556 F.3d 923 (9th Cir. 2009), 06-10544, United States v. Kincaid-Chauncey

Docket Nº:06-10544.
Citation:556 F.3d 923
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Mary KINCAID-CHAUNCEY, Defendant-Appellant.
Case Date:February 20, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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556 F.3d 923 (9th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Mary KINCAID-CHAUNCEY, Defendant-Appellant.

No. 06-10544.

United States Court of Appeals, Ninth Circuit.

February 20, 2009

Argued and Submitted Feb. 27, 2008.

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Franny A. Forsman, Federal Public Defender, Las Vegas, NV, for appellant Mary Kincaid-Chauncey.

Daniel R. Schiess, Assistant United States Attorney, Las Vegas, NV, for appellee United States.

Appeal from the United States District Court for the District of Nevada, Larry R. Hicks, District Judge, Presiding. D.C. No. CR-03-00500-2-LRH.

Before: ALEX KOZINSKI, Chief Judge, MARSHA S. BERZON and JAY S. BYBEE, Circuit Judges.

Opinion by Judge BYBEE; Concurrence by Judge BERZON.

BYBEE, Circuit Judge:

Mary Kincaid-Chauncey appeals her convictions for honest services wire fraud, aiding and abetting honest services wire fraud, conspiracy to commit honest services wire fraud, and Hobbs Act extortion under color of official right. Kincaid-Chauncey raises three claims of error: She claims that the district court precluded her from calling witnesses to support her defense and that the district court gave erroneous instructions on both the honest services fraud and the extortion counts. For the reasons that follow, we affirm the district court's judgment.

I

This case requires us to delve into the tawdry relationship between a Las Vegas strip club owner and several former Clark County elected officials. The Clark County Board of County Commissioners has jurisdiction over unincorporated Clark County, Nevada. Its territorial jurisdiction includes, importantly, the famous Las Vegas strip, with its lucrative hotels, casinos, and associated enterprises. The Clark County Commission has seven members, whose responsibilities include enacting ordinances and issuing permits governing the operation of businesses in Clark County. Mary Kincaid-Chauncey, the defendant-appellant in this case, held the elected office of Clark County Commissioner from 1997 to 2004.

Michael Galardi and his step-father operated a strip club named Cheetahs in the City of Las Vegas from 1991 to 2003. Business apparently was good, so, in 1999, Galardi made plans to expand his adult entertainment operations by opening two new strip clubs, Jaguars and Leopard Lounge. Galardi chose to open his new enterprises outside of the City of Las Vegas, in surrounding Clark County.

Galardi needed to obtain a variety of permits from the Clark County government to open his new strip clubs, including liquor licenses and business permits. Galardi also wanted the Commission to relax the ordinances governing strip clubs in Clark County. Specifically, Galardi sought an ordinance permitting dancers in strip clubs to dance completely nude and to permit clubs with all nude dancers to serve alcohol. He also sought to prevent passage of ordinances that would have required dancers in clubs serving alcohol to be at least 21 years old and forbidden dancers to touch their patrons. When it became difficult to work within the strictures of the county ordinances, Galardi

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sought to annex the land on which Jaguars was located into the City of Las Vegas.

In 1999 Galardi began a corrupt relationship with Lance Malone, who was a Clark County commissioner from 1997 to 2000. After leaving office in 2000, Malone quickly gained employment with Galardi, working as a " lobbyist" of sorts. Malone's chief duties in his new job included establishing relationships with public officials-including his former colleagues on the county commission 1-and delivering bribe money from Galardi to the officials. The scheme was to be short-lived, however, as the FBI began investigating Galardi's operations in 2000. The Bureau obtained wiretap authorizations to monitor the telephones of Galardi and Malone in June 2001, the wiretaps continued until December 2002. The FBI executed search warrants of Galardi's strip clubs and other locations on May 14, 2003. Federal agents simultaneously confronted several people involved in the bribery ring, including Galardi, Kincaid-Chauncey, and Kenny.

The FBI's investigation revealed that the bribery scheme worked as follows: Galardi would typically give cash-normally in $5,000 or $10,000 increments-to Malone to distribute to various public officials, usually county commissioners, in exchange for favorable action on ordinances, permits, and licenses affecting the operation of his two new strip clubs. Occasionally, Galardi would personally bribe the officials. The bribery payments occurred at various locations, including in restaurants, inside parked cars, and at the officials' homes. To assure himself that the officials actually received the money Malone was instructed to give them, Galardi told Malone to have the officials call Galardi, using Malone's cell phone, to tell him " thanks" after they received the money.

