Tuesday, October 2, 2012
Federal probation authorities have made an unopposed request that ex-Alaska State Rep. Tom Anderson be released early from probation. Richard Mauer of the Anchorage Daily News has the report on the request, which would shave about nine months of Anderson's sentence based on the former Anchorage Republican legislator's compliance with the terms of his supervised release, including a substance abuse program.
It is always seemed odd in some moral sense that Anderson--who is obviously not the most culpable figure in the federal probe into Alaska public corruption--has served the most severe sentence of any defendant in the cases arising from that investigation.
Thursday, August 11, 2011
So I haven't been the most consistent blogger. To compensate, here's an early taste of my new column for the Alaska Bar Rag, the official quarterly publication for the Last Frontier's lawyers. As you can see, I submitted a few hours before the news of last night, which caused me to drop in one sentence as an update.
What About Ben?
By Cliff Groh
Judging by what has happened in court, Ben Stevens might argue that he was an honest man wrongly dragged into the Last Frontier’s public corruption scandals.
After all, the man who only a half dozen years ago seemed set to be the next Alaska Governor or U.S. Senator was the only state legislator in 2006 whose offices were searched by the FBI who did NOT become either a criminal defendant or a cooperating witness.
But you have to wonder.
Accounts of the actions of Ben Stevens in the seafood industry as a consultant, lobbyist, investor, and member of a federally funded non-profit board while his father Ted was in the U.S. Senate read like textbooks on conflict of interest. While continuing to deny wrongdoing, Ben Stevens was by his own account under investigation by four federal agencies in 2007.
More pointedly, two executives of the now-defunct oil-services giant VECO testified under oath in 2007 that they had pleaded guilty to bribing Ben Stevens. Those VECO executives—Bill Allen and Rick Smith—agreed with federal prosecutors that the $243,250 in consulting fees that the Anchorage Republican lawmaker reported receiving from VECO through a private company he owned while he served in the State Senate was actually for “giving advice, lobbying colleagues, and taking official acts in matters before the legislature.”
Yet the eight-year-old federal investigation into Alaska public corruption has not produced a charge against Ben Stevens, and I will eat my baseball cap if he is prosecuted in that probe. [UPDATE: Several hours after this column was submitted to the Alaska Bar Rag, the Anchorage Daily News reported on its website that the Department of Justice has advised former Alaska State Senate President Ben Stevens that the ex-lawmaker will not face charges in the federal investigation into public corruption in the 49th State.]
Why didn’t that dog bark?
We must clear substantial underbrush in answering this question. Understand that nothing in this analysis is based on inside information from decision-makers within the federal government. Recognize that nothing written here is intended to accuse anyone of committing a crime. Ignore the controversy stirred by Ben Stevens getting more than $715,000 for three years of part-time work as chief executive of the 2001 Special Olympics World Winter Games. Set aside any surprise over the fact that he served four years on the Select Committee on Legislative Ethics.
Let’s skip any sense of regret or schadenfreude about this obviously intelligent and hard-working man’s meteoric career in business and public office, folks, and just focus as lawyers on how Ben Stevens escaped criminal charges.
It is not enough to whistle the Creedence Clearwater Revival song lyric “I ain’t no senator’s son.” Whatever protection (as well as career promotion) was afforded by having Ted Stevens as a father seemed to be over by 2008, when the iconic U.S. Senator got charged in a case that generated guilty verdicts on seven felonies before imploding less than six months later.
Nor does it work to suggest—as some observers have—that Ben Stevens made his own deal with the feds to give him immunity from prosecution. It’s not just that no evidence exists of such an agreement—there appears to be nothing that the former Anchorage Republican lawmaker ever gave the Justice Department to make such a deal plausible.
No, Ben Stevens’ avoidance of prosecution in the “POLAR PEN” probe seems to stem from a combination of luck, prudence, and hiding in plain sight.
Ben Stevens caught a big break when the Justice Department did not include him in the first wave of defendants charged in May of 2007 with crimes associated with VECO executives’ corruption of state legislators over oil-tax legislation debated the previous year. This omission might have been caused in part by the feds seeing the potential prosecution of Ben Stevens as a bargaining chip they could play later in the negotiations with his father.
Yet time did not turn out to be kind to the federal investigation into Alaska public corruption. The feds charged Ted Stevens without charging Ben Stevens, and the probe’s fortunes soured quickly after the jury returned guilty verdicts against Ted Stevens in October of 2008. The Ted Stevens prosecution collapsed in April of 2009 in the wake of revelations of failures to provide discovery, putting the government employees best informed about “POLAR PEN” under investigation themselves. Additional disclosures have dented the credibility of Allen and Smith, two of the prosecution’s key witnesses in previous trials. Last year’s U.S. Supreme Court decision in Skilling v. U.S. sharply pruned the scope of the honest services fraud statute, a favorite weapon wielded by federal prosecutors in public corruption cases that was used against half of the 12 defendants charged in the “POLAR PEN” probe.
The prosecutors might well have perceived additional problems with charging Ben Stevens even back when the feds were flying high in 2007, however. The combination of what appears to be his relative invisibility on incriminating tapes and his extensive financial disclosures may have saved him.
Ben Stevens received almost a quarter of a million dollars in fees from VECO while he was in the State Senate and also took positions as a legislator on oil taxes that VECO wanted him to take, but those facts do not by themselves constitute a crime. What was going on in Ben Stevens’ mind is where the action is in prosecuting him, as it often is in public corruption cases. (That’s also true in the broader category of white-collar crime cases, like that of his father.)
Prosecutors have found that the best way to show that a defendant in a public corruption case has criminal intent is by playing tapes that show him saying and/or doing things that make him look guilty. All the defendants that juries have returned guilty verdicts against in the Alaska public corruption cases have had damaging tapes of them played in front of the jury.
Tapes tend to trump other evidence. As one former federal prosecutor observed, the government attorneys in the “POLAR PEN” cases sometimes seemed primed merely to walk into court and push “PLAY,” and the feds might have thought they didn’t have enough incriminating tapes on Ben Stevens to go forward.
Unlike other legislators convicted in the probe, Ben Stevens might not have frequented the infamous VECO-rented Suite 604 in Juneau’s Baranof Hotel that the FBI bugged to such effect. Whether this conduct flows from a sensible desire to stay away from that “Animal House” atmosphere or from the family needs of a father of four, Ben Stevens’ apparent lack of a starring role in the FBI’s greatest hits has served him well.
Aside from whatever the more than 17,000 conversations the feds intercepted in the “POLAR PEN” probe may show about Ben Stevens, there is another problem the feds have in prosecuting him on offenses involving either VECO or fisheries. That problem is the fact that the former State Senator apparently disclosed all the income he collected for consulting and/or lobbying that he was legally required to disclose. You might think his conduct was unseemly and unsavory, but it’s likely that Ben Stevens would say that he is just a hard-working businessman who laid bare his income as the law required, both when he served as a federal lobbyist and later when he served as a state legislator.
As to all that money from VECO that came in to the legislator when his work product may look minimal or even non-existent, Ben Stevens might well say that he thought he was on retainer—a retainer that allowed Bill Allen to call Ben Stevens about work for VECO anytime 24 hours a day, seven days a week. Ben Stevens might add that it was not his problem that Allen seemed to call him so infrequently to work on matters such as advice on salvaging vessels.
Observers might point to the $983,807.66 in fees that Ben Stevens reported receiving for business services and/or management services from VECO and fishing interests alone during the five full calendar years he served as a legislator in comparison to the relatively small amounts involved in the cases that sent other lawmakers to prison. The sheer amount of money, however, is not all that matters.
A common thread in the cases against the state legislators convicted at trial in the “POLAR PEN” probe was what juries saw as clumsy attempts to conceal benefits: a bogus flooring invoice submitted by former Rep. Pete Kott (R.-Eagle River); a request to hide help on a credit card balance by former Rep. Vic Kohring (R.-Wasilla); a phony Website in the case of former Rep. Tom Anderson (R.-Anchorage). The contemporaneous cover-ups helped the juries find the guilty intent. (Reversals on appeal of the convictions of Kott and Kohring have led to re-trials being scheduled for late this year.)
