Monday, June 29, 2009

Bruce Weyhrauch Will Get His Day in the U.S. Supreme Court


The prosecution has suffered another setback in the federal investigation of Alaska public corruption, as the U.S. Supreme Court has agreed to hear the pre-trial appeal of the one defendant whose guilt has not been adjudicated.

The Supreme Court has announced that it has taken the case of ex-State Rep. Bruce Weyhrauch (R.-Juneau) to decide whether the prosecution needed to prove that he violated a duty of disclosure under state law in order to convict him of the federal crime of honest services fraud through the mail.

Federal prosecutors have alleged that Weyhrauch was seeking paid work as a lawyer from the oil-services titan VECO at the same time he was heavily involved in legislation fixing tax rates on the major oil producers in Alaska, who were VECO’s most important clients. The Department of Justice’s position is that Weyhrauch’s failure in 2006 to disclose his letter to VECO asking for work as an attorney while working with VECO on a bill on which VECO was lobbying hard deprived the public of Weyhrauch’s honest services as a legislator. Weyhrauch, by contrast, asserts that his failure to disclose is only a crime if state law required him to disclose and that state law imposed no such obligation.

The issue to be decided in the U.S. Supreme Court only relates to one count of a four-count indictment brought against the former legislator in May of 2007. The prosecution obviously considered the question important enough, however, to appeal the trial judge's ruling against the government on that issue just before the trial was set to begin. That interlocutory appeal kept Weyhrauch's trial from starting, and has sidetracked the case for almost two years.

Due to the government’s decision to make the pre-trial appeal, Weyhrauch’s case is the only one arising from the investigation in which there has been neither a trial nor a plea agreement. The decision by the U.S. Supreme Court to hear this appeal likely adds at least another six months before Weyhrauch’s case is finished.

The case has wound its way through the federal appellate system during the last 22 months. After District Court Judge John Sedwick ruled for the defense on the disclosure issue, the Ninth Circuit Court of Appeals reversed the trial judge's ruling, and the defense appealed the Ninth Circuit's decision to the Supreme Court.

It was a significant feat for Weyhrauch’s lawyers to even get the Supreme Court to take the case. The U.S. Supreme Court only takes a tiny fraction of the cases that are appealed to it. A big factor in the defense’s favor is that federal circuit courts of appeal around the country have decided this issue in different ways, and alleging such an “inter-circuit conflict” is one of the best ways to get a case in front of the highest court in the land.

This is a good place to note that I fished and picked up trash with Bruce Weyhrauch in the late 1980s. As suggested by other disclosures I have made on this blog, before the investigation started I had contacts of various significance over the years with various defendants in these cases. I watched a movie with Ted Stevens in the mid-1960s and watched more films and played poker with him in the mid-1970s, discussed politics with Pete Kott in the late 1990s, exchanged e-mails about Alaska fiscal policy with Vic Kohring in the late 1990s, interviewed Bill Weimar in the early 1970s, and talked about the practice of law and legal matters with Jim Clark in the late 1980s and late 1990s. In terms of lawyers involved in these cases, I sat around a cabin in the mid-1990s with Doug Pope, who has represented Bruce Weyhrauch and Bill Bobrick. During various periods in the late 1980s and early 1990s I worked at the Anchorage District Attorney's Office with Acting U.S. A
ttorney Karen Loeffler as well as with Paul Stockler (attorney for Tom Anderson) and Kevin Fitzgerald (attorney for John Cowdery).

Hat tip: Erika Bolstad, Anchorage Daily News.

Thursday, June 25, 2009

Catch-Up II


1. In a further sign of the turmoil that rolled over the Justice Department’s Public Integrity Section following the post-trial meltdown of the Ted Stevens case, William Welch has been taken off his duties as supervisor of another case arising out of investigation of Congressional corruption. The Associated Press reported last week that Welch is no longer overseeing the prosecution of former lobbyist Kevin Ring, a former associate of jailed uber-lobbyist Jack Abramoff. Now one of the subjects of two investigations into prosecutorial misconduct in the Ted Stevens case, Welch is apparently still at least nominally the chief of the Public Integrity Section despite the reported shifts in his work assignments flagged by the Washington Post and noted in this blog yesterday.

