Opinion
No. 2:02-cr-0468 MCE.
August 8, 2006
MEMORANDUM AND ORDER
On March 8, 2005, following a jury trial, Defendant Monte McFall ("McFall") was convicted of seventeen counts involving attempted extortion, conspiracy to commit extortion, honest services mail fraud, and witness tampering. McFall timely moved for a new trial pursuant to Federal Rule of Criminal Procedure 33, citing ineffective assistance on the part of his trial counsel, William Romaine, as well as prosecutorial misconduct on the part of the United States attorneys prosecuting the case. In addition, McFall claims he was convicted of certain offenses which cannot legally be sustained against him, and seeks a new trial on that basis as well.
By Order dated April 14, 2006, the Court summarily denied McFall's Motion on the prosecutorial misconduct issue, but set an evidentiary issue to resolve various factual disputes concerning McFall's ineffective assistance of counsel claims. That hearing was conducted on July 19 and 20, 2006. At the close of that hearing, the Court denied McFall's Motion for New Trial in its entirety. The following written order is supplemental to the Court's ruling from the bench at that time.
BACKGROUND
The grand jury initially charged McFall with honest services mail fraud, attempted extortion and witness tampering on October 17, 2002. On September 9, 2004, following two additional superseding indictments, the fourth superseding charging document was returned. That indictment included a total of 20 charges against McFall and became the operative indictment for purposes of McFall's eventual trial.
McFall consistently demanded his right to a speedy trial until just before trial commenced. Even after the complexity of the proceedings changed substantially with the indictment of four additional co-defendants, T. Baxter Dunn, N. Allen Sawyer, J. Tyler Reves and Lynn G. Bedford, McFall refused to exclude time with respect to the timing of his trial. McFall unsuccessfully appealed this Court's August 3, 2004 denial of his motion to dismiss the indictment for violation of the Speedy Trial Act.
William Romaine ("Romaine") substituted into this case as McFall's counsel on April 6, 2004, after McFall discharged both the federal defender's office and another private attorney, William Portonova. Just after Romaine's substitution, on April 13, 2004, the case was set to commence trial on October 13, 2004. When the Court granted co-defendant Sawyer's request for continuance (over McFall's objection) on August 26, 2004, less than two months before trial was set to begin, it reset the matter for January 26, 2005 and indicated in an unequivocal matter that trial would commence at that time.
McFall's four other co-defendants entered guilty pleas between January 11 and 18, 2005. On January 18, 2005, Romaine unsuccessfully moved to continue the trial as against McFall, indicating he was not ready to proceed given those plea bargain agreements. Romaine nonetheless filed a witness list, trial brief, and proposed jury instructions three days later, on January 21, 2005. Although Romaine reiterated his continuance request on January 26, 2005, the first day of trial, that request was also denied as being among other things, untimely. As indicated above, McFall ultimately was convicted of seventeen of the twenty counts charged against him and subsequently filed the present motion.
STANDARD
Federal Rule of Criminal Procedure 33(a) authorizes a court, upon defendant's motion, to "vacate any judgment and grant a new trial if the interest of justice so requires." In considering a motion for new trial, the court "need not view the evidence in the light most favorable to the verdict; it may weight the evidence and in so doing evaluate for itself the credibility of the witnesses." United States v. Kellington, 217 F.3d 1084, 1095 (9th Cir. 2000).
The grounds pursuant to which a new trial may be granted include claims based on ineffective assistance of counsel.United States v. Cronic, 466 U.S. 648, 667 n. 42 (1984).
ANALYSIS
A. Ineffective Assistance of Counsel
In moving for a new trial on grounds that the legal representation he received fell below constitutional standards mandated by the Sixth Amendment, McFall seeks relief under bothUnited States v. Cronic, supra, as well as the Supreme Court's concurrently decided opinion in Strickland v. Washington, 466 U.S. 664 (1984). Under Strickland, a defendant must demonstrate that specific errors made by trial counsel affected the defendant's ability to obtain a fair trial.Cronic, on the other hand, stands for the proposition that under certain narrow circumstances prejudice resulting from ineffective assistance of counsel ("IAC") can be presumed, thus making it necessary to proceed to Strickland's requirement that prejudice be demonstrated. See Mitchell v. Mason, 325 F.3d 732, 741-42 (6th Cir. 2003); cert. denied, 543 U.S. 1080 (2005).
