Lawyer says convicted lobbyist won't go to jail

Whittemore's lawyer counting on Supreme Court case to overturn illegal fundraising conviction

Associated Press
Lawyer says convicted lobbyist won't go to jail
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Harvey Whittemore, with his wife, Annette, on his right, jokes with his lead defense attorney, Dominic Gentile, during a news conference in Reno, Nev., on Wednesday, May 29, 2013, shortly after he was convicted of three federal counts of breaking campaign contribution laws by funneling nearly $150,000 to U.S. Sen. Reid, D-Nev., in 2007. (AP Photo/Scott Sonner)

RENO, Nev. (AP) -- Harvey Whittemore's lawyer says despite his client's illegal campaign fundraising conviction, the man prosecutors called "King of the Hill" in Nevada politics is a long way from prison.

Whittemore, former head of a billion dollar development company, was convicted recently of unlawfully sending campaign money to U.S. Sen. Harry Reid in 2007. The ex-lobbyist now faces 15 years behind bars.

However, his lawyer, Dominic Gentile, doesn't see that happening.

Gentile says the U.S. Supreme Court will soon issue a ruling in a separate case that effectively will overturn Whittemore's conviction. He also says his client has a strong case for appeal and that he's never seen anyone jailed on similar charges.

The high court is reviewing the case of an Alabama man who says limits on contribution limits are an unconstitutional violation of the First Amendment right to free speech.

Whittemore was found guilty last week of exceeding the $4,600 limit on campaign contributions as well as using others as "straw donors" to send nearly $150,000 to Reid.

Gentile also says U.S. District Judge Larry Hicks applied the wrong legal standard with jury instructions based on a current interpretation of federal election laws, not the one that existed when Whittemore wrote personal checks to donors who in turn sent money to Reid's campaign.

Finally, Gentile said the other defendants convicted of such crimes were sentenced to probation, not prison.

He acknowledged the others made deal with authorities and pleaded guilty; Whittemore did not.

"If he had it to do over again, Mr. Whittemore would not plead guilty because he is not guilty," Gentile said at a conference table overlooking downtown Reno with Whittemore and his wife, Annette, less than an hour after the guilty verdicts were read Wednesday.

"If you don't bet, you can't win," he said.

Gentile is betting the 9th U.S. Circuit Court of Appeals in San Francisco will overturn Whittemore's convictions. They plan to challenge the ruling after sentencing set for Sept. 23 in district court in Reno.

Gentile also says prosecutors won't succeed if they refile a fourth charge of lying to the FBI that was tossed out when Hicks declared a mistrial with a deadlocked jury.

"Not a snowball's chance in hell," he said.

Prosecutors said during Whittemore's 2-week-long trial he intentionally skirted campaign finance laws by giving $5,000 checks as gifts to family members or bonuses to 29 employees and their spouses, who then each donated the maximum allowable $4,600 to the Senate majority leader's campaign fund.

Reid was never accused of any wrongdoing, although he had to amend his 2007 report to the Federal Election Commission. He didn't testify at the trial and declined comment on Whittemore's conviction, drawing criticism from Republicans.

"Harry Reid is rarely at a loss for words, but he's been notably silent on the conviction and corruption of one of his closest friends and allies," said Brad Dayspring, spokesman for the National Republican Senatorial Committee.

Gentile argues Whittemore acted legally at the time because courts had not yet interpreted U.S. election laws to prohibit the use of intermediaries to put campaign cash in the hands of candidates for federal office.

"There was no way for Mr. Whittemore in 2007 to know how the courts would interpret the law three years later," he said.

Federal prosecutors won't comment pending the appeal and haven't decided whether to refile the fourth charge. But they argued in legal briefs that neither the change in interpretation of law nor the pending Supreme Court case are relevant.

"At bottom, the defendant is asking the court to throw out almost 40 years of settled precedent concerning the constitutionality of federal individual contribution limits," U.S. Attorney Daniel Bogden said.

Prosecutors say the U.S. Supreme Court has held consistently since 1976 that while limiting campaign expenditures violates the First Amendment, limiting campaign contributions does not.

"The defendant expends great energy prognosticating about what the Supreme Court is likely to do the next time it addresses the constitutionality of contribution limits," they wrote. "The court, therefore, should reject the defendant's attempt to use his self-serving view of the law as a surrogate for settled, binding Supreme Court precedent."

Nevertheless, Gentile believes the matter will be moot before the case gets to the appeals court if the Supreme Court rules in favor of Alabama Republican Shaun McCutcheon in his case against the FEC. The high court agreed in February to hear the challenge brought by him and the Republican National Committee.

"It's precisely the same issue we are dealing with here, whether any limits on how much an individual can contribute to a person running for office are constitutional," Gentile said. "His conduct was protected by the First Amendment."

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