With Ben Stevens, on the other hand, there appeared to be no subterfuge—all the income seems to have been reported. Although paper trails are often seen as trouble, a particular kind of paper trail—one shorn of detailed descriptions of tasks performed or time spent working—appears to have helped keep Ben Stevens out of trouble. The system could not handle that hiding in plain sight.
You might think that the story of Ben Stevens is a prime Alaska example of the maxim of columnist Michael Kinsley to the effect that the real scandal is not what’s illegal—it’s what’s legal. You might also think that not prosecuting Ben Stevens after getting Allen and Smith to plead guilty to bribing him might pose a particular public relations problem for the Department of Justice, but such a result would be neither illegal nor unprecedented. One well-known irony that involved verdicts by juries rather than the exercise of prosecutorial discretion comes from the notorious Teapot Dome scandal of the 1920s. Albert Fall was convicted for taking a bribe from oilman Edward Doheny while serving as Secretary of Interior, but Doheny was acquitted of the charge of bribing Fall.
Cliff Groh is a lifelong Alaskan who has worked as a prosecutor and represented some criminal defendants in his private practice. He is a lawyer and writer in Anchorage whose law practice focuses on the writing and revision of briefs and motions. Disclosures potentially relevant to his writings about the Alaska public corruption probe can be found at http://alaskacorruption.blogspot.com/2011/05/even-more-updated-biography-with-still.html on the Internet. Conversations with numerous people—including Anchorage lawyers Mark Regan and George Freeman—have sharpened the author’s thinking on this column’s subject.
Tuesday, June 28, 2011
I'm engaged in pressing personal business that will limit my blogging for a few more days. Today's news is that the move of U.S. District Judge John Sedwick to senior status (semi-retirement) later this year has resulted in the transfer of the cases of former State Reps. Pete Kott (R.-Eagle River) and Vic Kohring (R.-Wasilla) to Judge Ralph Beistline.
None of the recent developments have shaken my belief that neither of those former lawmakers will be retried on the federal corruption charges which put them in prison before discovery problems produced the reversals of their convictions.
I'm been lax lately on the posting. To compensate, here's a copy of my column in this month's edition of the Alaska Bar Rag, the quarterly publication for the Last Frontier's lawyers:
What Does the Federal Probe into Public Corruption Mean for Alaska?
by Cliff Groh
(First of several installments)
Born in the Territory of Alaska in 1954, I grew up in a skinny Anchorage media environment in which there was no live TV until the first moon walk occurred when I was 15.
Reading newspapers and magazines as a boy in the 1960s, I noticed occasional stories of public corruption—of police on the take, government officials who accepted bribes—in states like Massachusetts, New Jersey, and Illinois. I really didn’t see that in Alaska, so I asked my father about it. He was a former President of the Alaska Bar Association who had served as both a prosecutor and criminal defense attorney; he had also been on the City Council, the Borough Assembly, and the School Board.
My father said “Well, son, there’s not enough money to steal.”
Back in the mid-1960s, Alaska was a young state with a thin economy. Although people on the Last Frontier felt poor, there was still some of that aura of idealism and optimism that remained from the excitement of achieving statehood in the late 1950s.
The announcement in 1968 of the discovery of a super-giant oilfield at Prudhoe Bay on the North Slope brought billions and billions of dollars to Alaska, both to the private economy in paychecks and to the state government’s coffers in taxes and royalties on oil development.
The long-running federal investigation into Alaska public corruption has underscored some of the changes seen in the 49th State, and that probe has also caused some. Most of the cases produced by the federal investigation involved alleged efforts to influence public officials regarding the state’s taxes on oil development.
This probe electrified Alaskans. Think back to the wild days between the late summer of 2006 and the fall of 2008. In those 27 months, 11 people got charged with federal felonies. Those 11 included:
Ø legendary U.S. Senator Ted Stevens (R.-Alaska);
Ø five state legislators (some of whom had left office)—State Sen. John Cowdery (R.-Anchorage) and State Reps. Tom Anderson (R.-Anchorage), Bruce Weyhrauch (R.-Juneau), Pete Kott (R.-Eagle River and a former Speaker of the Alaska House of Representatives), and Vic Kohring (R.-Wasilla);
Ø Jim Clark, the chief of staff to former Alaska Governor Frank Murkowski;
Ø Bill Allen, a political kingmaker who was the long-time CEO of the multinational oil-services giant VECO, a billion-dollar company;
Ø Bill Weimar, the multimillionaire former head of the private corrections corporation Allvest;
Ø Rick Smith, a VECO vice president who served as Allen’s chief political lieutenant; and
Ø Bill Bobrick, a prominent lobbyist working on municipal issues in the Municipality of Anchorage.
At the end of 2008, 10 of those 11 people had pleaded guilty or heard juries deliver guilty verdicts on all or almost all counts they faced. FBI surveillance tapes—many made at the VECO-rented Suite 604 in Juneau’s Baranof Hotel—greatly aided the prosecutors in their cases at trial. Alaskans were mesmerized by iconic images of Allen telling Kott “I own your ass” and Allen handing cash to Kohring, and many citizens were stunned by how little it seemed to take to get some public officials to sell their offices.
Long accustomed to serving either as a sugar daddy or a political punching bag on the Last Frontier, between late 2006 and late 2008 the feds seemed to be on a roll straightening out a mess in Alaska.
Back in 2008, those 11 defendants seemed very likely to increase by a lot. Multiple sources told Alaska journalist Bill McAllister that 26 people would be indicted in the federal investigation into public corruption in the state. Speculation on potential additional defendants centered on U.S. Rep. Don Young (R.-Alaska) (identified in media reports as being under investigation for alleged campaign fund-raising violations, among other things) and former State Senate President Ben Stevens (R.-Anchorage) (whom federal prosecutors got Bill Allen and Rick Smith to say that they had bribed).
Code-named “POLAR PEN” (apparently for its origins in an examination into corruption regarding private prisons), this federal investigation has had big effects, both for people and for policy.
Eight defendants ultimately went to prison, and one served a sentence of home confinement. The executions of the search warrants on the offices of six state legislators beginning in August of 2006 helped fuel the gubernatorial campaign of insurgent Republican candidate Sarah Palin, already running on a platform of “I’m not one of the good old boys.” The oil tax legislation in 2006 that sent some lawmakers to prison was amended the next year to increase taxes substantially on the oil companies after the first indictments frightened some legislators into avoiding even the appearance of being in the pocket of the petroleum industry.
And after almost 40 years in the U.S. Senate, Ted Stevens got defeated for re-election in November of 2008 eight days after a jury returned guilty verdicts on seven felony counts of failing to disclose gifts on U.S. Senate forms. At the Senator’s insistence, the trial started only 55 days after the indictment instead of eight months or so later as would normally have occurred in this kind of case. Given the small margin in the voting, it’s clear that Stevens would have been re-elected if the trial had either not started or still been in progress on election day.
But now—about eight years after the investigation started—it’s all different. The POLAR PEN probe has fizzled out in ways that are both surprising and disappointing.
The case against Ted Stevens collapsed in the wake of revelations of prosecutors’ substantial failures to share evidence with the defense; the seven guilty verdicts got overturned, and Attorney General Eric Holder elected not to seek a retrial. The meltdown of the Ted Stevens case led to the federal government finding discovery failures in the cases against former Reps. Kott and Kohring, and the Ninth Circuit Court of Appeals has reversed their convictions. (Although as of this writing the federal government could retry Kott and Kohring, I predict that this will never happen. Note that this forecast comes from the same analyst who confidently predicted that Ted Stevens would never testify in his own defense.)
Following a U.S. Supreme Court decision that substantially narrowed the scope of the honest-services fraud statute—a law that provided a favorite arrow in the quiver of federal prosecutors—the Department of Justice dismissed the federal felony charges against Weyhrauch and let him plead guilty to a unique state misdemeanor that resulted in no jail time. (Weyhrauch’s lawyers have also gotten permission from the U.S. District Court to forward to the Alaska Bar Association evidence that they allege shows “serious misconduct by government prosecutors appearing before the grand jury,” including the suborning of perjury.) Clark was also allowed to withdraw his guilty plea in the wake of that Supreme Court decision.
The prosecutors charged a 12th defendant in 2009—former State Rep. Beverly Masek (R.-Willow)—who pleaded guilty and served a prison sentence, but she is clearly the last defendant in the POLAR PEN probe.
