Monday, May 30, 2011
The prosecution has opposed the request of former State Rep. Bruce Weyhrauch (R.-Juneau) for the government to pay more than $600,000 in attorney and paralegal fees and $63,000 in costs the ex-lawmaker racked up defending against four bribery-related federal felony charges that ultimately went away when Weyhrauch pleaded guilty to a unique state misdemeanor.
Weyhrauch's requests for fees and costs relied on a statute allowing a defendant in a federal criminal case to get payment for reasonable expenses if the defendant is "the prevailing party" in the case and the court determines the government's prosecution was "vexatious, frivolous or in bad faith." The federal government initially charged Weyhrauch with bribery, extortion, honest services fraud, and conspiracy for his role in an alleged scheme to give legislative assistance to VECO's bribers on oil tax legislation in 2006 in return for VECO giving Weyhrauch work as an attorney.
In opposing the defense motion, the government relies heavily on Weyhrauch's guilty plea to the state misdemeanor of knowingly allowing VECO executives Bill Allen and Rick Smith to lobby him when Weyhrauch was aware of a substantial probability that the two men were not registered as lobbyists.
Although those in the know saw that resolution as a big victory for Weyhrauch and an embarrassment for the prosecution, that is not at all how the government's attorneys profess to view it in their response to the motion for fees and costs. To the Justice Department, Weyhrauch's guilty plea was highly significant because it shows that he was not the prevailing party in the litigation. This is particularly true, say the prosecutors, because his guilty plea included an admission that he had asked VECO's top executives for legal work during a legislative session in which he would have the opportunity to vote on oil tax legislation of great interest to VECO. The prosecutors contend that this admission means that he admitted the factual assertion that was "the centerpiece of the federal indictment."
The Justice Department also argues that Weyhrauch's admissions to his dealings with Allen and Smith in the plea agreement show that the original federal prosecution was in good faith, even if Weyhrauch was not convicted of any of the corruption-related felonies initially charged.
The prosecution's opposition does not directly deny the defense's central factual allegation suggesting the government acted in bad faith in prosecuting Weyhrauch. This allegation concerns the different ways an FBI agent characterized a comment made by Weyhrauch to Allen in a meeting monitored by the feds. The defense has alleged that in an affidavit, the FBI agent characterized Weyhrauch's warning to Allen about dealing with a certain unnamed individual as evidence that the legislator was honest because he was telling the tycoon to steer away from somebody who was taking bribes. The defense has also claimed that before the grand jury, that same FBI agent characterized that same comment as showing that Weyhrauch was corrupt because he was advising Allen to stay away from somebody who was "in league with the FBI." (Although that somebody who Weyhrauch was warning about is not identified, it is reasonable to speculate that it was Rep. Tom Anderson (R.-Anchorage), who took bribes, served as a cooperating witness for the feds after being confronted, and then backed out of his cooperation.)
The prosecution does not concede that the alleged misconduct as suborning perjury before the grand jury occurred, but what the government's attorneys really want to stop is any additional court orders for the government to turn over evidence to Weyhrauch's lawyers. The prosecution argues that the statute authorizing payment of fees and costs does not permit any more discovery. In any case, the prosecutors say, Weyhrauch's guilty plea to the state misdemeanor shows that he has not shown good cause to get any order for more production of documents.
In the prosecution's final flourish, the government's lawyers argue that Weyhrauch has not met the statute's requirement that any ex-defendant seeking relief must show that his net worth is less than $2 million. Unless Weyhrauch has won a lottery, a solo practitioner who racked up more than $600,000 in legal fees and costs while being under felony indictment for almost four years would obviously satisfy that standard.
Disclosure: I have known Bruce Weyhrauch for about three decades, but he has never discussed this case with me. More on this here.
Friday, May 20, 2011
A three-judge panel of the Ninth Circuit Court of Appeals has denied the requests of former State Reps. Vic Kohring (R.-Wasilla) and Pete Kott (R.-Eagle River) for rehearing of that panel's decisions to reverse their convictions but allow the federal government to retry them. As Jill Burke explained yesterday in her piece in http://www.alaskadispatch.com/, attorneys for the two ex-legislators caught up in the Alaska public corruption scandals were "pushing for a chance to have the court rule that prosecutors screwed up so badly that the only way to make things right is to throw the cases out."
The three-judge panel also denied Kott's motion for an evidentiary hearing into the trial prosecutors' handling of discovery.
