[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 16, 2002
No. 01-13057
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 00-00021 CR-0C-10
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES SCOTT PENDERGRAFT,
MICHAEL SPIELVOGEL,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 16, 2002)
Before TJOFLAT, RONEY and COX, Circuit Judges.
COX, Circuit Judge:
James Scott Pendergraft and Michael Spielvogel were convicted, following a
jury trial, for (1) attempted extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951,
(2) mail fraud, in violation of 18 U.S.C. § 1341, and (3) conspiracy to commit
extortion, mail fraud, and perjury, in violation of 18 U.S.C. § 371. Spielvogel was
also convicted of filing a false affidavit, in violation of 18 U.S.C. § 1623, and making
a false statement to the Federal Bureau of Investigation, in violation of 18 U.S.C. §
1001. Pendergraft and Spielvogel appeal, challenging their convictions and sentences.
The charges against Pendergraft and Spielvogel arose out of their threat to seek
damages in a lawsuit against Marion County, Florida, and to use false evidence in
support of the lawsuit. Because we conclude that their threat was neither “wrongful”
within the meaning of the Hobbs Act nor a “scheme to defraud” within the meaning
of the mail-fraud statute, we reverse the attempted extortion and mail-fraud
convictions, and we vacate the conspiracy convictions. However, we affirm
Spielvogel’s convictions for perjury and making false statements.
2
I. BACKGROUND
A. FACTS
Pendergraft is a physician specializing in maternal-fetal medicine.1 As part of
his practice, he performs abortions, including late-term, or “partial-birth,” abortions.
He opened the Orlando Women’s Center in Orlando, Florida, in 1996. In 1997,
seeking to expand his Florida practice, Pendergraft purchased a medical building in
Ocala, Florida, for about $200,000.
Ocala is the county seat of Marion County. In 1989, an abortion clinic in Ocala,
the All Women’s Health Center, was destroyed by an arsonist, and Ocala had not had
an abortion clinic since. Pendergraft had performed many abortions on Ocala
residents in his Orlando clinic and believed he could profit by opening a clinic in
Ocala.
Pendergraft’s presence in Ocala sparked a lot of controversy. During a meeting
of the Marion County Board of Commissioners in October 1997, Steve Klein, a
resident of Ocala, proposed that the Board write a letter to Pendergraft asking him to
reconsider opening his Ocala clinic. The Board unanimously supported Klein’s
proposal, and Larry Cretul, the Chairman of the Board, wrote and signed the letter and
1
Because we are determining whether the actions of Pendergraft and
Spielvogel are legally sufficient to support their convictions, we state the evidence
in the light most favorable to the Government.
3
sent it to Pendergraft. The letter asked Pendergraft to reconsider his plans because of
the controversy the clinic would bring to Ocala. Pendergraft received many other
letters from concerned citizens of Marion County.
Pendergraft received the Board’s letter and, after a few days, showed it to
Michael Spielvogel, a business associate whose wife, Mary, worked for Pendergraft
as an office administrator. In late October, Spielvogel called Cretul to discuss the
possibility of Pendergraft withdrawing from Ocala if the County would purchase the
clinic building for a good price.
Immediately after his discussion with Spielvogel, Cretul called the county
sheriff’s office and expressed some concern that he was being asked to pay for peace.
The sheriff’s office relayed Cretul’s concern to FBI Special Agent Pamela Piersanti,
and the FBI opened an investigation. As part of the investigation, the FBI recorded
Cretul’s subsequent conversations with Spielvogel. During one of the conversations,
Spielvogel implied that Pendergraft would sell the clinic building for between
$350,000 and $500,000.
On January 29, 1998, a bomb exploded at the New Woman All Women Health
Care Center, an abortion clinic in Birmingham, Alabama, killing an off-duty police
officer and injuring a chief nurse. That evening, Cretul and Spielvogel spoke by
telephone. Following their conversation, Spielvogel called the FBI and reported that
4
Cretul had threatened him. Specifically, Spielvogel reported that Cretul had said that
the Alabama bombing was nothing compared to what would happen to the Ocala
clinic. Because the FBI was monitoring Cretul’s conversations with Spielvogel, it
knew that Spielvogel’s allegation was false. The FBI declined to investigate the
alleged threat and told Spielvogel of its declination in late February.
On February 24, Pendergraft wrote identical letters to Cretul and several other
Ocala citizens who had previously written letters to Pendergraft. In this letter,
Pendergraft articulated his reasons for opening the Ocala clinic and acknowledged that
he would perform abortions. At the end of his letter, he intimated that he would
entertain other plans for the facility, including a sale of it, and asked potential offerors
to contact Spielvogel.
At the FBI’s request, Cretul called Pendergraft and finally got in touch with him
on March 26, 1998. Cretul told Pendergraft that he was worried about the potential
controversy and violence that the Ocala clinic would bring, but Pendergraft denied
that he wanted or caused violence. Cretul asked Pendergraft how much money it
would take to keep him out of Ocala. Pendergraft said that he would stay away three
years for $550,000, five years for $750,000, and forever for $1,000,000. Cretul told
Pendergraft that his offer felt like extortion, but Pendergraft denied any such intent
5
and offered to cease negotiations. On April 8, the FBI told Cretul to call off
negotiations, and thereafter the investigation of Pendergraft was closed.
In July 1998, the Ocala clinic opened amid much controversy. Protestors
consistently blocked the driveway to the clinic and harassed those who entered the
building. Pendergraft asked the City of Ocala and the Marion County Sheriff’s
Department if he could hire off-duty law enforcement officers to protect his clinic.