It is the probers who are now on the griddle. The federal government is conducting two probes of the conduct of the prosecutors and investigators who worked on the federal government’s investigation of Alaska public corruption. The Justice Department’s internal watchdog unit—the Office of Professional Responsibility (OPR)—is holding one of the two satellite probes; the other investigation is a highly unusual criminal probe run by a special counsel selected by the trial judge in the Ted Stevens case. Fingerpointing among various prosecutors over the discovery and handling of allegations against Bill Allen involving sexual abuse of minors appears to have contributed to the delays in wrapping up the two probes, which have each gone on for more than two years.
A story that seemed to start out with white hats and black hats has picked up a lot of shades of gray. The arc of some Alaskans’ feelings went from the bumper stickers of “We don’t give a damn how they do it Outside” to “Thanks FBI for cleaning up Alaska”—now it’s more like “How could the feds foul this up?”
This is the first in a series of columns to examine the causes, effects, and significance of the federal investigation into Alaska public corruption. It will rely on my extensive experience in Alaska, which brings both knowledge of how the state works and a number of other associations that might be seen as conflicts of interest when writing about this subject. (The full list of disclosures can be found at my blog at http://alaskacorruption.blogspot.com/2011/05/even-more-updated-biography-with-still.html on the Internet.) There are some lessons here and some elemental human stories, and this series of columns will have some of both.
Cliff Groh is a lifelong Alaskan who has worked as a prosecutor and represented some criminal defendants in his private practice. He maintains a blog on the federal investigation into Alaska public corruption at www.alaskacorruption.blogspot.com on the Internet. He is a lawyer and writer in Anchorage whose law practice focuses on the writing and revision of briefs and motions.
Saturday, March 19, 2011
With the substantial misinformation on this topic floating around the Internet, it seems useful to lay out the record on the federal investigation into public corruption in Alaska. Twelve people have been charged--nine for crimes associated with the defunct multinational oilfield-services corporation VECO, and three for crimes associated with efforts regarding private corrections facilities.
Of the nine people charged with crimes associated with VECO, six people stand convicted today while three other cases ran off the rails. The convictions against one of those six--ex-State Rep. Pete Kott (R.-Eagle River)--looks shaky on appeal, however, and the conviction of another of the six--ex-State Rep. Bruce Weyhrauch (R.-Juneau)--was for a unique state misdemeanor instead of the four felony charges that the federal government originally laid against him.
Of the three people charged with crimes associated with private prisons, all three cases resulted in federal felony convictions that will stay in place.
Here's a graphic showing the current status of the cases, in this blog's characteristically unflashy style:
Individual / Role / Crimes charged / Sentence of custody after resolution of case / Legal status as of 19 March 2011
Ted Stevens / U.S. Sen. / Deliberate failure to report on Senate disclosure forms gifts and/or liabilities, primarily associated with VECO and/or its long-time CEO Bill Allen / Never sentenced after jury verdicts of guilty set aside following revelations of prosecutorial misconduct / Free until death in August of 2010
Pete Kott / State Rep. / Crimes associated with corruption regarding Petroleum Profits Tax (PPT) oil tax legislation in 2006 / Six years after jury verdicts of guilty / Free while courts sort out allegations of prosecutorial misconduct (case currently in Ninth Circuit Court of Appeals)
Vic Kohring / State Rep. / Crimes associated with corruption regarding Petroleum Profits Tax (PPT) oil tax legislation in 2006 / 3.5 years after jury verdicts of guilty / Convictions overturned by Ninth Circuit based on prosecutors' failures to turn over evidence to the defense; no decision announced by Department of Justice on re-trial
Tom Anderson / State Rep. / Crimes associated with corruption regarding private prisons / Five years after jury verdicts of guilty / Released from prison to halfway house in February of 2011
Beverly Masek / State Rep. / Conspiracy to take bribes from Bill Allen and a relative regarding oil tax legislation / Six months in prison after guilty plea / Out of prison
Bruce Weyhrauch / State Rep. / Crimes associated with corruption regarding Petroleum Profits Tax (PPT) oil tax legislation in 2006 / Three-month suspended sentence following guilty plea to state misdemeanor of knowingly dealing with unregistered lobbyists in return for dismissal of felony charges / Free on probation
John Cowdery / State Sen. / Conspiracy with Bill Allen to bribe another legislator regarding PPT oil tax legislation / Six months of home confinement pursuant to guilty plea / Free after end of sentence
Jim Clark / Chief of Staff to Governor Frank Murkowski / Conspiracy to commit honest services fraud by taking illegal campaign contribution from VECO for Frank Murkowski’s gubernatorial re-election campaign / Allowed to withdraw guilty plea to charge after U.S. Supreme Court cut back on scope of statute making honest services fraud a crime / Free
Bill Allen / Chairman (former CEO) of VECO and Power Broker / Crimes associated with corruption regarding Petroleum Profits Tax (PPT) oil tax legislation in 2006 as well as tax violations / Three years after guilty pleas / In prison
Rick Smith / Vice President of VECO and Political Lieutenant of Bill Allen / Crimes associated with corruption regarding Petroleum Profits Tax (PPT) oil tax legislation in 2006 as well as tax violations / 21 months after guilty pleas / In prison
Bill Weimar / Power Broker and Private Corrections Magnate / Conspiracy to commit honest services fraud and structuring transactions regarding campaign contribution to legislative candidate whom Weimar believed would support Weimar's efforts regarding private prisons / Six months in prison and six months of home confinement after guilty pleas / Discharged from this sentence, but now charged with felony child sexual abuse in Florida
Bill Bobrick / Lobbyist / Conspiracy to commit extortion, bribery, and money laundering in conjunction with efforts regarding private corrections facilities / Five months in prison and five months in home confinement after guilty pleas / Free after serving sentence
Wednesday, February 2, 2011
Tom Anderson, a former legislator whose involvement in a "Love Caucus" indirectly contributed to the length of his imprisonment, has been released from a federal prison to a halfway house in the Seattle area, reports the Anchorage Daily News. Anderson had been serving a five-year sentence after a jury convicted him in 2007 of conspiracy, bribery, extortion, and money-laundering. The convictions were for his role in a scheme to funnel him money ostensibly for articles he was to write, but the money was really to be compensation for his legislative assistance to a private prisons company. When the FBI confronted Anderson with evidence of his crimes, he agreed to become a cooperating witness for the feds and wired up on others as part of their investigation into Alaska public corruption. Anderson pulled out of that arrangement, however, apparently on the advice of his then-girlfriend (and future wife), fellow legislator Lesil McGuire. Anderson's sentence was probably more severe because of his withdrawal from his cooperation. McGuire is still a state legislator (although she is now in the State Senate) and she filed for divorce last year while Anderson was in prison.
Anderson is scheduled to be released from custody in July, reports the Daily News, but he could move from the halfway house to home confinement sooner than that.
Thursday, November 18, 2010
You ought to read Steve Aufrecht's post on questions raised by the federal investigation into Alaska public corruption and the satellite probes into the prosecutors and investigators that the original investigation spawned. A retired (he would say "emeritus") professor of public administration at University of Alaska Anchorage, Steve has a perspective that I don't have. Former State Rep.--and current federal prisoner--Tom Anderson (R.-Anchorage) was one of Steve's students, and Steve had embattled FBI Agent Mary Beth Kepner speak with one of his classes when she was on a roll instead of under the gun. You can find Steve's post at http://whatdoino-steve.blogspot.com/2010/11/observations-on-mary-beth-kepner-and.html on the Internet.
Friday, October 8, 2010
Citing the U.S. Supreme Court’s narrowing of the application of a critical statute, the federal government has agreed to dismiss the case against Jim Clark, even though the ex-Chief of Staff to former Gov. Frank Murkowski had pleaded guilty back in March of 2008.
The problem for the feds is that the law that Clark pleaded guilty to violating was the honest services fraud statute, which the Supreme Court performed radical surgery on last June. The part that Clark admitted that he ran afoul of while Chief of Staff had been cut off, so as the law stands now the indictment did not charge him with an actual crime.
Although a federal judge must approve this agreement to throw out the charge against Clark, it seems highly likely that this will be a mere formality.