In arguing that Cronic's presumption of prejudice analysis should apply, McFall claims that two of the four circumstances identified by Cronic as justifying relief are present. First, McFall claims that Romaine "entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing . . ."Cronic, 466 U.S. at 659. Secondly, McFall asserts that under the circumstances there was no "likelihood that any lawyer, even a fully competent one, could provide effective assistance." Id. at 659-660. (See Def.'s Mot. for New Trial, 8:26-27).
Alternatively, if the Court declines to find IAC underCronic, McFall asserts that Romaine's performance is nonetheless deficient under Strickland because his representation "fell below an objective standard of reasonableness." Wiggins v. Smith, 539 U.S. 510, 521 (2003). As indicated above, Strickland also requires a showing of prejudice, which is predicated on a "reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 534, quotingStrickland, 466 U.S. at 692-94. This two-pronged test need not be addressed in any particular order. If an effectiveness claim is untenable on the prejudice prong, for example, the court need not even consider the performance requirement. Strickland, 466 U.S. at 697. In addition, a defendant relying on Strickland must show that the representation provided falls outside the wide range of professionally competent assistance (Id. at 718), and must further "overcome the presumption that . . . the challenged action might be considered sound trial strategy." Turner v. Calderon, 281 F.3d 851 (9th Cir. 2002).
Because the Court's initial review of the papers submitted in conjunction with McFall's Motion for New Trial raised significant, disputed factual issues, most prominently with respect to the Romaine Declaration attached as an exhibit to McFall's moving papers, the Court scheduled an evidentiary hearing, which as set forth above was conducted on July 19 and 20, 2006.
Having observed Mr. Romaine's performance throughout the course of the lengthy underlying trial, and after considering both his oral testimony at the evidentiary hearing and the papers submitted by the parties hereto, the Court categorically rejects any claim, under Cronic, that Romaine entirely failed to subject the government's case against McFall to rigorous adversarial scrutiny. Romaine's grasp of the case against his client enabled him to effectively examine, and cross-examine, the numerous witnesses who testified at trial. He made cogent arguments, brought appropriate motions, and interposed timely evidentiary objections that belie any claim that he effectively "slept through" the proceedings against his client, as application of a Cronic standard would appear to require. Instead, the Cronic presumption is "reserved for situations in which counsel has entirely failed to function as the client's advocate." Florida v. Nixon, 535 U.S. 175, 125 S.Ct. 551, 561 (2004). Under no circumstances was that situation present here, and no presumption of ineffectiveness under Cronic will be applied.
While McFall also attempts to invoke Cronic on grounds that no counsel could have provided effective representation under the circumstances of this case, that argument is even more far-fetched. McFall cites the complexity of the case, its voluminous discovery, Romaine's alleged unfamiliarity with the discovery and his determination to rely on the efforts of co-defense counsel as pointing to the inescapable conclusion that no competent counsel could have provided effective representation. See Def.'s Mot. for New Trial, 9:10-15. Those contentions ignore the fact that McFall had actively been pushing this case to trial throughout its pendency, and that Mr. Romaine had been on notice for five months that trial would proceed as scheduled on January 26, 2005. McFall's argument also cannot be squared with the potential, well known to any criminal defense attorney, that a charged defendant can decide to accept a plea agreement at any time prior to trial.
