Court Reverses Convictions of Carpenter

A federal appeals court Thursday reversed former state Sen. Paul B. Carpenter’s four felony convictions on racketeering and extortion charges, setting the stage for a new trial for the veteran Democratic politician.

The U.S. 9th Circuit Court of Appeals ruled that the guilty verdicts in Carpenter’s 1990 political corruption trial must be set aside because the District Court judge failed to instruct the jurors properly.

However, the unanimous ruling by the three-judge panel was only a partial victory for Carpenter, who had hoped that the case would be dismissed.

Instead, the justices concluded that “viewing the evidence in the light most favorable to the prosecution,” there was enough evidence to allow a rational jury to convict Carpenter--a ruling that allows federal prosecutors to try him again.

U.S. Atty. George L. O’Connell made it clear that he intends to do just that.

“We can retry Paul Carpenter and it is our intention to retry Mr. Carpenter,” O’Connell said.

He also said that he expects the ruling to have little impact on any future political corruption prosecutions, although it will take considerable time and effort to retry the Carpenter case. Continued appeals are likely to take months and the original trial took more than a month.

Carpenter, who lost his seat on the State Board of Equalization as a result of his felony convictions, could not be reached for comment. He has maintained his innocence throughout the prosecution.

His attorney, Merrick Scott Rayle, said he was pleased that the convictions had been overturned but that Carpenter would go to the U.S. Supreme Court if necessary to avoid a second trial.

Rayle raised the possibility that Carpenter might seek to recover his seat on the State Board of Equalization--a seat held by Republican Matt Fong.

Two years ago, Carpenter was charged by a federal grand jury with extortion, attempted extortion, conspiracy and racketeering--in effect for selling access to his office as a senator in exchange for campaign contributions.

He was among a number of lawmakers and legislative aides caught up in an elaborate FBI sting operation, in which agents posing as businessmen tried to buy support for bills intended to help their phony companies.

In 1986, when Carpenter was running for the State Board of Equalization, the agency that administers business taxes and hears appeals on income tax matters, he accepted a $20,000 campaign contribution from an undercover FBI agent. Prosecutors alleged that Carpenter agreed to help the agent with a bill that would supposedly help the bogus company build a shrimp processing plant near Sacramento.

The federal grand jury charges involved that payment along with a number of other campaign contributions from special interest groups that were lobbying the Legislature.

In September, 1990, a jury found Carpenter guilty. He was sentenced to 12 years in prison but was allowed to remain free pending his appeal.

Last May, with Carpenter’s appeal still pending, the U.S. Supreme Court ruled that the payment of campaign contributions is a violation of federal extortion law “only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.”

As a result of that precedent-making West Virginia case, McCormick v. United States, juries must now be told that they have to find evidence of “an explicit quid pro quo “--a specific promise of a benefit in exchange for the contribution--in order to find a public official guilty of extortion.

Based on that decision, the U.S. 9th Circuit reversed five out of seven counts in the conviction of another prominent Democratic politician caught in the FBI sting, former state Sen. Joseph B. Montoya of Whittier. Montoya is serving a 6 1/2-year sentence at a federal prison near the Mojave Desert town of Boron.

In the Carpenter case, like the Montoya case before it, the jurors were told that they need not find a specific quid pro quo to find him guilty of extortion.

As a result, the reversal of the Carpenter convictions came as little surprise.

“After the Montoya case came back, it is not any surprise that this would happen,” prosecutor O’Connell said, because the jury was instructed under legal rulings in place before the Supreme Court acted.

Prosecution and defense lawyers took issue with the appellate court, which has been struggling to draw a clear line to separate legal solicitation of campaign contributions from criminal extortion.

The judges concluded that it is not necessarily a violation of federal law for a politician to meet with someone based on that person’s campaign contributions.

For years, politicians in the Capitol have been saying that contributions do legally buy the donors access, allowing them to make their case directly to public officials, who have only limited time to meet with the public.

The appellate court agreed.

“Elected officials must ration their time among those who seek access to them and they commonly consider campaign contributions when deciding how to ration their time,” the justices said.

O’Connell said he disagreed. “I think that as a matter of law it ought to be a crime if a legislator says: ‘I won’t meet with you . . . unless you give us a $10,000 contribution,’ ” he said in a telephone interview. He said he is studying the point before deciding whether he will ask the appellate court to rehear that issue.

But O’Connell said he was pleased with another aspect of the ruling: The justices said that a public official does not necessarily have to spell out in so many words an attempt to extort campaign contributions in order to violate federal extortion law.

The judges said that to rule otherwise would mean that an official could “escape liability with winks and nods, even when the evidence as a whole proves that there has been a meeting of the minds to exchange official action for money.”

It is enough for prosecutors to show “a clear and unambiguous” understanding between the parties, which “need not be verbally explicit,” the justices said.

Defense attorney Rayle disagreed, saying that “it puts us back into the fairyland of nods and winks and wiggles and that is specifically what the U.S. Supreme Court (in a key 1991 opinion) said was not extortion.”

O’Connell refused to comment on whether he might seek new charges against Carpenter.

When former Sen. Alan Robbins pleaded guilty to income tax evasion and racketeering charges last December, he implicated Carpenter in allegedly illegal acts not included in the original Carpenter indictment.

Robbins said Carpenter obtained $27,500 in 1988 from Capitol lobbyist Clay Jackson. Robbins said Carpenter paid the money to a public relations firm, which made it available for Robbins’ benefit.

Carpenter has denied the charge.