Conviction Of Florida Abortionist Is Overturned, 7/17/2002

By Henry Pierson Curtis and Amy Rippel, Sentinel Staff Writers

All but one of the convictions of Dr. James Pendergraft, who owns five Florida abortion clinics, were overturned Tuesday by the 11th U.S. Circuit Court of Appeals.

The doctor had been serving a 46-month prison sentence when he was released in February until the court ruled on his February 2001 conviction in what prosecutors say was a scheme to extort money from Marion County officials.

“Of course, he’s happy. He’s extremely happy,” Pendergraft’s spokeswoman, Marti Mackenzie, said late Tuesday.

The doctor was traveling out of state but spent most of the evening reading the court’s decision. He is considering various ways to recoup the money he spent defending himself, she said.

Pendergraft, 44, who owns two clinics in Orlando as well as others in Fort Lauderdale, Tampa and Ocala, still faces retrial on a single count of conspiracy to commit perjury.

First Assistant U.S. Attorney Jim Klindt said late Tuesday that no decision had been reached on how prosecutors will respond to the Atlanta appellate court’s order.

Options open to the U.S. Attorney’s Office include accepting the decision or asking the panel of three judges to review their own decision or ask for a full review by all 12 judges on the 11th Circuit.

The case dates to 1997, when Pendergraft bought a medical building in Ocala as part of his plans to expand his practice. The intended move was opposed by anti-abortion forces in Marion County, where the last abortion clinic had been destroyed in 1989 by an arsonist.

Pendergraft’s other clinics already had drawn repeated protests, including regular ones in Orlando on Virginia Avenue and Lucerne Terrace. He drew statewide attention in 1996 when city officials paid him $325,000 to settle a lawsuit over blocking one of those clinics from opening.

Seeking to avoid such controversy, Marion County commissioners asked the doctor not to come to Marion County. Pendergraft responded by having an associate, Michael Spielvogel, find out how much the county would be willing to pay to buy him out.

Marion officials went to the FBI claiming that Pendergraft was trying to make them “pay for peace.”

According to court papers, Spielvogel, 54, initially indicated the doctor might stay away if the county paid up to $500,000 for the building that had cost $200,000. But that price soared after a fatal bombing on Jan. 28, 1998, of an abortion clinic in Birmingham, Ala.

That night, Spielvogel and a county official spoke by telephone. Spielvogel claimed afterward that the official threatened him with similar-but-worse violence in Ocala.

But the FBI was taping the conversation and knew he was lying. Pendergraft later said he was present when Spielvogel received the threatening phone call.

In March 1998, Pendergraft told Marion officials he would “stay away three years for $500,000, five years for $750,000, and forever for $1,000,000,” according to court papers.

In its finding Tuesday, the 11th Circuit threw out the extortion and mail-fraud charges, saying they were groundless and improperly lumped with a charge of conspiracy to commit perjury.

The court agreed that there was sufficient evidence to convict Pendergraft and Spielvogel for making up the story about being threatened the night of the Alabama bombing.

Pendergraft and Spielvogel face a new trial on that charge.

The court acquitted both men of attempted extortion and mail fraud.

On the final charges, the court upheld Spielvogel’s conviction for perjury and making a false report about the threatening phone call to the FBI. But the court ordered him resentenced on those charges.

The court criticized the prosecutor, Assistant U.S. Attorney Mark Deveraux, for using what some consider a racist phrase, “shucked and jived,” in his closing argument to describe testimony by Pendergraft, who is black.

“However, even if the phrase is not entirely of a racist character, it is not the sort of characterization that should be employed by an assistant United States attorney, whose interest is not that he `shall win a case, but that justice shall be done,’ “ the judges wrote, citing court decisions.

The abortion doctor had been sentenced to prison for attempted extortion and other charges.

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