The Morning Report
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Friday, Feb. 16, 2007 | U.S. Attorney Carol Lam marked her departure with one notable feat this week: an indictment of the Central Intelligence Agency’s former executive director and a contractor accused of bribing federal officials. But along with her office, Lam also left behind a docket of unfinished cases, including the appeal and post-trial jockeying in the prosecution of a former San Diego councilman convicted of trading his influence for campaign contributions.
More than a year after a jury convicted Ralph Inzunza on more than a dozen charges of honest-services fraud, conspiracy and extortion and a federal judge sentenced him to 21 months in prison, Inzunza remains free on a bond and his lawyers are due to file their first brief with the federal 9th Circuit Court of Appeals next month. Earlier in February, attorneys for Inzunza also filed a motion for a new trial with U.S. District Judge Jeffrey T. Miller, arguing that government lawyers failed to share private conversations with their “star” witness and pressured him into describing the dealings with Inzunza as bribery.
Prosecutors accused Inzunza and two other city leaders of accepting money from a strip club owner in exchange for promises to help repeal the city’s prohibition against the touching of strippers by customers.
The prolonged legal wrangling may augur what’s yet to come in the series of explosive public corruption cases Lam’s successor will have to shepherd.
Federal prosecutors, though they declined to talk about Inzunza’s latest filing, say they expect the appointment of a new U.S. attorney to have no impact in the prosecution. However, even they say they have no idea how much time remains before a final resolution in the Inzunza case.
“If I knew that I could pick the winning lottery numbers tonight,” said Assistant U.S. Attorney Michael G. Wheat, one of the lawyers who helped prosecute Inzuna. “It’s not over until all of the litigation is done, which will probably be long after Ralph Inzunza has served out his sentence.”
Inzunza was one of three councilmen charged with corruption. Another, Michael Zucchet, was also convicted by a jury, a decision that was thrown out later by Miller; he now awaits a retrial. The third, Charles Lewis, died before he could stand trial. Prosecutors also secured convictions or plea agreements from three men connected to Cheetahs strip club, including club owner Michael Galardi and lobbyist Lance Malone.
Legal experts and Inzunza’s own lawyers say the unique nature surrounding the case and a series of complicated and sometimes conflicting decisions issued by a federal court in recent years explain the protracted nature of the legal process.
“It could take two years before they start to serve their sentence (following a conviction), assuming the conviction is affirmed,” said Peter Henning, a law professor at Wayne State University who followed the “Strippergate” case on his legal blog. “That’s fairly common.”
One factor responsible for the length of the proceedings is the charges prosecutors have relied on in this and Lam’s other landmark public-corruption cases, including the counts faced by former Rep. Randy “Duke” Cunningham and the five indicted top pension officials. In all of those cases, prosecutors have accused the public officials of actions that “deprive another of the intangible right of honest services” under a vague and barely two-decade-old statute. The law is designed to punish public officials who benefit at the expense of the public good when proof of actual bribery remains elusive.
Until the late 1980s, prosecutors have carried out these sorts of honest-services prosecutions under the standard mail- and wire-fraud laws. In 1987, however, the Supreme Court found the practice unconstitutional, ruling that these laws were only limited to crimes that result in the loss of property rights and not other more ethereal services or the right to good government. A year later, Congress passed a new law — 28 words in all — criminalizing the conduct the court said was not covered by other statutes.
In 2002, the federal courts weighed in again, this time looking at the new provision crafted by Congress, with the goal of creating a legal test for determining when simple sleazy politics crosses the line into illicit activities. These recent decisions have injected much uncertainty into public-corruption jurisprudence, and explain why it often takes courts so long to adjudicate such cases, said Ellen Podgor, an associate dean at the Stetson University College of Law.
“I’ve seen cases that have gone on for a long, long period of time. And there is so much that has happened in the honest services recently,” she said.
Inzunza’s attorneys say they will attempt to use these recent developments — a mixed bag for both prosecutors and defendants — when they make their case on appeal.
“I think some of the cases will be raised in the appellate briefs, and there are still ongoing developments in those cases that may affect the timing of the appeal. But there have been a number of factors in the timing of the appeal,” said Benjamin Coleman, one of the former councilman’s lawyers.
Despite the ambiguity, most federal public-corruption prosecutions — experts estimate there are about 200 each year — end up with convictions and sentences. “I would say certainly in every major city, within the past two years, you’ve had a federal corruption prosecution,” Henning said. “Some cities more than others.”
For the government, the hardest work in the Inzunza prosecution is now over, he said. Though prosecutors tend to win most of the cases they try, charismatic politicians can make for unusually tough defendants, with the ability to connect and relate to jurors. With the trial done, though, Inzunza’s chances for escaping prison are fairly slim, experts said. He did not return repeated calls for comment for this story.
However, another Inzunza attorney, Michael Pancer, said the recent evidence discovered by the defense — including a previously undisclosed arrangement between prosecutors and former Kearny Mesa strip club manager John D’Intino that allowed him to leave jail after the conclusion of the trial — entitles Inzunza to a new trial.
“We think that these are significant facts,” Pancer said.
Miller could rule on the defense motion next month, or leave the decision for an appeals court, though Stanford University law professor Robert Weisberg said he doesn’t expect the courts to grant a new trial.
“I can imagine a trial judge saying that it was unfortunate or immaterial, but it doesn’t sound like, by itself, it will lead to a reversal of the conviction,” he said. “It just sounds like it’s in that category where mistakes are made at trial.”