2. Additional fall-out from the prosecutors’ problems in the Alaska public corruption cases showed up in District Judge John Sedwick’s order addressing former State Rep. Pete Kott’s request that the public pay for his attorney in the unusual post-trial review of his conviction. Judge Sedwick said that while it was a close question as to whether Kott’s financial situation made him eligible for court-appointed and taxpayer-funded counsel, the federal prosecutors’ unusual screw-up in this case tipped the balance. “[T]he expansion of this case arising from the United States’ admitted, and remarkable, failure to timely provide all of the discovery required…stretches Mr. Kott’s modest means too far.” For a judge in mid-litigation to call one party’s past action “remarkable” is itself fairly remarkable. (Hat tip: Anchorage Daily News.)

Wednesday, June 24, 2009

Catch-Up I


A number of items to catch up on, and I might not get all of them done today:

1. Although Vic Kohring’s appearance at last week's hearing did not make him look like he had lost 47 pounds in prison as he had claimed, the former state legislator was freshly barbered after showing up in Alaska with very shaggy locks. The Anchorage Daily News reported that “Kohring, notorious for claiming poverty, said he mooched a free haircut this week from a friend at the Beehive Beauty Shop in Wasilla, the same place that helped Sarah Palin develop her ‘updo.’” Kohring reportedly claimed in a TV appearance—apparently jokingly—that his styling had removed 15 pounds of hair.

2. The chief and principal deputy chief of the Justice Department’s Public Integrity Section—the unit that ran the investigation into Alaska public corruption—have been reassigned to other duties. The Washington Post reported last week that William Welch and Brenda Morris “have been moved into other roles” following the post-trial collapse of the case against U.S. Sen. Ted Stevens. The messy ending of the case against Ted Stevens has of course triggered two probes into the conduct of several prosecutors—including Welch and Morris, who led the government lawyers in the Stevens trial—and a review of other cases brought in the underlying “POLAR PEN” investigation into Alaska public corruption. That review led to the government’s discovery of evidence that should have been shared earlier with ex-State Reps. Kohring (R.-Wasilla) and Pete Kott (R.-Eagle River), and Kohring and Kott are free while the Justice Department continues to examine its files to see if other evidence should have been produced as well before the two former legislators' trials.

More tomorrow.

Wednesday, June 17, 2009

Releases Extended, Recusal Lifted, and Weight Loss Hard to See


Pete Kott and Vic Kohring get to stay free at least until the government completes its review of documents and turning over evidence that the new prosecution team decides it should have turned over earlier.

At back-to-back hearings this morning, District Court Judge John Sedwick ordered that the government meet the deadlines it offered and finish providing that additional discovery no later than July 31. Both the government and the defense must provide the court status reports no later than August 31.

The government's table featured three new prosecutors: James Trusty from the Justice Department’s Gang Unit based in the Washington, D.C. area; Peter Koski from the Washington, D.C.-based Public Integrity Section of the Justice Department; and Karen Loeffler, Acting U.S. Attorney for Alaska.

Loeffler announced at the beginning of the hearing that her office’s recusal has been vacated, which means that the Anchorage-based office of federal prosecutors can now participate in the cases arising from the federal probe into Alaska public corruption. Loeffler did not offer a reason for the lifting of the recusal, but logic would suggest that the Department of Justice had decided that the ending of the prosecution of U.S. Sen. Ted Stevens—as well as his leaving office—means that there was no reason to keep the local federal prosecutors’ office from working on those cases.

Both ex-State Reps. Kott (R.-Eagle River) and Kohring (R.-Wasilla) attended this morning’s hearings. Kohring had gotten a substantial haircut in the few days since his release from custody, but it must be said that if he lost 47 pounds in prison—as he told the Anchorage Daily News—it was hard to tell from his appearance. Kohring was in a nice suit, so maybe men’s suits hide weight loss as well as weight gain.

Monday, June 15, 2009

Another Delay, and More Juicy Stuff on Life in Stir


Beverly Masek’s lawyer has asked for another delay of her sentencing, currently scheduled for next week. Her attorney says that she needs time to go through psychiatric evaluation and substance abuse treatment.

Masek, formerly a Republican State Representative representing Willow and environs, has agreed to plead guilty to conspiring to take bribes from long-time VECO CEO Bill Allen and a relative of Allen's (apparently Bill Allen's son Mark Allen, co-owner of Kentucky Derby champion Mine That Bird). Masek's quid pro quo for the bribes was her willingness to pull back an oil tax bill she had introduced that was disliked by VECO’s clients in the oil industry.

