Attorney Dominic Gentile asked the three 9th U.S. Circuit Court of Appeals judges to make a distinction between the one-year-and-one-day sentence that ex-Crazy Horse Too owner Rick Rizzolo served in the tax case and the nine-month sentence that U.S. District Judge Philip Pro imposed after hearing that Rizzolo failed to make restitution to a Kansas tourist who was paralyzed in a scuffle with club bouncers in 2001.
“He committed the acts,” Judge N. Randy Smith of Idaho declared. “On that point, isn’t it the end of the story?”
“We are challenging what the court did,” Gentile responded.
“Why shouldn’t we give Judge Pro the benefit to the doubt?” asked Judge Jay Bybee of Nevada.
Gentile replied that the additional sentence amounted to “retribution,” and said Pro abused his discretion. He pointed to Tapia v. United States, in which the U.S. Supreme Court held last year that federal judges can’t add time to a criminal defendant’s sentence in an effort to encourage rehabilitation.
Peter Levitt, an assistant U.S. attorney in Las Vegas, argued that Pro had authority to impose prison time after a lawyer for paralyzed tourist Kirk Henry, of Olathe, Kan., told Pro that Rizzolo failed to make promised restitution and was instead “squirreling away” assets in offshore accounts.
Levitt noted that Pro also tacked two more years on to Rizzolo’s supervised release, and termed the sentences “reasonable” reactions to Rizzolo’s “secrecy and deceptiveness.”
The judges, based in San Francisco, made no immediate ruling. Rizzolo’s case was one of three heard by the panel, headed by Judge Richard Clifton of Honolulu, before more than 150 students and observers at the William S. Boyd School of Law at the University of Nevada, Las Vegas.
Rizzolo was released from federal prison in 2008, after serving time in a plea deal that ended a decade-long federal probe of whether his club was linked to the mob. He had operated the club, with its distinctive white-pillared Roman façade just west of the Las Vegas Strip, for more than two decades after his father opened it in the early 1980s.
Sixteen club employees also pleaded guilty to federal charges as part of the 2006 plea deal. None admitted direct responsibility for paralyzing Henry.
The club, using the corporate name The Power Company Inc. and represented by Rizzolo’s trial lawyer, Tony Sgro, pleaded guilty to racketeering and agreed to bear most of some $17 million in fines, forfeitures and restitution.
Under the terms of the deal, Rizzolo agreed to sell the club and agreed not to contest financial penalties.
The company acknowledged that employees padded customers’ bills and used threats and force to compel customers to pay disputed charges.