Hence McFall's Motion for New Trial must necessarily hinge on whether Mr. Romaine's alleged errors qualify as IAC under the standards set forth in Strickland v. Washington. McFall cites numerous instances of Romaine's alleged incompetence, including A) his failure to conduct pre-trial investigation; B) his failure to secure a continuance of the trial, both because of inadequate preparation and to ensure that trial would not occur until after McFall's co-defendants were sentenced so that their testimony could be scured; C) his alleged failure to address in limine issues in a competent manner; D) the fact that he allegedly opened the door for the introduction of devastating character evidence against McFall; E) his failure to exclude the government's evidence of the purported causal link between McFall's alleged threats to Calpine representatives and the San Joaquin County Board of Supervisors' passage of a negative resolution concerning the East Altamont Energy Center project; F) his failure to secure admission at trial of Allen Sawyer's grand jury testimony; G) his presentation of defense witnesses from which testimony detrimental to McFall was elicited; and H) his failure to properly analyze McFall's potential extortion liability under the Hobbs Act.
Turning first to Mr. Romaine's alleged failure to investigate, and his claimed resulting failure to properly prepare for trial, Romaine testified at the evidentiary hearing that he believed counsel for all four co-defendants had agreed to jointly hire an investigator as a matter of legitimate resource distribution, since he felt the interests of all four on this matter coalesced. Romaine further testified that given the witness tampering charges levied against his client, he considered a joint investigation approach to be preferable. These decisions represent a strategic determination on Romaine's part that pass muster under Strickland standards.
Romaine's actions once he realized that no joint investigation would be forthcoming are similarly not outside the parameters of objective reasonableness. He organized trial materials in binders, read much of the voluminous discovery materials generated by the case, and worked extensively with his client, who he described as one of the most knowledgeable and sophisticated criminal defendants he had ever encountered, with a singular command of the issues presented. Moreover, given the month that elapsed between the start of trial and commencement of the defense case, Romaine testified that he continued to review pertinent documentation and reviewed applicable discovery as witnesses were about to be called. This preparation was reflected in Romaine's handling of witnesses, both on direct and cross-examination, and his mastery of the material at hand. Romaine's performance in that regard simply does not evince an overwhelming lack of preparation as McFall would now lead the Court to believe.
In addition, with respect to the prejudice prong of theStrickland analysis, Romaine was not able to identify specific evidence that he would have uncovered had he prepared more extensively and/or conducted more investigation. He could provide nothing beyond mere speculation as to how the case would have unfolded differently, and was unable to point to a single document in hindsight that would have made a difference in the trial's ultimate outcome. At most, Romaine opined that his presentation of the case might have been "sharper" had he had more time to prepare. This, however, does qualify as constitutionally defective assistance of counsel. Significantly, while McFall's current counsel claims that investigation should have revealed the existence of several witnesses exculpatory to Mr. McFall, including Crystal Quinly, Gloria Nomura, and Robert Sarvey, the anticipated testimony of those witnesses would not likely have made any material difference in the trial's outcome, as Strickland requires. Instead, as noted by this Court on the record at the close of the evidentiary hearing in this matter, the evidence of McFall's guilt was otherwise overwhelming.
Mr. Romaine's attempts to secure a trial continuance also survive scrutiny under Strickland. While McFall contends that Romaine did not adequately inform the Court as to the "depths of his unpreparedness", as indicated above Romaine's actual trial performance is inconsistent with that contention. Moreover, McFall's contention that Romaine should have secured a continuance so that his co-defendants could testify is flatly disingenuous. In a unitary trial, Romaine could not have forced co-defendants to testify. In addition, once they pled guilty to reduced charges, said co-defendants could still invoke their Fifth Amendment right to avoid self-incrimination. Postponing the trial until after sentencing of the co-defendants had occurred would not alter that right, and in any event only the Court, and not McFall or his counsel, controlled when sentencing would occur. It is accordingly presumptious for McFall and his attorneys to contend that Romaine should have been able to affect the timing of that sentencing.
Finally, any request for continuance must necessarily be viewed in the context of what had been, for some five months, a firm date for the commencement of trial. McFall had repeatedly asserted his speedy trial rights and given those circumstances no adequate showing for a continuance could have been asserted by Romaine, or anyone representing McFall for that matter.