The prosecution is not opposing the request for a delay, which might put the sentencing off until September. At this point—after the embarrassing revelations about evidence-sharing failures by prosecutors that wiped out Ted Stevens’ convictions and led to the interim release of former State Reps. Pete Kott and Vic Kohring—the government lawyers are probably just happy that the defense is not seeking to withdraw former State Rep. Masek’s plea based on allegations that the prosecution has committed discovery violations.

Speaking of Kohring, the Anchorage Daily News continues to cover his release like the morning dew covers the ground. The latest installment was headlined “Despite his lockup, Kohring still supports private prisons,” and the story in yesterday’s edition carried a subhead that is either cheering or scary: “REFORM: If the freed ex-legislator ever gets re-elected, he says he would work to improve conditions.” That article was by Richard Mauer, and he and his colleagues Lisa Demer and Sean Cockerham have done a solid job chronicling all this tale’s shocking twists and funny angles. (Well-known as a big eater, Kohring said he lost 47 pounds in prison and made a Kentucky Fried Chicken outlet his first stop when he got on the ground in Alaska.)

Saturday, June 13, 2009

It's the "POLAR PEN" Version of "Con Air"


For a colorful story of prisoner transport--plus a truly funny picture of Vic Kohring just out of custody--check out Richard Mauer's story in today's edition of Anchorage Daily News at on the Internet.

Friday, June 12, 2009

Pete Kott and Vic Kohring Are Out of Prison


Pete Kott and Vic Kohring are free pursuant to a go-faster order to the U.S. Marshals from Judge John Sedwick. Details on their release--including bits on Kohring's tastes in food and hair--are available in the Anchorage Daily News at on the Internet.

There will be hearings on June 17 to determine the conditions of their release, and other hearings at some unspecified date to figure out what relief the two should get following the Department of Justice's admissions that they didn't get all the evidence they should have before their trials.

The release of these two former state legislators leaves ex-State Rep. Tom Anderson (R.-Anchorage) and former businessman/powerbroker Bill Weimar as the only two people in confinement as a result of the federal probe into Alaska public corruption. Anderson is in federal prison, and former halfway house magnate Weimar is in a halfway house.

Wednesday, June 10, 2009

Roundup of Recent News


1. Mine That Bird did not win the Belmont Stakes, but instead finished third in last Saturday’s final leg of the Triple Crown. The tough little bay-colored gelding apparently bought with money from the sale of VECO went off as a 6-5 favorite and looked good as the leaders made the final turn, but got beaten in the long home stretch by its half-brother Summer Bird.

Jockey Calvin Borel, so masterful in piloting Mine That Bird to an incredible upset in the Kentucky Derby and triumphant again aboard the filly Rachel Alexandra in the Preakness, perhaps let Mine That Bird go for the lead a little too early in the famously grueling 1.5-mile Belmont. Summer Bird went past Mine That Bird at the end to win, and Dunkirk came back to take second. Just like in politics, it’s critical when you make your move.

“I thought I was home free,” Borel said, “and the other horses galloped by.”

Mark Allen, the son of long-time VECO CEO Bill Allen and the specific beneficiary of a plea agreement his father made to give him immunity from prosecution, must still be pleased despite the failure of Borel to bring home the win in the latest race. Mark Allen bought Mine That Bird with a co-owner last fall for a reported $400,000. The thoroughbred was unknown and seemed to have terrible prospects six weeks ago when its trainer drove it to the first leg of the Triple Crown. Then the horse finished first in the Kentucky Derby, second in the Preakness, and third in the Belmont Stakes.

Hat tip: Associated Press and ABC-TV.

2. The two prosecutors who served—in the words of Legal Times—as the “point men on the ground in Alaska” for the Public Integrity Section in the public corruption probe have been quietly transferred out of that unit. The news came two months after the case against U.S. Sen. Ted Stevens collapsed after the jury returned guilty verdicts. Nicholas Marsh and Edward Sullivan—who between them were involved in investigations that brought convictions pursuant to trial or guilty plea of 11 defendants in the "POLAR PEN" investigations--got the word on Thursday, according to the Washington Post. There has been no word on where the two lawyers landed.

Department of Justice sources told the Washington Post that the decision to transfer Marsh and Sullivan had led to some grumbling among some of the Department’s attorneys, particularly because other attorneys central to the tainted prosecution of Ted Stevens were left in place. The newspaper reported that the sources said that it looked like lower-level lawyers were being made scapegoats by “new political appointees at the department who are now applying more rigorous standards on evidence-sharing practices than were in place before.”

