Bruce Weyhrauch Seeks Permission to Give Evidence to Alaska Bar Association Allegedly Showing Prosecutorial Misconduct

Anchorage-- Attorneys for ex-State Rep. Bruce Weyhrauch (R.-Juneau), a lawyer and former defendant in the federal government's "POLAR PEN" probe into Alaska public corruption, have asked the federal trial court for permission to give material to the Alaska Bar Association that allegedly reflect prosecutorial misconduct. The lawyers for Weyhrauch allege that the material--currently under seal--"refers to evidence of serious misconduct by government prosecutors appearing before the grand jury, including subordination of perjury...." The pleadings filed today cite a professional obligation by Weyhrauch and his lawyers to report serious misconduct to the body that oversees the practice of law in Alaska. The pleadings do not allege that any particular prosecutor committed misconduct. A footnote in today's papers, however, names the four prosecutors who entered appearances in Weyhrauch's case: Nicholas Marsh and Edward Sullivan, then Trial Attorneys for the Department of Justice's Public Integrity Section; and Joseph Bottini and James Goeke, Assistant U.S. Attorneys then based in Alaska. All four were active in other "POLAR PEN" cases, including the prosecution of U.S. Sen. Ted Stevens that has produced two separate investigations into prosecutors' conduct. As of next month, both of those probes will have run at least two years.

Another Joke from a Tyke

Anchorage--

An offering from a five-year-old threatening to surpass his uncle as the family's funniest member:

Question: What did the ocean say to the shore?

Answer: Nothing. It just waved.

Kott Shoe Drops--Appellate Court Vacates Pete Kott's Convictions and Remands for a New Trial

Anchorage--

As expected, the Ninth Circuit Court of Appeals has reversed the convictions of ex-State Rep. Pete Kott (R.-Eagle River) and granted the former Speaker of the House a new trial. This time it's a four-page unpublished disposition. The appellate court cites the withholding of evidence that key prosecution witness Bill Allen sexually exploited minors and attempted to solicit perjury to cover it up. The three-judge panel also points to newly disclosed evidence of numerous prior inconsistent statements about the amounts of money Kott got and the reasons for such payments.

(Thanks once again to the eagle-eyed Mark Regan.)

The Bare Record of the Federal Probe into Alaska Public Corruption--REVISED

Anchorage--

A reader of this blog has passed the word to me that he considers to be incorrect my characterization of the activities associated with the convictions of former State Rep. Tom Anderson (R.-Anchorage). I stated that Anderson was convicted of "crimes associated with corruption regarding private prisons." The reader has stated that the case dealt instead with a narrower entity: a proposed residential psychiatric treatment center for youths that a corrections company wanted to operate.

The Anderson trial was the only one of the four trials arising out of the federal investigation that I did not attend. I followed media coverage of the trial, however, and I have again reviewed some of that media coverage as well as court pleadings filed regarding the trial. In the indictment, the grand jury charged Anderson with crimes relating to the state legislator providing legislative assistance to a corrections company regarding a proposed residential psychiatric youth treatment center, halfway houses, and a potential private prison. The trial jury convicted Anderson on all seven counts charged.

The lawmaker's work regarding the residential psychiatric treatment center for youths might be seen as the most significant, as he participated in a hearing regarding a permit for that facilty. The evidence presented at trial showed, however, that Anderson also wrote a letter to and met with the Commissioner of Corrections regarding halfway houses operated by Cornell, the corrections company the lawmaker thought was getting paid by (although the money was actually coming from the FBI). Additionally, the indictment alleged that Anderson told Frank Prewitt, a lobbyist for the corrections company, that he would prod the Corrections Commissioner about a feasibility study for a potential private prison.

I have revised the graphic to show that Anderson was convicted of "crimes associated with corruption regarding private corrections facilities."

Here's the revised graphic showing the current status of the cases:

Individual / Role / Crimes charged / Sentence of custody after resolution of case / Legal status as of 23 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 corrections facilities / 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

Why Did the Department of Justice and Bruce Weyhrauch Agree to a Deal?

Anchorage--



After almost four years of litigation over four felony charges alleging public corruption, federal prosecutors and former State Rep. Bruce Weyhrauch (R.-Juneau) agreed to a settlement of the case. The deal that was executed last week allowed the former legislator to plead guilty to a single state misdemeanor of knowingly allowing two unregistered lobbyists to lobby him when Weyhrauch was aware of a substantial probability that they were not registered. For this offense, a judge sentenced Weyhrauch Tuesday to a three-month suspended jail sentence and a $1,000 fine, and put him on a year of probation.



Weyhrauch’s case was the last of the cases arising out of the federal government’s POLAR PEN investigation into Alaska public corruption to be resolved at the trial court level. Why did the two sides come to this deal now?


