Dario Herrera Lance Malone

Former Clark County Commissioner Dario Herrera and his lawyers were tight-lipped for nearly two years after his November 2003 indictment on public corruption charges, giving little indication of what approach they planned to take in defending the case.

But Herrera's newly hired team of attorneys has filed a motion that sheds light for the first time on his defense strategy. The document reveals details of a plan to target co-defendant Lance Malone, also a former county commissioner, and portray him as a "habitual liar."

"Herrera, as a critical component of his defense, will mount a full-scale attack on Malone's credibility and introduce impeachment evidence damaging to Malone," Herrera's lawyers wrote.

The motion, filed last month, seeks to separate Herrera's trial from Malone's. A third defendant, former Clark County Commissioner Mary Kincaid-Chauncey, has joined in Herrera's request.

Federal prosecutors have until Nov. 7 to file a response.

All three defendants are scheduled to go to trial March 14 before U.S. District Judge Larry Hicks. Of the three, only Malone carries the baggage of a prior conviction.

Malone and two San Diego city councilmen were convicted in July of related corruption charges in California. Their sentencing hearings are scheduled for next month.

The criminal cases against Malone primarily stem from his work as a lobbyist for strip club mogul Michael Galardi. Malone went to work for Galardi, who owned businesses in both Las Vegas and San Diego, after being unseated in the 2000 election.

Prosecutors claim Malone funneled money and favors to public officials in both cities on Galardi's behalf. Galardi pleaded guilty and testified for the government in San Diego.

Herrera's recent motion shows that the Las Vegas case will differ in a significant way from the San Diego case, where the defendants presented a common front during their trial.

"Dario clearly does not have a common defense with Lance Malone," said New York attorney Jerry Bernstein, who began representing Herrera in August.

Malone's attorney, Dominic Gentile, declined to comment on the statements in Herrera's motion.

"It sounds like we're definitely not on the same page, so it's probably better for everybody if there is a severance," Gentile said.

Herrera's attorneys gave four reasons for requesting that their client be tried separately from Malone. If the two men are tried together, according to their motion, Herrera would be:

j Prejudiced by the pair's "mutually exclusive, and therefore antagonistic, defenses."

j Deprived of his right to impeach Malone's credibility.

j Prejudiced by the amount of evidence introduced against Malone, "such that the jury would be unable to make individualized determinations about guilt."

j Faced with a potential trial outside Las Vegas.

Unlike his two co-defendants, Malone has requested a change of venue. According to Herrera's motion, he takes no position on Malone's request but "strenuously opposes" moving his own trial out of Las Vegas.

Herrera's attorneys also argue that a "great disparity" exists between the amount of evidence against Herrera and the amount of evidence against Malone. They also point out that Malone is the only defendant in the case who faces a charge of racketeering conspiracy.

If tried with Malone, Herrera "will suffer severe spill-over prejudice from evidence admitted against Malone that would not otherwise be admissible against Herrera," the lawyers wrote.

Las Vegas prosecutors claim Malone made regular cash payments to Herrera on Galardi's behalf. According to Herrera's motion, the bulk of the government's evidence "is based upon court-authorized, surreptitious recordings of intercepted conversations over an 18-month period, which resulted in over 4,000 hours of recorded communications."

Herrera's attorneys have conducted a preliminary review of the recorded conversations, according to their motion, and found none between Galardi and Herrera. They estimate that Herrera participated in less than 0.025 percent of those conversations, while Malone took part in most of them.

"We expect that the government will argue that the incriminating wiretaps consist of conversations either between Malone and Herrera, or between Malone and Galardi, in which Malone suggests to Galardi that he has successfully influenced Herrera through these purported payments," they wrote.

"Herrera vehemently denies receiving any unlawful cash payments and services, and specifically denies being paid off to violate the duties of his office. However, Herrera does not deny that Malone and Galardi may, in fact, have attempted to influence him. In stark contrast, Malone's defense will most likely be that he made cash payments to Herrera and other public officials on Galardi's behalf but that such payments were not made to influence any official acts."

Herrera, who now works in real estate development, sat on the Clark County Commission from 1999 to 2002.

"All you have to do is look at Dario's voting record and the way he behaved as commission chairman to see that he was not corrupted by Malone, Galardi or anybody else," Bernstein said.

According to Herrera's recent motion, he will try to show that Malone repeatedly lied to Galardi about Herrera's acceptance of bribes. In support of his defense, the document states, Herrera intends to introduce evidence that Malone "has a general reputation for being untruthful and untrustworthy."

"Malone has repeatedly demonstrated during his tenure as an elected official, during his employment as a 'lobbyist' for Galardi, and in his dealings with the United States District Court in San Diego, that he is a habitual liar," Herrera's attorneys wrote.

The motion also indicates that Herrera will try to admit evidence of Malone's prior conviction in San Diego.

"In short, the heart of Herrera's defense will be to discredit Malone in every possible way, in order to demonstrate that his statements to Galardi about Herrera were false," according to the motion.