Though such requests were routinely granted to other businesses, Pendergraft’s
request was denied.
Pendergraft and the Ocala Women’s Center filed a federal lawsuit in December
1998, naming Marion County, the City of Ocala, and several individual protestors as
defendants. It sought injunctive relief against Marion County that would permit
Pendergraft to hire off-duty law enforcement officers.
Marion County retained Virgil Wright to defend the suit. Wright contacted Roy
Lucas, Pendergraft’s lawyer, and told Lucas that, since the Sheriff’s Department was
not controlled by Marion County, Marion County should not be a party to the suit.
Lucas responded on March 15, 1999, with a letter stating that Cretul’s threats, as
reported by Spielvogel, violated the Freedom of Access to Clinic Entrances Act, 18
U.S.C. § 248, and exposed the County to actual and punitive damages as well as
litigation fees and expenses. Lucas threatened to file an amended complaint that
6
would seek damages against the County and add Spielvogel, Spielvogel’s wife, and
the Ocala clinic administrator as plaintiffs. Attached to the letter were two unsigned
affidavits, one by Spielvogel and one by Pendergraft.
Spielvogel’s affidavit reported Cretul’s threat and said that Pendergraft
witnessed Spielvogel’s reaction to the threat when it was made. Pendergraft’s
affidavit said that he believed Spielvogel’s report that Cretul made threats because of
Spielvogel’s reaction when he was on the phone with Cretul.
When Wright received Lucas’s letter, he contacted Cretul, who told Wright that
the FBI taped the phone call during which Cretul was alleged to have made the threat.
Wright agreed to assist the FBI in the investigation of Pendergraft and Spielvogel by
holding a settlement conference with them. Wright and Lucas agreed to hold a
settlement conference on March 22. In a letter confirming the time the conference
was scheduled, Lucas said that he would bring a copy of a proposed amended
complaint but that he might not need to file it, depending on the discussion.
On March 19, Pendergraft and Spielvogel filed a motion for partial summary
judgment in their federal lawsuit. The motion sought to enjoin the protestors from
harming clinic workers and to allow Pendergraft to hire off-duty officers. In support
of the motion, Pendergraft and Spielvogel filed, among other things, the affidavits
7
they sent to Wright regarding Cretul’s threats. These affidavits were signed, dated,
and notarized. Pendergraft and Spielvogel mailed a copy of this motion to Wright.
On March 22, Wright, Lucas, Spielvogel, and Pendergraft attended the
settlement conference, and the FBI captured it on videotape. At the conference,
Spielvogel again asserted that Cretul had threatened him, and Pendergraft claimed that
he was present when Spielvogel received the threatening phone call. While
Spielvogel expressed his desire for an immediate settlement, Pendergraft made it clear
that he wanted to go to trial. Lucas and Pendergraft informed Wright that the lawsuit
could bankrupt Marion County based on prior verdicts in similar cases. Wright told
them he would report to Marion County and ask the county what it would like to do.
On April 12, Piersanti, the FBI agent, confronted Spielvogel with evidence that
his allegations against Cretul were false, and she asked Spielvogel to cooperate in an
investigation of Pendergraft. Spielvogel declined this offer and instead informed
Pendergraft of the investigation.
On August 4, 1999, an amended complaint was filed in Pendergraft’s lawsuit.
It did not add Spielvogel or his wife as plaintiffs. It did not add Larry Cretul as a
defendant. Instead of adding a claim for damages against Marion County, it dropped
Marion County from the suit entirely. Nevertheless, a grand jury investigation of
Pendergraft and Spielvogel was initiated.
8
B. PROCEDURAL HISTORY
1. The Indictment
On June 13, 2000, the grand jury indicted Pendergraft and Spielvogel. Count
One charges that they conspired to commit extortion under 18 U.S.C. § 1951, perjury
under 18 U.S.C. § 1623, and mail fraud under 18 U.S.C. § 1341.
Count Two charges Pendergraft and Spielvogel with the substantive offense of
attempted extortion for using false affidavits and statements in an attempt to obtain
a monetary settlement from Marion County. The indictment alleges that Pendergraft
and Spielvogel authored false affidavits accusing Cretul of threatening them and
attached these affidavits to a letter sent to Wright. Based on these false affidavits,
they threatened, in the letter, to file an amended complaint seeking damages against
Marion County. According to the indictment, they then arranged a settlement
conference with Wright during which they threatened a multi-million dollar suit
unless Marion County settled.
In Count Three, Pendergraft and Spielvogel are charged with mail fraud. Their
alleged scheme to defraud was the use of false statements about Cretul’s threats to
obtain a settlement from Marion County. In furtherance of this scheme, they mailed
copies of their motion for partial summary judgment, to which the allegedly false
affidavits were attached, to Wright and other lawyers in the civil case.
9
Counts Four and Five charge only Spielvogel with perjury and making a false
statement to the FBI. These charges arose out of Spielvogel’s accusation, which he
included both in his affidavit and in his report to the FBI, that Cretul threatened the
Ocala clinic while on the phone with him.
2. Motion to Dismiss the Indictment
Pendergraft and Spielvogel filed a consolidated motion to dismiss the
indictment on several grounds. (R.1-26.) They argued, among other things, that
Counts One, Two, and Three of the indictment violated Pendergraft’s First and
Fourteenth Amendment rights. Because he had a right to assert claims against the
government, he and Spielvogel could not be charged with extortion for their actions
in connection with a lawsuit against the government. Furthermore, they argued, the
indictment imperiled the privacy rights of Pendergraft and his patients because it
endangered Pendergraft’s ability to provide abortions.