On February 21, 2006, a second superseding indictment charged Kincaid-Chauncey, Herrera, and Malone with conspiracy, aiding and abetting, honest services wire fraud, and extortion under color of official right. See 18 U.S.C. § § 2, 371, 1343, 1346, 1951. The indictment charged Kincaid-Chauncey with receiving four payments from Galardi.

The first payment alleged in the indictment occurred on August 2, 2001. Malone met with Kincaid-Chauncey in her car in the parking lot of a restaurant. After the meeting, Kincaid-Chauncey called Galardi using Malone's cell phone, and told him " thanks for all your help." On that same day, Kincaid-Chauncey's son, who had been having financial difficulties, deposited $3,800 in cash to his bank account. About one hour after this meeting, Malone called Erin Kenny and said, " [W]e've got Mary Kincaid on board." Around this time, Kincaid-Chauncey voted on matters before the county commission that affected Galardi's business interests without disclosing any conflict of interest. Specifically, on August 29, 2001, she voted to approve a limited liquor license for the Jaguars strip club. On September 25, 2001, she voted to extend the Jaguars liquor license for an additional month. Tape-recorded telephone conversations introduced at trial also established that Kincaid-Chauncey was taking orders from Malone and Galardi. For example, on September 14, 2001, Malone said to Kincaid-Chauncey, " Mike has an item on the agenda on the nineteenth.... We also need you on the twenty-fifth." Kincaid-Chauncey replied, " Yeah, I'll be there."

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The second payment alleged in the indictment occurred on October 24, 2001. Malone met Kincaid-Chauncey at her home and paid her $5,000 in cash. Shortly after the meeting, Kincaid-Chauncey called Galardi to thank him. On the same day, Malone called Galardi because he found an extra $300 in his pocket when he was changing his pants. Malone said, " I don't know if she got it all ... I think she only got uh forty-seven." Malone then called Kincaid-Chauncey and asked her if she got " a total of five." She responded that she did. A week later, on October 31, 2001, and again on November 28, 2001, Kincaid-Chauncey voted to approve liquor licenses for Galardi's strip clubs without disclosing her conflict of interest. Kincaid-Chauncey admitted at trial to having received this $5,000 from Malone, but she testified that the payment was a campaign contribution to help pay debts incurred in her son's unsuccessful campaign for a seat on the North Las Vegas City Council.

The third payment alleged in the indictment occurred in February 2002. Malone called Kincaid-Chauncey on February 23, 2002, to set up a lunch meeting with Galardi on February 28. After Kincaid-Chauncey, Malone, and Galardi had lunch together, Malone and Kincaid-Chauncey got in Kincaid-Chauncey's car, where Malone allegedly gave her $5,000. On March 27 and April 30, 2002, Kincaid-Chauncey again voted on matters affecting Galardi's strip clubs without disclosing her conflict of interest.2

The fourth and final payment alleged in the indictment occurred in June 2002. Kincaid-Chauncey called Malone on June 3, 2002, to tell him that her grandson had been accepted into an Olympic ski school but needed $15,000 for the tuition. Galardi said that he gave Kincaid-Chauncey $5,000 through Malone sometime in June 2002. Kincaid-Chauncey admitted receiving $4,000-not $5,000-from Malone during a tour of Jaguars with her daughter. A series of recorded telephone conversations followed this payment in June and July 2002, in which Malone gave Kincaid-Chauncey explicit instructions on how Galardi wanted her to vote on ordinances governing nude dancing. For example, on July 30, 2002, discussing an upcoming hearing on the all nude dancing ordinance, Malone told Kincaid-Chauncey that " I'm sure Mike's not gonna want you to ... hang your head out there ... and get it chopped off." On July 31, 2002, Malone called Kincaid-Chauncey and told her to put her cell phone on vibrate during the hearing on the ordinance so he could call to tell her what to say if he needed to.3 Kincaid-Chauncey told Malone that she would be voting in favor of an ordinance that limited the touching between nude dancers and their patrons, even though Galardi opposed it, because she did not want to " be the only one voting against it." On that same day, Kincaid-Chauncey voted for the limited touch ordinance. A few days later on August 5, 2002, without disclosing her relationship with Galardi, she submitted a memorandum to the county manager requesting that the County Commission reconsider the limited touch ordinance. In her memorandum, she said that she voted in favor of it because she thought the City of Las Vegas would be considering, and was likely to pass, a...

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