Friday, May 8, 2009

Clean-Up I


Commenter (and careful reader) Mark Regan asked a question several days ago that deserves a more general response. His question is: “Does the federal plea deal preclude the State from filing bribery charges against young Mr. Allen?”

The short answer is that Bill Allen’s plea agreement with the federal government does not legally bar the State of Alaska from filing bribery charges against his son Mark Allen, but for legal and practical reasons this is highly unlikely to occur.

Questions about Bill Allen’s plea agreement arise frequently enough that the provision regarding family members and VECO is worth setting out:

Although he was not made any specific promises in exchange for his cooperation, BILL ALLEN was advised by the government that if, at the completion of ALLEN's cooperation, the government determines that ALLEN has fully cooperated with the government's investigation and that ALLEN's full cooperation has provided substantial assistance to the ongoing investigation, the government (1) will not charge ALLEN's son, Mark Allen, or other family members of ALLEN with any criminal offenses arising out of the government's investigation or that have been disclosed to the government, and (2) will view ALLEN's cooperation as also being cooperation on the part of VECO.

Bill Allen’s plea agreement also specifically provides that it binds only the Public Integrity Section of the U.S. Department of Justice’s Criminal Division. That plea agreement states that it “does not bind any United States Attorney's Office or any other office or agency of the United States, or any state or local prosecutor.”

While that provision just quoted makes it look like Mark Allen is vulnerable to prosecution by the State of Alaska, there are at least two reasons that this will not occur.

The first reason is legal. The specific act of Mark Allen’s under discussion is the one suggested by the combination of his father’s testimony at the Ted Stevens trial and the documents filed in court in conjunction with the plea agreement of ex-State Rep. Beverly Masek (R-Willow). The “Factual Basis for Plea” states that at an Anchorage restaurant “a relative” of Bill Allen gave Masek—then a state legislator—“several thousand dollars in cash,” and Bill Allen testified at the Stevens trial that his son gave a female legislator money under circumstances suggesting bribery.

The legal problem with the State of Alaska prosecuting Mark Allen for bribing Masek is that the “Factual Basis for Plea” states that this cash transfer occurred on April 18, 2003. Given that the relevant statute of limitations under Alaska state law would appear to be five years, there seems to be no way for the State of Alaska to prosecute Mark Allen for that act.

More generally, however, the State of Alaska would not want to get in the way of the federal probe into public corruption on the Last Frontier, and it is clear that the Department of Justice would see state prosecutions of offenses uncovered in that federal investigation as interference.

The bottom line is that while Bill Allen is headed to federal prison, his son Mark Allen is highly likely to continue to bask unmolested in the glory of his horse’s upset victory in the Kentucky Derby.