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.
The opinion of the court was delivered by: Bybee, Circuit Judge
Argued and Submitted February 27, 2008 -- Las Vegas, Nevada
Before: Alex Kozinski, Chief Judge, Marsha S. Berzon and Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee; Concurrence by Judge Berzon
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.
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 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*fn1 -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."
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 KincaidChauncey'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.*fn2
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.*fn3 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 similar ordinance and she wanted the rules to be uniform in the city and county to make it easier for the metropolitan police to enforce the ordinances. Her memorandum said that she had since learned that the city would not be considering such an ordinance. This claim contradicted the substance of a conversation on July 29, 2002, between Malone and Kincaid-Chauncey before the limited touch ordinance was passed. In that conversation, Malone told Kincaid-Chauncey that the limited touch ordinance would "put the county businesses at a . . . competitive disadvantage" with strip clubs in the City of Las Vegas.
On the basis of those four payments, Kincaid-Chauncey was indicted for one count of conspiracy to deprive the Clark County Commission and the citizens of Clark County of their right to honest services in violation of 18 U.S.C. §§ 371, 1343, and 1346; nine counts of honest services wire fraud in violation of 18 U.S.C. §§ 2, 1343, and 1346;*fn4 and four counts of Hobbs Act color of official right extortion in violation of 18 U.S.C. § 1951.*fn5
Kincaid-Chauncey stood trial jointly with Dario Herrerra in March 2006.*fn6 During the eight week trial, Kincaid-Chauncey pursued two lines of defense. First, she argued that Malone had deceived Galardi into thinking that he had given the money to the county commissioners, but had really kept the money for himself (the Theft Theory). Second, she argued that Galardi exaggerated the extent of his bribery scheme, implicating numerous innocent public officials to gain a bargaining advantage with the prosecutors (the Liar Theory).
To pursue these theories, Kincaid-Chauncey questioned Galardi on cross-examination about whether he paid money to nine other public officials, including, in no particular order: Thom Reilly, the Clark County Manager; Mark Scofield, the Clark County Tax Assessor; Lynette Boggs-McDonald, a Las Vegas City Council member; Oscar Goodman, the mayor of the City of Las Vegas; Ardel Jorgensen, a Clark County business licensing official; David Roger, the Clark County District Attorney; Lee Gates and Donald Mosley, both Clark County District Court judges; and Yvonne Atkinson-Gates, a Clark County Commissioner and the wife of Judge Gates. Kincaid-Chauncey also introduced evidence of inconsistent statements regarding whether Galardi paid money to those officials, and she sought to call each of the nine officials to contradict Galardi's testimony.
The district court permitted Kincaid-Chauncey to call Thom Reilly and Mark Scofield. Thom Reilly was the Clark County Manager during the time period in question. Galardi testified on cross-examination that he had given $5,000 in cash to Thom Reilly as a bribe. The district court permitted Kincaid-Chauncey to call Reilly at trial because Galardi's testimony "directly concerned a payment which Galardi testified was made to Malone and that Galardi assumed . . . had been paid to Reilly." Reilly testified that he never received any money from Galardi.
Mark Scofield was the Clark County Tax Assessor. Galardi testified on cross-examination that he gave Scofield $5,000 in cash. Galardi was impeached with prior inconsistent statements he made to the FBI concerning another $5,000 check payment he claimed to have made to Scofield. The district court permitted Kincaid-Chauncey to call Scofield at trial, but she declined to do so.
First, the district court ruled that the testimony was admissible to impeach by contradiction under United States v. Castillo, 181 F.3d 1129 (9th Cir. 1999). Second, the court ruled that the testimony was admissible, under Federal Rule of Evidence 404(b), to establish Malone's scheme or plan to steal the bribe money he received from Galardi. At trial, Kincaid-Chauncey called Reilly but not Scofield.
The district court ruled that Kincaid-Chauncey could not call any of the other seven witnesses. Again relying on Castillo, the court ruled that their testimony was not admissible to impeach by contradiction because it sought to contradict testimony elicited on cross-examination. The court also denied Kincaid-Chauncey's request to admit the testimony under Rule 404(b). Kincaid-Chauncey made the appropriate objections to these rulings at trial.