Pendergraft and Spielvogel further argued that Counts One, Two, and Three
were legally insufficient because a threat to file a lawsuit could never amount to
extortion. They relied primarily on I.S. Joseph Co. v. J. Lauritzen A/S, 751 F.2d 265
(8th Cir. 1984), where the Eighth Circuit held that a threat to sue, even if groundless
and in bad faith, could not constitute extortion.
10
The district court declined to dismiss any of the counts, noting that the
indictment tracked the statutory language. (R.1-32.)
3. Motions for Judgment of Acquittal
The case ultimately went to trial. At the close of the Government’s case,
Pendergraft and Spielvogel made an oral motion for judgment of acquittal. (R.25 at
128-71.) They argued, among other things, that their litigation activities did not
constitute extortion for purposes of the Hobbs Act, that the evidence failed to
demonstrate a conspiratorial agreement between Pendergraft and Spielvogel, and that
there was no “scheme to defraud” for purposes of the mail-fraud statute. The court
denied the motion, and Pendergraft filed a renewed motion in written form. (R.3-99.)
Both Pendergraft and Spielvogel testified in their own defense. Spielvogel
admitted, on the stand, that he lied, both in his affidavit and to the FBI, about the
content of Cretul’s threats. (R.18 at 76-77.) He also testified that he staged the phone
call about which Pendergraft testified in his affidavit and that Pendergraft did not find
out about it until just before the trial. (R.18 at 78-82.) Pendergraft testified that he
witnessed the staged phone call but did not, at that time, know it was staged. (R.17
at 145-46; R.15 at 8-10.) On cross-examination, the Government elicited testimony
suggesting that Pendergraft did not, in fact, witness the staged phone call when he said
he did. (R.15 at 70-76.) At the close of all the evidence, the court deemed as restated
11
all motions for judgment of acquittal made during the trial and denied them all. (R.19
at 401-06.)
During closing argument, the Government focused on the credibility of
Pendergraft and Spielvogel. It argued that, because Pendergraft and Spielvogel were
liars, the jury could conclude that they engaged in the conduct alleged in the
indictment. The jury convicted them as charged on every count.
After the verdict, Pendergraft and Spielvogel filed separate renewed motions
for judgment of acquittal or, in the alternative, for a new trial. In addition to the
grounds raised previously, they argued that the prosecutor had made improper
statements in his closing arguments, including his statement that Pendergraft “shucked
and jived” on the witness stand.
The district court summarily denied the renewed motions for judgment of
acquittal and refused to grant a new trial. (R.4-140.) Pendergraft was sentenced to
46 months in prison and two years of supervised release. He was also fined $25,000.
Spielvogel was sentenced to 41 months in prison and three years of supervised release.
He was not fined.
12
II. ISSUES ON APPEAL
Pendergraft and Spielvogel raise the following issues on appeal:2 (1) whether
the district court erred by denying their motion to dismiss the indictment and their
motions for judgment of acquittal because the conduct at issue was legally insufficient
to support convictions for extortion or mail fraud; (2) whether the district court erred
by denying their motions for judgment of acquittal because there was insufficient
evidence of an illegal conspiracy; (3) whether the district court erred by denying their
motions for a new trial because the prosecutor introduced racial prejudice by accusing
Pendergraft of “shucking and jiving.”3
III. STANDARDS OF REVIEW
2
We have recharacterized some of the issues to focus on the rulings we are
asked to review.
3
Pendergraft also raises the following issues on appeal: (1) whether the
district court erred by denying his motion for a judgment of acquittal because there
was evidence that he believed he had a valid claim-of-right against Marion County;
(2) whether the district court abused its discretion by admitting a tape of a civil-suit
settlement conference; (3) whether the prosecutor improperly vouched for
Government witnesses during closing argument; (4) whether the district court erred
by enhancing his sentence for extortion based on a monetary demand that was
outside the scope of the charged acts; and (5) whether, if a new trial is granted, the
trial should be held outside of Ocala. Spielvogel also raises one additional issue:
whether the district court erred by precluding his diminished capacity defense. We
review each of these issues as well.
13
We review the district court’s denial of a motion to dismiss the indictment for
abuse of discretion, see United States v. Pielago, 135 F.3d 703, 707 (11th Cir. 1998),
but the sufficiency of an indictment is a legal question that we review de novo. See
United States v. Steele, 178 F.3d 1230, 1233 (11th Cir. 1999). We review the denial
of a motion for judgment of acquittal de novo. See United States v. Hansen, 262 F.3d
1217, 1236 (11th Cir. 2001). In the absence of a contemporaneous objection, we
review the district court’s failure to correct an improper closing argument for plain
error. See United States v. Newton, 44 F.3d 913, 920-21 (11th Cir. 1995). We review
the denial of a motion for a new trial for abuse of discretion. See United States v.
Ward, 274 F.3d 1320, 1323 (11th Cir. 2001).