Know right up front, dear reader, that Bruce Weyhrauch is the defendant in the POLAR PEN cases that I know the best. I have known him for about 30 years, and I have had numerous personal and professional contacts with him during that time. He and I have never spoken about this case, however, or had a conversation since his indictment in 2007. More on my experiences with Bruce Weyhrauch here.



Before this plea arrangement was announced and executed, I was planning to write a post on the things each side had going for it as the trial approached. That post now morphs into an analysis of the factors affecting the sides’ decision to make a deal. I’ll start with the background of the case before I discuss items favoring the prosecution, lay out what was good for the defense, set out the factors pressing each side for a pre-trial settlement, and end with some comments.



BACKGROUND



On May 3, 2007, the federal government filed a grand jury indictment of former State Rep. Bruce Weyhrauch (R.-Juneau). The indictment charged Weyhrauch with four felonies: extortion, bribery, honest services fraud, and conspiracy to commit those other three crimes.



The context for the charges was the Alaska Legislature’s consideration of the Petroleum Profits Tax (PPT) legislation in 2006, legislation that was heavily lobbied by Bill Allen and Rick Smith, executives of the giant oil-services corporation VECO. That company made substantial amounts of money through contracts with Alaska’s major oil producers, who would pay any higher taxes imposed by the State of Alaska.



The indictment alleged that Weyhrauch, an attorney and legislator first elected in 2002, agreed to help the VECO executives try to get their preferred version of oil tax legislation adopted in 2006 in return for a promise of future contract legal work.


Although it was originally scheduled to go to trial in September of 2007, the federal government delayed the case while making a pre-trial appeal of an evidentiary ruling from the trial court. The prosecution had announced that it wanted to argue that Weyhrauch was required to disclose his solicitation and discussions with VECO under a state statute providing that “A legislator may not…unless required by the Uniform Rules of the Alaska State Legislature, take…official action or exert official influence that could substantially benefit…the financial interest of another person with whom the legislator is negotiating for employment.” Under the prosecution’s theory, Weyhrauch was guilty of honest services fraud because he failed to disclose those discussions in violation of this law.



U.S. District Judge John Sedwick ruled that this law—AS 24.60.030(e)(3)—did not require disclosure, and prohibited the prosecution from presenting evidence or arguing to the jury that the law required the lawmaker to disclose his discussions with VECO executives about future contract work before taking official action regarding PPT legislation.



The Department of Justice apparently thought that this evidence was so important to its case against Weyhrauch that the prosecution held up the trial against him to pursue the appeal.



The case then sat on hold for almost three years as it wended its way through the courts. Bruce Weyhrauch’s name was then enshrined forever in the lawbooks when the U.S. Supreme Court issued a decision in his case and two others in June of 2010. The Supreme Court ruled that the honest services fraud statute did not cover the kind of undisclosed self-dealing that the prosecution alleged Weyhrauch engaged in.

After a series of other delays, the case was scheduled to go to trial starting May 9, 2011 in Juneau. Both sides made moves to prepare for the trial.



Then on Friday, March 11, documents were filed in state court in Juneau showing that the parties had agreed to end the case by having Weyhrauch plead guilty to the very substantially reduced—and unprecedented—misdemeanor offense of “participating in, aiding, or abetting a lobbyist engaging in activity as a lobbyist without being registered.”



Weyhrauch pleaded guilty on Monday and was sentenced on Tuesday morning. Weyhrauch’s lawyer Doug Pope said despite the government’s “pathetically weak case,” the prosecution had put Weyhrauch and his family “through a special kind of living hell.” At the sentencing hearing, Weyhrauch’s attorney Ray Brown said that his client had “spent over $300,000 in defense cost.” State District Court Judge Keith Levy stressed the importance of being faithful to the public trust as a legislator in denying the defense request for a suspended imposition of sentence, an outcome that would have allowed Weyhrauch to get the conviction wiped off his record if he successfully completed probation.



As he left the courthouse, Weyhrauch told reporters that "No citizen of this country should have gone through what I've gone through -- what the federal government, they've done to me, they can do to anyone.” He added that "I look forward to a bright tomorrow and spending time with my family."



THINGS THE PROSECUTION HAD GOING FOR IT



1. Undisclosed angling for work from VECO. Bruce Weyrhauch solicited VECO for contract legal work and discussed with VECO executives possibilities for that work while he was a state legislator working on PPT legislation in 2006, and never disclosed the solicitation or the discussions.


2. Working with VECO on oil tax legislation in ways that are arguably suspicious. Weyhrauch also communicated with Allen and Smith in ways that helped those executives in the legislative process on the PPT bill. The ways that Weyhrauch apparently helped the VECO executives allegedly included switching his vote on an amendment to the legislation after the government said he received “instructions” to do so from Allen and State Rep. Pete Kott (R.-Eagle River), a legislator working closely with Allen.


