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The Libertarian

Vin Suprynowicz

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Last week, former Clark County Commissioners Dario Herrera, 33, and Mary Kincaid-Chauncey, 68, were sentenced to 50 and 30 months in federal prison, respectively, for taking bribes from local strip club owner Michael Galardi.

Or were they?

Federal prosecutors proved the two took money (and, in Herrera’s case, sexual favors, including oral sex on the day his wife was in the hospital bearing his child, a fact considered so inflammatory that it was kept from jurors) to pass ordinances that benefited Galardi’s topless taj mahals, while hindering his would-be competitors.

I’m sure they did that. The problem is, that’s not the crime for which they were charged and convicted, which must have led to some head-scratching among defense attorneys as they decided which wrongful deeds to deny -- the ones on the indictment, or the ones being detailed in court.

Note that this curiously limited prosecution was handled by the federals, who claimed jurisdiction on the strained assertion that the phone calls arranging the bribes constituted “interstate wire fraud,” even though both caller and listener were always in Nevada, and neither party was defrauded.

The cell phone calls “went interstate,” the clever federal agents explained, because they bounced off a cell-phone tower in California.

Federal jurisdiction is intended to be limited in scope to prevent our being governed by a distant, Bonapartist tyranny. Under the U.S. Constitution, which formerly limited Washington’s reach, that jurisdiction could be exerted in the individual states only in limited cases when “interstate crooks” -- Dillinger, Bonnie & Clyde -- were seen to outrun state and local authorities, who had to pull up at the state line, slamming their hats in the dust and watching the bad guys speed away.

Were Nevada prosecutors foiled in their pursuit by the way Herrera and Kincaid-Chauncey habitually emulated the Hole-in-the-Wall gang, hiding out somewhere high in California’s Panamint range each time they finished flummoxing some Florida widow into buying a bogus mining claim? Of course not. If federal jurisdiction can be extended based on a “gotcha” as feeble as the location of a cell phone tower, does it have any limits at all?

Thoughtful jurors might also have asked who was “defrauded,” if Galardi indeed got the favors he paid for.

“Fraud” must contain an element of deception. For Galardi’s competitors to claim they were “defrauded,” they would have had to testify they paid bribes to Herrera and Kincaid-Chauncey (a state crime), but that the pair failed to stay bought. I must have missed those dramatic courtroom confessions.

What’s that? Voters were “defrauded” when they voted for these county commissioners, even though the bribes came after the elections? But Galardi made many public, recorded campaign contributions -- those who voted for his stooges weren’t “defrauded’ if they simply failed to look them up.

Besides, if the federals intend to prosecute for “fraud” every politician who enacts measures that benefit some special interest, we’re gonna need a lot bigger courthouse.

Most readers will be growing impatient by this point, “They were dirty and we got ’em. Who cares how? The feds had to do it because no one in Nevada was going to risk reprisals from a political class that consider this ‘business as usual,’ you idiot!”

Fine. Just so we’ve got that straight: We don’t care whether people go to prison for a crime whose definition does not match the behaviors shown in court, under a bogus assertion of jurisdiction by the federal government. Fine.

Just one more thing: If the ends justify the means, what were the ends, here? What result has been achieved?

The Review-Journal was full of assertions last week that these sentences “should definitely send a shiver to any part of the political community who might be conducting illegal or unethical activities.” (The words are those of County Commissioner Bruce Woodbury, a 25-year veteran who served with Herrera and Kincaid-Chauncey, as well as with their partners in crime, Lance Malone and Erin Kenny.) “I suspect this serves as a deterrent force,” Mr. Woodbury added.

“It can’t help but have a chilling effect upon the community and the desire to dance around the edge of the rules,” adds former federal prosecutor Charles Kelly.

Oh, thank heavens. Would Messrs. Woodbury and Kelly also care to weigh in on the existence of the tooth fairy?

These limited prosecutions will chill the massive and ongoing corruption in this valley for about as long as the typical driver slows down after passing a traffic accident: hardly at all.

Here’s why.

In other jurisdictions, site plans for drug stores, housing projects -- even topless clubs -- can be OK’d by salaried, low-level city or county staffers who merely check for compliance with electrical and plumbing and fire access and set-back codes, providing such uses fit the existing zone.

Not in Clark County. Here, a loose “holding zone” system requires re-zoning (in effect) for every project. This guarantees elected office-holders an up-or-down veto over every project, all the way down to “a kid’s tree fort,” in the famous words of one former Las Vegas city councilman.

And so long as every site plan for every proposed drug store, casino, topless club and housing development has to go before an elected body for approval, a simple mathematical formula will apply. Thanks to financing costs and property taxes alone, big developers are “watching the meter run” to the tune of hundreds of thousands -- even millions -- of dollars per month as those projects work their way through the system.

All it takes to cost those developers millions more is for a council member or commissioner to say, “I think we need to postpone this for 90 days while we hold some town-hall meetings.”

If such a delay can be avoided by funneling, say, $20,000 in “campaign contributions” or “consulting fees” or “ski school tuition” -- or even sexual services -- to an office-holder or his or her designee, many will opt to “buy the insurance” -- or pay more to retain a law firm that already has. It’s “just good business.”

If it’s a “campaign contribution,” that’s perfectly legal. If it’s an unreported bribe wrapped up in a plastic garbage can liner, and the FBI finds out, it could get you in trouble ... but most likely not. (Erin Kenny got to keep most of hers, and most of the people who she said she got them from have not been charged.) In between, what about if your payoff is in the form of a “consulting fee,” or a girlfriend provided to a friendly city councilman while you pay her as your “lobbyist,” or a couple percent ownership in some LLC that’s flipping land up by the airport or down in Arizona? I haven’t seen anyone convicted or even charged for using any of those delivery methods, have you?

As it happens, Commissioner Woodbury visited the newspaper’s offices a few weeks ago, to plead his case that the “PISTOL” property rights amendment on this fall’s ballot could cost local governments more money when they try to seize our land.

With a campaign chest of $640,000 -- much of it in $5,000 and $10,000 contributions from a comprehensive roster of local developers, law firms, and casino barons -- Mr. Woodbury drew no major-party opposition two years ago, trouncing his third-party opponent with 78 percent of the vote. That kind of loot so effectively scares away mainstream competition that Mr. Woodbury could even afford the somewhat smug gesture of donating 10 to 20 percent of those funds to charity. Talk about showing off!

When I asked him what would happen if Clark County got rid of the “holding zone” system, instead firmly zoning vacant land and thus getting commissioners out of the loop for most site approvals, Mr. Woodbury was still protesting, this month, that such a change would eliminate “needed flexibility,” leaving the county commission with too little to do.

Oh, yeah. Whole lot o’ shiverin’ goin’ on.

As part of their plea deals, government witnesses Galardi and Kenny sang like birds, naming other politicians -- and, more significantly, principals in far larger development outfits, both local and international -- as participating in similar “cash for votes” arrangements.

So: Who got to Justice Department officials in Washington, apparently channeling Obi-Wan Kenobi from “Star Wars,” using The Force to instruct prosecutors “The strip club bribes are the only ones that concern you. The bribes from these other outfits are not the ones you’re looking for”?

Oh yeah, all those folks Kenny and Galardi sang about are feeling “real chilly” as they watch my brethren in the press stamp “case closed” on this one as two mopes head off to federal prison camp -- after being allowed to spend Christmas with their families.

They’re all real chilly. From rolling those champagne bottles around in the ice buckets at the big fund-raising parties, as they get ready to write and collect their $5,000 and $10,000 checks for another full-speed-ahead Nevada election cycle.