In continuing to press his claims of IAC on Mr. Romaine's part, as indicated above McFall also claims that Romaine's handling of pre-trial in limine matters was inadequate. McFall first contends that Romaine should have more vigorously opposed the government's request to introduce certain evidence pertaining to McFall's alleged prior bad acts under Federal Rule of Evidence 404(b). The incident with which McFall takes issue concerns his alleged theft of a shotgun using the authority of co-defendant Dunn and his law enforcement connections. Given the fact that the central issue in this case revolves around McFall's alleged misuse of influence/authority, any argument posited by Romaine as to the inadmissibility of the incident would have been unavailing. Equally misplaced is McFall's contention that pre-trial rulings should have been secured by Romaine as to the inadmissibility of other bad character evidence ultimately introduced by the government. That evidence was not properly subject to an in limine request prior to trial since its introduction was wholly dependent on whether McFall himself tendered the issue of his character in defending the charges levied against him. Consequently the admissibility of such evidence necessarily had to be determined during the course of the trial itself rather than prior to its commencement.
In fact, McFall's character did become a central issue in the trial given the testimony of numerous prosecution witnesses concerning his intimidating and manipulative behavior in exerting influence. As Mr. Romaine pointed out at the evidentiary hearing, that left him little choice other than to present McFall's own testimony in an attempt to rebut those implications through the strength of McFall's own personality and alleged credibility. Romaine testified that he felt particularly constrained in that regard given the unavailability of testimony from McFall's co-defendants as to what transpired during certain key events. Romaine further testified that the implications of calling McFall as a witness were carefully considered. Significantly, once McFall did testify concerning his good behavior, the incidents of prior bad behavior identified by the government became both relevant and admissible. Romaine testified that he was aware of much of the bad character evidence prior to trial, so given the consideration he accorded to the utility of McFall's testimony he must necessarily have taken the risk of that evidence being admitted into account. Romaine made a strategic decision that McFall's testimony was necessary despite that risk. The fact that he did not anticipate much of the bad character evidence being actually introduced does not detract from his strategic choice, and does not itself constitute IAC. Moreover, since McFall's character was already the pivotal issue in the case, the fact that Romaine elicited character testimony from other witnesses was of no moment, and would not have fundamentally changed the evidence admissible against McFall.
McFall's next IAC claim concerns evidence tying his influence to the San Joaquin County Board of Supervisor's negative resolution concerning Calpine's proposed East Altamont Energy Center project. That claim is also unpersuasive given the considerable evidence linking McFall to the negative resolution, as well as the fact that Romaine interposed appropriate objections to the testimony offered in that regard but was unsuccessful in doing so. McFall has not shown that any reasonable attorney could have prevented admission of that evidence. Nor has McFall established that Robert Sarvey's proposed testimony (which the Court rejected), to the effect that organized opposition to the project had already coalesced, altered the fundamental issue of McFall's own involvement in seeking to quelch the project.
Both parties devote substantial briefing as to whether or not Romaine was ineffective in failing to introduce Allen Sawyer's grand jury testimony into evidence at McFall's trial. Romaine tried strenuously to have that testimony admitted on grounds that the government's motive at the time the testimony was obtained was "similar" to the government's motive with respect to said testimony at the time of trial, and that accordingly the testimony was admissible pursuant to Federal Rule of Evidence 804(b)(1). The government's response, which McFall did not controvert at the time of the evidentiary hearing, was that Sawyer's grand jury testimony was elicited for fact-finding purposes. Sawyer was not a target at the time of the testimony, had not been issued a target letter, and was initially included within the government's witness list. Romaine did not take these representations at face value and still tried to argue that Sawyer was nonetheless considered a suspect. The Court rejected that argument and refused to admit the testimony. There was nothing more that Romaine could have done to secure a different result and his efforts in that regard cannot be considered ineffective. In addition, given the fact that Sawyer was indicted for having offered perjured testimony before the grand jury, the Court properly found that his unrebutted testimony would have a substantial danger of prejudicing and misleading the jury pursuant to Federal Rule of Evidence 403.