3. Crooked-appearing associates. Some of the people that Weyhrauch dealt with on the VECO legislation—including Allen, Smith, and Kott—look criminal and tawdry on tapes (including some videotapes) that the FBI made during its investigation into Alaska public corruption.


4. Other people’s comments suggesting Weyhrauch sold his office. In a telephone conversation captured by the FBI, Allen and State Senate President Ben Stevens (R.-Anchorage) agreed that Weyhrauch came to support VECO’s preferred version of the PPT bill because Allen had told Weyhrauch that VECO would give him contract legal work in the future. In other conversations away from Weyhrauch, Allen and Smith also made other comments that explicitly or implicitly linked Weyhrauch’s support for the VECO-supported version of the legislation to Weyhrauch’s expectation of future legal work from VECO.



5. Weyhrauch’s tough financial situation. It was widely known in the Capitol that the lawmaker was pressed for money in 2006, as the solo practitioner struggled to support three children in a house that had been renovated. The indictment alleges that while meeting with Allen and Smith to discuss future legal work, Weyhrauch told Allen that he "was not doing well financially."



6. Bad optics over “This is our floor” speech. During legislative consideration of the PPT bill, Rep. Ethan Berkowitz (D.-Anchorage), the House Minority Leader, angrily denounced outside pressures on the process. “This is our floor. Our floor,” Berkowitz said in a clip that was widely replayed. “No telephone call is supposed to change what we’re doing. No lobbyist is supposed to peer over the ruling and tell us to change our mind.” Weyhrauch got up to object and assert that Berkowitz’s characterization was incorrect. Regardless of the reason(s) that Berkowitz made that speech, the prosecution might have suggested that Weyhrauch’s hasty objection represented consciousness of guilt.


______________________________________________________



The line above represents a division between things the prosecution could clearly have gotten before the jury (the points above that line) and things the government’s lawyers would have hoped they could get into evidence (the points below the line).


7. Alleged chiseling on per diem payments. The prosecution claimed that the lawmaker had repeatedly submitted “fraudulent” requests for payment for some legislative work compensated on a basis of time worked, apparently alleging that Weyhrauch had a pattern of seeking payment for work he did not perform. The trial judge prohibited the prosecution from introducing this evidence, but the government announced in pre-trial pleadings that it would be looking for other ways to get these allegations before the jury during the trial.


8. Other behavior in the legal arena that was arguably inappropriate. Weyhrauch took a fee from a company to seek executive clemency (often called a “pardon”) for a company that had been convicted of criminally negligent homicide. This representation for the firm Whitewater Engineering had Weyhrauch ask Governor Frank Murkowski to give this unusual relief, which Murkowski granted in the waning days of his administration. Although not prohibited by laws and rules then in effect regarding the conduct of lawyers and legislators, Weyhrauch’s conduct could be portrayed as evidence of poor judgment and a conflict of interest, as the Governor would clearly want Weyhrauch’s legislative assistance on other matters. Weyhrauch donated his legal fee from the company to a charity, apparently after the FBI’s search of the lawmaker’s office pursuant to a search warrant signaled that Weyhrauch was a target of the POLAR PEN federal investigation into Alaska public corruption.


9. Evidence suggesting that Weyhrauch should have known better. Before he became a legislator, Weyhrauch had been on the board of the Alaska Bar Association and had served as its President, positions in which he had participated in decisions about the imposition of professional discipline on other attorneys. Additionally, Weyhrauch—like Ben Stevens—served on the Select Committee on Legislative Ethics in 2005-2006.


THINGS THE DEFENSE HAD GOING FOR IT


1. No money changed hands. Weyhrauch got no money from VECO, and the government seemed to have no evidence that he linked any legislative assistance regarding VECO’s preferred version of the PPT bill to any future contract legal work from VECO.


2. Innocent explanations for Weyhrauch’s actions on oil tax legislation. The defense was prepared to present witnesses that Weyhrauch’s thinking about the PPT bill evolved for legitimate and non-corrupt reasons during 2006. Although the prosecution would have argued that a legislator can help a cause in ways other than voting on the floor—such as gathering intelligence and lobbying other lawmakers—the defense would have picked through the many votes legislators took on PPT bills during the regular session and two special sessions and pointed to at least one instance in which Weyhrauch had voted that year against VECO’s preferred position on the legislation.


3. Favorite arrow in prosecutor’s quiver blunted severely. The Supreme Court’s narrowing of the honest services fraud statute in 2010 took away a very important argument for the prosecution against Weyhrauch.


