Tuesday, March 8, 2005 | 10:45 a.m.
SAN DIEGO -- Although former Clark County Commissioner Lance Malone's motions to dismiss the conspiracy charges he is facing in San Diego were denied Monday, his attorney said that the groundwork has been laid to prove during trial that the government has bungled its case.
"You don't expect to win all your motions," Dominic Gentile said following a morning hearing before U.S. District Court Judge Jeffrey Miller in San Diego. "You want to preserve the issues for possible appeals, preserve the issues for trial and you want to educate the judge."
Miller denied Gentile's motion for an evidentiary hearing to look into possible prosectorial misconduct and indicated that he would likely issue a written order denying a motion to dismiss the case based on outrageous government conduct, but said that Gentile could revisit the motion to dismiss during trial.
Malone is facing federal political corruption charges in both San Diego and Las Vegas in two seperate cases. In both cases Malone is charged with acting as a middleman for former strip club owner Michael Galardi to trade money and gifts for political influence.
Miller said that the prosectorial misconduct motion, based on allegations that an agent of Galardi's attempted to contact Malone to try to get Malone to plead guilty in San Diego, was not substantiated by any facts and was based on hearsay.
Miller also noted that no one was prejudiced because no meeting ever took place between Malone and Scott Scarborough, an investigator and friend of Galardi's. Gentile stopped the meeting from occurring, but he did speak with Scarborough in April 2004 in Las Vegas and said he was told that federal prosecutors in San Diego had pressured Galardi to try to get Malone to change his plea.
Assistant U.S. Attorney Paul Cook said that "Galardi did not act at the direction of the U.S. government."
Gentile pointed out that Cook did not deny that Galardi sent Scarborough to attempt to coerce Malone, and noted that Scarborough has refused to submit a sworn affidavit when asked.
"I don't think he acted on his own," Gentile said.
The outrageous government conduct motion centers on allegations that authorities engineered a crime by using a cooperating witness to introduce the idea of bribing a police officer. Gentile said that Malone had no knowledge of the bribery of the officer by Galardi and others in exchange for tips on police raids of Galardi's San Diego strip club.
Gentile said that there are conversations caught on FBI wiretaps that show Malone did not know about the bribery of the officer. One such wiretap is of Galardi and others discussing payments to the officer, and when Malone arrives at the meeting the officer isn't brought up and Malone is not challenged when he says that they aren't illegally giving anyone any money, Gentile said.
Prosecutors said that there are other wiretap conversations, including one between Malone and San Diego City Councilman Ralph Inzunza about Malone providing a payment to the officer.
"The evidence will come out during trial, and the average citizen that hears it is going to be appalled at what the government has done," Gentile said. "The question is will the Judge be so appalled that he dismisses the trial."
Numerous other motions were argued before Miller Monday, including motions to separate the trials of Malone and Inzunza and Michael Zucchet, another San Diego City Councilman. Other motions involved defense attorneys asking that the government turn over more discovery material, including additional wiretap conversations.
Miller said that he would consider the motions and issue written orders. Defense attorneys and prosecutors estimated that the San Diego trial, scheduled for May 3, could last three months with the government's case expected to last two months.
Galardi has pleaded guilty in both the San Diego case and the Las Vegas case, that is scheduled to go to trial Sept. 13.
In the Las Vegas case, former Clark County Commissioners Mary Kincaid-Chauncey and Dario Herrera have also been charged with taking bribes and using their influence to benefit Galardi's clubs.
Former County Commissioner Erin Kenny was also charged in the Las Vegas case, but like Galardi she has pleaded guilty and has agreed to cooperate with the government's prosecution of Malone, Herrera and Kincaid-Chauncey.
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