IV. DISCUSSION
A. LEGAL SUFFICIENCY OF THE INDICTMENT
Pendergraft and Spielvogel assert error in the district court’s denial of their
motion to dismiss the indictment and their motions for judgment of acquittal. In their
motions and on appeal, they challenge Counts One, Two, and Three on the ground that
the extortion and mail-fraud charges are legally insufficient and that the Government
failed to offer sufficient evidence of an illegal conspiracy. Because we conclude that
there was evidence to support the extortion and mail-fraud allegations in the
14
indictment, we will examine those allegations to determine whether they are legally
sufficient to charge an offense.4
1. Extortion (Counts One & Two)
The Hobbs Act imposes criminal sanctions on those who affect interstate
commerce by extortion. See 18 U.S.C. § 1951(a) (2000). Extortion is defined 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.” Id. §
1951(b)(2). In this case, the indictment alleges that Pendergraft and Spielvogel
conspired to extort money from Marion County by threatening to file an amended
complaint, supported by false affidavits, unless Marion County settled with them.
Pendergraft and Spielvogel argue that such threats are not criminal under the Hobbs
Act.
Several courts have held that a threat to file a lawsuit, even if made in bad faith,
is not “wrongful” within the meaning of the Hobbs Act. See Vemco, Inc. v.
Camardella, 23 F.3d 129, 134 (6th Cir. 1994); First Pacific Bancorp, Inc. v. Bro, 847
F.2d 542, 547 (9th Cir. 1988); I.S. Joseph Co. v. J. Lauritzen A/S, 751 F.2d 265, 267-
68 (8th Cir. 1984); G-I Holdings, Inc. v. Baron & Budd, 179 F. Supp. 2d 233, 259
4
Only Spielvogel was charged in Counts Four and Five, and he does not
challenge the legal sufficiency of these substantive counts.
15
(S.D.N.Y. 2001); Heights Cmty. Cong. v. Smythe, Cramer Co., 862 F. Supp. 204, 207
(N.D. Ohio 1994); Am. Nursing Care of Toledo, Inc. v. Leisure, 609 F. Supp. 419, 430
(N.D. Ohio 1984). All of these cases have arisen in the civil RICO5 context where
litigants have included a threat to file a lawsuit as the predicate act of extortion. By
rejecting such threats as predicate acts, these courts have implicitly held that threats
to sue cannot constitute criminal extortion. Most of these courts have recharacterized
the extortion charges as actions for malicious prosecution and have held that malicious
prosecution is not a RICO predicate act.
Because an action for malicious prosecution is a civil matter, we are reluctant
to recharacterize the criminal extortion charges in this case as actions for malicious
prosecution. Instead, we must analyze the Hobbs Act to determine whether it
criminalizes the bad-faith threat to sue that is alleged in this case.
We begin, of course, by examining the text of the statute. See Adams v. Fla.
Power Corp., 255 F.3d 1322, 1324 (11th Cir. 2001). To commit extortion, a person’s
actions must, in some sense, be “wrongful.” See 18 U.S.C. § 1951(a) (2000). In
United States v. Enmons, 410 U.S. 396, 93 S. Ct. 1007 (1973), the Supreme Court
interpreted “wrongful,” within the meaning of the Hobbs Act, to consist of using a
5
RICO is an acronym for the Racketeer Influenced and Corrupt
Organizations Act, codified at 18 U.S.C. § 1961 et seq.
16
wrongful means to achieve a wrongful objective. See id. at 399-400, 93 S. Ct. at
1009.
To show a wrongful objective, the Government must show that Pendergraft and
Spielvogel had no lawful claim to the money they sought. See id. at 400, 93 S. Ct. at
1009-10; United States v. Nell, 570 F.2d 1251, 1258 (5th Cir. 1978). Pendergraft and
Spielvogel sought settlement money from Marion County based on threats allegedly
made to Spielvogel by a county commissioner. The indictment alleges that these
threats never actually occurred. This allegation, if true, shows that Pendergraft and
Spielvogel had no lawful claim to the settlement money they sought. The wrongful-
objective element of extortion is therefore satisfied.6
Regarding the wrongful-means element, the question presented is whether their
threat to file the lawsuit was “wrongful.” The indictment alleges that the defendants
unlawfully used false affidavits and made false statements “in an effort to induce the
payment of money by the Marion County government through the fear of economic
loss.” (R.1-1 at 7.) The use of fear can be a wrongful means under the Hobbs Act,
and fear includes the fear of economic loss. But the fear of economic loss is an
“animating force of our economic system,” United States v. Sturm, 671 F. Supp. 79,
6
Because the jury, from evidence introduced at trial, could have rejected
Pendergraft’s claim-of-right defense, he was not entitled to judgment of acquittal
on the basis of his claim-of-right defense.
17
84 (D. Mass. 1987), vacated and remanded, 870 F.2d 769 (1st Cir. 1989), and,
therefore, is not inherently wrongful. See Hall Am. Ctr. Assocs. Ltd. P’ship v. Dick,
726 F. Supp. 1083, 1095 (E.D. Mich. 1989). We must determine whether the use of
economic fear in this case was “wrongful” within the meaning of the Hobbs Act.
The indictment alleges that Pendergraft and Spielvogel produced perjured
affidavits that described threats by Larry Cretul, the Chairman of the Marion County
Board of Commissioners. Based on the information in these affidavits, Pendergraft
and Spielvogel threatened to amend an existing legitimate lawsuit to include a claim
for damages against Marion County. The threat of this additional claim, backed by
fabricated evidence, put Marion County in fear of economic loss, and Pendergraft and
Spielvogel sought to exploit this fear by obtaining a settlement from Marion County.
The bad-faith threat of litigation, according to the indictment, was reasonably
calculated to cause fear of economic loss and therefore “wrongful.”
