Weyhrauch seeks rehearing

9TH CIRCUIT COURT: He wants the Nov. 26 decision overturned.

December 8, 2008 

Former Alaska Rep. Bruce Weyhrauch is asking the 9th U.S. Circuit Court of Appeals to reconsider a decision two weeks ago that restored key evidence in his corruption indictment.

In a rehearing request to the court Monday, Weyhrauch asked the full appeals court to overturn the Nov. 26 decision of a three-judge 9th Circuit panel.

The three judges had ruled that federal law would require Weyhrauch, a Juneau attorney, to disclose his efforts to seek legal work from the defunct oil-field services company Veco Corp. at the same time he was serving in the Legislature and voting on an oil-tax bill heavily lobbied by Veco's chief executive, Bill Allen.

In his request for a rehearing, Weyhrauch says the decision imposed a higher standard of conduct than state law, which wouldn't have required such a disclosure. The decision represented an improper expansion of federal law over state law, Weyhrauch said, and he asked the full court to overturn it.

Weyhrauch never got the Veco job, though his votes were aligned with Veco.

He was indicted May 3, 2007, with former House Speaker Pete Kott and charged with four counts of bribery, extortion, fraud and conspiracy. Kott has since been convicted and is serving time in federal prison.

Before Weyhrauch's trial began, U.S. District Judge John Sedwick ruled that prosecutors couldn't use Weyhrauch's failure to disclose his job solicitation as evidence of defrauding citizens of his honest services because such a disclosure wasn't required by Alaska state law. Prosecutors appealed the ruling.

Meanwhile, one other pending corruption trial, the two-count conspiracy and bribery case against State Sen. John Cowdery, appeared headed for its second postponement.

Last week, Cowdery's attorney, Kevin Fitzgerald, asked the court for a delay until at least late March because of an overwhelming load of evidence he recently received from the government, including information from 11 months of court-ordered wiretaps. Prosecutors don't oppose a delay, Fitzgerald told the judge, but the two sides couldn't work out a new proposed date.

U.S. District Judge Ralph Beistline set a hearing Dec. 16 to resolve the trial date.

In arguing for a rehearing at the appellate level for Weyhrauch, his attorney, Doug Pope, said that the three-judge panel decision goes well beyond what two other circuit courts have said about honest services fraud. Those circuits, based in New Orleans and Philadelphia, have limited the application of the federal mail fraud statute only to violations of state law, Pope said.

The San Francisco-based 9th Circuit judges debated and rejected that limitation, noting that other circuits have done so as well. They ruled "that conduct on par with bribery and nondisclosure of material information lies at the heart of public honest services fraud."

Pope said the split among the different appeals courts has created confusion for state and local officials who may wonder what the law actually is.

But the circuit judges said it was the New Orleans- and Philadelphia-based appellate courts that sowed confusion because they encouraged different enforcement of federal law based on the law of a particular state.

Their own reading of the law, the 9th Circuit judges said, "establishes a uniform standard for 'honest services' that governs every public official," they wrote. Applying that standard to Weyhrauch, they ruled, "the government may proceed on its theory that Weyhrauch committed honest services fraud by failing to disclose a conflict of interest or by taking official actions with the expectation that he would receive future legal work for doing so."

Pope argued the 9th Circuit is creating inappropriate inroads into state law by allowing federal prosecutors to enforce "federal preferences of good government" using the mail fraud statutes.


Find Richard Mauer online at adn.com/contact/rmauer or call 257-4345.

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