The next portion of McFall's multi-pronged IAC challenge concerns certain testimony adverse to McFall elicited from McFall's own defense witnesses. McFall himself concedes in his Motion for New Trial, however, that "the mere fact that a witness damages the case of the person calling the witness does not mean the decision to call the witness was professionally unreasonable." Def.'s Mot. for New Trial, 58:13-15. As Romaine agreed at the time of the evidentiary hearing, surprises invariably occur in the context of a trial as large and complicated as this one. Romaine explained in his declaration that given the time constraints he faced in preparing for the case alone after McFall's co-defendants accepted plea agreements, he was unable to interview certain witnesses and had to rely on McFall's own judgment and input as to just which witnesses should be introduced. Romaine Decl., ¶ 13, Exh. "B" to Mot. for New Trial. Particularly given Romaine's assessment of McFall as one of the most sophisticated and knowledgeable defendants he had ever encountered, his reliance on McFall's judgment cannot be deemed professionally unreasonable, particularly since Romaine testified that he always made his own independent judgments as to trial management despite his client's input. Romaine's actions must be viewed from his perspective at the time and may have been based quite properly on information provided by McFall. See Strickland, 466 U.S. at 691.
McFall's last argument with respect to IAC pertains to Romaine's alleged failure to properly research the scope of McFall's liability for extortion under the Hobbs Act. That argument merges with McFall's additional claims that he was convicted of certain offenses which, as a matter of law, cannot stand, and will be discussed and rejected below.
As a final matter, with respect to Romaine's alleged ineffectiveness as a whole, present counsel for McFall place much emphasis on Romaine's own declaration, in which he opines that, at least at the trial commenced, he "felt wholly unprepared to proceed with a competent and effective defense to the charges against Mr. McFall." Romaine Decl., ¶ 5. Two closing comments in response to that assertion are in order. First, as indicated above, Romaine clearly testified that he continued to prepare as the trial progressed, and his examination of witnesses reflects that preparation. Secondly, Mr. Romaine's testimony at the evidentiary hearing made it clear that he gauged his readiness for trial based on his own personal standards of preparation. He specifically did not offer any opinion as to whether those standards fell below constitutionally mandated requirements for effective counsel, and the Court finds no constitutional violation in that regard occurred in the context of McFall's representation at trial.
B. Convictions for Legally Defective Claims
1. Calpine/Sunlaw Charges (Counts 2, 3, 5). McFall's present counsel argue that McFall cannot be liable for the attempted extortion of Calpine because disrupting Calpine's right to bid on construction of a power plant cannot constitute the "obtaining" of property under the Hobbs Act, as set forth by the Supreme Court in Scheidler v. NOW, Inc., 537 U.S. 393 (2003). Scheidler examined the issue of whether anti-abortion protestors who used violence and threats of violence to disrupt abortion clinic operations could commit extortion under the meaning of the Hobbs Act, which defines "obtaining" as constituting both a deprivation and an acquisition of property. Id. at 404. While the protestors obviously did not seek any tangible property through their activities, the government argued that the effect of seeking to control clinic access nonetheless amounted to an intangible "obtaining" of property. The Supreme Court found this to be an inadequate basis for imposing Hobbs Act liability since the defendants "neither pursued nor received `something of value from' [the plaintiffs] that they could exercise, transfer, or sell." Id. at 405.
