Tuesday, December 16, 2014
Panel Rejects Appeals by Disgraced Ex-Supervisor and Aide
By KENNETH OFGANG, Staff Writer
The reversal of some convictions in a San Joaquin County corruption scandal does not constitute new facts or new law that would allow another defendant to collaterally attack his conviction of violating a different statute, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel rejected appeals by former San Joaquin Supervisor Lynn G. Bedford and J. Taylor Reves, who was an aide to Bedford during his brief time on the board.
Bedford was appointed to fill a vacancy on the board in 2001. Among those who pushed for the appointment were lobbyist Monte McFall; former San Joaquin Deputy District Attorney Neat Allen Sawyer, who had gone on to become chief deputy director of Gov. Gray Davis’ Office of Criminal Justice Planning; and then-San Joaquin Sheriff T. Baxter Dunn.
McFall, Sawyer and Dunn had earlier formed SMTM Partners LP—the initials of which stood for “Show Me The Money,” according to later testimony.
SMTM Partners had a consulting contract with Sunlaw Energy Corporation, which was competing with Calpine Corporation for the right to build a power plant at the Port of Stockton.
Witnesses said McFall threatened to build opposition to a pending Calpine project in Alameda County if the company did not drop its bid for the port site.
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 federal government charged McFall with attempted extortion and conspiracy to commit extortion under color of official right, in violation of the Hobbs Act.
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. He was sentenced to 10 years in prison.
Sawyer and Dunn each pled guilty to one count of honest services mail fraud and received six-month prison sentences, and Sawyer resigned from the State Bar. Bedford and Reves each pled guilty to one count of making a false statement to the FBI and each received five years of probation.
In 2009, the Ninth Circuit threw out McFall’s convictions on five of the 17 counts and sent his case back for resentencing. His sentence was reduced to 78 months, and he was released in 2010.
Also in 2010, the Supreme Court ruled in Skilling v. United States (2010) 130 S. Ct. 2896, a case arising out of the Enron scandal, rejecting the Justice Department’s broad interpretation of the federal law making “honest services” fraud a crime, limiting the reach of the law to bribery and kickback schemes.
The convictions of Dunn and Sawyer were tossed out by the Ninth Circuit as a result of Skilling, and Bedford and Reves moved to vacate theirs as well, but Chief District Judge Morrison C. England Jr. of the Eastern District of California denied the motions as untimely.
Senior Judge William C. Albritton III of the Middle District of Alabama, sitting by designation and writing for the Ninth Circuit, said England was correct in denying relief, but that Bedford’s motion should have been dismissed for lack of jurisdiction.
Bedford, he explained, filed his motion one day after his term of probation ended. Because 18 U.S.C. §2255(a) requires that a defendant be “in custody”—probation is considered a sufficient restraint on liberty to render a probationer “in custody” for purposes of the statute—when he files a motion to vacate, the district court lacked jurisdiction to consider the motion, Albritton said.
He rejected the argument that because the probation term ended on a Sunday, Bedford had the right to bring the motion the next business day.
“Regardless of the day of the week, the fact is that Bedford was no longer ‘in custody’ at the end of the exact day that his sentence expired. This jurisdictional requirement that a § 2255 motion to vacate is only available to a prisoner in custody is a condition that either exists or does not exist, rather than a statute of limitations or other deadline for filing, as contemplated by the Federal Rules.”
As for Reves’ motion, Albritton went on to say, it was untimely because it was not filed within one year of the conviction becoming final, and there were no extraordinary circumstances to toll the one-year period.
“[T]he judicial opinions and exonerations regarding others do not affect the factual or legal basis for Reves’s conviction, pursuant to his plea agreement, for making a false statement under 18 U.S.C. § 1001,” the judge explained. “Reves admitted that he knowingly and willfully made a material false statement to the FBI in its investigation of the awarding of the Port of Stockton contract. In the wake of the judicial opinions as to others, the conduct to which Reves pled guilty remains criminal because the opinions did nothing to alter the scope of conduct covered by the statute to which Reves pled.”
The opinion was joined by Senior Judge Ferdinand F. Fernandez and Judge Sandra Ikuta.
The case is United States v. Reves, 13-15845.
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