3. Two of those defendants that Marsh and Sullivan helped put behind bars have gotten much closer to getting out, at least for a while. District Judge John Sedwick ordered the U.S. Marshals to bring ex-State Reps. Pete Kott (R.-Eagle River) and Vic Kohring (R.-Wasilla) to Anchorage, moving along a process that started with the Department of Justice’s announcement of newly found discovery violations in the trials of the two former state legislators. (That announcement came last Thursday, the same day Marsh and Sullivan learned they were being transferred.)

The question now is whether Kott and Kohring will get their convictions overturned or whether they will face new trials. Judge Sedwick will hold hearings on that question.

Thursday, June 4, 2009

Justice Department Asks an Appellate Court to Release Pete Kott and Vic Kohring, At Least for the Moment


OK, now this is getting really weird.

In another development in the Alaska public corruption investigation that can only be called stunning, the Department of Justice has requested that the Ninth Circuit Court of Appeals release former state Reps. Pete Kott (R.-Eagle River) and Vic Kohring (R.-Wasilla). Pursuant to this request, the two legislators convicted of crimes related to taking bribes from long-time VECO CEO Bill Allen would be free without having to post bail while the cases against them are sent back to the District Court to sort out newly discovered evidence that is apparently exculpatory.

In almost identical filings this afternoon in both cases, the Justice Department asked the appellate court to take this unusual step because a review of the Department’s files “has uncovered material that, at this stage, appears to be information that should have been, but was not, disclosed” to the attorneys of the two former legislators before their trials. In a sign of the importance of these motions, the Department issued a press release announcing them with quotes from Attorney General Eric Holder and Assistant Attorney General Lanny Breuer, head of the Department’s Criminal Division.

Given that the defendants’ attorneys obviously went along these government motions to set their clients free, it is highly likely that both Kott and Kohring will leave prison soon. Kott's attorney has asked the appellate court to keep his appeal alive while the District Court considers the case on remand. Both former state legislators filed appeals following their convictions in Anchorage in jury trials presided over by District Judge John W. Sedwick.

The Department’s review of its files in the Kott and Kohring cases began after Attorney General Eric Holder’s announcement on April 1 that he had decided to drop the case against former U.S. Sen. Ted Stevens (R.-Alaska) based on newly found discovery violations. Holder arranged for the setting aside of the jury verdicts against of Stevens—as well as the dismissal with prejudice of the indictment against him—more than five months after a jury in Washington, D.C. found Stevens guilty of seven counts of filing false disclosure statements that omitted his receipt of things of value primarily given by Allen.

We don’t know what evidence was not turned over in the Kott and Kohring cases. Given the substantial evidence against both men presented at their trials—which involved many conversations surreptitiously taped by the FBI that appeared to show their guilt—there seems likely to be some bombshell revelations coming out about (a) what Bill Allen told the federal investigators and prosecutors and/or (b) what his relationship was with them.

I’ll have more to say about this decision later. For now, I’ll go with these five points:

1. This is another big black eye for the federal probe into Alaska public corruption. Major mistakes were apparently made in fulfilling the government’s discovery obligations that shouldn’t have happened.

2. It is important to resist the temptation to pin these big errors on Alaska attorneys. Both before and after the blow-up following the Ted Stevens trial that led to new prosecutors being assigned to the Alaska public corruption cases, the decisions in these cases were being made out of Washington, D.C.

3. Unlike Ted Stevens, Kott and Kohring are not out of the legal woods. The Department of Justice has not asked the court to dismiss the indictments against Kott and Kohring, the step that the Attorney General decided to take with Ted Stevens that ended up preventing any new trial for the ex-U.S. Senator. So the convictions of Kott and Kohring are still on the books, and even if those convictions are set aside the two former legislators could still face new trials as long as the indictments against them still stand. Based on today’s developments, however, lawyers for Kott and Kohring will now move to get the indictments against their clients totally thrown out.

4. Speaking of defense attorneys, all the lawyers for the people who have been charged or fear being charged in the federal investigation are either rubbing their hands together in glee or exchanging ecstatic high fives tonight.

5. Whatever errors have been made in the course of the investigation and prosecution of these cases, the federal probe into Alaska public corruption has revealed many things involving Alaska public officials that are seamy and unseemly. Alaskans should think about what those revelations say about Alaska’s public officials and about what Alaska public life has become.

Administrative Note: Alaska Public Radio Network interviewed me this afternoon about these developments and their significance, and you can probably hear me on your favorite public radio station tomorrow (Friday) morning.