The vote in both cases on the rehearing and Kott's motion for an was 2-1, with the dissenting vote coming from Circuit Judge Betty Binns Fletcher. In the earlier decision overturning the convictions, Judge Fletcher had been particularly scathing in her criticism of the conduct of the trial prosecutors in the Kott and Kohring cases.
This blogger maintains his view that the question of whether the Department of Justice has the legal power to retry Kott and Kohring is effectively moot, as the federal government would never exercise that power. Putting either of those two men back on trial would open doors the Justice Department is trying to leave closed.
Thursday, May 19, 2011
I have received some interest in my presentation last week about Alaska's public finances from those who couldn't attend it. Accordingly, here are my notes, plus my bio for the introduction.
P.S. Watch this space for another announcement coming soon on my work on Alaska public corruption.
“The Prudhoe Bay Curve and the Squeal Point”
Bartlett Democratic Club May 12, 2011
The Pipeline Is Less than One-Third Full and Production Continues to Fall
High Oil Prices Can’t Bail Us Out Indefinitely
Gasline and ANWR Are More Political Footballs than Economic Saviors
Alaska Eventually Hits a Squeal Point
What Should Happen Then?
Actual Alternatives Include:
1. Budget Cuts Beyond the Bone
2. Personal Taxes
3. “Permanent Fund Solution”
Your Answers to “What Should Happen Then?” Turns on:
1. How Long You Intend to Live in Alaska
2. What You Fear the Most
3. What You Think the Permanent Fund Is For
Cliff Groh is a lifelong Alaskan who has been a lawyer for more than 20 years. He is now a writer and attorney in Anchorage.
Groh served as the Special Assistant to the Commissioner of Revenue in the administration of Gov. Steve Cowper from 1987 through 1990. In that capacity, he served essentially as the State of Alaska's tax lobbyist in the successful effort in 1989 to revise the state's oil taxes in a way that increased revenues from the giant Prudhoe Bay and Kuparuk fields. The legislation adopted in 1989 to revise the Economic Limit Factor (ELF) created a regime for oil taxes that lasted until the Alaska Legislature adopted the Petroleum Profits Tax in 2006.
Groh was also the principal legislative staff member working on Permanent Fund Dividend legislation in 1982. He worked closely then with two former Speakers of the Alaska House of Representatives, State Representatives Terry Gardiner of Ketchikan and Hugh Malone of Kenai. That legislation adopted in 1982 produced the per capita Permanent Fund Dividend Alaska has today. Groh has co-authored two chapters for an academic book on Permanent Fund Dividends to be published by Palgrave Macmillan.
Groh has been a board member of Alaska Common Ground for more than 15 years. He has organized, presented at, and/or moderated at more than a dozen events regarding Alaska fiscal policy over the past two decades. He was a delegate to the Conference of Alaskans in 2004.
Groh is probably the only Alaska lawyer who has performed stand-up comedy in multiple states, and he is definitely the only Alaska lawyer who has been interviewed for an hour on national television about public corruption.
His speech today is entitled “The Prudhoe Bay Curve and the Squeal Point.” He would like each of you to think of vicious questions to ask him at the end of his presentation.
Bartlett Democratic Club May 12, 2011
Tuesday, May 10, 2011
In preparing for publication in another forum of some of my writings on public corruption, I have tweaked my bio and expanded my disclosures of various interests and relationships with various defendants, suspects, and lawyers involved in the investigations and trials covered by this blog.
Biography of Cliff Groh
Cliff Groh is a lifelong Alaskan who has been a lawyer for more than 20 years. He is now a writer and attorney in Anchorage. Formerly a prosecutor, Groh has represented some criminal defendants in his private law practice. His law practice focuses on the writing of appeals and motions and the revision of legal documents.
Groh has been doing research for a book on the Alaska public corruption scandals uncovered by the current federal investigations and the resulting trials. To that end, he has observed most of the trials of former state legislators Pete Kott and Vic Kohring in Anchorage and all of the trial of then-U.S. Senator Ted Stevens in Washington, D.C. He has taught two classes on Alaska public corruption through the Opportunities for Lifelong Education (OLE) program. He maintains a blog on the Alaska public corruption scandals at www.alaskacorruption.blogspot.com on the Internet. He was interviewed for an hour about Alaska public corruption on C-SPAN by the network's founder Brian Lamb, and he has also given a Polaris lecture on the subject at the University of Alaska Anchorage for the Forty-Ninth State Fellows program.
Groh served as the Special Assistant to the Commissioner of Revenue from 1987 through 1990. In that capacity, he served essentially as the State of Alaska's tax lobbyist in the successful effort in 1989 to revise the state's oil taxes in a way that increased revenues from the giant Prudhoe Bay and Kuparuk fields. The legislation adopted in 1989 created a regime for oil taxes that lasted until the Alaska Legislature adopted the Petroleum Profits Tax in 2006.