A threat to litigate, by itself, is not necessarily “wrongful” within the meaning
of the Hobbs Act. After all, under our system, parties are encouraged to resort to
courts for the redress of wrongs and the enforcement of rights. See Boothby Realty
Co. v. Haygood, 114 So. 2d 555, 559 (Ala. 1959); 54 C.J.S. Malicious Prosecution §
4 at 525 (1987). For this reason, litigants may be sanctioned for only the most
frivolous of actions. These sanctions include tort actions for malicious prosecution
18
and abuse of process, and in some cases recovery of attorney’s fees, but even these
remedies are heavily disfavored because they discourage the resort to courts. See
Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 95 S. Ct. 1612,
1617 (1975); Kelly v. Serna, 87 F.3d 1235, 1241 (11th Cir. 1996); Mims v. Teamsters
Local No. 78, 821 F.2d 1568, 1570 (11th Cir. 1987); Delchamps, Inc. v. Bryant, 738
So. 2d 824, 832 (Ala. 1999); Cate v. Oldham, 450 So. 2d 224, 225-26 (Fla. 1984);
Day Realty Assocs., Inc. v. McMillan, 277 S.E.2d 663, 664 (Ga. 1981).
History has taught us that, if people take the law into their own hands, an
endless cycle of violence can erupt, and we therefore encourage people to take their
problems to court. We trust the courts, and their time-tested procedures, to produce
reliable results, separating validity from invalidity, honesty from dishonesty. While
our process is sometimes expensive, and occasionally inaccurate, we have confidence
in it. When a citizen avails himself of this process, his doing so is not inherently
“wrongful.”
Moreover, in this case, we are not dealing with a typical threat to litigate.
Instead, we are dealing with a threat to litigate against a county government. The right
of citizens to petition their government for the redress of grievances is fundamental
19
to our constitutional structure. See U.S. Const. amend. I.7 A threat to file suit against
a government, then, cannot be “wrongful” in itself.
But, in this case, we have an allegation that Pendergraft and Spielvogel
fabricated evidence to support their suit. The fabrication of evidence is certainly not
“rightful.” The question is whether the fabrication of evidence makes a threat to sue
a government “wrongful.”
We recognize that the fabrication of evidence is criminalized by the perjury
statute. While the same conduct can violate several statutes, we do not think that
Pendergraft and Spielvogel’s conduct does. The law jealously guards witnesses who
participate in judicial proceedings; witnesses should be “unafraid to testify fully and
openly.” See Charles v. Wade, 665 F.2d 661, 667 (5th Cir. Unit B 1982). Because
the rigors of cross-examination and the penalty of perjury sufficiently protect the
reliability of witnesses, see Butz v. Economou, 438 U.S. 478, 512, 98 S. Ct. 2894,
2914 (1978); Charles, 665 F.2d at 667, courts have been unwilling to expand the
7
The State of Florida provides extra security for this right by forbidding state
officials or state entities from suing citizens for malicious prosecution. See Cate v.
Oldham, 450 So. 2d 224, 225-26 (Fla. 1984). In Florida’s view, such suits “can
only result in self-censorship. Potential critics of official conduct would be
foreclosed from bringing suit because of doubt that they would be permitted to, or
could prove the facts, or for fear of the expense for having failed to do so.” Id. at
227 (quoting Board of Education v. Marting, 217 N.E.2d 712, 717 (Ohio Ct. Com.
Pl. 1966)).
20
scope of witness liability, since, by doing so, “‘the risk of self-censorship becomes too
great.’” Charles, 665 F.2d at 667 (quoting Imbler v. Pachtman, 424 U.S. 409, 440,
96 S. Ct. 984, 999 (1976) (White, J., concurring).
Criminalizing false testimony via the Hobbs Act would expand the scope of
witness liability. Witnesses might decline to provide affidavits in questionable
lawsuits against a government, fearing that they could be charged with conspiracy to
commit extortion if the lawsuit fails. Such a possibility is unsettling, and we do not
believe that Congress intended to expand the scope of witness liability in this way.
The fabrication of evidence, then, does not make a threat to sue a government
“wrongful” within the meaning of the Hobbs Act.
While the case before us involves a threat to sue a government, we are troubled
by any use of this federal criminal statute to punish civil litigants. Sanctions for filing
lawsuits, such as malicious prosecution, lead to collateral disputes and “a piling of
litigation on litigation without end.” Boothby Realty Co., 114 So. 2d at 559.
Allowing litigants to be charged with extortion would open yet another collateral way
for litigants to attack one another. The reality is that litigating parties often accuse
each other of bad faith. The prospect of such civil cases ending as criminal
prosecutions gives us pause.
21
Moreover, this addition to the federal criminal arsenal would have other
disconcerting implications in the civil arena. As we have noted, the cases rejecting
extortion for threats to litigate arise in the civil RICO context when parties attempt to
graft a RICO claim on their claims for malicious prosecution. In those cases, the
courts express concern about transforming a state common-law action into a federal
crime. We share this concern.
Nevertheless, our holding is a narrow one. We hold that Pendergraft and
Spielvogel’s threat to file litigation against Marion County, even if made in bad faith
and supported by false affidavits, was not “wrongful” within the meaning of the
Hobbs Act. Thus, we conclude that the allegations in the indictment for conspiracy
to commit extortion and for the substantive offense of attempted extortion fail to
charge offenses as a matter of law.