The majority opinion was nonetheless careful in declining to trace the "outer boundaries" of extortion liability under the Hobbs Act, explaining that "liability might be based on obtaining something as intangible as another's right to exercise exclusive control over the use of a party's business assets." Id. at 402.Scheidler then proceeds to cite with approval its previous decision in United States v. Green, 350 U.S. 415 (1956) andCarpenter v. United States, 484 U.S. 19 (1987). Green notes that "extortion . . . in no way depends upon having a direct benefit conferred on the party who obtains the property" (Green, 350 U.S. at 420), and Carpenter held that where a reporter traded securities based on confidential information owned by the Wall Street Journal, the notion that no "money or property" was "obtained" from the Journal was untenable. Even more significantly, the Scheidler majority, by way of footnote, makes the following pronouncement in response to the dissent's position that its decision outlined Hobbs Act liability too narrowly:
"[T]he dissent is mistaken to suggest that our decision reaches, much less rejects, lower court decisions such as United States v. Tropiano, 418 F.2d 1069, 1076 (1969), in which the Second Circuit concluded that the intangible right to solicit refuse collection accounts "constituted property within the Hobbs Act definition."Scheidler, 537 U.S. at 402 n. 6.
In Tropiano, the defendants were convicted of Hobbs Act extortion and conspiracy for using threats of violence to dissuade a competitor from taking business away from the defendant's refuse collection business. The defense claimed that such right to do business was not property obtained by the defendants in contravention of the Hobbs Act. The Tropiano Court rejected that contention, explaining that property within the meaning of the Hobbs Act "is not limited to physical or tangible property or things, but includes, in a broad sense, any valuable right considered as a source or element of wealth and does not depend upon a direct benefit being conferred on the person who obtains the property." Tropiano, 418 F.2d at 1075. Therefore, the competitor's right to solicit accounts were found to constitute property under the Hobbs Act. Id. at 1076.
Here, as in Tropiano, McFall's attempt to preclude Calpine from bidding on the Port of Stockton power plant facility amounts to an "obtaining" of property under the Hobbs Act, particularly since McFall and certain of his co-defendants stood to gain a $1,000,000 fee for helping Calpine's competitor, Sunlaw, obtain the power plant site. This improper attempt to secure a business advantage falls within the purview of Hobbs Act liability.
Significantly, in a Northern District case decided subsequent to Scheidler, Dooley v. Crab Boat Owners Ass'n, 271 F. Supp. 2d 1207 (N.D. Cal. 2001) the court found that defendants' conduct, in causing plaintiffs to cease their crab harvesting operations during a strike, deprived plaintiffs of their property even though that property was not actually transferred to the defendants. The Court found that if an individual gains control over the use of a competitor's business asset, that person has obtained the property of another for Hobbs Act purposes even if the asset is as intangible as the right to solicit business.Id. at 1213.
Dooley, like Tropiano, points squarely to the propriety of McFall's Hobbs Act convictions on the Calpine/Sunlaw counts. Because those convictions were sustainable as a matter of law under the circumstances of this case, McFall's related argument that the jury instructions on Counts 2, 3 and 4 were fatally flawed is misplaced as well. McFall's challenge to the jury instructions is premised on the same argument already rejected above. Because McFall did not object to the jury instructions in question at trial, the adequacy of said objections is reviewed for plain error at this juncture. United States v. Elias, 269 F.3d 1003, 1017 (9th Cir. 2001). "Plain error is `error that is so clear-cut, so obvious, a competent district judge should be able to avoid it without benefit of objection.'" United States v. Klinger, 128 F.3d 705, 710 (9th Cir. 1997).
There was no such plain error with respect to the jury instructions on the Calpine/Sunlaw counts. Moreover, with respect to McFall's argument that Romaine's representation was remiss in failing to appreciate the subtleties of Scheidler, the Court as stated above rejects McFall's interpretation and accordingly finds that no ineffective assistance of counsel occurred in that regard.
