Anchorage Daily News
 

Kott lawyer suggests perjury in corruption trial
LEGISLATOR: Judge to rule later; prosecutor says conviction proper.

By RICHARD MAUER
rmauer@adn.com

(11/17/09 11:39:05)

The lawyer for former Rep. Pete Kott said in court Tuesday that federal prosecutors might have knowingly used perjured testimony to send Kott to prison on corruption charges.

But a Justice Department lawyer argued that Kott's 2007 trial was fair and that a jury properly convicted him on overwhelming evidence, including more than 50 secretly recorded conversations.

The opposing oral arguments before U.S. District Judge John Sedwick capped two months in which both sides filed hundreds of pages of motions, briefs and exhibits about whether Kott, an Eagle River Republican, should be retried, have his charges dismissed altogether, or be sent back to prison. The post-trial wrangling stems directly from the collapse in Washington, D.C., of the corruption case of former U.S. Sen. Ted Stevens months after he was found guilty by a jury.

After hearing about 15 minutes of arguments from each side, Sedwick took the case under advisement. He didn't give a hint how he was leaning or even when he would decide, but he cautioned those in the courtroom to not expect an instant ruling.

"It may take awhile," Sedwick said.

Charges against Stevens were dismissed in April when the Justice Department admitted it hadn't turned over information that would've helped Stevens in his case.

While the charges against Stevens were not related to those against Kott or other Alaska legislators caught up in an FBI corruption investigation, there was a common thread: Bill Allen.

Allen, former chief executive of the oil-field service company Veco Corp. and an admitted briber about to start three years in prison, has been the government's central witness in its corruption cases.

Some reports of FBI and prosecutor interviews with Allen show him to start out saying one thing, only to end up saying another. But in their pretrial disclosures to defendants, the prosecutors sometimes failed to provide the contradictory statements and only showed the ones that bolstered their case.

Prosecutors by law are required to turn over favorable evidence to defendants, and that could include inconsistencies in what a witness has said to authorities.

Agents have attributed Allen's occasional difficulties in immediately recalling facts to a brain injury he suffered in a 2001 motorcycle crash. Defense lawyers -- especially Stevens' team -- suggested prosecutors planted the answers they wanted to get. By not getting a peek at the contradictions, they were hamstrung in their ability to cross-examine Allen, they said.

Six prosecutors are now under investigation for criminal contempt and a new team has taken over the Alaska cases.

After Stevens' charges were dismissed, the Justice Department turned over some 4,500 pages of FBI interviews and other documents to lawyers for Kott and another former legislator, Vic Kohring of Wasilla, who were already appealing their convictions.

In the hearing Tuesday, Sedwick asked the lawyers to limit their arguments to the central issues in the charges: for instance, the above-invoice $7,993 Allen paid Kott for floor work. Was the money an illegal payment that would allow Kott's son to take time off from the family flooring business to work on Kott's political campaign? Or was it a legitimate bonus for work well done at Allen's house?

Sheryl Gordon McCloud, Kott's lawyer, said she discovered Allen himself branded the payment as a bonus and not a bribe in part of an early interview with the FBI, but that information had not been turned over to Kott's trial lawyers. Had they had that information, they could have used Allen's own words to contradict his testimony that it was an illegal payment, instead of having to call Kott and Kott's son to testify on the matter and appear to be telling self-serving lies.

James Trusty, a trial attorney in the Justice Department's gang section in Washington assigned to help repair the Alaska cases, agreed that "in an abundance of caution" Kott should have gotten full disclosure. But if the entire interview of Allen is read instead of just the part cited by McCloud, it becomes clear that Allen intended the payment to be a "corrupt" transaction, he said.

At a minimum, McCloud said that Kott should get a new trial. While she stopped short of accusing prosecutors and agents of misconduct, she suggested that Sedwick hold a hearing where she could question them under oath about why the material wasn't turned over. If such a hearing showed federal authorities acted in bad faith and knew that Allen was providing false testimony, the charges should be dismissed, she said.

Trusty said Kott was tried fairly and that the new information doesn't "materially" affect his case, the standard for a new trial.

Questions have also been raised about the government's other chief witness, former Veco vice president Richard Smith. Like Allen, Smith pleaded guilty to corrupting legislators, but was less culpable than his boss and received 21 months.

McCloud has complained prosecutors suppressed information that Smith drank to extremes and suffered memory losses.

But Sedwick expressed skepticism that McCloud could make that issue stick.

"I'm sure that Mr. Kott knew that as well as anyone in the courtroom," said the judge, who viewed numerous secret videotapes of the heavy drinking in Veco's Juneau suite that often involved Kott.

Smith is apparently still involved in ongoing investigations. At his sentencing Oct. 28, Smith's lawyer, Michael Keenan, asked Sedwick to delay Smith's appointment with prison until mid-January.

"As the court is aware, the government has some matters scheduled next month for Mr. Smith," Keenan said, without elaborating.

After the hearing, Kott chatted with reporters outside the courtroom. Since his release from prison in June, in the middle of his six-year sentence, he's been trying to stay active, though the possibility he will return to prison limits his options, he said.

"I'm just working at staying busy, playing the grandpa role a little bit," he said. "I do a little work. I'm retired, but I do a little bit here and there."

Kohring was tried a month after Kott, found guilty, and sentenced by Sedwick to 42 months in prison. He was released the same time as Kott, and the two men were originally on identical filing schedules in their appeals.

But Kohring's lawyer asked for a delay because of a heavy trial schedule, then had to drop out of the case entirely because Kohring sued him over a car accident that occurred around the time of the trial.

Kohring only got his new lawyers Nov. 9, six weeks after his motion to dismiss was initially due. They are the Federal Public Defender in Seattle, Thomas Hillier, and Hillier's first assistant, Michael Filipovic. Sedwick ordered them to file notice by Monday about when they will be able to prepare their motion for Kohring.


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

 


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