Nichole Burgan told the Sheriff’s Department that Phil Graham touched her inappropriately at the 1st Street Bar in Encinitas. Deputies later determined that never happened. / Photo by Jamie Scott Lytle
Nichole Burgan told the Sheriff’s Department that Phil Graham touched her inappropriately at the 1st Street Bar in Encinitas. Deputies later determined that never happened. / Photo by Jamie Scott Lytle

A San Diego man who’s facing a nearly $10 million fine for spoofing political robocalls defended himself Friday by identifying some of the people who he says hired him.

Kenneth Moser, a local marketing professional, told the Federal Communications Commission that he was working with relatives of Maureen Muir to help her bid for the 76th Assembly District race in 2018 against a fellow Republican, Phil Graham.

Two weeks before the primary, a woman accused Graham of battery. Despite the fact Graham was cleared of wrongdoing, Moser amplified the allegation by referencing it in a voice message to thousands of potential voters and by disguising the true source of the calls.

Graham is the stepson of former San Diego mayor and Gov. Pete Wilson, and federal authorities agreed to look into the disinformation campaign after Graham’s legal team petitioned. The FCC released its findings late last year and gave Moser the opportunity to respond before imposing any actual penalties.

Moser’s telling of how it all went down suggests that one group of Republicans sabotaged another during a hotly contested Assembly race, and likely helped the Democrats flip what had been a traditionally red seat based in North County. Going into the June 2018 primary, Graham had been the leading contender on the right.

He finished in third place, behind two Democrats, who went on to compete in the general election. Tasha Boerner Horvath ultimately won the seat, and is currently running for re-election.

Muir, who also sits on the San Dieguito Union High School District Board of Education, declined to comment Friday until she’d read the filings. After sending her one, she didn’t respond to a follow-up request for interview.

Moser issued a press release Friday alongside copies of the documents he’s using to defend himself against the FCC’s enforcement arm. In them, he said he was first approached by Muir’s husband, Mark, then an Encinitas City Council member, on May 29, 2018, with a pre-recorded message that Mark Muir and another younger member of the family wanted to get in front of voters, but didn’t want to be connected with publicly.

The younger member of the family is not named but described as Moser’s actual client.

In the exhibits, Moser attached a short email in which Mark Muir wrote: “Under $800 … To Republicans.” The former elected official couldn’t be reached for comment.

Moser said his client wanted to remain anonymous, so they tried to take advantage of a loophole — as far as they saw it — in state law that doesn’t require the disclosure of independent expenditures under $1,000. Moser also argues in his filings that certain federal rulings are on his side.

In the end, he wound up masking the source of the robocalls in 2018 through the number of a business rival. The two men have sued each other over the years.

Previously, Moser told VOSD that he did nothing wrong. In retrospect, though, he said he now wishes he’d used a different number to spoof the robocalls. He told me Friday that he feels caught “in the crossfire” of major political forces “because Phil Graham’s people are all upset.”

Not without reason. On May 20, 2018, a woman accused Graham of inappropriately touching her in a bar, days before the primary. The San Diego County Sheriff’s Department investigated and not only cleared Graham of battery — deputies went on to charge the woman with filing a false police report. She pleaded guilty and was sentenced last year to two days in county jail and three years’ probation.

Beginning on May 30, 2018, Moser blasted a message to voters in the 76th Assembly District referencing the accusations, after investigators had already announced that Graham had not battered the woman. The message asked why Graham was out harassing people when he should have been at home sleeping.

“Vote carefully on June 5,” the caller said. “We don’t need any more creeps in Sacramento. Don’t vote for Phil Graham. #JustSayNo.”

The FCC said Moser intended to cause harm to another telemarketer and violated the Truth in Caller ID Act in the process, sending more than 47,000 unlawful spoofed robocalls over a two-day period. More than 11,000 of those robocalls were made to cell phones without the consent of the owner, the FCC also alleged.

It’s common for telemarketers to disguise themselves in order to trick people to picking up, but the deception takes on another level of seriousness when an election is at stake.

Moser is trying to portray the hefty fine hanging over his head as an act of government overreach. He disputes the number of spoofed phone calls and said he obtained the phone numbers legally through an official register of voters list.

“The FCC itself has failed to remain impartial as to the content of the phone calls,” he wrote in his filings, “and this political persecution is a violation of the First Amendment rights” of both his company and his client.

The California Fair Political Practices Commission, a watchdog agency, has also opened an investigation.

Jesse Marx

Jesse Marx is Voice of San Diego's associate editor.

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