Key email is focus of ACC bribery trial to­day

Yuma Sun - - NEWS - BY HOWARD FIS­CHER CAPI­TOL ME­DIA SER­VICES

PHOENIX — Ju­rors will get to see what could prove a crit­i­cal email that pros­e­cu­tors say should help prove that Gary Pierce pur­posely sought to con­ceal a land deal at the cen­ter of a bribery case.

U.S. District Court Judge John Tuchi has re­jected ar­gu­ments by de­fense at­tor­neys that an email be­tween Kelly Nor­ton and her then-hus­band Jim is pro­tected by mar­i­tal priv­i­lege. His rul­ing makes it ad­mis­si­ble.

What makes the email sig­nif­i­cant is it orig­i­nated with Pierce who at the time was a mem­ber of the Ari­zona Corporation Com­mis­sion. In that role he voted on sev­eral mat­ters in­volv­ing John­son Util­i­ties.

Fed­eral pros­e­cu­tors con­tend that com­pany owner Ge­orge John­son was go­ing to pay for Pierce to buy a 3.5 acre prop­erty he wanted in east Mesa for a car deal­er­ship. But the plan, ac­cord­ing to the gov­ern­ment, was to con­ceal the true buyer.

In a Dec. 29, 2011 email, Pierce tells Jim Nor­ton, who was lob­by­ing for John­son, he is hop­ing the bank, which owned the prop­erty, would take $300,000 for the prop­erty. There is also a “let­ter of in­tent’’ to pay that much in cash, a let­ter signed by both Pierce and Nor­ton.

The email, how­ever, shows Pierce did not want to be on the doc­u­ment.

“I am go­ing to have Rex take my name off this LOI and you will be the buyer,’’ Pierce writes to Jim Nor­ton. The “Rex’’ is Rex Gris­wold, a vice pres­i­dent of a commercial prop­erty firm that was handling the of­fer for the would-be buy­ers.

That fits into the gov­ern­ment’s the­ory that John­son was go­ing to be the source of the money — and that Pierce, as a util­ity reg­u­la­tor vot­ing on mat­ters in­volv­ing John­son’s com­pany, sought to hide that in­for­ma­tion. De­fense at­tor­neys have dis­missed what­ever hap­pened, point­ing out the land deal never went through.

Tuchi’s rul­ing comes as de­fense at­tor­neys be­gin their cros­sex­am­i­na­tion of Kelly Nor­ton to­day. Nor­ton, who is an “unin­dicted co-con­spir­a­tor’’ in the case has been granted im­mu­nity for her tes­ti­mony on be­half of the gov­ern­ment.

De­fense lawyers will seek to un­der­mine her tes­ti­mony last week about her role in the al­leged bribery scheme, in­clud­ing how she said she fun­neled $31,500 from John­son to Sherry Pierce and, by ex­ten­sion, her reg­u­la­tor hus­band. And they al­ready have ques­tioned Kelly Nor­ton’s her cred­i­bil­ity and whether she has mo­tive to lie be­cause, as she tes­ti­fied, she dis­cov­ered her hus­band was hav­ing an af­fair — and it was not his first.

Pros­e­cu­tors have known about the email from Gary Pierce, a for­mer Yuma politi­cian and busi­ness­man, ask­ing that his name not be on any doc­u­ments on the land deal for years. But it has taken un­til now to get Tuchi to let them use it.

What has de­layed a rul­ing on the is­sue is that Pierce sent the email not di­rectly to Jim Nor­ton but to Kelly. She for­warded it to Jim five days later.

That, ac­cord­ing to de­fense at­tor­neys, made the let­ter a priv­i­leged com­mu­ni­ca­tion be­tween hus­band and wife.

The judge did not ex­plain his rea­son for re­ject­ing that claim. But in their ar­gu­ments to Tuchi, pros­e­cu­tors said there were two flaws in the de­fense ar­gu­ment.

One, they noted, is that there is noth­ing in the email in­tended to be a com­mu­ni­ca­tion be­tween Kelly and Jim.

“The mere for­ward­ing of the Pierce email does not im­pli­cate the con­fi­den­tial com­mu­ni­ca­tions priv­i­lege,’’ ar­gued As­sis­tant U.S. At­tor­ney James R. Knapp.

On top of that, Knapp said that the mar­i­tal priv­i­lege “does not ap­ply to com­mu­ni­ca­tions hav­ing to do with present or fu­ture crimes in which both spouses are par­tic­i­pants.’’ And Kelly Nor­ton as an “unin­dicted co-con­spir­a­tor’’ for her role in the whole bribery scheme, was a par­tic­i­pant.

The in­dict­ment charges that the pro­posed land deal and money that John­son al­legedly fun­neled through Kelly Nor­ton to the Pierces was a bribe for Gary Pierce to pro­mote and vote in fa­vor of two is­sues be­fore the com­mis­sion that the util­ity owner wanted.

One al­lowed him to pass on the cost of his per­sonal in­come taxes to util­ity ratepay­ers. The other in­creased the book value of the wa­ter and wastew­a­ter com­pany, trans­lat­ing into higher charges for cus­tomers.

GARY PIERCE

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