Groh was also the principal legislative staff member working on Permanent Fund Dividend legislation in 1982. That legislation produced the per capita Permanent Fund Dividend Alaska has today. Groh has co-authored two chapters for an academic book on Permanent Fund Dividends to be published by Palgrave Macmillan.
Groh worked as an Assistant District Attorney in Anchorage and in rural Alaska communities such as St. Paul, Unalaska, and Sand Point. He has handled approximately 30 jury trials as a prosecutor. He has also served as in-house and outside counsel for municipal governments in Alaska. He served as a delegate to the Conference of Alaskans in 2004.
When Groh was first out of college in the late 1970s, he worked as a reporter with a statewide newspaper called the Alaska Advocate. He has also published historical articles on topics ranging from the Permanent Fund Dividend to the history of journalistic coverage of the capital move campaigns.
Groh is a graduate of Harvard College, where his senior honors thesis was on the history of the Alaska Native Claims Settlement Act of 1971 (ANCSA). His law degree is from the University of California at Berkeley (then called Boalt Hall, now known as Berkeley Law).
Disclosures of Potentially Relevant Interests and Relationships
Groh’s work in government has included service in both partisan and non-partisan positions. Groh has worked for Democrats while serving in partisan positions in the Alaska State Legislature and the Alaska Department of Revenue. He is a registered Democrat who was a delegate to the 1988 Alaska Democratic Convention.
Groh socialized with Bruce Weyhrauch during periods in the 1980s and early 1990s when both lived in Juneau, and Groh had some social contacts with Weyhrauch afterwards. While serving as City and Borough Attorney for the City and Borough of Sitka, Groh arranged in 2002 or 2003 for Weyhrauch to act as counsel for the City and Borough in a case where Groh had a conflict of interest. Weyhrauch and Groh have never discussed the criminal case against Weyhrauch.
Groh knew Ted Stevens all of Groh's life, and Groh's father—who passed away in 1998—was a close friend and political ally of Ted Stevens. Groh lived in a dormitory in Washington, D.C. in the summer of 1975 with interns of Stevens' Senate office while researching a college senior honors thesis on the history of the Alaska Native Claims Settlement Act of 1971, and Ted Stevens apparently made the arrangements for Groh to live in that dormitory. Groh sometimes used space in Ted Stevens' Senate office during the summer of 1975 while researching his thesis, and Groh both interviewed and had some social contacts with Stevens that summer.
Groh’s mother was a close friend of Ted Stevens’ first wife Ann Stevens, who died in an airplane crash in 1978. Ted Stevens and his Senate staff worked to arrange for additional medical care for both of Groh’s parents when they were stricken with cancer in the 1990s.
At various points over the years, Groh met and spoke with Jim Clark, Bill Weimar, and Pete Kott about various matters. Groh also exchanged e-mail messages with Vic Kohring about fiscal policy. Groh interviewed Don Young in the 1970s, and as a child he may have played with Ben Stevens.
In the 1980s, Groh’s father served as VECO’s lawyer in defending the corporation against an enforcement action brought by the Alaska Public Offices Commission (APOC) regarding VECO’s campaign contributions. One or both of Groh’s parents also had some business dealings with Bill Allen in the 1980s. In an apparent attempt to interest Bill Allen in buying real estate, Groh’s father reportedly took Allen to a subdivision in rural Alaska owned by a corporation controlled by Groh’s father. Neither Allen nor VECO purchased any property at the subdivision. Given the limited number of sleeping spaces available in the area at the time, however, that visit by Bill Allen probably means that Groh has slept in a bed that Bill Allen once slept in.
Groh's law practice has included work for a law firm representing a municipal government in administrative proceedings and litigation over the property tax on the Trans Alaska Pipeline System (TAPS). The opponents in those legal matters consist mostly of the major oil producers on Alaska's North Slope, who are the majority owners of TAPS.
Groh has also worked and/or socialized with a number of the Anchorage lawyers who have worked on matters associated with the federal government's “POLAR PEN” probe into public corruption in Alaska. Some of those attorneys are or have been prosecutors on those matters, and some of those attorneys have served as defense counsel on those matters.
Monday, May 9, 2011
I said here that the Ted Stevens case collapsed in April of 2010. That event occurred in April of 2009, when the Justice Department agreed to the defense's motion to overturn the jury verdicts of guilty and also decided not to retry the defendant.