4. Shrunken government witness list. By 2011, the government’s witness list had gotten smaller, as the prosecution had indicated that it would not call Bill Allen to the stand. Additionally, the defense alleged that a lawyer for lead FBI agent Mary Beth Kepner had indicated that she would claim a Fifth Amendment privilege against self-incrimination if called to testify at Weyhrauch’s trial.


5. Tape shortage. Tapes of incriminating behavior and statements had been critical in the conviction of a number of defendants in cases arising out of the federal investigation, and Weyhrauch doesn’t show up on truly damning tapes the way a number of other defendants have. Weyhrauch never went to Suite 604, the “Animal House” headquarters of Allen and Smith’s lobbying operation in Juneau’s Baranof Hotel that was the scene of tapes that made a number of defendants look both guilty and crude.


6. Shaky law on disclosure. The government never alleged that Weyhrauch’s solicitation of legal work from VECO violated the ethical rules applying to Alaska lawyers, and Weyhrauch and his defense claimed that he was acting within the letter and intent of state law and legislative guidelines when he solicited work from companies with business before the legislature without disclosing it. Weyhrauch had told other legislators that he had sent out numerous letters seeking work from potential clients, and he told the Anchorage Daily News that other companies he solicited had business before the legislature.


7. The Department of Justice in full retreat. Disclosures of failures in meeting responsibilities to provide evidence to the defense have led to the meltdown of the prosecution against U.S. Sen. Ted Stevens and the release of former State Reps. Kott and Vic Kohring put the government’s investigation in a bad odor. Two probes into the prosecutors and the investigators in POLAR PEN have been going on for close to two years. Although touching on this sad and emotional subject could have been dangerous, the defense might have been looking for some way to get before the jury the suicide of former Department of Justice attorney and POLAR PEN point man Nicholas Marsh in an attempt to argue that he was trying to escape the consequences of his actions.


Weyhrauch’s defense attorneys had already filed a sealed document in federal court alleging “misconduct before the grand jury” that indicted him. Although we don’t know what would have come of that effort, the Department of Justice might have seen the continuation of litigation in the Weyhrauch case as another way unpleasant facts might have surfaced regarding the POLAR PEN prosecution.


With all these problems and concerns, the feds were looking to fold their tent. Letting Weyhrauch plead to a misdemeanor in state court was as close as the prosecutors could come to dumping the case without actually dismissing it. On the other hand, Weyhrauch’s plea to that misdemeanor stopped the meter running on his attorney bills, already over $300,000.


8. Home court advantage. By 2011, Weyhrauch’s lawyers had succeeded in getting the trial moved from Anchorage to Juneau, where at least some in the jury pool may have been exposed to positive information from the defendant’s political campaigns and extensive community service.


9. Minnow among the whales. One of the people the indictment alleges that Weyhrauch conspired with is former State Senate President Ben Stevens, who remains uncharged despite the federal government’s allegation that Bill Allen arranged to have VECO pay him more than $243,250 over five years for “giving advice, lobbying colleagues, and taking official acts in matters before the legislature.” Along with “Where’s Bill?,” another defense theme at a trial could be “Where’s Ben?”


10. Family man with good family. As his lawyers recognized, a jury might be affected by Weyhrauch’s three attractive children and his particularly nice wife.




An additional background factor playing into each side’s handling of the trial, particularly before a Juneau jury, would have been a mishap Weyhrauch experienced in his hometown nine days before he was indicted and arrested. Back in April of 2007, Weyhrauch was reported missing while alone in his small boat in the waters off of Juneau. He was found 17 hours later on an island with signs of hypothermia.

This unusual incident would likely only have come out openly in the trial if Weyhrauch had testified in his own defense. If he had taken the stand, he likely would have said the same things about the case that he told Richard Mauer of the Anchorage Daily News after the sentencing. In the rules that govern Alaska’s citizen legislature, there is no duty to disclose solicitation of work from a company like VECO, Weyhrauch said. “Once you represent somebody you disclose it.” He also said that his busy schedule of work and family responsibilities kept him from learning that Allen and Smith were corrupt. He said that the grueling schedule had led him not to run for re-election in 2006, a decision his lawyers have said that he made before he solicited work from VECO.


EVALUATION


Some of Bruce Weyhrauch’s conduct as revealed in this case was troublesome, but that doesn’t mean that it merited criminal punishment under the law. In the words of close observer Mark Regan, the charges against this former legislator “have been disproportionate to the gravity of his alleged wrongdoing.” (If an instance of questionable judgment was grounds for prosecution if it disappointed an old friend, it’s not clear when I would ever get out of prison.)


Given the large number of lawmakers who dealt in 2006 with Bill Allen and Rick Smith, it is of course odd that Bruce Weyhrauch stands as almost certainly the only Alaska legislator who will ever be convicted of the crime the Associated Press characterized as "letting unregistered lobbyists peddle their ideas to him." A good lawyer like Weyhrauch of course knows that being odd does not mean illegal and that selective prosecution is definitely common in American law.


