San Diego- The government will appeal a federal judge’s controversial decision to overturn a jury’s guilty verdicts against former San Diego City Councilman Michael Zucchet.

San Diego U.S. Attorney Carol Lam, who lobbied heavily for permission to appeal, waited an unusually long time for approval from the Solicitor General’s Office, an arm of the Justice Department that makes all decisions about appeals and represents the United States before the U.S. Supreme Court.

The approval, which took about a year, means Justice Department lawyers have concluded that the jury’s verdict was correct, that there was sufficient evidence to convict Zucchet of trading political favors for money, and that it’s likely a panel of the 9th U.S. Circuit Court of Appeals will agree.

A lawyer connected to the case said those involved were informed of the development by overnight letter late last week, but the Thanksgiving holiday might have delayed some notifications.

Zucchet and his lawyer, Jerry Coughlan, said yesterday that they had not yet been notified of the government’s decision. Zucchet declined to comment, but Coughlan called the move “a dumb mistake.”

“They’ll lose again because (U.S. District Judge Jeffrey T.) Miller was absolutely right. If the solicitor general made the decision on the law and the facts, it wasn’t even a close call, but I also know this U.S. attorney’s office put a lot of pressure on the solicitor general,” Coughlan said. Zucchet was indicted in 2003 along with former Councilmen Ralph Inzunza, Charles Lewis and strip club associates on extortion and honest-services wire-fraud charges. They were accused of scheming to deprive citizens of honest services by surreptitiously trading efforts to repeal a law banning touching between strippers and patrons for campaign contributions.

Zucchet, Inzunza and Las Vegas lobbyist Lance Malone were convicted by a jury July 18, 2005. Lewis died before trial. Malone’s boss, strip club owner Michael Galardi, made a deal with the government and testified against the others. Galardi is scheduled to be sentenced in January.

In a stunning move a few months later, in November, Miller overturned a jury’s guilty verdicts against Zucchet, acquitting him of seven corruption counts and granting a new trial on the remaining two counts.

During the same hearing, Miller also sentenced Inzunza to 21 months in prison, and Malone to 36 months in prison. Inzunza is free on bond pending appeal; Malone has agreed to drop his appeal as a condition of a subsequent plea bargain in a parallel corruption case in Las Vegas.

The government’s opening briefs are due January 17. A response from the defense is due April 17, and the government has a month to reply. After that, it could be several months before arguments take place before a three-judge panel, and then up to a year for a decision.

The circuit panel could uphold or reverse the district court judge’s decision to overturn the guilty verdicts. Or, it could split the decision by upholding some counts and reversing others.

In case of reversal, the jury’s original verdict would stand. If the acquittal is upheld, the government then would have to decide whether tore-try Zucchet on the remaining two counts.

In making its decision on the San Diego case, the Solicitor General’s Office assessed the likelihood that Miller’s decision would be reversed, and evaluated the consequences should the government lose.

It’s likely the government’s appeal will focus in part on the controversial honest-services fraud statute and an instruction Miller gave to the jury that caused debate behind the scenes between prosecutors and the defense.

The defense argued that the statute is vague and jurors could mistake typical conduct of politicians – such as receiving contributions and later voting on matters affecting the contributors – for criminal conduct.

To protect the defendants from being unfairly convicted, the defense said the jury should be instructed that they can only convict on the honest-services wire fraud counts if they find evidence of a quid-pro-quo agreement between the defendant and the strip club employees.

The government argued that unlike the crime of extortion, which requires a jury to find a quid-pro-quo agreement, honest-services fraud does not require such proof.

The judge ruled in favor of the defense.

Miller reversed the conviction in part because he found no evidence of a quid-pro-quo agreement, and the prosecution has indicated that Miller’s instruction to the jury will be an element of its appeal. The government is likely to argue that Miller erred when issuing this instruction.

To prove wire fraud under the statute, the government must show that the defendants planned to deprive citizens of honest services, it must show intent, and it must show that defendants used or caused someone else to use the mail or a wire communication – such as a telephone – to carry out the plan, according to a book of standard jury instructions by the 9th Circuit Court of Appeals in San Francisco.

Coughlan has said he would not be surprised if the case went to the U.S. Supreme Court based on the controversy over the honest-services statute.

While pursuing that angle, the government is also likely to appeal on grounds that the judge was simply wrong, that there was plenty of evidence of a quid-pro-quo agreement.

The jury convicted Zucchet of three extortion counts, one count of conspiracy, and five wire fraud counts. Miller, the district court judge,acquitted Zucchet of the three extortion counts and four of the wire-fraud counts. The judge granted a new trial on the remaining charges of wire fraud conspiracy and wire fraud.

Miller sided with Zucchet’s lawyers, who argued that he could not be convicted because there was insufficient evidence of a quid-pro-quo agreement between Zucchet and the strip club owner or his representatives. Miller ruled there was no clear relationship between campaign contributions Zucchet received in 2001 and 2002 from Malone and the action he took on behalf of Malone in 2003.

At Malone’s behest, Zucchet referred adult entertainment matters to the City Attorney’s Office for review. The referral happened at a public meeting of the Public Safety and Neighborhood Services committee.

The councilmen and Malone arranged for a man posing as a concerned citizen to appear before the committee, asking that the politicians increase the required distances separating strip clubs from schools, churches and other clubs. The man, who gave a bogus address, was an employee of one of Galardi’s Las Vegas strip clubs.

The distance requirement was intended to be a distraction for other council members and the media, the government maintained. The real plan was to sneak the no-touching matter onto the agenda.

Zucchet resigned his council seat after his conviction. Soon after his acquittal, he took a job with the Utility Consumers’ Action Network, and he recently became vice president for development for downtown developer and former Port Commissioner Peter Janopaul.

Meanwhile, Inzunza’s appeal is on the same schedule as the Zucchet matter.