USA v. Kott et al

Filing 229

Order

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

UNITED STATES OF AMERICA,
Plaintiff,
vs.
PETER KOTT ,
Defendant.

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3:07-cr-056 JWS
ORDER AND OPINION
[Re: Docket No. 223]

I. MOTION PRESENTED
At docket 223, the United States moves to exclude certain evidence which it
anticipates defendant Peter Kott will seek to present at trial. Kott responds at
docket 226. The court permitted the motion papers to be filed under seal, because they
touch upon on-going non-public investigations. The court has concluded that it is not
necessary to file this order under seal.
Oral argument on the motion would not be of benefit to the court.
II. ISSUES PRESENTED
The parties’ papers address the admissibility of several types of evidence. The
following questions must be answered.
A) Is evidence that Bill Allen and Rick Smith made campaign contributions
to candidates admissible?
B) Is evidence that VECO paid for polling relating to candidates in addition
to Kott admissible?

C) Is evidence of the voting records of other legislators on PPT
admissible?
D) What, if any, restrictions should the court impose on Kott’s crossexamination of Bill Allen and Rick Smith?
III. DISCUSSION
A preliminary matter must be mentioned before turning to the specific issues
presented. In its papers the United States expresses concern that Kott seeks to admit
much of the disputed evidence in order to make a selective prosecution argument
(everybody else did it, so why pick on me) to the jury. Were such an argument
tolerated, it could lead to jury nullification (he violated the law, but we acquit because it’s
unfair to pick on him). Kott has abjured any effort to make such an argument. The
court will enforce that promise. No more need be said about selective prosecution and
jury nullification.
A. Campaign Contributions
Kott seeks to introduce evidence of Allen and Smith’s substantial history of
campaign contributions to a host of Alaska candidates. The United States points out
that it is not prosecuting Kott based on any alleged impropriety in his receipt of
campaign contributions. Rather, its theory is that Kott accepted things of value which
were illegal–a poll paid for by a corporation and sundry benefits that were not campaign
contributions in exchange for employing his legislative office as directed by VECO
executives. Thus, says the United States, evidence of Allen’s and Smith’s contributions
to other candidates is irrelevant.
The threshold for relevance is low. Rule 401 provides that any evidence which
“has any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable” is relevant. The recorded
conversations to be introduced in evidence by the United States will include talk which
may reasonably be understood to stand for the proposition that Allen, Smith, Kott, Ben
Stevens, and others were engaged in a conspiracy involving the trading of legislative
acts for illegal benefits from VECO, and that Allen and Smith held sway over various
legislators (including Kott) by virtue of putatively illicit financial support. What Kott knew
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about the actions of Allen and the others and whether he intended to assist them in
such a scheme is, of course, something of consequence to the determination of the
action.
Kott is a former Speaker of the House of Representative. That fact readily
supports the inference that he would have made himself aware of sources, including
public records showing which contributors were supporting which candidates. The
evidence of campaign contributions Kott proposes to introduce would support a
conclusion that he believed the influence Allen and Smith held was obtained through
lawful campaign contributions, not illegal financial deals.
The United States does not appear to have opposed introduction of evidence
showing Allen’s and Smith’s campaign contributions to Kott himself, but to be thorough
the court will set out its view on that evidence as well. With respect to Kott himself, the
recording in which Allen explains to Smith that he is angry that lobbyist Knauss is taking
credit for lining up Kott’s vote on PPT when “I put more money in Peter Kott than
[Knauss] ever even thought about “1 could be understood by the jury to mean Allen had
given a lot of bribes to Kott, a point that certainly would be of consequence in this case.
Evidence showing that Allen made substantial lawful campaign contributions to Kott has
a tendency to make it less likely that Allen was referring to bribes, or that Kott would
consider similar statements he himself heard to be references to illegal activity.
In summary, the court will admit evidence of Allen’s and Smith’s campaign
contributions to legislative candidates made during the time period relevant to this case.
B. Polling
Under Alaska law corporations may not make contributions to candidates for
public office.2 With respect to Kott’s plan to introduce evidence relating to political
polling, the government’s position has been stated as follows: “There is no basis to
permit the introduction of evidence concerning, or cross-examination relating to, any
political polls other than the one in July, 2006, that was done at Mr. Kott’s request and

1

Ex. B to doc. 226 (document is filed under seal).

2

AS 15.13.074(f).

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was paid for by VECO. Evidence that VECO paid for polls for other politicians is not
relevant to the crimes for which Mr. Kott has been charged.”3 For his part, Kott takes
the position that he did not request the poll and that VECO did with some frequency
purchase polls relating to other candidates. It follows, argues Kott, that his position that
he did not request any poll is more believable when it is shown that VECO often did pay
for polls relating to other candidates. The court agrees; the evidence is relevant to
show that because VECO often purchased polls, VECO’s purchase of a poll about Kott
is less likely to have been made because Kott asked for it.
The United States also asks the court to exclude the evidence pursuant to
Rule 403 on grounds that it will mislead the jury, because Kott is offering it to support an
argument that the law permits corporate contributions to candidates via the purchase of
polls. In fairness to the United States, comments made by defense counsel on the
record on September 7, 2007, might be understood to stand for that proposition.
However, defense counsel has made it plain at docket 226 that no such argument will
be advanced, and the court will enforce that promise.
The possibility that one or more of the polls VECO purchased relates to a person
who is subject to an on-going non-public investigation is not a reason to exclude
evidence that such a poll or polls was purchased. There is no need for either party to
elicit evidence as to which of the polls purchased, if any, relates to someone who is
under investigation. Counsel is directed to frame inquiry on the polling topic to avoid
eliciting an answer which would disclose that any person whose electoral prospects
were the subject of a VECO purchased poll is, or is not, the subject of an on-going
investigation.4
Subject to the aforesaid requirements for caution by counsel in the conduct of
witness examination, the court will admit evidence of other polls purchased by VECO
during the relevant time period.

