Tuesday, November 17, 2009

Peter Kott - Oral Arguments on Motion Seeking Release from Convictions

9:00 AM
Judge Sedwick
Anchorage Courtroom 2


(Peter Koski)
(Margaret Simonian)

(M. Kendall Day)
(Sheryl Gordon McCloud)

(Marc Elliot Levin)

(Kevin R. Gingras)

(James M. Trusty)

(Karen Loeffler)

(Kevin Feldis)


Pete Kott's attorney has requested that because the Prosecution withheld exculpatory evidence during the trial that Kott should be released from his convictions.  Today was the oral hearing on that motion, if I understand this right.  Below are my notes from 26 minutes in the courtroom. But I'll try to summarize what I think happened.  (I would note that this took place in Courtroom 2, not Courtroom 3 that has been the location of the Anderson, Kott, and Kohring trials and sentencing.)   [For my accounts of the trial itself you can link here: Kott trial, or go to the Kott trial label below right.]

As I understood this,  the defense is arguing that there was evidence in the 4700 or so documents that were released post trial that would have refuted the evidence that was used to convict Kott.  The judge asked the two sides to address two things:
1.  Address how the withheld evidence affects the outcome of the trial
2.  Talk about remedies should we find there be a finding that agrees with the defense motion.

 The defense mentioned three statements that specifically questioned Allen's credibility on the stand and Kott's guilt:

1.  In trial, it was revealed that VECO had paid for a poll that the Kott camp said they neither wanted nor needed.  But the value of the poll was a factor in the trial.  Sheryl Gordon McCloud quoted from the new evidence: 

Allen:  “You don’t owe me, [curse word], here’s the check.”

2.  In trial there was a lot of debate over the payment of $7000 above the bill submitted by Kott for doing flooring work at Bill Allen's home.  Prosecutors said it was an illegal payment.  In court McCloud brought out this new quote from the evidence not turned over to the defense until now, to show it wasn't:

"Allen said he gave him substantially more as a bonus, because they worked hard, worked their butt off, and it was “for the flooring work.”"

There were a few more like that.  The Prosecutors responded by saying the quotes were taken out of context and there was considerably more evidence including all the tapes.

The judge appeared concerned about the withheld evidence.  He now has to make a ruling.  After the hearing, McCloud was asked by the media when there would be a decision.  She shrugged and said it was a complicated case and it could be a while. 

Here are my notes from the hearing itself.  As always, a lot is missing cause I just couldn't keep up.  I did go back and use spell check, but otherwise they are pretty rough.  

9:02 Judge Sedwick  Kott’s motion seeking release from his convictions.  Want argument focused to make good use of time.  Jury returned general verdicts, based on specific acts.  $ with hardwood floor refurnishing, $1000 for campaign contribution, $5000 for down payment on truck, &  one more. [was it poll done for campaign?  not sure.]    Any one act could have been the overt act but we don’t know which act the jury relied on,  Same on count 2. 

Nature of relief if the motion granted.  We would discuss if charges should be dismissed with prejudice, or recharged?  and why.

Defense Attorney Sheryl Gordon McCloud for Kott: 
Elements of crimes, for extortion, court had to produce evidence Mr. K induced the payment and there was a quid pro quo.
Sencond  count - public official
Third count Conspriacy.

Tapes were lacking quid pro quo on campaign contribution, $7000 check for flooring, ????, and truck.  Talked about money, but not quid pro quo, exchange of items, or Defendant being one who induced those items.

Instead, Bill Allen, on the poll, said, “You don’t owe? me, curse word, here’s the check.”

Smith saying job was quid pro quo,  Allen saying $7000 to go to Pete jr. not  Pete Sr.

$5000 for the down payment of the truck.  Government argued this is ridiculous to believe this was just a loan.  “If you can’t believe him about interaction with Allen, what can you believe him about?”

What Allen said on the evidence was that he never ???

Chad Kadera [FBI agent]:  Roger? told BA that he couldn’t give him the truck, he was too proud. 

Undermined Kott’s total lack of credibility, here and elsewhere.

Flooring.  Paid $7K over the cost and the money to funnel money to Pete jr. for the campaign.  And Pete didn’t do work for the money.

