 JERRY RIFE/Union-Tribune
Michael Galardi testified in the council bribery trial.
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The government disputed the conclusion in a pre-sentencing report by probation officers that Galardi, one of its key witnesses during the 2005 corruption trial, is eligible for a tougher sentence because of a leadership role in the conspiracy. The government said Galardi's accomplices – in particular his bagman, Lance Malone – made the decisions and carried out the plan.
“Here, the facts of this case demonstrate that Galardi did not exercise any significant decision-making authority in the commission of this offense, did not recruit accomplices (Galardi and Malone were already involved in a corrupt relationship), and did not significantly participate in planning or organizing the crime,” prosecutors wrote.
“Remaining primarily in Las Vegas, Galardi paid Malone to do whatever Malone, in his experience and expertise, felt was necessary to repeal the no-touch legislation in San Diego,” the prosecutors wrote. Malone is a former Las Vegas politician.
Some defense attorneys in the case criticized the government's contention that Galardi was anything but the commander issuing orders.
“It is astonishing to me that the government could make any claim that he wasn't the leader,” said Jerry Coughlan, lawyer for former San Diego City Councilman Michael Zucchet. “Anybody who's listened to the tapes knows that. The evidence was overwhelming that he was giving the instructions to everyone. I am disappointed the government would argue that.”
Galardi, who pleaded guilty and testified against his co-conspirators, is scheduled to be sentenced Jan. 25. According to the terms of his plea agreement, Galardi can be sentenced to up to five years in prison.
The pre-sentencing report is confidential, so it's not clear what sentence the probation officers are recommending. The Probation Office conducts background investigations of defendants and submits objective sentencing recommendations to judges.
Galardi's lawyer, Bob Rose, said he agrees with the government's position and plans to make the same objections within a few days. He noted that as part of the plea deal, the government agreed not to seek a longer sentence based on Galardi's role in the crime.
Rose said the government's objection to the pre-sentencing report is nothing unusual and is simply part of the routine legal process prior to sentencing.
The government acknowledged in its objection to the pre-sentencing report that Galardi bankrolled the operation and stood to gain financially if the crime had succeeded. But Malone, not Galardi, masterminded the plan to repeal the city's law banning touching between strippers and their patrons, prosecutors wrote.
“Galardi did not make any significant decisions regarding which San Diego politicians would be bribed, the amount of the payments, the form of the payments, the negotiations with the politicians, or the particular ruses which were employed,” the government said. “Those decisions were left to Malone and the politician-defendants.”
Some legal experts said the government's effort to help a cooperating witness isn't unusual, even if its methods are.
“Typically the owner of a business who is involved in making unlawful payments to multiple public officials would qualify for the enhancement, even if the payments are made by an underling,” said criminal defense attorney Michael Attanasio, who is not involved in the Galardi case.
Prosecutors are taking this position because of promises made in a plea deal, and because the witness met or exceeded their expectations, the experts said.
“This is a classic example of 'you scratch my back, I'll scratch yours,' ” said University of San Diego law professor Shaun Martin. “I'm fairly confident this is a situation where the government's trying to help out someone who's been helpful to them. Almost invariably those deals are negotiated in advance.
“In a normal case, the government would contend that people three levels below Galardi were leaders. This is all just a big dance. The government is just basically trying to tell the judge, 'Look, this guy's been really helpful, be nice to him, be lenient.' They have to do that by fitting a square peg in a round hole, saying he's not really a leader.”
Regardless of the terms of the plea agreement, ultimately the decision is up to the judge. But the government's recommendation does have some influence.
“Courts don't want to destroy deals that the parties have agreed to, so this is just the government's way of saying, 'This is the deal we structured, can we please have our deal,' ” Martin said. “The judge isn't bound to that, but the government's voice carries a lot of weight.”
Galardi was indicted in August 2003 on fraud, extortion and conspiracy charges, along with Malone and then-Councilmen Ralph Inzunza, Michael Zucchet and Charles Lewis. Malone, Inzunza and Zucchet were convicted by a jury in July 2005; Lewis died before trial.
Malone was sentenced to three years in prison; Inzunza was given a 21-month sentence and is appealing. Zucchet was acquitted by the judge a few months after his conviction on most counts, and the government is appealing; the judge ordered a retrial for Zucchet on two charges.
During the trial, Galardi was on the stand for five days. He testified that he sent Malone to build relationships with San Diego politicians to get the no-touch law repealed, which would be good for business at the club he owned at the time, Cheetahs in Kearny Mesa.
Galardi testified that he gave thousands of dollars in campaign contributions and cash, via Malone, to San Diego councilmen “because I wanted to gain influence with local politicians so they would change the law.”
Galardi testified that he gave various orders, and Malone or others carried them out. “Lance was going to be my frontman to get in the door with local politicians,” Galardi told the jury, later adding, “I wanted him to come to San Diego at any cost to get the (no-touching) law changed.”
Experts said Galardi's role will come down to a judge's interpretation of federal sentencing guidelines. When determining a potential sentence, judges consider mitigating factors, such as acceptance of responsibility, or aggravating factors, such as being a leader in a conspiracy. Mitigating factors may reduce a sentence; aggravating ones may increase it.
