USA v. Kott et al

Filing 176

Order

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

UNITED STATES OF AMERICA,
Plaintiff,
vs.
PETER KOTT and BRUCE WEYHRAUCH,
Defendants.

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3:07-cr-00056 JWS
ORDER AND OPINION
[Re:

Docket No.124 ]

I. MOTION PRESENTED
At docket 124, defendant Bruce Weyhrauch moves for an order permitting him to
introduce certain evidence. Weyhrauch’s co-defendant, Peter Kott, has not filed any
papers concerning the motion. The United States has filed a partial opposition at
docket 147. The motion papers were filed under seal, but the court finds no reason why
this order should be filed under seal.

II. BACKGROUND
Weyhrauch and Kott are former members of the Alaska House of
Representatives. All charges in the Indictment relate to their activities as legislators. In
Count 1, Weyhrauch and Kott are charged with conspiracy to commit extortion under
color of official right, bribery, and honest services mail and wire fraud in violation of 18
U.S.C. § 371. Weyhrauch and Kott allegedly conspired with “COMPANY CEO” and
“COMPANY VP,” “State Senator A,” and others known and unknown to the grand jury.
As explained in earlier orders, COMPANY CEO is Bill J. Allen, COMPANY VP is
Richard L. “Rick” Smith, and State Senator A is former State Senator Ben Stevens.

In Count 3, Weyhrauch is charged with attempted interference with commerce by
extortion induced under color of official right in violation of 18 U.S.C. § 1951(a). In
Count 5 Weyhrauch is charged with bribery concerning programs receiving federal
funds in violation of 18 U.S.C. § 666(a)(1)(b). Finally, in Count 7 he is charged with
honest services mail fraud in violation of 18 U.S.C. §§ 1341 and 1346.

III. DISCUSSION
According to the memorandum in support of his motion, the evidence Weyhrauch
asks the court to permit him to introduce is the following:
[E]vidence of his long term commitment to building a gas pipeline in
Alaska, his intent in submitting his resume to VECO, and seeking future
legal work, that he reasonably believed Allen and Smith knew he was
seeking work unrelated to his position and future voting on PPT, and that
he believed, after hearing from numerous interested constituents, industry
and the administration, that PPT legislation which closely resembled the
Governor’s bill was most likely to result in a gas pipeline.1
In an earlier motion, Weyhrauch asked the court to recognize that introduction of
essentially the same evidence in connection with Counts 1, 3, and 7 was required by
applicable law, because the charges were dependent on proof that there was a quid pro
quo.2 In disposing of that motion, the court explained that the agreement to receive an
illegal payment was all that was necessary and so the law did not require admission of
such evidence in connection with that aspect of Count 1 concerning conspiracy to
violate the Hobbs Act, nor with Count 3 which charges an attempted violation of the
Hobbs Act. However, with respect to Count 7 which was sparsely addressed in the
briefing, the court expressed “concern that neither party has focused on the fact that an
intent to defraud is one of the elements of the mail fraud charge and as such will be one
determinant of what evidence is admissible . . . . “3

1

Doc. 125 at p. 2.

2

Doc. 78

3

Doc. 108 at p. 7.
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In his current motion, Weyhrauch seized the opportunity to argue that the
evidence he seeks to introduce is relevant to the intent element of the charge in
Count 7. Recognizing that to prove the fraud charge in Count 7, it will have to prove
that Weyhrauch intended to deprive the State of Alaska of his honest services, the
United States acknowledges that the evidence Weyhrauch would present is admissible,
because it would have a tendency to make it less likely that Weyhrauch had the
requisite intent.4 The government hastened to add that to the extent Weyhrauch might
attempt to put the evidence on by way of hearsay statements, the government would
object. Suffice it to say on that point that the court will enforce Rule 802 of the Federal
Rules of Evidence.
In addition to seeking admission of the evidence for purposes of Count 7,
Weyhrauch’s motion also asks the court to rule that it is admissible with respect to
Counts 1, 3, and 5. Recognizing that this aspect of the motion might be viewed in part
as a request to reconsider the order at docket 108, the court expressly asked the United
States to respond.5 It is to an analysis of how the evidence might be admissible with
respect to those charges that the court now turns its attention.
Relying on precedent from both the Supreme Court and the Ninth Circuit,6 this
court previously held that the United States did not need to prove that Weyhrauch
changed his position with respect to how he would vote on the PPT in order prove the
Hobbs Act crimes charged. With respect to the evidence of Weyhrauch’s position on
PPT and the gas pipeline, this court held that under Rule 401, the evidence would be
inadmisible, because it “does not shed any light on what Weyhrauch knew about why
VECO would offer him legal work.”7