New documents said, Allen said he gave him substantially more as a bonus, because they worked hard, worked their butt off, and it was “for the flooring work.”  

No solicitation for the $7K, no quid pro quo, it was to pay him for the flooring work. 

Truck and flooring were both relevant to the bribery, extortion convictions.

Nature of relief:  depends on nature of the problem.  I don’t think the nature of the problem completely clear yet.  We got 4000+ documents.  Govt. accuses us of taking things out of context.  Well we did our best, we only had the documents.  No evidentiary hearing.  Then we might find out that Allen perjured himself on the stand, because the documents conflict with what he said.

If the Govt. knowingly suborned perjury, then we have a higher standard - ref: Illiniois

Whether government knowingly suborned perjury. 
Relevant whether dismissal with prejudice.  Only if there was government misconduct.  The evidence doesn’t tell me the govt knowingly ….. they suggest, but I don’t know. We don’t know what Agent Kepner knew.

I think court should reverse convictions.
On the relief, we need an evidenciary hearing to know how culpable the govt. was.

Federal Prosecutor Trusty:  None of the charges are constitutionally ????  The $5000 “loan” was not affirmatively charged.

Judge Sedwick:  Allen should have been subject to different kind of cross examination.  There may be some testimony from Smith that defense has less ….   We might have Kott v. Smith.  Concerns of Smith do not rise to level of concerns about Allen.  Some significance

Trusty:  Obviously, your honor sat here and heard it first hand.  My understanding is that Mr. Kott opened - hadn’t received any cash except the $5000,

Judge Sedwick:   Yes.

Trusty:  really a sham of a loan.  Completely fair game to impugn Kott’s credibility on that..

Judge Sedwick   We now have information to question

Trusty:  Mr. Kott had the $ in his possession.

Judge Sedwick: Then Kott argued about the hardwood floor.

Trusty:  Trying to draw the disconnect ...where Allen was not necessary. 

Judge Sedwick:  but Allen was needed for $7K

Trusty;  Mr. Allen testified PK extorted him.  He didn’t say that.  He never alleged, in the true sense of the word, that there was some sort of blackmail.  A statement that should have been turned over, but doesn’t change things.  Three components that were turned over
302 [reference to rule or code by that number  a"302" is a report by an FBI agent summarizing an interview. (thanks CG)]  3 phrases that were turned over:
reference to it being a bonus
PK worked hard for it
Was part of his payment

that he worked hard - in Brady analysis - is not favorable to Kott.  This was a plan to inflate PK’s  payment for the floor.  The same 302 read in its entirety.  The tape shows them discussing a fool proof plan that overrides this characterization of this as a bonus.

About the truck:  during the sentencing you discussed whether it was a gratuity or bribe and how to consider it in the guidelines.  Your honor characterized it in an accurate way:  The parties called it a loan, a good way to save face, but it really wasn’t a loan.

It played out that way with the jury.  That loan, was something that didn’t make him a credible witness, a fair credibility knock at PK’s expense.  The big picture, fair to say, some materials, should have been turned over, but the Brady analysis, Constitutional analysis, whether things had to be turned over.  There really is no charge of bad faith, intimations, but nothing in the pleadings of the defendant.  Nothing that argues dismissal.  Dismissal where case was weak, facts weak, some bad motivation,.  Case where the government bent the rules to make a conviction happen.  Not what happened here.  The court had 56? tapes.  Case had overwhelming evidence.  This doesn’t call for dismissal or dismissal with prejudice. 

A good number of other areas pleaded here if your honor wants to ask, but mindful of the time. 

Judge Sedwick:  We need to clear courtroom quickly.

McCloud:  Counsel correct that PK had information in his possession - it was in his mind - but he had no proof.  What the government had was independent proof thru Allen and Smith.  Certainly Kott had the info, but he couldn’t prove it.

Also, the new info is not only relevant to credibility but also trial strategy.

Judge Sedwick: I understand, that’s in the briefings.

PK Defense:  When I say they suborned perjury, that’s the point of bad faith and needs to be examined in ….

Judge Sedwick   We’re going to adjourn  [9:28]

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