USA v. Kott et al
Order on Motion for Miscellaneous Relief
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
PETER KOTT and BRUCE WEYHRAUCH,
ORDER AND OPINION
[RE: Docket Nos. 140 and 162]
I. MOTIONS PRESENTED
At docket 140, the United States has filed a motion seeking to admit what it
considers to be evidence of prior bad acts committed by defendant Bruce Weyhrauch
pursuant to Fed. R. of Evid. 404(b). Weyhrauch seeks to file an opposition under seal,
and his motion to file that opposition under seal is at docket 162. After reviewing the
motion at docket 140, the court has concluded that no opposition need be filed, because
the motion at docket 140 lacks merit for the reasons set out below.
Although the United States filed its motion under seal because it relates at least
in part to an on-going investigation, this order will not discuss that investigation, and
therefore, it is unnecessary to consider whether it should be sealed.
The court has laid out the background relating to the prosecution of defendants
Weyhrauch and Kott in several prior orders. A reader unfamiliar with the case is
directed to those orders.1
In the pending motion at docket 140, the United States asks the court to admit
evidence of alleged cheating on legislative per diem claims by defendant Weyhrauch as
prior bad acts evidence relevant to the proof of the three crimes charged against
Weyhrauch in the indictment. In this order, the court takes no position on the merits of
the assertion that Weyhrauch executed a scheme to, and did intentionally, file false per
diem claims. Rather, the court will simply assume arguendo that the United States has
evidence which it in good faith believes is probative of such activity by Weyhrauch.
The jurisprudence of Rule 404(b) is well known to counsel ,and the court need
not engage in a lengthy explication here. Suffice it to say briefly, that Rule 404(b)
permits the introduction of evidence of prior bad acts by a defendant in a criminal case
when that evidence (1) is probative of something other than mere propensity to commit
crimes including “motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake,”2 and (2) is not excludable under Rule 403. Rule 403 provides that
otherwise relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury . . . . “3
Turning first to Rule 404(b), the court notes that the United States proffers the
evidence to support intent, motive and lack of mistake.4 In the Ninth Circuit, prior bad
act evidence is admissible if (1) offered to prove a material point which is in dispute,
(2) is not remote in time, (3) is established with evidence sufficient to prove the prior act
Docs. 85, 108, and 151.
Fed. R. Evid. 404(b).
Fed. R. Evid. 403.
Doc. 140 at p. 8.
actually was committed, and (4) where offered to prove intent is similar to the offense
charged.5 The proffered evidence does appear to meet the first three criteria, but in the
estimation of the court, the suggestion that chiseling on per diem claims, even if
pervasive, is not very similar to the charges here which essentially involve the sale of
legislative authority to an outside interest. Borrowing from a different set of laws, the
former might be described as a venal sin, while the latter would be described as a
However, assuming that the evidence survives review under Rule 404(b) with
respect to motive, intent and lack of mistake, it still must be scrutinized under Rule 403.
In terms of that rule, it is first necessary to consider the probative value of the proffered
evidence. The court finds that the proffered evidence has at most modest probative
value with respect to Weyhrauch’s motive, intent and lack of mistake.
Concerning both motive and intent, the evidence would, if true, show a
propensity to and an intention to engage in low level financial manipulation of rules not
familiar to the general public and which can rather easily be manipulated by simple
cheating. This contrasts with a propensity to and an intent to act in concert with a third
party to achieve particular legislative goals on issues which were known to be of the
greatest public interest and played out on center stage in the legislative process;
indeed, in a special session. An analogy which the court finds apt is this: a taxpayer
who is motivated to and intends to cheat on his own tax return is not thus likely to be
motivated to join, or intent upon joining, forces with third parties to peddle a fraudulent
tax avoidance scheme.
Concerning the absence of mistake, the evidence has little probative value. One
does not mistakenly commit the crimes charged in the indictment. This is not a situation
in which prior conduct has schooled a defendant in the wrongfulness of charged
conduct which might otherwise be mistaken for lawful action.
E.g., United States v. Hollis, 490 F.3d 1149 (9th Cir. 2007).
The next step under Rule 403, is to determine whether the probative value of the
evidence is substantially outweighed by any of the factors listed in the rule. If, but only
if, it is the evidence will be excluded.
Here, the danger of unfair prejudice from admission of the proffered evidence is
high. No taxpayer would be pleased to learn that a legislator had cheated on his per
diem; indeed, in this state the reaction would be outrage among a very broad swath of
the electorate, and it would be an outrage which, if felt initially by even some members
of the jury, would be highly contagious. With respect to a legislator, chiseling on per
diem is precisely the kind of conduct which would tend to support the widely held
prejudice that many legislators are entirely corrupt. Thus, many would easily conclude
that if a particular legislator is not so far above suspicion as Caesar’ wife, he must be
guilty of virtually any charge hurled his way. The court concludes that the danger of
unfair prejudice does substantially outweigh the probative value of the evidence.
Even if the court errs in its calculus of prejudice, the danger of confusing the
issues and misleading the jury also substantially outweighs the probative value of the
evidence. What constitutes a wrongful and intentional violation of the legislative per
diem rules involves proof not just of the rules themselves and the claims made, but of
the circumstances surrounding any claim–was it the product of an error or an intentional
effort to cheat. The crimes charged against Weyhrauch and Kott in this case are
challenging enough. The jury should not be distracted by and tasked with resolving
another set of issues
The evidence proffered by the United States in connection with its motion at
docket 140 does not survive scrutiny under Rule 403. It will not be admitted.
For the reasons above, the motion at docket 140 is DENIED. Having denied the
motion at docket 140, the motion at docket 162 is DENIED as moot.
DATED at Anchorage, Alaska, this 28th day of August 2007.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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