3

Doc. 223 at p. 5 (document is filed under seal).

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Depending on the who is the witness, the witness might now utterly nothing about other
investigations.

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C. Others’ Votes on PPT
This issue is not squarely joined in the briefing. In the abstract, the court agrees
with the United States that how other legislators voted on PPT has nothing to do with
whether Kott is guilty or not guilty of the charges in this case. On the other hand,
depending on what evidence the United States introduces to show that Kott was doing
VECO’s bidding, how a particular legislator voted could be relevant. For example,
consider this hypothetical: The United States elicits testimony from Allen that he
instructed Kott to persuade legislator X to vote for a particular proposition, and Kott
reported to Allen that Kott had extracted X’s promise to vote for the proposition.
Evidence that in fact X voted differently would support an inference that Allen’s
testimony was not truthful (as well as the competing inference that X reneged on a
promise to Kott.) A ruling must be reserved on this topic.
In summary, this evidence may only be introduced if its relevance is manifest
after other evidence has been presented, or, following an offer of proof, the court
becomes convinced that it is relevant.
In addition to evidence of how particular legislators voted, Kott says he expects
to introduce evidence of a general nature about how the legislative process works and
the nature of PPT. The court does not understand such evidence to be within the reach
of the government’s motion. If it was intended to be, a more precise objection to such
evidence will have to be made and addressed at a later time.
D. Cross-Examination of Allen and Smith
The United States asks the court to foreclose cross-examination of either Allen or
Smith that relates to possible participation in on-going investigations which are not
public, although the existence of one or more investigations may be known to the public
at a generalized level. Kott strenuously resists any restriction on his ability to crossexamine Allen or Smith as an infringement of his Sixth Amendment right to confront the
witnesses against him and emphasizes that ultimately this case comes down to who is
lying to the jury “Smith/Allen or Kott.”5 Even if Kott ultimately exercises his Fifth

5

Doc. 226 at p. 12 (document filed under seal).

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Amendment privilege against self-incrimination by choosing not to testify, it is very clear
that the testimony of Messrs. Allen and Smith is potentially critical evidence. Thus,
imposing any restriction on Kott’s ability to cross-examine either man must be carefully
considered.
Both parties recognize that under certain circumstances a trial court may impose
reasonable limits on a defendant’s cross-examination of government witnesses. In
United States v. James,6 the Ninth Circuit identified three questions which must be
asked by the court: (1) Is the evidence to be excluded relevant? (2) Are there legitimate
considerations which outweigh the defendant’s interest in presenting the evidence to be
excluded? (3) After exclusion of the evidence does the jury have sufficient information
to assess the witness’ credibility?
Here, the evidence is clearly relevant, for the participation by Allen and Smith in
other investigations tends to show how closely aligned with the United States’
prosecutorial interests they may have become. One thing that is not very clear to the
court is the extent to which the government’s interest in preserving the confidentiality of
on-going investigations could outweigh Kott’s interest in presenting the evidence. The
court would be surprised to learn that any of the investigations had not yet reached a
stage in which targets have been identified and notified of their status. It has been
reported in the press that Allen and Smith are cooperating in a wide-ranging
investigation of political corruption. The existence of at least two of the three
investigations which the court understands to be involved have been reported in
national as well as local news media. In sum, it is not at all clear that foreclosing crossexamination here would be consistent with application of the second James factor. In
addition, without knowing more about what Kott thinks he can elicit through crossexamination on these matters and how it would differ from what he could elicit from
examination on other matters bearing on Allen and Smith’s credibility, the court is
unable to determine how the third factor should be weighed.

6

139 F.3d 709, 713 (9th Cir. 1998) (Sedwick, D.J. sitting by designation).

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This particular aspect of the pending motion does not need to be resolved prior to
opening statements. Mr. Wendt will be able to explain to the jury, if he wishes to make
the point in opening, that the testimony of Messrs. Allen and Smith will have to be
viewed cautiously because they have made “deals” with the United States and that on
cross-examination the significance of the deals will be disclosed. Mr. Wendt could go
on, if he chooses, to offer some examples of what he expects to elicit on crossexamination if it is his wont to get into such detail in his opening. However, it will not
diminish the efficacy of his opening statement if he does not speak to the particulars of
Allen’s and Smith’s involvement in the three investigations. This topic can and will be
deferred to a closed hearing to be held prior to the time either Allen or Smith takes the
stand. At the hearing the court will expect the United States to be forthcoming with
details about just what would be at risk if Allen and Smith were to be opened to full
cross-examination so the court can evaluate the second James factor. Then, if the
second factor is not dispositive, the court will expect an offer of proof from Kott sufficient
to allow the court to apply the third James factor.

IV. CONCLUSION
The motion at docket 223 is DENIED in part and a ruling is reserved in part
consistent with the discussion above.
DATED at Anchorage, Alaska, this 10th day of September 2007.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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