2. Golden State Developers Charge (Count 11). In Count 11, McFall was charged with attempted extortion under color of official right given his representations to David Corliss, senior vice president of Golden State Developers, that he "could be a big political influence" on San Joaquin County Supervisor Lynn Bedford's opinion on a project requiring Board of Supervisors approval. McFall proposed a payment of $50,000 to $100,000, explaining that if he was "happy" with the project, then Bedford would be "happy" with the project. See RT 793-795. Under Jury Instruction No. 35, the jury was instructed that McFall could be convicted of attempted extortion under color of official right if he attempted to obtain property in return for the taking or withholding of some official action by Lynn Bedford. McFall was ultimately convicted on Count 11, and now argues that, as a private citizen, he could not be found guilty of extortion under color of official right despite the influence he touted over Supervisor Bedford's ultimate decision.
In United States v. Freeman, 6 F.3d 586 (9th Cir. 1993), a legislative aide agreed, in exchange for payments from an undercover agent, to move a special interest bill through the California legislature with the help of his employer, an assemblywoman. The aide claimed that he and the assemblywoman were "inseparable" and that he spoke for her. Id. at 591. While the aide was undisputedly a governmental employee, the Freeman court applies Hobbs Act liability to "anyone acting under color of official right," irrespective of "whether such powers were conferred by election, appointment, or some other method."Id. at 593, emphasis added. McFall asserts that the holding ofFreeman must be narrowly restricted to government employees rather than more expansively applied to someone who simply purports to control the decision making of an elected official.
In the Court's view, the rationale of Freeman may properly be extended to an individual, like McFall, who parades his control or influence over a public official in alleged concert with such official. Case law supports that extension. In United States v. McClain, 934 F.2d 822, 830 (7th Cir. 1991), for example, the Seventh Circuit held that while a private person may not ordinarily act "under color of official right" for purposes of Hobbs Act extortion, exceptions exist if such a person acts in coordination with a public official. As the court states:
Of course, our analysis does not apply . . . to a private citizen actually masquerading as a public officials . . . nor does it grant private persons immunity from "official right" suits when they act in coordination with public officers."Id.
Both Jury Instruction No. 35 and McFall's conviction under Count 11 were proper.
3. Diamond Generating Charge (Count 13). Count 13 charged McFall with attempted extortion given his threat to utilize his political influence to thwart Diamond Generating's plan to build a power plant in San Joaquin County. McFall asserts that his conviction on that charge is legally inadequate, because his conduct amounted no "nothing more than threatening to participate in the state and local political arenas." (Mot. for New Trial, 71:10-11). According to McFall, the government cannot show that his conduct in that regard was "wrongful", as required by the Hobbs Act for extortion liability. See United States v. Dischner, 974 F.2d 1502, 1515 (9th Cir. 1992). A "wrongful" act is one done "unfairly and unjustly by one having no lawful claim". Id. Conduct is "wrongful" is "a wrongful means [is used] to achieve a wrongful objective." United States v. Pendergraft, 297 F.3d 1198, 1205 (11th Cir. 2002).
Try as he might, McFall cannot paint his involvement in the Diamond Generating matter as legitimate legal and political opposition falling outside the ambit of the Hobbs Act. While he relies on United States v. Albertson, 971 F. Supp. 837 (D. Del. 1997) to support his position in that regard, in Albertson there was no question that the plaintiff had legitimate reasons for initially opposing local development, even if he did ultimately agree to drop that legitimate opposition in exchange for a donation to the plaintiff's semi-professional football team. Here, on the other hand, McFall's actions were motivated from the very start entirely by considerations of his own financial gain. On October 16, 2001, the day after he obtained an option to purchase the so-called Pishos property near Lathrop, he threatened to use his influence to stop the proposed Diamond Generating power plant if the site of the plant was not moved to the Pishos property, and if McFall did not receive a fee as a result of Diamond's purchase of that property. See RT 2430-34, 2441-42. McFall's threatened opposition therefore had nothing to do with legitimate concerns as to the merits of the Diamond Generating project but instead was designed entirely to benefit his private personal advantage. That conduct constituted impermissible extortion rather that legitimate opposition, and McFall's challenge to Count 13 is unfounded.
CONCLUSION
For all the foregoing reasons, McFall's Motion for New Trial is denied in its entirety.
IT IS SO ORDERED.