioner Won't Get Bail on Extortion Appeal
Source: Florida Star Banner; June 23, 2001

Ocala, FL -- A federal judge Thursday denied abortion practitioner James
Scott Pendergraft's motion to remain free on bond while he appeals his
conviction on charges of attempted extortion, conspiracy and mail fraud.

Senior U.S. District Judge William Terrell Hodges rejected, without a
hearing, motions by Pendergraft and his co-defendant Michael Spielvogel to
allow the men to remain free during their appeals to the 11th U.S. Circuit
Court of Appeals.

Both men were convicted in February. Spielvogel was convicted of the same
charges as Pendergraft, and two additional charges of making false
statements to the FBI and filing a false affidavit. In May, Hodges
sentenced Pendergraft to 46 months in prison, and Spielvogel to 41 months.

Pendergraft said late Thursday that he was not surprised by Hodges'
ruling. "He's had his mind made up for a long time," Pendergraft said.

Pendergraft also said he is taking steps to see that his five facilities
which do abortions, including the Ocala Women's Center, remain open if he
goes to prison. "The clinics will all remain open," he said.

Bruce Rogow, the lawyer handling Pendergraft's appeal, said he had not
seen Hodges' order Thursday afternoon, but that he would appeal the ruling
to the 11th Circuit.

"Obviously, I'm disappointed, but I'm optimistic the Court of Appeals will
allow them to remain free on bond while the appeal is pending," he said.
"So now we'll have to go to the [appeals] court. That's what we'll do."

Neither Spielvogel nor his attorney, Daniel Brodersen, could be reached
for comment.

Pendergraft's lawyers, in their bond request motion, focused on comments
made during the trial by Assistant U.S. Attorney Mark Devereaux. Among
other things, the motion alleges Devereaux, who is white, made racist
remarks in his closing argument by referring to Pendergraft, who is black,
as a man who "shucks and jives." when asked a question.

Hodges noted that Pendergraft's lawyers waited until the next day to
object to that comment. The remark also did not strike the judge as
racially motivated, Hodges wrote.

"At the time the challenged statement was uttered by the prosecutor, it
made no impression on me that it might be interpreted as a racial slur or
racial stereotyping," he wrote, "otherwise I would have immediately
interrupted with a heavy hand. Rather I understood the prosecutor merely
to be suggesting that during cross examination the Defendant Pendergraft
was evasive and sometimes deceptive, a perfectly valid argument."

In a footnote to that statement, Hodges notes that he found at the May
sentencing hearing "that the Defendant's deceptive (trial) testimony
constituted an obstruction of justice."

Hodges goes on to discuss the origins of the phrase "shuck and jive,"
saying that it appears to be rooted in black history, but "there is no
reason to believe that the prosecutor intended his use of that expression
as a racial stereotype."

In another footnote, Hodges cites the lyrics of a 1978 song recorded by
Art Garfunkel, "Mr. Shuck 'n' Jive," as an example of the phrase not
having racial connotations. Hodges concludes that Devereaux didn't intend
the phrase to be a racial remark, and that there was no reason to believe
it prejudiced the jury against Pendergraft.

Pendergraft's lawyers also argued that Devereaux's cross-examination of
Pendergraft, and his closing remarks, were unfairly argumentative and
displayed a personal bias against Pendergraft, Hodges rejected those
issues as well.

The charges against Pendergraft required Devereaux to prove that
Pendergraft was "a willful liar," Hodges wrote.

"When the Defendant elected to testify in his own defense, the whole
object of the Government's cross-examination must necessarily have been to
demonstrate that the Defendant also lied as a witness when he denied
making the false representations alleged in the indictment," he wrote. "It
could not have surprised anyone under those circumstances that the
prosecutor's cross-examination was vigorous, even argumentative at times.
But the prosecutor never directly expressed a personal opinion about the
matter."

In contrast to his lengthy response to Pendergraft's motion, Hodges
rejected Spielvogel's motion for bond in two paragraphs of the 10-page
ruling. Brodersen said in his motion to keep Spielvogel free on bond that
Hodges improperly ruled against two key defense pre-trial motions, and
that Devereaux's closing argument was improper.

"None of these claims rises to the level of a 'substantial' issue ... and
it follows that (U.S. law) requires that the Defendant be detained pending
appeal," Hodges responded.

Both Pendergraft and Spielvogel are still free until they are directed by
the U.S. Bureau of Prisons, or the U.S. Marshal's office to turn
themselves in.

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