4

Doc. 147 at p. 2.

5

Doc. 130.

6

Evans v. United States, 504 U.S. 255, 268 (1992); United States v. Tucker, 133
F.3d 1208, 1215 (9th Cir. 1998)
7

Doc. 108 at p. 6.
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Upon re-examination in light of the present briefing, the court concludes that what
was said in the earlier order, although correct based on the issues actually presented by
Weyhrauch’s original motion, clearly invited an overly broad and unintended reading. It
is useful to begin by looking at the elements of the crime charged in Count 3, attempted
Hobbs Act extortion under color of official right. It will be recalled that commission of
that crime is an alleged object of the conspiracy charged in Count 1.
To prove the Hobbs Act crime charged in Count 3 (and associated with Count 1),
the United States would have to establish five elements: (1) Weyhrauch was a public
official, (2) Weyhrauch intended to obtain legal work from VECO to which he knew he
was not entitled, (3) Weyhrauch knew the legal work would be given in return for his
taking an official act, (4) Weyhrauch’s actions affected interstate commerce in some
way, and (5) Weyhrauch took a substantial step toward obtaining that legal work.8 It is
element (3) to which the evidence in dispute may relate.
As noted in the earlier order, by itself evidence of what Weyhrauch’s independent
position may have been on PPT and a gas pipeline is not relevant. However, evidence
that Allen and/or Smith actually knew of Weyhrauch’s independent pro PPT position and
that Weyhrauch, in turn, knew that Allen and/or Smith was/were aware of that position
would be relevant to the third element of the crime. This is so, because such evidence
taken as a whole makes it less likely that Weyhrauch knew the legal work he sought
would be given in exchange for his efforts to support the PPT. Federal Rule of
Evidence 401 requires no more for the admission of the evidence. It may be that under
all the facts and circumstances that may emerge at trial such evidence would not be
very persuasive, but evidence does not have to be determinative to be relevant.
Reasonable doubt, like the government’s own case, is built brick by brick.
With respect to Count 5 charging bribery concerning programs receiving federal
funds in violation of 18 U.S.C. § 666(a)(1)(b), the discussion above is equally
applicable. This is so, because to prove that crime the government would have to

8

Ninth Circuit Model Criminal Jury Instruction 8.118.
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establish that Weyhrauch corruptly sought a thing of value intending to be influenced or
rewarded in connection with performance of his duties as an elected public official.9
The government’s memorandum includes a discourse on the differences
between general intent and specific intent crimes. However, there is nothing in that
discussion which persuades the court that the government can avoid proving the
elements of the crimes as laid out above. That being so, the evidence Weyhrauch
seeks to admit–provided it is complete and not a mere isolated assertion that he had his
own reasons for supporting PPT–will be admitted at trial.
The court emphasizes that in granting Weyhrauch’s motion, it is not opening the
door to presentation of isolated evidence of Weyhrauch’s pre-existing positions on the
PPT or other issues. Rather, evidence of the same may only be admitted on condition
that Weyhrauch also presents admissible evidence that Allen and/or Smith had been
informed of such positions and that Weyhrauch, in turn, knew that Allen and/or Smith
had been so informed.

IV. CONCLUSION
For the reasons set forth above, and to the extent discussed above, the motion at
docket 124 is GRANTED.
DATED at Anchorage, Alaska, this 29th day of August 2007.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

9

United States v. Anderson, Case No. 3:06-cr-99; Jury Instruction Number 17.
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