On a personal level, it was nice to see LuAnn Weyhrauch smile on the video the Anchorage Daily News posted showing her and her husband leaving the courthouse after the sentencing. Bruce Weyhrauch has a lot of things going for him as he puts this terrible experience behind him, as he is smart, hardworking, and fiercely loyal to his family and friends. There is of course a terrible irony in that it was Bruce Weyhrauch’s search for income to support his family that has led to a case that has cost him at least $300,000 as well as a long walk through hell. You have to wonder how much he regrets running in 2004 for his second term in the legislature, and you have to wonder how much he would paid some higher power in 2006 to avoid going through the ordeal of the last four years.

The Bare Record of the Federal Probe into Alaska Public Corruption

Anchorage--


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

Comprehensive Coverage of Weyhrauch Sentencing in Alaska's Largest Newspaper

Anchorage--

The Anchorage Daily News has a solid story and video in its coverage of the Bruce Weyhrauch sentencing on a misdemeanor today. The newspaper is to be commended for arranging to have Richard Mauer in Juneau for what will almost certainly be the last sentencing in a case arising from the federal government's POLAR PEN probe into Alaska federal prosecution.

Bruce Weyhrauch Gets Suspended Sentence of Three Months in Jail and $1,000 Fine for Misdemeanor of Dealing with Unregistered Lobbyists

Anchorage--

The Associated Press reports that former State Rep. Bruce Weyhrauch (R.-Juneau) has this morning received a suspended sentence of three months in jail and a $1,000 fine on a guilty plea to a state misdemeanor charge the wire service characterized as "letting unregistered lobbyists peddle their ideas to him." Much more to come later.

Associated Press Reports that Judge Has Accepted Bruce Weyhrauch's Misdemeanor Plea and Schedules Sentencing at 9 a.m. Tomorrow

Anchorage--

The Associated Press reports that a judge in Alaska state court in Juneau has accepted former State Rep. Bruce Weyhrauch's plea of guilty to the misdemeanor of "Participating in, aiding, or abetting a lobbyist engaging in activity without being registered." The court set sentencing for 9 a.m. tomorrow.

I have reviewed the documents filed Friday, which contrary to my earlier post were filed in state court and not in federal court. I'll have a lot more to say about this case later this week, but what strikes me this afternoon is that it is highly unusual--if not unique--to see a five-page factual basis for plea in a misdemeanor case in Alaska state court. That's what happens when lawyers for both sides negotiate and insist on putting the versions of each side in one document.

(Disclosure: I have had numerous personal and professional contacts with Bruce Weyhrauch between 1981 and 2005, but he and I have never discussed his case or spoken since his indictment in 2007.)

Feds Blink and Give Bruce Weyhrauch a Misdemeanor in Plea Deal, Anchorage Daily News Reports

Anchorage--

Richard Mauer of the Anchorage Daily News has the scoop: The federal government has agreed to drop four felony counts--including bribery, extortion, and conspiracy--against ex-State Rep. Bruce Weyhrauch (R.-Juneau) in return for the former lawmaker pleading guilty in state court to dealing with VECO executives Bill Allen and Rick Smith when Weyhrauch should have known they were unregistered lobbyists.

I'll have more when this agreement when it appears on the official federal court Website (apparently later today), but there are some important points now:

1. This is a major climb-down by the Department of Justice. Weyhrauch faces a maximum sentence of a year in prison and a $1,000 fine under the misdemeanor conviction, and he will almost certainly avoid jailtime and keep his license to practice law.

2. The feds' retreat appears to be close to total in the POLAR PEN probe into Alaska public corruption. Mauer notes that the document was signed and filed in federal court Friday, the same day that a federal appeals court threw out the convictions of former State Rep. Vic Kohring (R.-Wasilla) and ordered a new trial.


3. By dropping the felony case against Weyhrauch and agreeing to give him a misdemeanor, the Department of Justice is closing the door on more discovery into ugly matters likely to be embarrassing to the federal government. As of this moment, the last document filed on the federal courts' website in this case is a court order directing the prosecution to respond to a broad defense request for more information, including copies of any law enforcement reports of Bill Allen invoking his Fifth Amendment rights not to answer questions about Allen's involvement in "sex with underage women or sex trafficking."


4. In response to Mauer's question regarding whether the State of Alaska will now investigate any of the many other legislators who were actively lobbied by unregistered lobbyists Bill Allen and Rick Smith on oil tax legislation in 2006, all signs point to "No."

(Disclosure: I have had numerous personal and professional contacts with Bruce Weyhrauch between 1981 and 2005, but he and I have never discussed his case or spoken since his indictment in 2007.)

