Pendergraft trial begins, 1/3/2001

By Rick Cundiff, Staff Writer, Ocala Star Banner

OCALA — With abortion-rights supporters picketing outside the courthouse and abortion opponents picketing his clinic two blocks away, the federal extortion trial of Dr. James Scott Pendergraft IV began Tuesday.

Jury selection concluded Tuesday afternoon and Senior U.S. District Judge William Terrell Hodges set opening statements for 9 a.m. today.

Pendergraft and his associate, Michael Spielvogel, were indicted in Pendergraft and his associate, Michael Spielvogel, were indicted in federal court on June 13. The five-count indictment alleges that the two men conspired to extort millions of dollars from Marion County government by making false and fraudulent statements in a lawsuit Pendergraft filed in December 1998. Hodges dismissed the lawsuit a year later because Pendergraft and attorney Roy Lucas failed to pursue it.

The indictment alleges Pendergraft and Spielvogel lied in the lawsuit by saying County Commissioner Larry Cretul threatened Spielvogel and the clinic. The indictment also alleges that Pendergraft and Spielvogel threatened, through Lucas, to bankrupt the county by asking for a $100 million judgment.

Both men are charged with conspiracy to commit extortion, lying under oath and mail fraud. Spielvogel faces additional charges of offering false testimony and making false statements to FBI investigators. If convicted, Pendergraft faces up to 30 years in prison and $750,000 in fines, while Spielvogel could face up to 40 years and $1.25 million in fines.

Carrying signs reading “Stop the Injustice” and “Keep Abortion Legal,” several protesters marched outside the federal courthouse on Northwest Second Street as the trial began. At the same time, abortion foes marched outside Pendergraft’s Ocala Women’s Center at 108 N.W. Pine Ave., carrying signs that read “Abortion Kills Children” and “Ocala’s Auschwicz.”

About a dozen of Pendergraft’s supporters, nearly all from out of town, sat in the courtroom, which remained calm throughout the day. Pendergraft operates four other women’s clinics in Florida.

From an initial pool of three dozen, prosecutors and defense attorneys agreed on a dozen jurors by 3:15 p.m. Two alternate jurors came from another pool of nine people.

The jury, including alternates, has nine women and five men.

Pendergraft’s attorneys, Larry Colleton and Jacob Rose, and Spielvogel’s attorney, Daniel Brodersen, had asked Hodges for permission to question prospective jurors individually, rather than as a group, about their views on abortion. Hodges rejected the request in December

He asked the prospective jurors to raise their hands if they had strong convictions about abortion or if they had ever participated in any organization or group that took a stand on either side of the abortion issue.

Hodges then questioned individually the jurors who raised their hands about whether they would be able to render an impartial verdict.

By the time Hodges recessed the court for lunch, Pendergraft’s supporters were flying a large balloon over the Ocala Women’s Center. At a press conference there, Pendergraft’s lawyers and supporters portrayed the case as a vindictive prosecution in retaliation for his lawsuit.

“Dr. Pendergraft is a hero for continuing to provide full reproductive health care services to women in Florida, in a hostile and dangerous environment,” said Carla Josephson, president of the Orlando-area chapter of the National Organization for Women.

“It is clear that this prosecution is a new tactic being used to eliminate providers and further limit women’s access to reproductive health care.”

Representatives of the National Abortion Federation, the Center for Reproductive Law and Policy, and Medical Students for Choice, among others, read prepared statements supporting Pendergraft.

Steve Cole, spokesman for Assistant U.S. Attorneys Mark Devereaux and Judy Hunt, declined to comment on allegations that the case was politically motivated.

“The only comments that we’re going to make regarding this trial are going to be inside the courtroom,” Cole said. On the street outside the clinic, Marion County Right-To-Life President Ed Martin said the case wasn’t about abortion.

“If he tried to extort money from Ocala or Marion County, then he needs to be convicted,” Martin said. “This doesn’t have anything at all to do with abortion.”

Judge Hodges told prospective jurors that abortion wasn’t the issue in the case.

“The case itself has nothing to do one way or the other with abortions, or with withholding abortions,” he said.

After the jury was selected and sent home for the day, Hodges dealt setbacks for the defense. Pendergraft and Spielvogel’s lawyers had asked Hodges not to allow into evidence tapes of telephone conversations between Cretul and Spielvogel prior to February 1999. Hodges rejected that motion, though he said Colleton, Rose and Brodersen could raise objections during the trial.

The lawyers also tried to exclude an FBI videotape of the alleged settlement meeting at which Lucas and Pendergraft reportedly threatened to bankrupt the county. Rose said Lucas’ statements on the tape are hearsay evidence, and that Lucas, not Pendergraft, mentioned the $100 million figure.

Prosecutor Devereaux argued that Lucas had been acting as an official agent representing Pendergraft and Spielvogel and that, therefore, his comments on the tape were not hearsay. Brodersen, Spielvogel’s attorney, objected, saying there was no evidence Lucas ever represented Spielvogel.

Hodges rejected the defense motion to withhold the tape, again saying the lawyers could object to all or part of it during testimony.

In addition to Cretul, the list of potential witnesses includes Sheriff Ed Dean, Ocala Police Chief Morrey Deen, County Commissioners Steve Henning, Randy Harris and Parnell Townley, former County Commissioner Judy Johnson, several area ministers, Melbourne-based anti-abortion activist Meredith Raney, and Spielvogel’s wife.

Roy Lucas is not on the witness list. Despite international efforts to track him down, he hasn’t been seen for months, Rose said Tuesday afternoon.

“We have tried four different investigative agencies, an international association,” Rose said. “We just can’t find him.”

The trial is expected to last at least into next week.

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