Posted on 03/08/2005 9:35:10 AM PST by NormsRevenge
A judge indicated yesterday that he will not throw out wiretap evidence in the City Hall corruption case nor will he order prosecutors to pinpoint evidence that the councilmen accepted cash bribes.
At a three-hour hearing attended by the defendants, U.S. District Judge Jeffrey T. Miller rejected a defense argument that the wiretaps should be ruled inadmissible because an FBI agent didn't disclose that defendant Lance Malone made statements that "nothing illegal" was going on.
The judge pointed out that the FBI is not required to include every fact in wiretap applications. Comments that might be construed as incriminating were also omitted from wiretap applications, Miller said, such as this one made by an unidentified defendant: "Just in case anybody's recording this conversation, I don't consent."
"That's not exactly something that's exculpatory. Did that find its way into any of the applications for wiretaps?" the judge asked, getting a laugh from some spectators. He added: "Of all the reams of material, this agent is putting forth the salient facts for a wiretap order."
Councilmen Ralph Inzunza, Michael Zucchet and the late Councilman Charles Lewis were indicted by a federal grand jury Aug. 28, 2003, on charges that they schemed with strip club owner Michael Galardi, club manager John D'Intino and Galardi's Las Vegas-based consultant, Malone, to try to repeal the no-touching law at strip clubs in exchange for money and favors.
Galardi and D'Intino have pleaded guilty and are cooperating with the government. The councilmen deny accepting cash bribes. They say that any money they received was in the form of legally reported campaign contributions and that they never promised anything in return.
The trial is scheduled to begin May 3.
Judge Miller heard arguments on some of the 21 pretrial motions filed by the defense. But he did not rule on any of the significant issues, saying he would issue a written decision later on the other matters, including the wiretap motions.
Prosecutors and defense attorneys declined to say which defendant made the "I don't consent" statement to being secretly recorded.
During the 2002 city council campaign, Zucchet accused a Midway-area businessman aligned with his opponent, Kevin Faulconer, of illegally recording their telephone conversation about a controversial issue and then using the tape against him. It is a misdemeanor under state law to record confidential telephone conversations without the other party's consent. Zucchet filed a complaint with the police.
On other matters argued yesterday, Miller denied a motion filed by Dominic Gentile, Malone's lawyer, asking that the judge hold an evidentiary hearing on possible government misconduct. Gentile had alleged that the government sent Galardi to recruit Malone to plead guilty.
The judge denied a defense motion that prosecutors be required to pinpoint evidence of cash bribes, if they have it. But he delayed ruling on a defense request that the government be ordered to stop talking about cash bribes to "witnesses."
The defense had asked Miller to require that prosecutors "stop misrepresenting the facts to witnesses, particularly that Mr. Inzunza and Mr. Zucchet accepted cash payments."
The defense said Assistant U.S. Attorney Michael Wheat's comments published in a newspaper in November demonstrate that the government is improperly discussing cash payments publicly.
"The article quotes Mr. Wheat as stating, in effect, that there were cash payments and that defense counsel's real agenda is just to learn how much the government knows," according to a defense motion.
But Miller disputed that interpretation yesterday. "I don't see where in that article it's being suggested by Mr. Wheat or anyone else that cash payments were received," Miller said.
The judge granted a defense motion asking that the government turn over the instructions given to the grand jury before it issued indictments. And the judge ruled that the defense will be allowed to question potential jurors individually, away from other potential jurors, to determine whether pretrial publicity has affected them.
Still unresolved are requests by Zucchet's and Inzunza's attorneys that the government turn over evidence that Malone committed bribery in Las Vegas, so they can use it to impeach him.
Jerry Coughlan, Zucchet's lawyer, has asked that the government be ordered to turn over an FBI agent's handwritten notes taken during an interview of Zucchet on May 14, 2002, when the FBI searched the City Hall offices of Zucchet, Inzunza and Lewis.
After the hearing, the councilmen made brief statements outside court and took no questions.
"I'm very excited about going to court and clearing our names," Inzunza said.
Zucchet, with his wife by his side, said: "My family and I and Ralph and his family are determined to get on with our lives. The city needs to get this cloud removed from hanging over our heads."
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