Federal appeals court orders new corruption trial for Kott

Previous trial was tainted by prosecution withholding information, judges say.

March 24, 2011 

A federal appeals court Thursday ordered a new trial for former House Speaker Pete Kott, ruling that his 2007 conviction on corruption charges was tainted by the failure of federal prosecutors to turn over information he could have used to defend himself.

The Kott decision had been expected since a similar ruling two weeks ago by the 9th U.S. Circuit Court of Appeals in San Francisco that ordered a new trial for former Rep. Vic Kohring.

Both decisions were based on new information turned over by prosecutors about the Justice Department's key witness in its investigation, Bill Allen, the former chief executive of the defunct oil field service company Veco Corp. In 2006, the FBI captured Allen on secretly recorded telephone calls and videotape in a bribery conspiracy to promote reduced oil taxes. Confronted that year with the evidence against him, he agreed to work with the FBI and plead guilty to bribery and tax charges.

The information about Allen, known to prosecutors all along but revealed to the defense long after the Kott and Kohring trials, concerned sex-crime allegations involving Allen and juveniles. The FBI also had evidence that Allen tried to get at least one of the victims to perjure herself by falsely swearing she didn't have sex with him when she was 15.

Prosecutors also failed to turn over reports that Allen had told different stories to agents at different times about his payments to Kott, the 9th Circuit judges said.

The appeal was heard by a three-judge panel of the 9th Circuit, Betty Fletcher, Wallace Tashima and Sidney Thomas.

As with Kohring, they were unanimous in saying the original trial was tainted. And similarly, Fletcher dissented on the remedy. She said both cases should be thrown out completely because of the "lack of contrition" by government prosecutors and their attempts to "minimize the extent and seriousness" of the misconduct.

A spokeswoman for the Justice Department had no comment Thursday. Prosecutors will have to decide whether to proceed with new trials, and whether they would call Allen as a witness. He's serving a three-year sentence at a federal prison near Los Angeles.

Kott's Seattle attorney, Sheryl Gordon McCloud, said Allen would face much more pointed cross examination in a Kott retrial than he did in 2007.

"I think Bill Allen's testimony would be more than suspect now that we know how much of a motive he has to lie to protect to himself," she said in a telephone interview.

McCloud said she was "totally gratified" by the judges' ruling.

"They've recognized it's not a technicality," she said. "The 9th Circuit recognized that the government hid evidence that Kott could've been innocent and they said you can't do that. It's the same type of thing that got the government to dismiss all the charges against Stevens."

She was referring to the decision by the Justice Department to dismiss its case against former Sen. Ted Stevens in April 2009 after a jury found him guilty of failing to disclose years of gifts from Allen. The department admitted failing to turn over evidence to Stevens' defense team.

"Stevens deserved to have the charges against him dismissed and the government did the right thing," McCloud said. "Stevens had a lot of stature, a lot of power, and was able to expose the lies that were told against him. Pete Kott doesn't have the same stature ... That should not make a difference. The decision should be the same in both cases."

Kott represented Eagle River as a Republican. Kohring, also a Republican, was from Wasilla. Both were imprisoned after juries found them guilty of bribery, conspiracy and other charges but were freed on their own recognizance in 2009 while they pursued their appeals.

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