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Pendergraft denied appeal bond, 6/21/2001

By Editorial Staff
Published June 21, 2001

By Rick Cundiff, Staff Writer, Ocala Star Banner

OCALA — A federal judge Thursday denied abortion provider 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 clinics which provide abortion services, 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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