Monday, May 30, 2011

Justice Department Opposes Bruce Weyhrauch's Requests for Legal Fees and Discovery


The prosecution has opposed the request of former State Rep. Bruce Weyhrauch (R.-Juneau) for the government to pay more than $600,000 in attorney and paralegal fees and $63,000 in costs the ex-lawmaker racked up defending against four bribery-related federal felony charges that ultimately went away when Weyhrauch pleaded guilty to a unique state misdemeanor.

Weyhrauch's requests for fees and costs relied on a statute allowing a defendant in a federal criminal case to get payment for reasonable expenses if the defendant is "the prevailing party" in the case and the court determines the government's prosecution was "vexatious, frivolous or in bad faith." The federal government initially charged Weyhrauch with bribery, extortion, honest services fraud, and conspiracy for his role in an alleged scheme to give legislative assistance to VECO's bribers on oil tax legislation in 2006 in return for VECO giving Weyhrauch work as an attorney.

In opposing the defense motion, the government relies heavily on Weyhrauch's guilty plea to the state misdemeanor of knowingly allowing VECO executives Bill Allen and Rick Smith to lobby him when Weyhrauch was aware of a substantial probability that the two men were not registered as lobbyists.

Although those in the know saw that resolution as a big victory for Weyhrauch and an embarrassment for the prosecution, that is not at all how the government's attorneys profess to view it in their response to the motion for fees and costs. To the Justice Department, Weyhrauch's guilty plea was highly significant because it shows that he was not the prevailing party in the litigation. This is particularly true, say the prosecutors, because his guilty plea included an admission that he had asked VECO's top executives for legal work during a legislative session in which he would have the opportunity to vote on oil tax legislation of great interest to VECO. The prosecutors contend that this admission means that he admitted the factual assertion that was "the centerpiece of the federal indictment."

The Justice Department also argues that Weyhrauch's admissions to his dealings with Allen and Smith in the plea agreement show that the original federal prosecution was in good faith, even if Weyhrauch was not convicted of any of the corruption-related felonies initially charged.

The prosecution's opposition does not directly deny the defense's central factual allegation suggesting the government acted in bad faith in prosecuting Weyhrauch. This allegation concerns the different ways an FBI agent characterized a comment made by Weyhrauch to Allen in a meeting monitored by the feds. The defense has alleged that in an affidavit, the FBI agent characterized Weyhrauch's warning to Allen about dealing with a certain unnamed individual as evidence that the legislator was honest because he was telling the tycoon to steer away from somebody who was taking bribes. The defense has also claimed that before the grand jury, that same FBI agent characterized that same comment as showing that Weyhrauch was corrupt because he was advising Allen to stay away from somebody who was "in league with the FBI." (Although that somebody who Weyhrauch was warning about is not identified, it is reasonable to speculate that it was Rep. Tom Anderson (R.-Anchorage), who took bribes, served as a cooperating witness for the feds after being confronted, and then backed out of his cooperation.)

The prosecution does not concede that the alleged misconduct as suborning perjury before the grand jury occurred, but what the government's attorneys really want to stop is any additional court orders for the government to turn over evidence to Weyhrauch's lawyers. The prosecution argues that the statute authorizing payment of fees and costs does not permit any more discovery. In any case, the prosecutors say, Weyhrauch's guilty plea to the state misdemeanor shows that he has not shown good cause to get any order for more production of documents.

In the prosecution's final flourish, the government's lawyers argue that Weyhrauch has not met the statute's requirement that any ex-defendant seeking relief must show that his net worth is less than $2 million. Unless Weyhrauch has won a lottery, a solo practitioner who racked up more than $600,000 in legal fees and costs while being under felony indictment for almost four years would obviously satisfy that standard.

Disclosure: I have known Bruce Weyhrauch for about three decades, but he has never discussed this case with me. More on this here.

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