The feds made a big point in their filing today that they are holding Clark to his plea bargain, which requires him to cooperate with the government in the investigation and prosecution of others in return for the government not charging Clark with other crimes.
The only “other” out there now would appear to be ex-State Rep. Bruce Weyhrauch (R.-Juneau), who is charged with bribery, extortion, and conspiracy. Weyhrauch’s case is back in District Court in Anchorage after having traveled up to the Supreme Court (where he was one of the winning defendants in the decision last June cutting back the scope of the honest services fraud statute) and down again.
Weyhrauch’s case is also the only one left unadjudicated in the seven-year-old federal investigation into Alaska public corruption that the feds call “POLAR PEN.” Of the 12 people charged in the probe, only three are in prison now: former VECO CEO Bill Allen; former VECO VP Rick Smith; and former State Rep. Tom Anderson (R.-Anchorage).
Disclosure: Bruce Weyhrauch is the defendant in the cases arising from the federal probe into Alaska public corruption that I know the best personally. I worked with Bruce Weyhrauch when we both served on the staff of the Alaska Legislature in the early 1980s and have socialized with him some since then. I have seen him less since I moved away from Juneau in the early 1990s, and he has never discussed this case with me.
Thursday, October 7, 2010
Nicholas “Nick” Marsh died by his own hand September 26 while under investigation for his conduct as a prosecutor in the Ted Stevens case. The suicide of a government lawyer who played a critical role in the federal government’s “POLAR PEN” probe into Alaska public corruption has triggered a number of pieces in the media talking about his life and speculating—explicitly or implicitly—about why he killed himself.
When I saw the headline that a prosecutor under investigation in the Ted Stevens case had killed himself, I thought of Marsh even before I could see a name.
There has been no report of a suicide note, and it seems difficult in most cases to know why somebody ends their own life. We do know more than we did about him before his death, however, and it is worth it to put the media coverage of his suicide together with what I observed in weeks of watching him at the trials of Ted Stevens and Pete Kott. What follows is mostly from what appears to have been Marsh's own perspective on his life and death.
Let’s start with what he would have preferred to focus on, his accomplishments.
Early Life: Philosophy and Lacrosse
According to his Washington Post obituary, the man all his friends called Nick was born and went to high school in Kentucky. There seem to have been some high expectations in his family: Marsh’s stepfather was on the cover of Time magazine after performing the first successful transplant of an artificial heart into a human patient.
Marsh left the Louisville area to study at some of the world’s best schools: philosophy and history at Williams College; philosophy again at Oxford University; law and literature at Duke University.
This description of his academic career fits in well with what a number of observers saw in court looking at the slight, boyish-looking, and wonky-sounding attorney. Blogger Steve Aufrecht wrote that the dark-haired prosecutor reminded him of Peter Parker as played by Tobey Maguire in the Spider-Man movies.
Standing outside that image, however, are the facts that Marsh lettered in lacrosse at both Williams and Oxford.
Known for centuries among the Native Americans who created it as “the Little Brother of War,” lacrosse has grown away from the all-out violence that used to characterize it. The sport still emphasizes aggression, however, and can easily be marketed as “football on Viagra.” Lacrosse also values speed and agility, but you have to bang bodies in the men’s game, a sport that Marsh played well at a high level. Studying philosophy and literature is good training for writing appellate briefs, but playing college lacrosse gives you the physical taste for competition that could prepare you better for going toe-to-toe in court with high-powered lawyers.
Nick Marsh repeatedly impressed his superiors on his way up. A Duke law professor specializing in criminal law told the Anchorage Daily News that her former student was a lawyer "who really had a lot to offer the world….He was someone who wanted to make a positive contribution; that's one of the reasons he wanted to work for the government."
Fairbanks Law Clerk
After law school, Marsh did a one-year judicial clerkship for Ninth Circuit Court of Appeals Judge Andrew Kleinfeld. Those chambers were in what Marsh later jokingly called “the balmy metropolis of Fairbanks, Alaska.” The young law clerk worked hard—one of his fellow clerks remembers late nights in the office and pre-dawn food runs to a Burger King while wearing business suits—and the boss clearly liked him. Judge Kleinfeld told the National Law Journal that Marsh “was a person of the highest integrity, a very decent, intelligent, hard-working guy."
Beginnings of Career in Prosecution
Judge Kleinfeld recommended Marsh for the position in the Department of Justice’s Public Integrity Section that the lawyer took four years after his clerkship ended, according to the National Law Journal. The judge’s kind words were almost certainly helpful in the young lawyer obtaining some other good jobs in between. Marsh worked at two old-line law firms in New York City before taking a job as a prosecutor with the U.S. Department of Justice in 2003.
The National Law Journal has reported that Marsh worked briefly at the U.S. Attorney’s Office in Washington, D.C. before starting at the Justice Department’s Public Integrity Section, an elite squad of 25-30 attorneys who fight public corruption around the country.
The new hire impressed his bosses again by handling three appellate cases his first year, according to the National Law Journal. He also worked in 2004 on the Mississippi-based prosecutions flowing out of attempts to defraud a settlement involving the drug fen-phen, and he was on the government’s courtroom team at a 2005 trial in New Hampshire over a Republican campaign official’s involvement in jamming the phones on a Democratic Party get-out-the-vote drive.
Point Man in POLAR PEN
A recent court filing has stated that the “POLAR PEN” probe into Alaska public corruption started the summer of 2003. According to a Legal Times article in 2009, Marsh began traveling in 2004 to the Great Land to work on that investigation.
At some point between 2003 and 2006, the U.S. Attorney’s Office in Anchorage was recused—lawyer lingo for stepping aside because of a potential or actual conflict of interest—from any decision-making in the POLAR PEN probe, and the Washington-based Public Integrity Section took over. Marsh became immersed in the public corruption investigation on the Last Frontier as the senior prosecutor on the ground.
"Nick spent a lot of his life and energy working on the Alaska cases," a Public Integrity Section supervisor told the National Law Journal. "I can only say he sacrificed a whole lot of himself working on those cases, logging tens of thousands of miles traveling to and from Alaska."
Marsh was involved in the dozen prosecutions arising from the POLAR PEN probe, and gained a reputation among defense attorneys as a tough-minded zealot. Marsh served as essentially the lead government attorney in two trials producing convictions of ex-State Reps. Tom Anderson (R.-Anchorage) and Pete Kott (R.-Eagle River).
Marsh appeared set up to be the lead prosecutor in the country’s biggest public corruption case in years, as he had played a lead role in the grand jury investigation of U.S. Sen. Ted Stevens. In the words of the Website TalkingPointsMemo.com, the prosecution of Ted Stevens would be the “crown jewel” of POLAR PEN, as it would be the first trial of a sitting U.S. Senator in a quarter century and a trial of the man who was one of the longest-serving U.S. Senators ever.
Shortly—perhaps only days—before the indictment came down in late July of 2008, however, higher-ups at the Justice Department inserted another lawyer over Marsh on the Ted Stevens case. The decision to put the sassy Brenda Morris in at the top at the last minute bothered the decidedly unflashy Marsh, the Legal Times reported in 2009.
Although not the lead government lawyer, Marsh was one of three prosecutors appearing before the jury at the highly publicized trial. He argued some of the most important legal motions, and did a particularly good job in cross-examining critical defense witness Bob Persons.
Marsh also took heat during the trial from the judge, however, for some of the problems that arose from the government’s failure to turn over--or "discover"--to the defense all the evidence the law required. Following some contentious hearings and some additional provision of discovery during the trial, the judge allowed the trial to proceed.
Marsh and his team of four fellow prosecutors at trial (three--Marsh, Brenda Morris, and Joseph Bottini--at the counsel table, with two others mostly working on legal motions back at the office) worked around-the-clock for weeks. The prosecution was up against what the Washington Lawyer reported was 11 lawyers (six at the counsel table, with five others mostly back at the office) fielded by Williams & Connolly, the pre-eminent law firm in the country when it comes to white-collar criminal defense. The defense cost $2 million or more—Stevens’ lead attorney Brendan Sullivan typically billed at $1,000 per hour—and the defendant made a filing to the U.S. Senate after the trial disclosing that he owed Williams & Connolly between $1 million and $5 million.
