RENO, Nevada — Lawyers for Harvey Whittemore say the former Nevada developer and high-powered lobbyist convicted last month of making illegal campaign contributions to Sen. Harry Reid deserves a new trial partly because the jury foreman slept through some testimony.
Criminal defense attorney Dominic Gentile also said in a formal motion for a new federal trial filed in U.S. District Court in Reno on Wednesday that Whittemore's First Amendment rights were violated and that Judge Larry Hicks misstated the law.
Whittemore faces up to 15 years in prison and $750,000 in fines on three felony counts tied to nearly $150,000 prosecutors say he funneled to the Senate majority leader's re-election campaign in 2007 through third-party "conduits" or "straw donors."
Gentile says Whittemore had a free speech right to urge others to give to Reid but never demanded they do so after writing personal checks to family members and employees who did in fact make contributions to the Nevada Democrat within days.
The sleepy juror was one of two jurors in the middle of a controversy that temporarily halted the trial and ultimately resulted in the other one, juror No. 9, being removed after he was overheard making a disparaging comment about having to get ready to listen to the defense's case after the prosecution had rested.
Whittemore's lawyers say Hicks should also have dismissed juror No. 10, who they say had been spotted nodding off during the trial but nevertheless was elected foreman of the jury. They said other jurors had identified No. 10 as making the comment and that, at a minimum, the two had conversed before formal deliberations in violation of jury rules.
Gentile said he informed the judge that multiple members of the defense team had observed that juror was "sound asleep from time to time" and that Hicks subsequently admonished the jury to be attentive.
"The defense cannot be sure how much of the testimony was missed by Juror No. 10, but this misconduct, which combined with the (disparaging comment), and the fact that juror No. 10 was the fore person, is alarming and demonstrates that Mr. Whittemore was deprived of a fair trial," Gentile wrote.
Whittemore was convicted May 29 of making excessive campaign contributions, making contributions in the name of another and causing a false statement to be made to the Federal Election Commission. Reid was never accused of any wrongdoing but his campaign was forced to amend a quarterly report to the FEC.
Prosecutors said they won't comment pending the outcome of a ruling on the motion as well as Whittemore's promise to appeal the case to the 9th U.S. Circuit Court of Appeals. They have until June 29 to file response briefs. Sentencing is set for Sept. 23.
Prosecutors said during the trial the former owner of a billion-dollar development company wrote $5,000 checks to 29 family members, employees and their spouses who within days turned around and contributed the maximum allowable $4,600 to Reid's campaign fund in 2007.
Whittemore insisted they were gifts or bonuses and never pressured anyone to donate to Reid.
"Such a request to support a political candidate is something the First Amendment to the United States Constitution clearly permits as fundamental core speech," Gentile wrote in the new motion. "These individuals were not conduits; they were campaign contributors making contributions in their own true name with their own money."
One ex-employee said it would have been awkward to keep the money and not contribute to Reid. But all said they considered the money to be theirs once they received the check from Whittemore, Gentile argued.
"A gift or advance to a third person is not criminal conduct," he said. "The court should ask itself, how long does a person have to hold a gift or an advance before that person is free to do whatever he or she wants with his or her own money? There is no such time period."