ALFONSO CHARDY Herald Staff Writer

A recent U.S. Supreme Court decision that overturned the extortion conviction of a West Virginia legislator does not justify throwing out the conviction of suspended Hialeah Mayor Raul Martinez, the government said Thursday.

Prosecutors Bruce Udolf and Steven Chaykin argued in a motion that the May 23 high court ruling concerning Robert L. McCormick does not apply to Martinez because it was limited to campaign contributions and cannot influence the Martinez conviction.

On March 26, a federal jury convicted Martinez on six of eight counts of racketeering and extortion in connection with charges that the mayor extorted almost $1 million in cash and property from developers in exchange for zoning favors.

"Since it is undisputed that none of the payments at issue in the instant case were campaign contributions, that restriction is not applicable here," the motion said. "In sum, the defendant may not take refuge in the McCormick decision."

The government filed the motion in anticipation of a session today before U.S. District Judge James W. Kehoe, who will hear arguments on whether the Supreme Court decision warrants a new trial for Martinez.

Kehoe, who presided over the Martinez trial, postponed sentencing Tuesday and set today's hearing, citing concerns about the McCormick case.

Martinez faces up to 20 years in prison on each of the six counts and up to $1.5 million in fines.

In its McCormick ruling, the Supreme Court said prosecutors failed to prove that the former legislator directly demanded money from a group seeking political favors.

The court said the prosecutors erroneously believed they did not have to prove explicit extortion for a conviction.

In the Martinez trial, jury instructions cited the same legal theory as in the McCormick case, a concept known as color of official right.

Under color of official right, it is not necessary to prove a direct demand for payment in exchange for official action to convict a public official of extortion.

In a May 24 motion, defense attorneys requested a new trial on the ground that jury instructions in the Martinez trial mirrored instructions in the McCormick case.

The motion also cited as reasons for a new trial jury misconduct and new allegations against U.S. Attorney Dexter Lehtinen by alleged Hialeah drug smuggler Alberto San Pedro.

Martinez's 10-week trial was marred by allegations that jurors read newspapers or watched television newscasts on the case.

"There is no credible evidence that any of the jurors read or saw any press coverage of this case during the trial or deliberations," the prosecution's motion said.

San Pedro said in a court document May 7 that Lehtinen participated in one of his interrogations in July 1989 and asked questions about Martinez.

Martinez's motion for a new trial said San Pedro's allegations show that Lehtinen lied when he said he removed
himself from the Martinez case in June 1989 -- a month before the San Pedro interrogation.

Lehtinen said he removed himself from the Martinez case to avoid the perception of a conflict of interest after his wife, Ileana Ros-Lehtinen, decided in June 1989 to run for the vacant seat of the late Rep. Claude Pepper.

Before Ros-Lehtinen decided to run, Martinez had been considered as the principal contender for Pepper's seat but decided not to run after his name was linked to the corruption investigation.

The prosecution motion on jury misconduct and McCormick made no reference to San Pedro.

But a separate prosecution motion, also filed Thursday, said that even if San Pedro's allegations were true, they do not prove Lehtinen lied because San Pedro figured in a case unrelated to Martinez.

"San Pedro was not a witness at the defendant's trial, and the defendant alleges no harm to him from the dialogue San Pedro described," the motion said.