2. Mail Fraud (Counts One & Three)
The indictment also charges Pendergraft and Spielvogel with mail fraud and
conspiracy to commit mail fraud. When Pendergraft and Spielvogel filed their motion
for a preliminary injunction with the district court, they attached their false affidavits
in support. A copy of the motion was served by mail on Marion County’s attorney,
Virgil Wright, and two other lawyers in the case. To commit mail fraud, a person
must (1) intentionally participate in a scheme to defraud and (2) use the mails in
22
furtherance of the scheme. See 18 U.S.C. § 1341 (2000); United States v. Smith, 934
F.2d 270, 274 (11th Cir. 1991). The indictment alleges that Pendergraft and
Spielvogel intentionally participated in a scheme to extort a monetary settlement from
Marion County and mailed the motion with the attached false affidavits in furtherance
of that scheme. Pendergraft and Spielvogel argue that their alleged scheme to obtain
a settlement did not constitute a “scheme to defraud” for purposes of the mail fraud
statute.
Serving a motion by mail is an ordinary litigation practice. A number of courts
have considered whether serving litigation documents by mail can constitute mail
fraud, and all have rejected that possibility. See Daddona v. Gaudio, 156 F. Supp. 2d
153, 162-64 (D. Conn. 2000); Auburn Med. Ctr., Inc. v. Andrus, 9 F. Supp. 2d 1291,
1300 (M.D. Ala. 1998); Von Bulow v. Von Bulow, 657 F. Supp. 1134, 1142-47
(S.D.N.Y. 1987); Paul S. Mullin & Assocs., Inc. v. Bassett, 632 F. Supp. 532, 540 (D.
Del. 1986); Am. Nursing Care of Toledo, Inc. v. Leisure, 609 F. Supp. 419, 430 (N.D.
Ohio 1984). As in the Hobbs Act context, these courts have rejected this mail-fraud
theory on policy grounds, recognizing that such charges are merely “artfully pleaded
claims for malicious prosecution.” Auburn Med. Ctr., Inc., 9 F. Supp. 2d at 1297.
Again, prosecuting litigation activities as federal crimes would undermine the policies
of access and finality that animate our legal system. Moreover, allowing such charges
23
would arguably turn many state-law actions for malicious prosecution into federal
RICO actions.
But, as always, we are primarily concerned with the language of the statute, not
its policy implications. While both the mail-fraud and wire-fraud statutes use the
phrase “scheme to defraud,” neither statute defines what a “scheme to defraud” is. See
Weiss v. United States, 122 F.2d 675, 681 (5th Cir. 1941); United States v. Lemire,
720 F.2d 1327, 1335 (D.C. Cir. 1983). Instead, the meaning of “scheme to defraud”
has been judicially defined. See Lemire, 720 F.2d at 1335. Courts have defined the
phrase broadly, allowing it to encompass deceptive schemes that do not fit the
common-law definition of fraud. See Hammerschmidt v. United States, 265 U.S. 182,
188, 44 S. Ct. 511, 512 (1924); United States v. Brown, 79 F.3d 1550, 1557 (11th Cir.
1996). Nevertheless, Congress did not strip the word “defraud” of all its meaning, see
Brown, 79 F.3d at 1557; the word still signifies “the deprivation of something of value
by trick, deceit, chicane, or overreaching.” See Hammerschmidt, 265 U.S. at 188, 44
S. Ct. at 512.
There are limits to the types of schemes that the mail-fraud statute encompasses.
See Brown, 79 F.3d at 1556. Indeed, it has long been recognized that, “broad as are
the words ‘to defraud,’ they do not include threat and coercion through fear or force.”
Fasulo v. United States, 272 U.S. 620, 628, 47 S. Ct. 200, 202 (1926); see also
24
Hammerschmidt, 265 U.S. at 188, 44 S. Ct. at 512 (“[The words ‘to defraud’] do not
extend to theft by violence.”); Naponiello v. United States, 291 F. 1008, 1010 (7th Cir.
1923) (“[T]hreats which the victim believes will be carried into execution unless he
acquiesces in the demands are not deceits.”); United States v. McKay, 45 F. Supp.
1007, 1011 (E.D. Mich. 1942) (“[R]egardless of how broad an interpretation is put
upon the words ‘to defraud’ they do not include threats and coercion through fear or
force.”)
In this case, the indictment alleges that Pendergraft and Spielvogel sought to
extort money from Marion County by exploiting their fear of economic loss. This fear
was caused by Pendergraft and Spielvogel’s threat to sue and was aggravated by their
production of false affidavits. Once Pendergraft and Spielvogel filed these documents
with the court, as attachments to their motion for a preliminary injunction, and served
Marion County with the motion, Marion County knew that their threats to lie were
serious. The possibility of an unfavorable verdict, based on perjurious testimony, may
have caused Marion County to fear the lawsuit. But fear is different from fraud. A
scheme to frighten is simply not criminalized by the mail-fraud statute.
However, the use of fear does not immunize particular actions from mail-fraud
charges; if deceit, as well as fear, is intended, then the actions may be criminal. See
Huff v. United States, 301 F.2d 760, 765 (5th Cir. 1962). In support of their suit
25
against Marion County, Pendergraft and Spielvogel authored affidavits that falsely
accused Cretul of making threats. Such falsity might have deceived some, but it could
not deceive Marion County. Cretul, after all, was the Chairman of the Marion County
Board of Commissioners, and Pendergraft and Spielvogel were aware of Cretul’s
position. They knew that Cretul would deny making these threats, and they knew that
their affidavits would not trick Cretul into admitting otherwise. If they knew that they
could not deceive Marion County, then they could not have had an intent to deceive.
