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San Diego�Federal prosecutors have applied a rarely used legal concept�that of the intangible right of citizens to honest services�in charging two San Diego city councilmen with alleged wire and mail fraud for accepting legally reported campaign contributions. The jury trial is scheduled for May 3 in federal district court in San Diego. U.S. v. Inzunza, No. SDC 03cr2434 (S.D. Calif.). The prosecution will have a tough row to hoe in trying to prove its case under the “honest services” theory if�as defense attorneys say�the contributions were legitimately received and reported, said Elizabeth Garrett, director of the University of Southern California’s Center on Law and Politics. “It’s very hard to determine when undue influence is being sought because that is the purpose of campaign contributions, to gain influence or to reward a job well done,” Garrett said. “It’s a fuzzy line and these cases are very difficult to prosecute, because you have to show it was quid pro quo.” The councilmen—Ralph Inzunza and Michael Zucchet—are accused of accepting the contributions from a strip club while they agreed to raise a challenge first at the committee level, and then before the full city council, to the city’s ordinance prohibiting lap dancing. The challenge failed at the committee. Nonetheless, the city and its residents were deprived of their “intangible right to [their] honest services free from corruption, favoritism, undue influence, conflict of interest and deceit,” alleged Assistant U.S. Attorney Michael Wheat, who leads the prosecution team. The charges come under 18 U.S.C. 1343 and 1346, and under 18 U.S.C. 371. A wire fraud first? Defense attorneys contend that their clients did nothing wrong in accepting and reporting the contributions. They point to the fact that the move to repeal the ordinance died at the committee level. “Wire fraud has never been applied to legal campaign contributions,” said Michael Pancer, who represents Zucchet. “They say you just need a fraud, that you just need to not believe what you’re saying is right.” He added, “If that’s the case, every politician is indictable. I don’t think there’s ever been a prosecution like this before.” Zucchet, along with Inzunza and Councilman Charles Lewis, were indicted in August 2003, along with strip club lobbyist Lance Malone. Malone worked for Las Vegas businessman Michael Galardi, who owns Cheetah’s nightclub in San Diego. Lewis died in August and was dismissed from the indictment. Prosecutors allege that Malone schemed with Inzunza, Zucchet and Lewis to bring the lap-dancing question first to the council’s public safety committee, where they were supposed to hear testimony from a bribed police officer that Cheetah’s could have lap dancing. Malone also is accused of arranging for the three councilmen to receive $3,000 each in campaign contributions from Cheetah’s employees and others, whom prosecutors allege Malone reimbursed. An FBI agent posed as the police officer, accepting thousands of dollars from Malone through an intermediary, while the FBI recorded hundreds of hours of the defendants’ telephone conversations. Defense attorneys have fought unsuccessfully to have the councilmen’s case severed from Malone’s, saying that the prosecutions are unrelated and will taint their clients’ defense. But U.S. District Judge Jeffrey Miller has repeatedly refused to sever the cases. Dominic Gentile and Jerome DePalma, both Las Vegas-based solo practitioners who represent Malone, could not be reached for comment. Lawyers for the councilmen have fought unsuccessfully for dismissal, saying their clients had no knowledge of the bundling of contributions or the alleged bribery of the FBI agent. And they’ve emphasized that the contributions were legal under state and local laws, and were reported. Defense lawyer Jerry Coughlan of San Diego’s Coughlan, Semmer & Lipman represents Inzunza. He said that the involvement of a strip club and lap dancing is why the case is being prosecuted.

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