Why Wasn't the Tape Enough to Convict Vic Kohring?

Anchorage—

A commenter made the same point that I heard repeatedly Friday.

Why wasn’t the tape alone enough to convict Vic Kohring?

I deleted the comment because it included an obscenity (let’s keep it clean on this family site), but I want to answer the question.

The tape in question is a videotape the FBI made in the infamous Suite 604 of Juneau’s Baranof Hotel on March 30, 2006. It shows then-State Rep. Vic Kohring (R.-Wasilla) with long-time VECO CEO Bill Allen and his political lieutenant Rick Smith.

U.S. District Judge John Sedwick thought the tape alone was enough to convict Kohring, and a number of other Alaskans do as well. As the former legislator’s hometown newspaper editorialized about what is shown on the tape, “If that’s not a bribe, we need to redefine the term.”

You can look at the tape here—it’s less than 21 minutes long. It does make Vic Kohring look bad.

In the tape, the legislator is sitting in the hotel suite Allen and Smith are using as the
headquarters for their lobbying campaign on the oil tax legislation known as the Petroleum Profits Tax (PPT) bill. Kohring asks Allen and Smith for help paying off a delinquent $17,000 credit card bill. Near the tape’s end, Kohring takes some cash from Allen—ostensibly so that Kohring can put it in a gift to his daughter with Easter eggs—and then almost immediately asks how he, the legislator, can help the oil-services tycoon get the Legislature to pass Allen’s preferred version of the oil tax bill.

Judge Sedwick said back in August that in his analysis the only conduct the jury convicted Kohring of was the solicitation of Allen for help in paying off the lawmaker’s credit card bill while the Alaska Legislature was considering the oil tax legislation that Allen was lobbying so heavily on. After seeing the tape during the trial in 2007 and reviewing it again during the appeal, Judge Sedwick concluded that the tape alone was enough to convict Kohring of a corrupt solicitation.

The key sentence in Judge Sedwick’s decision was this: “The court cannot bend or warp its understanding of the videotape into a shape that raises any reasonable probability that Kohring would not have been convicted on [the count that charged him with attempted extortion] by any jury which saw the videotape and contemplated what it saw in the context of Allen’s mission in Juneau and the inescapable inference from the evidence as a whole that Kohring understood and was willing to help with Allen’s corrupt mission.”

Essentially, Judge Sedwick was conducting a thought experiment. He was saying that even if you imagine that Bill Allen did not testify, looking at that videotape in conjunction with other evidence presented by the prosecution left “Guilty” as the only verdict on the attempted extortion charge and two other related charges.

The Ninth Circuit Court of Appeals looked at it differently, however, in the decision issued Friday reversing Judge Sedwick and ordering a new trial for Kohring. The Court of Appeals announced that the jury might have convicted Kohring based on the several cash payments Allen made to the legislator and noted that Allen did in fact testify at the trial. Based on its analysis, the Court of Appeals declared that evidence about Allen’s views of the purposes and effect of those payments and evidence that could shed light on Allen’s motivations for testifying as he did both became highly relevant. Thus both kinds of evidence, said the Court of Appeals, should have been turned over to the defense by the prosecution before trial. Since that didn’t happen, the convictions were reversed and Kohring would get a new trial.

Evidence that was particularly important to be disclosed to the defense, according to the Court of Appeals, was evidence of Allen’s “past conduct” in terms of alleged sexual relations with minors. The defense was entitled to present to the jury evidence that Allen might be tempted to shade his testimony to help him escape prosecution for sexual offenses, said the Court of Appeals, as well as use that evidence to question him in ways that would suggest that Allen was a liar. As the Court of Appeals noted, “Evidence that Allen attempted to suborn perjurious testimony from one of the minors and attempted to make another unavailable for a trial would have been highly probative of his ‘character for truthfulness.’”

The Court of Appeals stated that “Indeed, if the evidence of Allen’s past conduct had been disclosed, there is a reasonable probability that the withheld evidence would have altered at least one juror’s assessment regarding Allen’s testimony against Kohring.” (Internal quotation marks are omitted.) The Court of Appeals is suggesting here that if the prosecution had provided the defense the evidence regarding Allen’s past conduct, the result would have been a hung jury instead of a conviction.

So for the Court of Appeals, the tape didn’t trump—the fear of prosecution over sexual offenses and the alleged attempted cover-ups did. But we may get a chance to see Judge Sedwick’s apparent thought experiment of “Imagine if Bill Allen never testified at Vic Kohring’s trial” become a reality. Now that the convictions have been overturned in what one defense attorney has labeled “the Vic Kohring Catastrophe,” the federal government needs to decide whether it will re-try the former lawmaker. In a trial of Kohring’s former colleague ex-State Rep. Bruce Weyhrauch (R.-Juneau) on corruption charges involving the oil tax debate in 2006—a trial set to start May 9—the prosecution has announced it does not plan to call Allen, now imprisoned on convictions for bribery, conspiracy, and tax violations. Will the Department of Justice take the same “No Bill on the stand” approach in a re-trial of Vic Kohring?