See Pelletier v. Zweifel, 921 F.2d 1465, 1499 (11th Cir. 1991) (“A defendant cannot
possibly intend to deceive someone if he does not believe that his intended ‘victim’
will act on his deception.”); Norton v. United States, 92 F.2d 753, 755 (9th Cir. 1937)
(“There can be no intent to deceive where it is known to the party making the
representations that no deception can result.”).
Since there was no intent to deceive, there was no “scheme to defraud,” and we
hold that Pendergraft and Spielvogel’s mailing of litigation documents, even
perjurious ones, did not violate the mail-fraud statute. The allegations in the
indictment for conspiracy to commit mail fraud and for the substantive offense of mail
fraud therefore fail to charge offenses as a matter of law.
3. Multiple-Object Conspiracy (Count One)
26
The indictment also alleges, in Count One, that Pendergraft and Spielvogel
agreed to author perjured affidavits testifying to threats made by Cretul. They both,
in fact, submitted affidavits: Spielvogel’s claims that he received a threatening phone
call in Pendergraft’s presence, and Pendergraft’s claims that he witnessed Spielvogel
receiving the phone call. The indictment alleges that this threatening phone call never,
in fact, occurred. These allegations, if true, can support a conviction for conspiracy
to commit perjury.
However, in Count One, the indictment charges conspiracy to commit extortion
and mail fraud along with conspiracy to commit perjury, and the jury returned a
general verdict of guilty. When a jury returns a general verdict of guilty in a multiple-
object conspiracy, the verdict may be set aside if one of the conspiracy theories is
contrary to law. See Griffin v. United States, 502 U.S. 46, 59, 112 S. Ct. 466, 474
(1991); Yates v. United States, 354 U.S. 298, 312, 77 S. Ct. 1064, 1073 (1957).
Therefore, because two of the theories asserted in Count One, conspiracy to commit
extortion and conspiracy to commit mail fraud, were legally insufficient, we vacate
the conviction on Count One.
We must nevertheless determine what the disposition of Count One should be.
If the Government presented sufficient evidence of a conspiracy to commit perjury,
we must remand this charge for a new trial. However, if the Government failed to
27
present sufficient evidence, the constitutional prohibition against double jeopardy
prevents a retrial on this charge. Therefore, we must determine whether the
Government presented sufficient evidence of a conspiracy to commit perjury to
support a conviction.
To prove a conspiracy, the Government must show (1) the existence of an
agreement among two or more persons, (2) that the defendant knew the general
purpose of the agreement; and (3) that the defendant knowingly and voluntarily
participated in the agreement. See United States v. Simpson, 228 F.3d 1294, 1298
(11th Cir. 2000). In this case, the Government’s conspiracy theory was that
Pendergraft and Spielvogel agreed to author perjured affidavits to provide evidence
in pursuit of a settlement with Marion County. These affidavits would state that
Spielvogel received threats from Cretul over the telephone and that Pendergraft was
present and observed Spielvogel’s fear after receiving these threats.
When reviewing the sufficiency of the evidence, we are obligated to draw
inferences in the Government’s favor. See United States v. Perez-Tosta, 36 F.3d
1552, 1556 (11th Cir. 1994). While the Government presented no direct evidence of
an agreement, there was circumstantial evidence from which a jury could infer an
agreement.
28
During the Government’s case, it introduced the affidavits and statements of
Spielvogel and Pendergraft. These statements indicated that Cretul threatened
Spielvogel on January 29 and that Pendergraft observed Spielvogel receiving these
threats. The Government offered evidence that Cretul did not, in fact, make the
threats on January 29. Cretul testified that he never made the threats asserted by
Spielvogel, and, on the FBI tapes of Cretul’s conversations with Spielvogel, Cretul
never made the threats that Spielvogel asserted in his affidavit. This demonstrated that
Spielvogel’s statements were false. Furthermore, Spielvogel was at home when he
spoke with Cretul on January 29. The Government and Pendergraft stipulated that
Pendergraft was not at Spielvogel’s home during Spielvogel’s conversation with
Cretul on January 29. This was evidence that Pendergraft did not observe what he
said he observed. From this circumstantial evidence, the jury could infer that
Pendergraft and Spielvogel agreed to fabricate the threats and Pendergraft’s
observation of the threats.
And there was further evidence from which a jury could infer an agreement.
Spielvogel testified that he staged the phone call with Cretul and pretended to be
afraid so that Pendergraft would believe that Cretul made the threats. Pendergraft
testified that he witnessed Spielvogel’s fear and did not know that the phone call was
staged. During cross-examination, the Government raised some doubt regarding
29
whether Pendergraft could have observed Spielvogel’s staged phone call when he said
he did. Furthermore, both Pendergraft and Spielvogel testified that there was no
agreement. When a defendant testifies, the jury is allowed to disbelieve him and to
infer that the opposite of his testimony is true. See United States v. Allison, 908 F.2d
1531, 1535 (11th Cir. 1990). There was sufficient evidence to support a conviction
on the conspiracy to commit perjury charge.
Since there was sufficient evidence to support a conviction for conspiracy to
commit perjury, this part of Count One is remanded for a new trial.8
B. SHUCK & JIVE
Pendergraft and Spielvogel also argue that the prosecutor injected racial
prejudice into his closing argument by twice stating that Pendergraft, who is black,
8
Pendergraft and Spielvogel assert that the district court abused its discretion
by admitting a videotape of the settlement negotiation in which they participated.
