Former commissioners’ cases involved bribes

The U.S. Supreme Court on Thursday took a bite out of the federal law that helped convict four former Clark County commissioners and a former strip club mogul in a lengthy, high-profile public corruption case.

While the defense attorneys who represented former Clark County Commissioners Dario Herrera, Mary Kincaid-Chauncey, Erin Kenny and Lance Malone will undoubtedly speak to their former clients about the impact of the high court's decision, there does not seem to be an appetite to seek new trials, at least for Malone and Kenny.

The federal government stands ready to defend prior convictions involving the "honest services" law.

Referring to former Enron chief Jeffrey K. Skilling and media baron Conrad Black, whose convictions led to Thursday's ruling, Department of Justice spokeswoman Tracy Schmaler said: "We will vigorously defend the Skilling and Black cases on remand as well as other prior convictions for honest services fraud in line with the court's ruling."

The high court justices were unanimous in imposing limits on the use of the "honest services" law. Skilling had asked that the law, criticized as vague, be struck down as unconstitutional. However, an opinion written by Justice Ruth Bader Ginsburg does allow prosecutors to continue to seek honest services fraud convictions in cases where evidence shows that defendants accepted bribes or kickbacks.

Daniel Bogden, the U.S. attorney for Nevada, said the ruling should not affect the former commissioners' cases.

"Those cases have become final, and today's Supreme Court decisions do not implicate the convictions in those cases," he said Thursday.

Three justices deemed the honest services law unconstitutional, but the majority didn't go that far, opting instead to whittle it down to its "solid core."

"I think this is really about quid pro quo," said Dominic Gentile, who represented Malone. "I made that argument, which the judge in San Diego agreed to, but the judge in Nevada said no."

Malone and strip club owner Michael Galardi were convicted for attempting to bribe public officials in California and Nevada in an effort to relax the "no touching" law for strip clubs.

"Skilling made it real clear that they can't use the honest services statute unless bribes or kickbacks are involved," said Malone's attorney Dominic Gentile, noting his client was no longer a commissioner at the time of the bribes, but rather a bagman who delivered cash and other gifts to commissioners and therefore couldn't have sold a vote.

Bogden said he believes prosecutors proved that the Nevada cases involved public officials who received bribes, placing them within the parameters for prosecution of the Supreme Court's ruling.

Written in 1988 as an aid to prosecutors going after white-collar criminals, the honest services law has been widely used by the government to prosecute corrupt officials in both the public and private sectors. Honest services fraud statutes include using the mail or telephone to further "any scheme or artifice to defraud" or to "obtain money by fraudulent pretenses."

Lower courts included the concept that the public has an intangible right to such honest services, and many public and private defendants were convicted under the expanded law even if they didn't profit from the scheme.

Don't expect federal prosecutors to roll over without a fight.

"While we are disappointed that today's Supreme Court decisions narrowed the honest services statute, we are pleased that the court upheld many of the core provisions that have been used for decades to prosecute corrupt public officials and corporate executives who have breached their duties to their constituents, clients, and investors," said Schmaler in an e-mail.

From Gentile's perspective, the former commissioners might best leave things as they are. Kenny, Herrera and Kincaid-Chauncey have finished their prison terms, as has Galardi. Malone is the only one still behind bars, serving a six-year sentence handed down in 2007.

Herrera and Kincaid-Chauncey were convicted during jury trials and sentenced in 2006. Kenny and Galardi cooperated with federal authorities after striking plea agreements. They were sentenced to prison in 2007.

Kincaid-Chauncey's attorney, Richard Wright, was not available for comment. Herrera attorney Jerry Bernstein declined to speak on the record.

Review-Journal writer Carri Geer Thevenot contributed to this report. Contact Doug McMurdo at dmcmurdo@ reviewjournal.com or 702-224-5512 or read more courts coverage at lvlegalnews.com.