Kincaid-Chauncey advanced the Theft Theory at trial by calling Reilly, who testified that he never received money that Galardi allegedly gave to Malone to give to him and that Malone never offered him any money. Kincaid-Chauncey also introduced evidence of Malone's previous acts of fraud as well as a telephone call between Malone and his father. In the call, Malone's father tells Malone that it would not be a good idea to keep $20,000 that Galardi had given to Malone to bribe a public official. Kincaid-Chauncey advanced the Liar Theory at trial by calling various FBI agents and other government employees who Galardi claimed to have paid off. She also introduced numerous examples of Galardi's prior inconsistent statements.
As the trial drew to a close, Kincaid-Chauncey objected to the proposed jury instructions for the honest services fraud and Hobbs Act charges. She argued that the instructions for both the honest services fraud counts and the Hobbs Act counts should require the jury to find the existence of a quid pro quo as an element of the crime. The district court's final jury instructions did not incorporate the changes that Kincaid-Chauncey proposed.
On May 8, 2006, the jury found Kincaid-Chauncey guilty of all counts against her except the Hobbs Act charge based on the February 28, 2002, payment. At sentencing, the district court imposed a thirty-month term of incarceration to be followed by a two year period of supervised release.
Kincaid-Chauncey advances three claims. We address each in turn.
Kincaid-Chauncey first argues that the district court erred in refusing to permit her to call seven of nine proposed witnesses to advance her theories of defense.*fn7 For the reasons explained below, we find that the district court did not deny Kincaid-Chauncey the opportunity to present a defense or abuse its discretion in refusing to admit the testimony of each of the seven contested witnesses. Because the determination of whether the evidence should have been admitted is particular to each witness, we briefly discuss each of KincaidChauncey's proposed witnesses and their expected testimony.
Lynnette Boggs-McDonald was a member of the Las Vegas City Council from June 1999 until April 2004. She served as a Clark County Commissioner from April 2004 until she lost re-election in 2006. Galardi testified on cross-examination that he had given a campaign contribution to Boggs-McDonald, but that he did not remember how much or whether he had paid with cash or a check. He also testified that he did not expect anything in return for the contribution. This testimony conflicted with previous statements that Galardi made to investigators before trial that Galardi paid Boggs-McDonald $10,000 in cash through Lance Malone. Kincaid-Chauncey called an FBI agent who testified that Galardi told the FBI prior to trial that he had paid $10,000 in cash to Boggs-McDonald. The government and Kincaid-Chauncey stipulated that Galardi told the FBI before trial that he had paid public officials, including Boggs-McDonald, "upwards of six figures." The district court excluded Boggs-McDonald because Galardi's testimony about her was elicited on cross. Boggs-McDonald was expected to testify that she only received a $1,000 check as a campaign contribution from Galardi.
Oscar Goodman has been the mayor of the City of Las Vegas since June 1999. Galardi testified on cross-examination that he personally gave $10,000 to Oscar Goodman before Goodman began his original campaign for mayor. Goodman was expected to testify that he never received any money from Galardi.
Ardel Jorgensen was the Business Licensing Director for Clark County. On cross-examination, Galardi testified that he had Lance Malone give $20,000 in cash to Jorgensen at a meeting where Galardi was present. Galardi testified that he saw Malone put the money in Jorgensen's bag. Although Galardi did not consider the payment to be a bribe because he gave it to her in recognition of the help she had already provided, he acknowledged that it was illegal. Defense counsel impeached Galardi's testimony during cross-examination by asking about statements he made to his former attorneys indicating that he had not paid any money to Jorgensen. The defense expected that Jorgensen would testify that she never received any cash payment from Galardi.
David Roger has been the Clark County District Attorney since 2002. On cross-examination, Galardi testified that he gave a $20,000 check to Peter Christiansen, Galardi's attorney, to give to David Roger as a campaign contribution for Roger's bid to become the Clark County District Attorney. However, Galardi testified that Roger returned the check when it became public that he had accepted a campaign contribution from a strip club owner. Roger was expected to testify that he never received any illegal contributions from Galardi.
Donald Mosley has been a judge on the State of Nevada District Court since 1983. Galardi testified on cross-examination that he and his father gave about $50,000 to Mosley over a twenty year period but that they did not expect anything in return for those payments. Mosley was expected to testify at trial that ...