(Disclosure: I have had both personal and professional contacts with Bruce Weyhrauch, but I have never discussed this case with him and we have not had a conversation since his indictment in 2007.)

Get Ready to Donate for Earthquake Relief

Anchorage--

As someone who survived the Good Friday quake in Anchorage in 1964, I am sympathetic to people who suffer when the ground shakes real hard. This one looks bad, and it could get even worse.

On a less cosmic note, I'll be on Anchorage's KTUU Channel 2 tonight talking about Vic Kohring's good day in the Ninth Circuit Court of Appeals. Rhonda McBride interviewed me, and I understand that the segment will play big on the 6 p.m. news and in smaller portions at 5 p.m. and 10 p.m.

Vic Kohring Gets His Conviction Reversed and a New Trial

Anchorage—


The Ninth Circuit Court of Appeals today overturned the conviction of former State Rep. Vic Kohring (R.-Wasilla) and granted him a new trial.


The appellate panel ruled that the prosecution’s failure to disclose certain information to the defense before trial violated Kohring’s rights. The 33-page decision focuses on evidence in two areas of evidence not provided to the defense before the trial:


(1) the investigation into Bill Allen’s alleged sexual misconduct with minors, particularly his alleged attempt to suborn perjury from one of those underaged girls to hide his crimes; and


(2) the poor memory and confusion exhibited by former VECO CEO Allen and his one-time political lieutenant Rick Smith about the amounts of cash paid to Kohring.


The opinion also notes that the prosecution also failed to disclose evidence that Allen told federal agents that he had never asked Kohring to do anything in exchange for the cash the VECO tycoon paid the needy lawmaker.


The panel was unanimous in vacating the conviction, but split 2-1 on what should happen now. The majority stuck with the normal rule that the remedy for prosecutors’ violations of its obligations to disclose (“discover”) evidence is to give the defendant a new trial.


A sharply worded dissent argued, however, that the court should have gone further and thrown out the case altogether by dismissing the indictment against Kohring.



Dissenting Circuit Judge Betty Fletcher characterized the prosecution’s conduct in the discovery failures as “flagrant, willful bad-faith misbehavior” and “an affront to the integrity of our system of justice.” The dissent said that “The prosecution failed to disclose thousands of pages of material documents—including FBI reports, memoranda, and police reports—until after Kohring’s conviction.” (Emphasis in original.) Calling the government’s current attitude “unrepentant,” the dissent urged a dismissal of the indictment both to deter future prosecution misconduct and as a way “to release Kohring from further anguish and uncertainty.”


In an unusual footnote to the majority opinion, the majority’s two judges responded to the dissent’s argument based on the defendant’s “anguish and uncertainty” by observing that relying on such a basis to dismiss an indictment would be unprecedented. Although it overturned District Judge John Sedwick’s decision upholding the former lawmaker’s conviction, the majority also noted the trial judge’s analysis that the suppressed evidence would not have affected the verdict even if the jury had heard it and also cited the position of public trust Kohring held.


The decision is marred by some errors. The most serious is the repeated references to Kohring’s trial testimony, which does not exist as the former legislator never took the witness stand. The court’s references to Kohring’s trial testimony must be to his interview with the FBI.


The decision also raises the question of whether the federal government will choose to re-try Kohring, given the substantial problems it faces in putting Bill Allen and Rick Smith on the witness stand now and the generally bad odor the federal probe into public corruption has gotten in the last two years. (The government could theoretically appeal this decision to the U.S. Supreme Court, but it is highly unlikely that the Supreme Court would take the case.) As Mark Regan has pointed out, however, the government’s decision to go ahead with the trial of former Rep. Bruce Weyhrauch (R.-Juneau)—a case that appears to a number of observers to be much weaker than the case against Kohring—suggests that the Department of Justice might proceed with a new trial against Kohring. (Disclosure: As I have repeatedly said, I have known Bruce Weyhrauch for years, but he and I have never discussed this case.)
Former State Rep. Pete Kott (R.-Eagle River) has also got to be smiling today, as this decision in Kohring’s case bodes well for the appeal of former Speaker of the Alaska House of Representatives. Like Kohring, Kott was also convicted of several charges arising out of the federal probe into Alaska public corruption, and—like Kohring—Kott was released from prison while the courts sorted out the issues flowing out of the disclosures of important evidence not turned over to the defense.

