When the FBI Comes Calling…®

June 10, 2006

By CARRI GEER THEVENOT
Las Vegas Review-Journal

Prosecutors want ex-commissioners' sentences increased

Herrera, Kincaid-Chauncey accused of perjury

Prosecutors filed motions Friday that ask a federal judge to increase potential sentences for former Clark County Commissioners Dario Herrera and Mary Kincaid-Chauncey because they committed perjury when they testified at their public corruption trial.

Jurors convicted the pair May 5 of conspiracy, wire fraud and extortion charges for accepting bribes while in office from strip club owner Michael Galardi. Both defendants professed their innocence from the witness stand.

The government motions do not specify what sentence prosecutors will seek when Herrera and Kincaid-Chauncey come before U.S. District Judge Larry Hicks for sentencing on Aug. 21. Instead, they ask for a two-level increase in the pair's offense level, a figure used to determine sentence ranges under the federal sentencing guidelines, which are advisory.

One expert predicted the adjustment would add at least eight months to the defendants' potential sentences. Without the adjustment, he said, both defendants face prison sentences of at least 33 months under the federal guidelines.

According to the government motions, a two-level increase is allowed if a defendant "willfully obstructed justice during the course of the investigation, prosecution or sentence." The adjustment applies when a defendant commits perjury at trial, according to the documents.

The 9th U.S. Circuit Court of Appeals has ruled that, in order to find perjury, a trial judge must find that the defendant's testimony was false, material and willful.

"The evidence proves that the defendant willfully testified falsely at trial as to material matters," prosecutors wrote in both motions.

Attorneys representing the defendants could not be reached for comment on the motions late Friday.

Prosecutors claim Herrera lied when he testified that he:

  • Never saw Galardi at the Sporting House.
  • Waited for Galardi at Cheetah's topless club on Aug. 29, 2001, in order to discuss county business.
  • Met Galardi at Cheetah's on Aug. 30, 2001, to discuss county business.
  • Was never paid by Galardi or Lance Malone.
  • Did not receive oral sex from stripper Kathy Bowman.
  • Solicited a small loan from Malone instead of a three-month advance from Galardi. Malone, a former county commissioner who is accused of delivering bribes to politicians on Galardi's behalf, is scheduled to go to trial Aug. 29 in Las Vegas. He was convicted of similar charges in San Diego and received a three-year sentence. Prosecutors claim Kincaid-Chauncey lied when she testified that:
  • She received money from Malone on only two occasions.
  • She did not receive money from Malone at an Applebee's restaurant on Aug. 2, 2001.
  • She did not know why she was thanking Galardi during her Aug. 2, 2001, phone call from the Applebee's restaurant parking lot.
  • The $5,000 Malone paid her at her house on Oct. 24, 2001, was a campaign contribution for her son, Mark Kincaid.
  • She did not receive $5,000 from Malone at Jerry's Nugget on Feb. 28, 2002.
  • She did not know that Mark Kincaid had financial difficulties in 2002.
Douglas McNabb, a Houston defense attorney who specializes in federal criminal cases, said after their convictions that Herrera and Kincaid-Chauncey faced prison terms of at least 33 months under the federal sentencing guidelines.

Under the guidelines, sentencing ranges are calculated based on the seriousness of the offense and the defendant's criminal history.

In the corruption case, Hicks must determine, based on the preponderance of the evidence, the dollar value of the bribes the defendants accepted.

If the judge finds that the bribes amounted to less than $120,000, the defendants' sentencing range will be between 33 and 41 months, McNabb said. The attorney said that range will be between 41 and 51 months if Hicks grants the adjustment prosecutors are seeking.

McNabb predicted that prosecutors will push for a sentence at the upper end of the guideline range.

"It doesn't make sense to argue for anything less than that if you're the government," he said.

McNabb said Hicks can hold the defendants responsible for the amount of all the bribes involved in the conspiracy.

According to a plea agreement reached between Galardi and prosecutors, Galardi paid between $200,000 and $400,000 in bribes to public officials involved in the Las Vegas case.

McNabb said that amount results in a sentencing range of 51 to 63 months without the adjustment prosecutors are seeking and a range of 63 to 78 months with the adjustment.

McNabb said Hicks also could choose to increase the sentences if he finds that the defendants' conduct "was part of a systematic or pervasive corruption of a governmental function, process or office that may cause loss of public confidence in the government."