By Rick Cundiff, Staff Writer, Ocala Star Banner

OCALA — A federal prosecutor in the extortion trial of Dr. James Scott Pendergraft IV said Tuesday that when Pendergraft testifies he “shucks and jives,” a comment that one of Pendergraft’s lawyers said has racial overtones.

Assistant U.S. Attorney Mark Devereaux made the remark during his closing argument in the case.

“He’s a man that, when you ask him a question and you want to get a straight answer, shucks and jives,” Devereaux said.

Devereaux is white. Pendergraft and his attorneys, Jacob Rose and Larry Colleton, are black.

Pendergraft owns the Ocala Women’s Center on Pine Avenue and four other clinics in Florida that provide abortions. He and his associate Michael Spielvogel are charged with conspiring to extort millions of dollars from Marion County government through a lawsuit attorney Roy Lucas filed in December 1998.

Rose said he found Devereaux’s remark offensive.

“Absolutely, unquestionably, I was offended by it, and Dr. Pendergraft was as well,” he said. “With respect to making that kind of statement, it shouldn’t be allowed. He owes me and Dr. Pendergraft and everyone else in that courtroom an apology. I do intend to address it further. That, to me, was so offensive and out of line.”

Rose declined to be more specific about what action he planned.

Devereaux declined to comment afterward, as did Steve Cole, spokesman for the U.S. Attorney’s Office for the Middle District of Florida.

The FBI began investigating Spielvogel and Pendergraft in October 1997, shortly after Marion County commissioners sent a one-paragraph letter asking Pendergraft to reconsider opening a women’s clinic in Ocala.

Soon after Pendergraft received the letter, Spielvogel called Commissioner Larry Cretul, who had signed the letter as commission chairman. In that telephone conversation, Cretul testified, Spielvogel said the county could expect “violent protests and firebombings” at the clinic, but the county could avoid problems by purchasing the clinic.

Two days later, Cretul reported that conversation to the Marion County Sheriff’s Office, which referred him to the FBI. At the FBI’s instruction, Cretul secretly taped subsequent telephone conversations with Spielvogel and with Pendergraft.

Devereaux’s comment was perhaps the most controversial in a day of strong rhetoric, as Devereaux, his assistant Judy Hunt, Rose and Spielvogel attorney Daniel Brodersen each made their final case to the jury.

Devereaux and Hunt accused Pendergraft and Spielvogel of lying on the witness stand.

“You got to see crime in progress, right from that witness stand,” Devereaux told jurors. “And what crime in progress? Perjury. And what crime in progress? Obstruction of justice.”

For his part, Rose attacked the government’s case as “great drama, a lot of atmosphere, no evidence.”

“When the light comes on, . . . there’s absolutely no evidence of guilt,” Rose said.

Rose literally waved the flag for his client Tuesday, at one point pulling out a small American flag as he accused Cretul of using his office to advance his personal stand against abortion.

“Once you’re paid by the public, under our flag,” Rose said, “you are not allowed to carry out a personal agenda. It is absolutely, unequivocally un-American.”

The case rests on two affidavits, one by Spielvogel and the other by Pendergraft, that were filed as part of the lawsuit. Senior U.S. District Judge William Terrell Hodges dismissed the lawsuit a year after it was filed because Lucas didn’t pursue it.

In his affidavit, Spielvogel alleged Cretul made threats against his life, his wife and the clinic during a telephone conversation on Jan. 29, 1998, the same day a Birmingham, Ala., clinic was bombed. That bombing killed an off-duty police officer and critically injured a nurse.

Spielvogel admitted on the stand last week that Cretul made no such threats. Brodersen, Spielvogel’s lawyer, argued that the issue wasn’t whether Cretul actually made such threats but whether Spielvogel felt threatened by a comment from Cretul that protest letters from Ocala ministers were “gonna be mild.”

“If you find that Michael Spielvogel was threatened by that comment, then the government’s entire case comes crashing down,” he said. “The house of cards collapses.”

Pendergraft’s affidavit said Spielvogel repeated Cretul’s alleged threats to him as Cretul made them.

Lucas, who disappeared before Pendergraft and Spielvogel were indicted last June, attempted to use those affidavits to get money from the county in a meeting in March 1999 with Pendergraft, Spielvogel and Virgil “Bill” Wright III, a lawyer representing the county.

Pendergraft testified last week that his purpose in filing the lawsuit was to force anti-abortion protesters back from the clinic and to force the city to allow off-duty police officers to work as clinic security guards.

A secretly recorded FBI videotape of the March 1999 meeting shows Lucas threatening to bankrupt the county by asking for a $100 million jury verdict under the Freedom of Access to Clinic Entrances Act if the case went to trial. Spielvogel repeated his allegations against Cretul, and Pendergraft vowed to bankrupt the county and place a statue of himself in the town square saying he “brought freedom to Ocala.”

Spielvogel testified last week that he had faked a call from Cretul, repeating threats Cretul allegedly made, as Pendergraft walked into the office at the Orlando clinic. Spielvogel also said he first told his own attorney, Pendergraft and Pendergraft’s attorneys about the faked call about 10 days after the trial had begun.

Prosecutors Hunt and Devereaux argued Tuesday that the faked call, on which Pendergraft based his affidavit supporting Spielvogel, never happened either.

“These events didn’t happen. We know they didn’t happen,” she said.

The FBI’s covert audiotapes and videotape were the only things that prevented Pendergraft and Spielvogel from destroying Cretul’s reputation and collecting a substantial amount of money from the county, Hunt said.

“Without those FBI tapes, they could have gotten away with it,” she said.

The trial is scheduled to resume 9 a.m. today, its 17th day, with jury instructions. Hodges said Tuesday those instructions are likely to take about half an hour, after which the jury will begin deliberating.