Though this issue is moot with regard to the extortion and mail-fraud convictions,
it is likely to arise again on the conspiracy-to-commit-perjury charge. Rule 408
makes evidence of settlement negotiations inadmissible only when it is offered to
prove liability for, invalidity of, or amount of a claim. See Fed. R. Evid. 408; CNA
Fin. Corp. v. Brown, 162 F.3d 1334, 1338 (11th Cir. 1998). Since the videotape
was offered as evidence of Pendergraft and Spielvogel’s cooperation, and not for a
purpose forbidden by Rule 408, the district court did not abuse its discretion by
admitting it.
Furthermore, Pendergraft and Spielvogel request, on appeal, a prospective
transfer of their proceedings from Ocala. This is an issue properly addressed to the
district court on remand. See Fed. R. Civ. P. 21.
30
“shucked and jived” on the witness stand.9 (R.25 at 472 & 486.) Since Pendergraft
was convicted on legally insufficient charges, this issue is moot regarding his
convictions. However, since Spielvogel was also convicted on Counts Four and Five,
and these charges were not legally insufficient, we must determine whether this
comment entitles him to a new trial on these counts.
Since neither party made a contemporaneous objection to the “shuck and jive”
statements, we review this issue for plain error. To constitute plain error, the
comment must be an error that is plain and affects substantial rights. See United
States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993). We have discretion
to correct such errors only when the error seriously affects the fairness, integrity, or
public reputation of the judicial proceeding. See id.
We believe there may have been error. “Shuck and jive” is a phrase with racial
origins. See Smith v. Farley, 59 F.3d 659, 664 (7th Cir. 1995). It began as slang
adopted by American blacks to describe a situation where blacks lie to whites to stay
out of trouble. See 15 Oxford English Dictionary 388 (2d ed. 1989). There is some
debate regarding whether this slang has crossed over into mainstream usage. See
Smith, 59 F.3d at 664. However, even if the phrase is not entirely of a racist character,
9
Pendergraft and Spielvogel further claim that the prosecutor vouched for the
credibility of Government witnesses. We do not think these comments, read in
context, rise to the level of plain error.
31
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.” Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935); see
also Handford v. United States, 249 F.2d 295, 296 (5th Cir. 1958).
Nevertheless, despite the unsettling nature of the comment, we conclude that
it did not affect Spielvogel’s substantial rights. First, it was used in reference only to
Pendergraft, not to Spielvogel, who is white. Pendergraft was not charged in Counts
Four and Five, and any prejudice towards him would not have affected the jury’s
verdict on these counts. Second, Spielvogel admitted, on the stand, that he lied to the
FBI and in his affidavit, and these lies provided the factual basis for the charges in
Counts Four and Five. We find no plain error and no abuse of discretion in the denial
of Spielvogel’s motion for a new trial on Counts Four and Five.10
C. SENTENCING ERRORS
10
Spielvogel also contends that he should have been allowed to introduce
evidence of his diminished capacity to negate his mens rea. Spielvogel offered the
testimony of Dr. Glenn Ross Caddy, a forensic psychologist, to show that
Spielvogel suffered from a personality disorder that made him easily intimidated.
However, even if Spielvogel was truly afraid after his conversations with Cretul,
this fear in no way shows that Spielvogel did not intend to lie when he made up
details about Cretul’s threats and reported them to the FBI and in his affidavit. The
district court, then, did not abuse its discretion by barring Caddy’s testimony. See
United States v. Cameron, 907 F.2d 1051, 1067 (11th Cir. 1990).
32
Pendergraft and Spielvogel also contend that the district court erred in
sentencing on extortion by finding a demand amount from an event that occurred prior
to the charged conspiracy. See United States Sentencing Commission, Guidelines
Manual, §2B3.3 (Nov. 2000). Because we set aside the sentences, we do not need to
reach this issue.
However, we do note a technical error in the sentencing of Pendergraft and
Spielvogel. Instead of imposing sentence on each count of conviction, the district
court gave Pendergraft a single sentence of 46 months (R.21 at 91; R.5-151 at 2);
similarly, the district court gave Spielvogel a single sentence of 41 months (R.21 at
91; R.5-152 at 2). When sentencing on multiple counts, the Sentencing Guidelines
require the district court to divide the sentence among the counts and to specify
whether the sentences on each count are to run consecutively or concurrently. See
USSG §5G1.2. This technical error is now moot with regards to Pendergraft, but the
district court should re-sentence Spielvogel on Counts Four and Five once the
conspiracy to commit perjury charge is finally resolved.
V. CONCLUSION
Pendergraft and Spielvogel were found guilty of conspiring to commit
extortion, mail fraud, and perjury. Since both the extortion and mail-fraud charges
were legally insufficient, we reverse the district court’s denial of their motion for
33
judgment of acquittal and vacate the Count One conspiracy convictions. We acquit
Pendergraft and Spielvogel on the charges of conspiracy to commit extortion and mail
fraud but remand the charge of conspiracy to commit perjury for a new trial.
Counts Two and Three charged Pendergraft and Spielvogel with attempted
extortion and mail fraud respectively, and they were found guilty. Again, because
these charges are legally insufficient, we reverse the district court’s denial of their
motions for judgment of acquittal, reverse the convictions, and enter a judgment of
acquittal.
In Counts Four and Five, only Spielvogel was charged with perjury and making
a false report to the FBI. We affirm Spielvogel’s convictions on these counts.
However, because Spielvogel was not properly sentenced on these counts, we remand
them for re-sentencing.
AFFIRMED IN PART; REVERSED AND RENDERED IN PART;
VACATED AND REMANDED IN PART.
34