Tuesday, March 10, 2009
Ninth Circuit Throws Out Convictions of Disgraced Lobbyist McFall
By SHERRI M. OKAMOTO, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday reversed five of disgraced lobbyist Monte McFall’s convictions for attempted extortion, saying they were unsupported by substantial evidence.
McFall, 63, is currently serving a 10-year sentence for his role in a corrupt profiteering case that brought down several state and local officials in San Joaquin County. His attorney told the MetNews a substantial reduction in the sentence is possible as a result of yesterday’s ruling.
The lobbyist joined forces with former San Joaquin Deputy District Attorney Neat Allen Sawyer, the then-chief deputy director of the Governor’s Office of Criminal Justice Planning, and then- San Joaquin Sheriff T. Baxter Dunn to support Lynn Bedford’s bid for a county supervisor’s seat which had become vacant in 2001.
Shortly before Bedford secured the appointment, McFall, Sawyer and Dunn formed SMTM Partners LP—which stood for “Show Me The Money.”
SMTM Partners subsequently entered into a consulting contract with Sunlaw Energy Corporation, which was competing with the Calpine Corporation for the right to build a power plant at a site in the Port of Stockton.
McFall allegedly threatened Calpine to drop its bid for the port site or else he would use his political influence to build opposition to another pending Calpine project in Alameda County.
Resolution Raises Concerns
When the corporation declined to withdraw its bid, Dunn appeared at a San Joaquin County Board of Supervisors meeting and denounced Calpine’s Alameda project as a threat to public safety. Bedford sponsored a resolution raising environmental, health, and safety concerns about the project, and the resolution passed 4-1.
Based on this incident, the government charged McFall with attempted extortion and conspiracy to commit extortion under color of official right, in violation of the Hobbs Act.
Extortion is defined by the act as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”
At trial before U.S. District Judge Morrison C. England of the Eastern District of California, the government argued that McFall had wrongfully sought to “obtain” Calpine’s right to solicit business in the county, to bid on the construction of a power plant, and to construct a power plant at the Port of Stockton.
A jury eventually convicted him of nine counts of attempted extortion and conspiracy to commit extortion, six counts of honest services mail fraud, and two counts of attempted witness tampering.
On appeal McFall challenged the sufficiency of the evidence supporting five of his convictions for attempted extortion and conspiracy to commit extortion.
Writing for the appellate court, Senior Judge A. Wallace Tashima explained that extortion in violation of the act is a “‘larceny-type offense’” which, pursuant to Scheidler v. National Organization for Women, Inc., (2003) 537 U.S. 393, requires a showing that a defendant received something of value from the victim which could be exercised, transferred or sold.
He reasoned that gaining some speculative benefit by hindering a competitor’s chance of winning a contract does not amount to obtaining a transferable asset, concluding that the evidence McFall had attempted to restrict Calpine’s bidding activity was insufficient to support his convictions for attempted extortion and conspiracy to commit extortion.
McFall also contended that the district judge had erred in failing to instruct the jury that a finding of aiding and abetting or conspiring with a public official was necessary to convict him of attempted extortion under claim of official right.
Following the other circuits that have addressed the issue, Tashima concluded that England had committed prejudicial instructional error in omitting such elements from the jury instruction.
The trial court also erred in declining to admit a transcript of Sawyer’s exculpatory grand jury testimony which offered a first person account of key events at issue in the alleged extortion conspiracy and contradicted testimony of government’s primary witness after Sawyer asserted his Fifth Amendment right against self-incrimination during trial, Tashima said.
Judges Mary M. Schroeder and William A. Fletcher joined Tashima in his opinion.
Sacramento attorney Victor S. Haltom represented McFall and opined that yesterday’s decision “threw out the central pillar of the government’s case” against his client.
Unless there is further appellate review, which he said was a possibility, Haltom said he expected his client to receive “a significantly reduced sentence” on remand.
Haltom suggested that the decision marked an extension of Scheidler from the factual circumstances of that case, which had held anti-abortion protesters who obstructed access to abortion clinics did not obtain the clinics’ property within the meaning of the Hobbs Act.
Assistant U.S. Attorney Benjamin B. Wagner said he was pleased that the Ninth Circuit had affirmed McFall’s convictions on 12 of the 17 counts of which he was convicted.
He emphasized that the panel reversed the five convictions “not because of any question about Mr. McFall’s conduct, but because they simply took a different view than the government did, and the district court did, in three legal areas where the law was somewhat unsettled.”
Wagner added that it was “too early” to know if the government would appeal yesterday’s ruling.
The case is United States v. McFall, 07-10034.
Copyright 2009, Metropolitan News Company