At the end of the five-week trial, the jury returned guilty verdicts against Ted Stevens on all seven felony counts charging failure to report gifts and services—essentially lying to conceal free benefits on forms he submitted to Congress over a half-dozen years. The jury had given Marsh and his colleagues an unqualified victory.
In December of 2008—six weeks after the jury came back with guilty verdicts—Marsh gave an advertised talk at Duke, speaking to the law students at his alma mater on the topic of “Prosecuting Public Corruption Cases: A Prosecutor's Perspective.”
The Ted Stevens Case Flames Out and Burns the Prosecutors
Four months after his talk, his best-known triumph had turned to ashes. The FBI agent who served as co-lead agent on the POLAR PEN probe filed a complaint that alleged misconduct by government officials, including Marsh himself. The trial judge became angrier and angrier with prosecutors in post-trial proceedings, and the Justice Department put a new team on the case after the judge took the extraordinary step of holding some government attorneys in contempt of court. That new team of prosecutors found additional evidence—including some critical items—that the government had not disclosed to the defense before or during the trial.
In April of 2009, Attorney General Eric Holder decided to join the defense request to have the guilty verdicts set aside and the case dismissed. U.S. District Judge Emmet Sullivan dismissed the case with prejudice, stating "In nearly 25 years on the bench, I've never seen anything approaching the mishandling and misconduct that I've seen in this case." In another extraordinary step, Judge Sullivan ordered that a court-appointed special counsel mount a criminal investigation of Marsh and five other prosecutors to see if they committed contempt of court. This probe joined an internal investigation of the prosecutors' conduct run by the Justice Department’s Office of Professional Responsibility (OPR).
The collapse of the Ted Stevens case produced an orgy of anonymous finger-pointing in the press, with some of the blame in the media being dumped on Marsh personally. (New York Times, April 6, 2009: “One of the trial lawyers implicated in several instances of alleged misconduct and concealing documents was Nicholas Marsh….”)
Things went further downhill two months after the case collapsed. In June of 2009, his superiors told the man who had just six months before given a presentation about the prosecution of public corruption to the students at his law school that he was being transferred out of the elite Public Integrity Section. Along with the more junior Public Integrity Section attorney who had gone repeatedly to Alaska, Marsh was sent to one of the Justice Department’s relatively low-profile units, the Office of International Affairs.
Even though the Website MainJustice.com called Marsh’s new workplace a “backwater,” the actual responsibilities sound more than OK. Marsh got a caseload of 200 cases in Europe and a job that had him doing a lot of international travel; his work took him to Hungary and Moldova, the latter trip only two weeks before his death. The government sustained a defeat in his most publicized case at his new assignment—the attempt to extradite fugitive filmmaker Roman Polanski in a decades-old sexual abuse case—but his bosses didn’t seem to hold that setback against him personally.
What might seem a pleasant assignment to the great majority of people in the world could not make Nick Marsh feel good, however. He felt like he had a bull’s eye on his back and was being set up to be the fall guy for the prosecution’s problems in the Ted Stevens case and other Alaska cases he had handled.
The day Marsh was transferred to the Office of International Affairs, the Justice Department announced that a review of the convictions of two former Alaska state legislators showed some evidence that should been provided to the defense. These discovery violations led the new team of government prosecutors to take the highly unusual step of asking the court to release ex-State Reps. Pete Kott and Vic Kohring from prison while the court sorted out what to do with their cases.
The parade of bad news for Marsh continued after his transfer. A defense filing in the Kott case was particularly damaging to the lawyer, as it revealed an e-mail message from Marsh to his superiors that arguably suggested insufficient attention to the prosecutor's discovery obligations during witness coaching sessions with key government witness Bill Allen.
Friends told reporters at TalkingPointsMemo.com, the Wall Street Journal, and the National Law Journal that Marsh was distressed with the length of the investigations of the prosecutors’ conduct, which by the time of his suicide had run on almost 18 months after the dismissal of the Ted Stevens case. Friends also said that Marsh was bothered by a sense that he was being scapegoated while higher-ups who shared whatever culpability he had in the discovery problems were getting off easily. When Marsh was transferred out of the Public Integrity Section, the Washington Post reported that some in the Justice Department—presumably including Marsh himself—were afraid that “lower-level attorneys were being sacrificed by new political appointees at the department who are now applying more rigorous standards on evidence-sharing practices than were in place before.”
One unnamed friend told TalkingPointsMemo.com "When the s___ hit the fan -- regardless of what happened or who was at fault -- in a high profile case like this, the mistakes go higher up the chain."
While Marsh and another junior attorney under scrutiny were sent to the less prestigious Office of International Affairs, friends said that Marsh was bothered by what he saw as inconsistent treatment of two other lawyers under investigation. Two of Marsh’s former superiors at the Public Integrity Section who were subjects of the probes—including Brenda Morris, who did double duty as the lead counsel in the Ted Stevens case—got to continue to work on high-profile prosecutions. Marsh also had to know that Morris—by all accounts the life of many parties—had been a friend of Attorney General Eric Holder.
Although friends said the lack of resolution in the investigations weighed on Marsh, he also seemed to fear the results when they finally ended. Potential outcomes of the probes included the imposition of professional discipline or even being criminally charged himself. Even if he escaped those fates, National Public Radio reported attorneys involved in the investigations seemed to believe that that “the best case scenario” for Marsh and the other lawyers under investigation was a “very blistering report” that would come out later this year, with the special court-appointed counsel’s report to be released perhaps in a few weeks.
Marsh had very good representation in these investigations: His attorney had helped then-Deputy Chief of Staff Karl Rove escape prosecution in the Valerie Plame affair. That excellent lawyer—Robert Luskin—told the Wall Street Journal after the suicide that "We are so close to the finish line. I have every reason to think he would have been exonerated."
The problem was that a victory for Marsh’s lawyer—avoidance of criminal prosecution for his client—would not return to Marsh his previously good reputation and excellent career prospects.
“Nicholas Marsh was gripped with a growing sense of dread,” the National Law Journal said after his death. “Close friends said the young lawyer was uncertain whether he would salvage his career at the U.S. Justice Department or whether private law firms would hire him.”
Marsh didn’t seem to see less lofty or less traditional career goals as an option, as that wasn’t his frame of reference. Judging by those quoted in the articles about him, his friends tended to be either Justice Department prosecutors or partners at large law firms.
His friends stood up for him in the press after his death: Joshua Berman called the accusations against Marsh “unfounded,” and Joshua Waxman said that “He had a long career of working on public corruption cases and great success in prosecuting.”
Marsh’s lawyer Robert Luskin told the National Law Journal that "The whole process imposed an unbelievable burden on Nick, a burden that in the end he couldn't bear."
Marsh hanged himself last week in the basement of the home in Washington he shared with his wife, whom he married shortly before the Ted Stevens trial started. He was 37.
(This post relied on a number of media reports, particularly those of Carrie Johnson of National Public Radio (and formerly of the Washington Post), Mike Scarcella of the National Law Journal, Ryan J. Reilly of TalkingPointsMemo.com, Evan Perez of the Wall Street Journal, Joe Palazzolo of Dow Jones (and formerly of Legal Times and MainJustice.com), and Erika Bolstad of McClatchy Newspapers, owner of the Anchorage Daily News.)
Clarification on January 27, 2011--My original description of the total number of Stevens prosecutors as Marsh and five others included in its total William Welch, who was heavily involved in the prosecution but did not work full-time on the case during the trial. Welch is one of the six prosecutors identified in the original charge given to the special counsel selected by U.S. District Judge Emmet Sullivan along with the five who did work full-time on the case during the trial: Brenda Morris, Joseph Bottini, James Goeke, and Edward Sullivan.
Friday, March 26, 2010
Except to say that Vic Kohring’s lawyers understandably want to compare his case to that of Ted Stevens (guilty verdicts overturned) as opposed to that of Pete Kott (still a felon), I’ll wait until the prosecution responds to Kohring’s post-trial motion to dismiss his case to walk through the legal arguments. For the moment, I’ll confine myself to a discussion of one bit in the filing that raised a lot of eyebrows.
The payment of $200,000 to key informant Frank Prewitt by the FBI is a surprise, more in terms of Prewitt’s professed motivations than from the standpoint of what the feds got.
