from www.metnews.com – The Ninth U.S. Circuit Court of Appeals yesterday upheld the conviction of a former San Diego councilman for accepting $34,500 in bribes from a strip club owner to try and weaken a municipal ordinance banning “lap dances.”

Former interim Mayor Michael Zucchet was also implicated in the scandal but was acquitted of several charges of “honest services” fraud and granted a new trial as to others. The panel rejected the government’s appeal of those rulings.

After the San Diego City Council enacted an ordinance prohibiting physical contact between exotic dancers and patrons in 2000, Michael Galardi, owner of the all-nude “Cheetahs” club in San Diego, allegedly made multiple campaign contributions to then-Councilman Ralph Inzunza [pictured] and Zucchet—who was running for a council seat at that time—to get the law repealed.

Inzunza and Zucchet were indicted on multiple counts of honest services wire fraud, conspiracy to commit honest services wire fraud and three counts of extortion in violation of the Hobbs Act.

Another councilman, Charles Lewis, was indicted but died before the trial.

Galardi was the government’s main witness against the councilmen, who maintained they had only accepted legal campaign donations from Galardi and promised nothing in return.

Following an 11-month trial before U.S. District Judge Jeffrey T. Miller of the Southern District of California, Inzunza was found guilty on the conspiracy count, on several of the honest services fraud counts, and on the Hobbs Act counts. Zucchet was found guilty on the conspiracy count, on a different set of honest services counts, and on the Hobbs Act counts.

Both men moved for judgments of acquittal and, alternatively, new trials.

Miller denied Inzunza’s motion and sentenced him to 21 months’ imprisonment but granted Zucchet’s motion for a judgment of acquittal on the Hobbs Act and four honest services counts. On two remaining counts—one honest services count and the conspiracy count—Miller denied Zucchet’s motion for acquittal but granted a new trial.

Writing for the appellate court, Senior Judge William C. Canby Jr. expressed “considerable uneasiness” in applying a quid pro quo analysis to campaign contributions due to the “flawed but nearly universal system of private campaign financing” in which “large contributions are commonly given in expectation of favorable official action.”

However, in the “potentially polluted atmosphere of campaign contributions,” Canby explained that a line between criminal and non-criminal behavior can “be drawn legally if not according to ethical perfection” based on the level of explicitness of the promise of official action.

As for Inzunza, Canby said “[t]here was no absence of very explicit promises, made directly to the person delivering the contributions, regarding actions Inzunza would take toward repealing the No-Touch ordinance.”

Canby noted that Galardi’s employee passed several checks to Inzunza, and, at Inzunza’s urging, to Zucchet. Inzunza also took official action, as he said he would, to achieve the repeal of the “No-Touch” ordinance by attempting to garner support from a police officer he believed was corrupt, scheming to fabricate emails seeking increased restrictions on adult entertainment, instructing staff to compose memoranda and lobbying a colleague for support, Canby said.

The jurist also discarded Inzunza’s arguments challenging the sufficiency of the indictment against him, clarifying that the indictment did not need to allege a personal or private gain element nor a state law violation.

Inzunza’s argument, raised for the first time on appeal, that materiality constitutes another element of honest services fraud which was omitted from the indictment, was also brushed aside as Canby reasoned the indictment had alleged the culpable acts in question were material.

A facial challenge to the honest services fraud statute based on vagueness, as well as claims based instructional error, the government’s use of Galardi as a witness and an asserted failure to disclose exculpatory evidence were similarly cast aside.

Additionally, although Canby concluded that the prosecutor’s reference to baseball’s 1919 “Black Sox” scandal, quoting a disappointed fan’s lament to a corrupt player—“Say it isn’t so”—was intended to call attention to Inzunza’s failure to testify, the judge said reversal was not warranted based on this comment, or any other made by the prosecutor during closing argument.

Turning then to the government’s appeal of the partial acquittal and new trial order for Zucchet, Canby said that the facts on the record did not permit a finding of quid pro quo beyond a reasonable doubt as to the ex-councilman.

While Zucchet had referred the “No-Touch” ordinance to the Public Safety and Neighborhood Services Committee, which oversees the city’s adult entertainment industry, Canby posited that this action could have been the execution of an obligation created from the campaign contributions he had accepted, “but it could just as easily have been an innocent political act.”

Canby explained that the lack of a knowing connection on Zucchet’s part between the purported payments made and his official actions would preclude his culpability as a direct participant in a quid pro quo, and it also would preclude his culpability as a conspirator or aider and abettor.

Based on the doubt cast upon Zucchet’s culpability, Canby reasoned that the district court had not abused its discretion in granting Zucchet’s motion for acquittal in part and a new trial on the remaining charges.

Judges Jay S. Bybee and Milan D. Smith Jr. joined Canby in his decision, which stayed issuance of mandate pending the Supreme Court’s ruling in United States v. Weyhrauch, 548 F.3d 1237, which involves the application of the honest services fraud law in an Alaska political corruption case.

The case is United States v. Inzunza, 05-50902.