Sen. Lisa Murkowski Spars with Attorney General over Failure to Prosecute Bill Allen for Sexual Crimes with Minors

Anchorage—


U.S. Sen. Lisa Murkowski (R.-Alaska) pressed Attorney General Eric Holder this morning at a Senate hearing about why the federal government has not prosecuted former VECO CEO Bill Allen for having sex with underage girls.


Holder stated that neither “political connections” nor Allen’s cooperation with the Department of Justice in the federal probe into Alaska public corruption were the reasons that the convicted briber escaped prosecution for sexual crimes involving teenagers.


Holder said that the decisions on charging Allen “were made only on the basis of the facts, the law, and the principles that we have to apply.” According to Erika Bolstad's article in the Anchorage Daily News, Holder also said that "But the decisions had nothing to do with political connections, whether somebody's cooperated in a case or something like that."


Sen. Murkowski continued to express unhappiness over the failure to bring sex-related charges against Allen, who is serving a three-year prison sentence for bribery; conspiracy to commit extortion, bribery, and honest-services fraud; and conspiracy to commit tax violations.


Now a politically radioactive pariah perceived as a demon and a pervert, less than five years ago Allen was a multimillionaire tycoon and political titan who palled around with powerful Alaskans very familiar to Lisa Murkowski. Allen is in prison in part for his illegal lobbying of legislators to support an oil-tax plan pushed by then-Gov. Frank Murkowski, Lisa Murkowski’s father and the man who appointed her to the U.S. Senate. Pursuant to an agreement with federal prosecutors, Allen testified against two state lawmakers and then-U.S. Sen. Ted Stevens, a Last Frontier icon who served as Lisa Murkowski’s mentor on Capitol Hill. Allen frequently took one-on-one vacations with Ted Stevens in the desert, trips both men called “Boot Camps.”

"This is something that has so troubled Alaskans to the core," the Anchorage Daily News quoted Murkowski as telling Holder this morning. "You have an extremely high-profile political figure, extraordinarily wealthy, truly abusing in a very terrible way a 15-year-old girl over a period of years. The assumption just is that the wealthy politician--or the wealthy guy with the political connections--is able to get away with a level of criminality that simply would not be accepted elsewhere."

Bolstad’s story says that Murkowski stated this morning that the U.S. Senator was considering asking the Justice Department's Inspector General and Office of Professional Responsibility to examine the handing of the child abuse allegations against Allen. The colloquy between Senator Murkowski and General Holder occurred at a hearing held by a subcommittee of the Senate Appropriations Committee, according to the Website www.mainjustice.com.


There is substantial evidence that Bill Allen violated laws—both state and federal--regarding sex, as shown in multiple reports by Tony Hopfinger and Amanda Coyne of the Website www.alaskadispatch.com and Richard Mauer of the Anchorage Daily News.


Two points and two questions arise based on this blogger’s experiences. As an assistant district attorney for the Alaska Department of Law, I spent a lot of time prosecuting people for committing sexual offenses against minors. I also spent years working in and around the Alaska State Legislature, and I recognize that public corruption is bad for our people, our government, and our society. As I have watched the progress of the federal government’s POLAR PEN probe into Alaska public corruption, I have been bothered by the crimes and seamy behavior of various Alaska powerbrokers and by the mistakes made by various federal investigators and prosecutors in examining those crimes.


The first point is that I don’t believe that Allen’s decision to cooperate with federal authorities in the POLAR PEN public corruption probe played no role in the Justice Department’s decision not to prosecute him. It’s frequently true that cooperating witnesses get concessions in charges and sentences based on their cooperation with prosecutors. The second point is that “the facts” and “the principles that we have to apply” that Holder referenced might be interpreted to include the value of the information and cooperation that cooperating witnesses have to offer.


My questions are for Sen. Murkowski:


1. Is it rich for you complain about excessively soft treatment for a “wealthy guy with the political connections” when Bill Allen’s biggest political connection by far was with Ted Stevens?


2. When will you start pressing the Attorney General to explain why the federal government has not prosecuted Ben Stevens, the former President of the Alaska State Senate whom Bill Allen pleaded guilty to bribing?

Bill Weimar Extradited to Florida

Anchorage--

Richard Mauer of the Anchorage Daily News continues a run of strong work on the troubling story of Bill Weimar, who went from private corrections magnate on the Last Frontier to convicted felon to fugitive on a child sexual abuse warrant. A multimillionaire retiree, Weimar had moved to Florida following the end of his imprisonment following convictions arising out of the federal probe into Alaska public corruption. Weimar left the Sunshine State for Cuba after he was questioned by a sheriff's detective about an allegation that he sexually molested a six-year-old child he was caring for. You can find another interesting article by Mauer on Weimar's travels and ultimate arrest in Mexico here.