Although neither the feds nor Prewitt would confirm the payment, the money seems pretty certain to have changed hands. The defense cites federal documents provided in post-trial discovery as the source for the information, and neither Prewitt nor the FBI would deny the payment when the Anchorage Daily News inquired about it.
If the federal government ever attempted a full-dress justification of this payment, I assume that the argument would include these points:
(a) Prewitt worked a lot over more than two years assisting the federal investigation of Alaska public corruption code-named “POLAR PEN.”
(b) His work and cooperation generated big dividends for the feds. Federal prosecutors announced some time ago that that Prewitt's efforts allowed the feds to get the wiretaps on key figures Bill Allen and Rick Smith as well as former State Rep. Tom Anderson (R.-Anchorage). Those wiretaps—particularly those on former VECO executives Allen and Smith—allowed most of the prosecutions the probe has produced.
Even more intriguing in its own way is the contrast between this news of cold cash when placed alongside Prewitt’s own statements about his motivations. Prewitt spent so many hours over so many months wiring up and informing against a number of people, including some long-time associates (and maybe even friends). To explain his extensive cooperation, Prewitt has repeatedly emphasized his good citizenship and his interest in becoming spiritually whole, not the anticipation or hope of receipt of money (or any fear of prosecution he might have harbored).
The FBI apparently gave Prewitt his payment at a ceremony at FBI headquarters attended by some federal prosecutors and FBI agents. Prewitt’s book focuses on the praise federal officials lavished on him at that event as well as the gag gift he received (a shirt without a bug). Somehow, he manages to omit any mention of a $200,000 check.
Wednesday, December 23, 2009
Disgraced briber and former VECO executive Rick Smith is set to enter prison next month to start serving his sentence. As reported by Jill Burke of www.alaskadispatch.com, ex-VECO Vice President Smith has been ordered to prison starting January 12. Smith will begin serving his 21-month prison sentence at Sheridan Federal Criminal Institute in Oregon, a medium-security facility that also holds ex-State Rep. Tom Anderson (R.-Anchorage) and also held former Rep. Pete Kott (R.-Eagle River) until Kott’s release this summer while a judge sorts out allegations of prosecutorial misconduct.
Smith’s former boss Bill Allen is still in limbo as to when his three-year sentence starts, as Richard Mauer has reported in the Anchorage Daily News that federal officials are still figuring out where the multimillionaire former VECO CEO will go. [SEE BELOW FOR UPDATE.]
Reaching even farther back to catch up, the New York Times has reported that Department of Justice attorney Nicholas Marsh has been working in his new Department of Justice job to get filmmaker Roman Polanski extradited to the U.S. to face sentencing for having sex with a minor more than three decades ago.
A former prosecutor of ex-U.S. Sen. Ted Stevens and other defendants in the federal probe into Alaska public corruption, Marsh left DoJ’s Public Integrity Section after the Ted Stevens prosecution collapsed in April. The lawyer was re-assigned to the lower-profile Office of International Affairs to handle extraditions, including that of the movie director who has long been a fugitive in Europe.
Some might detect irony here: As the former go-to guy on the ground in Alaska on the POLAR PEN investigation, Marsh spent a lot of time with Bill Allen, who for years has fought off allegations that he had sex with underage girls.
UPDATE--Jill Burke of http://www.alaskadispatch.com/ has kindly pointed out that her publication has previously reported that Bill Allen is going to federal prison on January 12, the same day as Smith. In a story that I had seen and then somehow missed upon looking again, the Alaska Dispatch reported that Allen is headed for Terminal Island, a low-security facility in California set up to handle prisoners with medical issues.
Tuesday, December 15, 2009
Readers have asked what effect an elimination or trimming back of the “honest services fraud” statute at issue in Bruce Weyhrauch’s appeal on which the U.S. Supreme Court heard oral argument last week would have on the prosecutions in the Alaska investigation into public corruption.
Twelve people have been charged criminally in this investigation. Of those 12, six have been charged under the statute being challenged. In addition to former State Rep. Weyhrauch (R.-Juneau), those six are: former State Rep. Pete Kott (R.-Eagle River), who was acquitted of that charge at trial; Jim Clark, former Chief of Staff to Gov. Frank Murkowski; Bill Weimar, former private prisons magnate; former VECO CEO Bill Allen; and former VECO Vice President Rick Smith. By the same token, former U.S. Sen. Ted Stevens, former State Rep. Vic Kohring (R.-Wasilla), former State Rep. Beverly Masek (R.-Willow), former State Sen. John Cowdery (R.-Anchorage), former State Rep. Tom Anderson (R.-Anchorage), and former lobbyist Bill Bobrick never faced an honest services fraud charge.
Of those six, only Weyhrauch has neither pleaded guilty or been tried already. The jury convicted Kott of other crimes while acquitting him of the charge of honest services fraud; whatever else happens while U.S. District Judge John Sedwick sorts out the allegations of prosecutorial misconduct in the trial, the acquittal means that Kott can’t be retried on that count. Allen and Smith pleaded guilty to multiple counts along with a single count each of conspiracy to commit honest services fraud as well as other crimes, and for a variety of reasons are unlikely to appeal based on a favorable U.S. Supreme Court ruling. Weimar has served the prison portion of his sentence, and also seems an unlikely candidate to try to rely on such a ruling. Clark has pleaded guilty to a single count of conspiracy to commit honest services fraud, and depending on the U.S. Supreme Court’s decision on the statute he might have a defense.
The uncertainty over the legal standing of the honest services fraud statute might also be affecting the Alaska corruption investigation by causing the Department of Justice to hold off on adding to the number of defendants. A reader has pointed out that this uncertainty may have helped block the prosecution against former State Sen. Jerry Ward (R.-Anchorage), whose unsuccessful 2004 legislative campaign has been identified in media accounts as the recipient of illegal campaign contributions from Weimar. The questions hanging over the future of the honest services fraud statute may also contribute to the reluctance of the feds to prosecute former State Senate President Ben Stevens (R.-Anchorage) and U.S. Rep. Don Young.
Thursday, November 12, 2009
Former State Rep. Beverly Masek (R.-Willow) has started serving her six-month prison term.
The Anchorage Daily News reported this morning that the ex-legislator went this week into a minimum-security federal prison camp for women in the California desert.
Masek joins ex-State Rep. Tom Anderson (R.-Anchorage) as the only persons in prison as a result of the long-running federal investigation into Alaska public corruption.
The roundup of the other 10 defendants charged in that investigation is as follows:
Former State Reps. Pete Kott (R.-Eagle River) and Vic Kohring (R.-Wasilla) began serving multi-year prison terms, but both were released earlier this year and remain free while a judge sorts out allegations of prosecutorial misconduct in their trials.
A pre-trial appeal sidetracked the case of former State Rep. Bruce Weyhrauch (R.-Juneau), and the U.S. Supreme Court is set to hear oral argument next month in that appeal. Depending on the Supreme Court's decision and the Department of Justice's evaluation of that decision, Weyhrauch could be tried in Anchorage next September.
Bill Allen and Rick Smith, former executives of the now-defunct oil-services company VECO, have not yet been assigned spaces in prison and so have not yet begun serving time, according to the Anchorage Daily News.
Jim Clark, former Chief of Staff to Gov. Frank Murkowski, has pleaded guilty and his sentencing has been delayed to next fall.
Former municipal lobbyist Bill Bobrick and former private prisons magnate and powerbroker Bill Weimar have served the prison portions of their sentences.
Former State Sen. John Cowdery (R.-Anchorage) escaped a prison sentence due to the sentencing judge's concerns for his poor health.
The guilty verdicts rendered by a jury against former U.S. Sen. Ted Stevens (R.-Alaska) were set aside due to prosecutorial misconduct.
Monday, September 28, 2009
My hike yesterday up a mountain in Pete Kott’s legislative district delayed this posting but hopefully improved its quality. As announced last Friday, the new attorney for that convicted, imprisoned, but at least temporarily released former Republican State Representative from Eagle River has filed a motion to get his indictment dismissed and thereby end his case.
The pleading is a well-prepared catalogue of alleged discovery violations by the prosecutors in the federal public corruption trial of the former Speaker of the Alaska State House that ended in September of 2007 with guilty verdicts on three counts. Two key witnesses against Kott at the trial were long-time VECO CEO Bill Allen and his political lieutenant, VECO Vice President Rick Smith.
