On the eve of Peter F. Schabarum's arraignment, his lawyer asked that the former Los Angeles County supervisor's indictment on embezzlement charges be thrown out because it's too vague, too late and fails to adequately allege criminal misconduct.
The legal arguments by prominent criminal defense lawyer John Barnett, which appear to foreshadow his defense of the onetime political power broker, were laid out in court documents filed Thursday. Schabarum, 68, is scheduled to be arraigned today.
A conservative San Gabriel Valley Republican known for his habitually outspoken and belligerent manner, Schabarum was indicted Feb. 5 after three days of secret hearings before the county grand jury. According to a source close to the investigation, the indictment alleges that he embezzled $50,000 from a charitable group he heads--the Foundation for Citizen Representation--funneled the money through another foundation controlled by a friend and then used the money for personal travel around the world.
Since he was released on his own recognizance, Schabarum and his lawyer have refused to comment on the indictment, except to say that the former supervisor is not guilty.
In a 23-page court motion filed in advance of today's proceedings, Barnett said "it is impossible to tell from the language of this indictment" what laws Schabarum allegedly has broken, which has prevented him from mounting an adequate defense at the arraignment.
Barnett also said the indictment fails to build an adequate case against Schabarum and that, in any case, the statute of limitations has expired on the offenses apparently alleged.
The indictment alleges two counts of grand theft by embezzlement, one count of perjury and three counts of state tax evasion--all stemming from Schabarum's role as head of the nonprofit organization.
Schabarum is accused of illegally skirting laws designed to prevent the misuse of campaign funds by donating the money to his tax-exempt foundation and then to another nonprofit foundation affiliated with the county's Museum of Natural History.
The funds then were allegedly diverted by the museum foundation to finance Schabarum's travel to Africa, South America and other exotic locales in the years after his retirement from the board in 1991, according to the indictment and a source close to the investigation.
Prosecutors allege that the account transfers, done with the aid of the museum's former chief deputy director, Marcus Rodriguez, were simply a way for Schabarum to launder campaign money and divert it for personal use.
But in order to prove their case of embezzlement against Schabarum, prosecutors must show that he willfully engaged in criminal conduct.
"There must be some basis alleged on which it could be concluded that this alleged misuse was 'fraudulent' rather than merely a question of interpretation of the [foundation] trust, or a negligent misapplication of the trust property," said Barnett's court motion. "From the language of the indictment . . . it is impossible to tell what the trust provisions are, what the defendant is alleged to have done, or why it is alleged to be 'fraudulent' rather than either negligent, or a question of interpretation of the purposes and uses allowed under the trust."
Also, the activity in question--the alleged embezzlement and travel--occurred in August 1993; the applicable statute of limitations is only three years, the court motion said.
Deputy District Atty. Susan Steinfeld said she could not comment at length about Barnett's motion because she had just received it late Thursday. "But obviously the DA feels [Schabarum] broke the law, or we would not have brought the charges against him," Steinfeld said. "We are not aware of any statute of limitations problems."
Sources also indicated Thursday that Rodriguez is expected to be a key witness against Schabarum in the embezzlement case. Schabarum faces up to six years in prison if convicted on all counts.
Rodriguez is serving a seven-year prison term after being convicted more than a year ago of embezzling $1.2 million from the museum foundation.
Although that embezzlement is not related to Schabarum's case, Rodriguez is believed to have played a central role in the museum foundation's acceptance of Schabarum's donation of as much as $50,000, and in the subsequent payment for the former supervisor's travels.
One legal expert said Thursday that Barnett's arguments appear to have some merit, especially with regard to proving that Schabarum intentionally embezzled the money, or gave it to the museum foundation as a way of intentionally laundering it for personal gain.
Jan Lawrence Handzlik, a former federal prosecutor and defense attorney for several indicted political figures, said that if Rodriguez indeed was the one to authorize the travel, then prosecutors will have a hard time sustaining a criminal case against Schabarum, even if Rodriguez testifies to that in court.
"If [Rodriguez's] testimony is unsupported by corroborated documents and other witnesses, it would be the word of a convicted felon against that of a respected former supervisor," Handzlik said.