Anchorage Daily News

Fourteen months after his co-defendant went to trial and got convicted, former state Rep. Bruce Weyhrauch is still waiting for a federal appeals court to decide if prosecutors can use evidence against him they say they need.

The matter seems to hinge on a procedural "technicality" -- a situation that is popular in television fiction but relatively rare in real criminal cases.

The technicality? Did the appeal paperwork get "certified" by the right prosecutor.

Weyhrauch was indicted back in May 2007 on charges of conspiracy, bribery, attempted extortion and mail fraud. In September, co-defendant and former House Speaker Pete Kott went to trial. He was convicted of three federal felonies related to a scheme to do oil field services company Veco's bidding in the Legislature.

Just before jury selection began, Nicholas Marsh, a trial attorney in the U.S. Justice Department's Public Integrity Section, asked for Weyhrauch to be tried separately so that prosecutors could appeal a ruling regarding evidence they consider crucial to their case. The appeal is still before a panel of the 9th U.S. Circuit Court of Appeals.

Under federal law, government appeals on evidence questions cannot be initiated by a trial attorney alone, but must be certified by a U.S. Attorney. That is to ensure the appeal is not just an unprepared prosecutor's effort to delay the case. The rule is to make sure the evidence at issue is truly essential to the government's case.

If an appeal isn't properly certified, the three-judge panel looking at the Weyhrauch case said, it must be rejected.

The U.S. Attorney for Alaska didn't sign the appeal. But, unlike most federal cases brought in Alaska, he was not in charge of the case. It was overseen by the Justice Department's Public Integrity Section and its chief, William Welch.

Prosecutors initially argued that Marsh was able to certify the appeal back on Sept. 5, 2007, because he did so in consultation with Welch. They submitted paperwork by Welch in which he certified the appeal directly -- 10 months after it was filed by Marsh. After the appeals panel asked for more evidence, prosecutors argued that Marsh himself was actually authorized to certify the appeal.

On Sept. 8, the judges rejected all those explanations: "... So far, it appears there is 'no there there.' So there is no misunderstanding about it, this order to show cause is the final opportunity for the government to make a proper record under (the law)."

On Sept. 22, prosecutors filed court papers with two new explanations. They argued that the appeal was valid because U.S. Attorney General Michael Mukasey certified the appeal himself on Sept. 19, more than a year after the fact. Besides that, prosecutors say, Mukasey signed off on an earlier certification made by Welch.

"There can be no doubt that the Attorney General may properly make this certification. As the head of the Department of Justice, the Attorney General directs and supervises the activities of the United States Attorneys," Marsh wrote. And appeals can be certified after they are filed, he wrote.

Doesn't matter, Doug Pope, Weyhrauch's lawyer, said in a Sept. 25 court filing. He said prosecutors were trying to overcome the certification problem with "ad hoc after-the-fact theories."

The evidence in question concerns whether Weyhrauch had a duty to disclose he was negotiating for a job with Veco. At the time, the Legislature was considering a new oil tax that oil companies wanted before they would commit to a natural gas pipeline.

Prosecutors argued that Weyhrauch's failure to disclose his interest in a Veco job amounted to concealment and could be used to show he intended to defraud the public.

The defense countered there was no requirement in state law for Weyhrauch to disclose his interest in a Veco job, so there was no concealment and no proof of intent.

On the eve of the September 2007 trial, U.S. District Judge John Sedwick sided with the defense and ruled that prosecutors couldn't submit evidence such as ethics manuals and testimony about how House members customarily acknowledge conflicts of interest on the body's floor.

That's what prosecutors are appealing.

Find Lisa Demer online at adn.com/contact/ldemer or call 257-4390.

ADVERTISEMENT