The filing is primarily based on more than 4,000 pages of documents that the Department of Justice gave access to the defense after the trial. You can read the filing at http://alaskadispatch.com/images/stories/files/kott%20motion%20to%20dismiss.pdf on the Internet.
Here are my additional thoughts on that pleading:
1. Unless the Department of Justice can somehow rebut the allegations of prosecutorial misconduct in the Kott trial, the government’s case is in big trouble.
Recall that in our system of justice prosecutors are held to special legal and ethical obligations that don’t apply to other lawyers. One of those obligations is the responsibility to turn over certain evidence to the defense before trial. Kott’s filing lays out a number of instances where documents provided to the defense post-trial show statements by witnesses that appear to cast doubt on—or even contradict—evidence and arguments presented at trial by the prosecution. One example offered in the pleading involves a payment by Allen of $5,000 to Kott that helped the former legislator buy a truck. While the government ridiculed at trial Kott’s assertion that the $5,000 payment was a loan from Allen and not a bribe, the prosecution never turned over before the trial a federal investigator’s report from an interview of Allen in which Allen allegedly said that the oil-services tycoon considered that payment a loan.
It will be very interesting to see how the government’s new lawyers address these allegations. As is common with pleadings of 58 pages (59 if you count the signature page), some of the allegations are stronger than others. (Kott’s attorney overplays, for example, the importance of allegedly suppressed evidence that the former 14-year legislator would have voted on oil taxes the way Allen wanted even in the absence of bribes, because legislators can be helpful to people interested in legislative outcomes in ways beyond their vote. Examples include intelligence-gathering and lobbying of other legislators.) Even given a little overreaching by the defense, the oft-stated axiom that prosecutors are supposed to turn square corners means that the Department of Justice attorneys will be sweating to come up with good responses as to why so many documents that look like they should have been turned over were not provided before the trial.
Just because there appear to have been some discovery violations, however, does not automatically mean that U.S. District Court Judge John Sedwick will dismiss the indictment and end the case against Kott. He may order a retrial—the more common remedy for discovery violations—and he may even allow the defense an opportunity to get more discovery. If the court doesn’t dismiss the case, the defense’s alternative request is for Judge Sedwick to order additional discovery, including depositions of some of the government’s witnesses. This mess is likely to grow.
It must be said that those faced with a particular mess include Nicholas Marsh, a trial attorney from the Washington, D.C.-based Public Integrity Section who served as the Department of Justice’s go-to guy in Alaska in the federal “POLAR PEN” probe into public corruption on the Last Frontier. In a bit caught by Rich Mauer of the Anchorage Daily News, the pleading shows that the investigation has been running since July of 2003, and Marsh served as a prosecutor in three of the trials produced by that probe. Marsh was on the in-court prosecution team against Kott as well against ex-State Rep. Tom Anderson (R.-Anchorage) and ex-U.S. Sen. Ted Stevens (R.-Alaska). Along with five other government attorneys, Marsh is the subject of two investigations into discovery violations in the collapsed prosecution of Ted Stevens. Marsh’s attorneys cannot be happy with the disclosure of Marsh’s e-mail to his supervisors that suggests what some will say represents insufficient attention to Marsh’s discovery obligations during witness coaching sessions with Allen. Memo to everybody: Even though some people tend to treat e-mail as the equivalent of a telephone conversation that disappears into the ether, electronic mail is instead a permanent record that lives forever.
2. Witnesses in criminal trials often have warts, but Bill Allen's warts are uglier than most.
The dominant feeling of jurors in criminal trials often is a sense of shock that there could be people who really lived the way the lay witnesses in criminal cases often do. As I told one friend, those witnesses frequently do not resemble the folks at his table at Rotary meetings. One extreme example came when I was a prosecutor: I had one witness in a sexual abuse of a minor case who some years previously had been drinking with two men in a house when one man shot the other to death. She just kept drinking with the killer—in the same room with the dead man’s body—for hours until the authorities showed up.
So as a former prosecutor of sex-crime cases I’ve seen some pretty bad stuff, and I’m also used to witnesses with dents and scratches on them.
Having said all that, the new Motion to Dismiss filed by ex-State Rep. Pete Kott’s new attorney alleges that the federal government apparently sat on—and even discouraged the Anchorage Police Department from pursuing—evidence of some unusually sordid crimes committed by Bill Allen. The allegations are gross—maybe even beyond gross. They include allegations that while in his 60s, the oil-services magnate had sex with as many as five underage girls. He allegedly even went to the mother of a 15-year-old girl and asked if he could date her daughter; the mother allegedly agreed and Allen supposedly then began taking care of the mother financially on a long-term basis.
Two points about these allegations, all of which Allen apparently denies. The first is that the charges make him look so evil and depraved that even their airing will tend to hurt him in the eyes of future judges and jurors. This is not good news for a man facing sentencing next month before the same judge who is reading all these allegations in Kott’s new pleading.
The other point is a question that is probably in the minds of a number of defense attorneys whose clients face prosecution heavily based on Bill Allen’s testimony: When did the federal government first talk about underage sex with Bill Allen, and who brought up the subject?
3. This story started out looking like it was all-American and particularly all-Alaskan, but now it has elements of a Russian novel as well as multiple Greek tragedies.
Wednesday, September 23, 2009
The judge could have a tough time figuring out who he’s sentencing tomorrow morning in the case of U.S. v. Beverly Masek.
Is the defendant the person the voters knew, the tough musher and charismatic candidate who won five terms in the Alaska State Legislature?
Or is she the greedy crook the prosecutors want the judge to see, the criminal who sold her public office for cash bribes?
Or is Beverly Masek the sad figure painted by her lawyer, the drunk and depressed pauper who—despite serving for years as one of Alaska’s 60 legislators—had no power over anything around her?
The Icon the Voters Knew
Ever since she blitzed to victory in 1994, Bev Masek the Icon has been well-known to voters in her rural-tilting district north of Anchorage. She was the Native woman from the small village of Anvik who four times finished the Iditarod—“the Last Great Race,” the marathon dog-sled competition that runs each year across more than 1,000 miles of the Lost Frontier. Not content with that record, she also won the “Mountain Woman Contest” in Talkeetna.
Running as a 31-year-old first-time candidate, the Willow Republican won her first term in 1994. Rep. Masek crusaded against drug use by Native youth, and even served as a spokesperson for a hospital well-known for its treatment of patients with psychiatric and substance abuse problems. She was re-elected four times before being defeated in 2004 in the Republican primary. Her loss came in the wake of ethics complaints from a legislative staff member concerning her financial improprieties, although that misconduct did not involve the crime for which she will be sentenced tomorrow.
The Crook the Prosecutors Portray
The defendant pleaded guilty to a bad set of facts, so the prosecution’s sentencing memorandum gets to be short and punchy. In her ninth year as an elected Alaska State Representative, the defendant approached long-time VECO CEO Bill Allen in April of 2003 to discuss her financial difficulties. Masek then “accepted a cash payment of several thousand dollars from a relative of Allen’s” in an Anchorage restaurant, “knowing that there were matters pending before the Alaska State Legislature that were important to Allen and VECO’s business interests.”
Less than a month after taking this first cash payment, Rep. Masek introduced a bill that would substantially raise taxes on Alaska’s major oil producers, better known to Bill Allen as the outfits that paid most of VECO’s bills. Bill Allen met with the lawmaker the next day and persuaded her to withdraw that legislation. The day after that, Bill Allen gave Rep. Masek another $2,000 in cash, “which the defendant accepted knowing that it was given, in part, because of her agreement to withdraw the bill.”
And Masek didn’t stop there. Within months of the second cash payment, she again asked Bill Allen for money, asked VECO Vice President Rick Smith for consulting work with VECO, and told her legislative aide to meet with Smith to seek additional money from VECO.
Now that Masek is being sentenced based on her plea of guilty to the crime of conspiracy to commit bribery, the prosecution wants U.S. District Judge Ralph Beistline to send Masek to prison for a significant period. “[A] sentence [of 18-24 months of incarceration] is needed to reflect the seriousness of the offense, provide just punishment, and afford adequate deterrence.”
The government lawyers also point to Masek’s former position as “a high-ranking elected public official for the State of Alaska,” and assert that “crimes such as the defendant’s have eroded the public’s faith in the Alaska State Legislature and their elected leaders.”
The Cipher Her Lawyer Paints
There’s no bad person here, Masek’s lawyer says: His client is a remorseful victim who needs rehabilitation above all. She was vulnerable because of the Four Ds: Divorce, Depression, Deprivation, and Drunkenness. Although the word does not seem to appear in the 31 pages Federal Public Defender Rich Curtner filed on Masek’s behalf, the sentiment that he really wants to engender is pity.
She got a bad husband and then fell in with a bad crowd in and around the Legislature, say various letter-writers to the court. Despite being a lawmaker for 10 years, Masek seems to have always lacked the capacity to do the job. She then fell so much farther that she became almost a non-entity in the Capitol and even in her own life. Her former lawyer writes that Masek “was largely controlled by other people.” A
legislative employee who observed the Willow Republican saw her as “very heavily controlled during her tenure in office,” adding that Masek’s legislative staff “was picked to further an agenda I don’t know if she agreed with or supported.”
Who were these master manipulators who called the shots? Her lawyer doesn’t say directly, but the package of pleadings he filed points the finger at three people whom he wants the judge to think were running—and ruining—Masek’s life: her lousy (now former) husband, her former legislative mentor Rep. Ramona Barnes (R.-Anchorage), and Bill Allen. (Note that Masek’s former husband is apparently now living in Latin America, Barnes is dead, and Allen (whom one of Masek’s friends calls “‘the devil of the decade’”) is scheduled to be sentenced next month to a much longer prison sentence than Masek conceivably faces.)
Plagued by depression and alcohol abuse caused by her divorce and her related financial hardship, Masek was a personal wreck by the time she committed the crime she is being sentenced for. Her defense attorney quotes her as telling her psychiatrist that frequently during the 2003 legislative session she “‘did not really know what was happening around her.’”
In addition to arguing that her crime was situational and will not recur, Masek’s lawyer is asking the judge to go easy on her because going to prison will harm her recovery from alcoholism and major depression and because another state legislator sentenced in this federal probe—ex-Sen. John Cowdery—got off with home detention.
The defense’s sentencing memorandum says that “It would be a tragic footnote in the Alaska corruption scandal that amidst the storm of corruption in Alaska’s legislature, at this point the one person who is serving time in a federal prison is a Native Alaskan woman who was suffering from depression and alcoholism, who accepted four
thousand dollars from Bill Allen.”
Note that this statement is subject to two factual objections, one major and one more minor. As Rich Mauer pointed out in the Anchorage Daily News, former State Rep. Tom Anderson would certainly take exception from his cell to the proposition that putting Masek in prison would make her the only person incarcerated as a result of the federal investigation. And the prosecution seems to suggest that the combined bribes to Masek totaled at least $4,000, and were not necessarily only that amount.
Based on all the factors listed above, Masek’s attorney seeks a sentence of three years of probation that would focus on rehabilitation, which might include six months of residential treatment and/or home confinement.
What Judge Beistline Is Likely to Do
All indications are that the prosecutors are likely to walk out of the courtroom happier than the defense counsel and the defendant. Based on his previous in-court statements about the case and his record in sentencing, Judge Beistline is likely to give the government much of what it wants tomorrow morning, which means that Beverly Masek will be going to prison for well over a year.
Judge Beistline has heard a lot of sad stories as a judge that have certainly included claims of alcoholism, poverty, and divorce-fueled depression, so those arguments are unlikely to make him go easy in a case of a public official who has admitted repeatedly violating the public trust.
The court will probably dismiss the defense’s “Bill Allen lured me in” contention by noting that ex-Rep. Masek seemed to pursue—or even extort—Allen to get the second cash payment by introducing a bill as almost a bargaining chip.
To the claims that sending Masek to prison would harm her rehabilitation, the judge will cite the need to hammer her to deter other legislators from taking bribes in the future. To put it another way, the court will see it as more important to make an example of Masek that it is to maximize the chances that her life will be as good as possible from now on.
Judge Beistline is likely to reject the defense claim that the fact that ex-Sen. Cowdery escaped prison means that Masek should get the same treatment. The court will probably point to the facts that she took cash, while Cowdery got no money personally. In addition, the court will likely see Cowdery as far sicker than her.
Finally, Masek getting caught drunk twice while on conditions of release in this case will be seen as cutting against her attorney’s claim that she has a strong desire to kick her alcohol problem.
We’ll know tomorrow. Stay tuned.
Thursday, August 6, 2009
District Court Judge John Sedwick has ordered the prosecution to appear at a closed hearing tomorrow morning and persuade him not to make Jim Clark—former Chief of Staff to ex-Governor Frank Murkowski—to start serving his sentence. Clark pleaded guilty more than 17 months ago to a single count of conspiracy to commit honest services fraud, and he has been kept out of prison since then because he is cooperating with the federal investigation into public corruption on the Last Frontier.
But Judge Sedwick seems to be getting tired of the delays in Clark going off to prison, just as the judge recently showed even more impatience with the slowness in sentencing former VECO executives and admitted bribers Bill Allen and Rick Smith, who have been cooperating just short of three years now. As the judge’s order says, he needs to figure out “how best to accommodate the tension between defendant Clark’s assistance in on-going investigations and possible up-coming trials with the need to bring the case against Mr. Clark to a conclusion.”
One of the considerations in this closed-door talk-turkey discussion tomorrow morning is just how much those investigations are actually going on and likely to produce more defendants and thus potentially more trials. One of the factors in that decision on future prosecutions, in turn, is the possibility that the Attorney General or other higher-ups in the Department of Justice will conclude that the best way to use the major failures demonstrated in some of the POLAR PEN prosecutions on the Last Frontier is to make them a teachable moment for federal prosecutors by closing up shop on the probe.
That teachable moment brought by ending the investigation would be the message that federal prosecutors who make glaring mistakes in providing evidence to the defense—a process lawyers call “discovery”—will not only face severe career consequences but also see their work go up in ashes. (Note that the six prosecutors currently under investigation about their work on the Ted Stevens trial have already faced some repercussions. All six have had to spend time with expensive defense attorneys whose bills will almost certainly only be partially paid by the federal government, but two of those prosecutors have been sent to the Justice Department’s version of Siberia. Joe Palazzolo of www.mainjustice.com reported in June that Nicholas Marsh and Edward Sullivan have been transferred from their plum assignments at the Public Integrity Section to the Office of International Affairs, where they are presumably advising the State Department on treaties and coordinating international extraditions while staying far away from the courtroom.)
There have been some big screw-ups by government lawyers uncovered in the case against former U.S. Sen. Ted Stevens. It also looks bad for the way the cases against ex-State Reps. Pete Kott and Vic Kohring were handled that the feds have agreed to let those two convicted former state legislators go free while new teams of prosecutors review the way discovery was done before those trials.
But commenter Howard Weaver is correct: It is beyond odd to the point of exquisite irony that some people—so far all Republican office-holders—who did seamy things are escaping punishment because a Republican-run (and apparently highly
politicized) Department of Justice blundered terribly.
Speaking of odd, two other points stand out:
1. It is passing strange that former State Rep. Tom Anderson is the only person sitting in prison tonight due to this investigation. While the evidence at trial showed his guilt, he is hardly the most culpable person uncovered by this probe.
2. It would be even weirder if the federal government got Bill Allen and Rick Smith to plead guilty to bribing former State Senate President Ben Stevens and then never charged Ben Stevens with any crime.
Thursday, July 30, 2009
Long-time public radio host Steve Heimel and UAA Professor of Public Administration Emeritus Steve Aufrecht were on the radio Tuesday for an hour speaking about ethics in government on the statewide call-in program "Talk of Alaska." If you missed it, you can hear it at http://aprn.org/2009/07/24/talk-of-alaska-what-is-a-frivolous-complaint/ on the Internet. Aufrecht has also been writing on this topic on his blog http://www.whatdoino-steve.blogspot.com/ on your Internet. His blog featured detailed coverage of the corruption trials in 2007 of former Alaska legislators Pete Kott (R.-Eagle River), Vic Kohring (R.-Wasilla), and Tom Anderson (R.-Anchorage). (As Aufrecht noted on the program, Anderson was a former student of his.)
Monday, June 29, 2009
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. Attorney 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.