"LEFFINGWELL attempted to push past me and other officers. When he was deterred from advancing further into the building, LEFFINGWELL punched me repeatedly with a closed fist"

George Washington University's Program on Extremism has a website where you can see the documents being submitted about the people apprehended by the FBI and, I think,  other law enforcement agencies.

"The Program on Extremism has launched a project to create a central database of court records related to the events of January 6, 2021. This page will be updated as additional individuals are charged with criminal activities and new records are introduced into the criminal justice system.

If you’d like to contribute to offset the costs associated with court record fees and research on this and other projects, you can support the Program’s research here."

Different people have different documents filed.  Some I've seen are (links take you to an example):

Affidavit in Support of Criminal Complaint

Statement of Facts

Criminal Complaint

Indictment

Detention Memo

 The documents I have looked at were mostly Statements of Facts, which seem to have the following general structure (I've given an example of each part):

1.  Identify the person filing the report and where they work

"On January 6, 2021, your affiant  [a person who swears to an affidavit.], Michael Attard was on duty and performing my official duties as a Special Agent. Specifically, I am assigned to the Counter-terrorism squad tasked with investigating criminal activity in and around the Capitol grounds. As a Special Agent, I am authorized by law or by a Government agency to engage in or supervise the prevention, detention, investigation, or prosecution of a violation of Federal criminal laws."  From:  https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/Aaron%20Mostofsky%20Statement%20of%20Facts.pdf

2.  Background information on what happened January 6 in the Capitol

"On January 6, 2021, a joint session of the United States Congress convened at the United States Capitol, which is located at First Street, SE, in Washington, D.C. During the joint session, elected members of the United States House of Representatives and the United States Senate were meeting in separate chambers of the United States Capitol to certify the vote count of the Electoral College of the 2020 Presidential Election, which had taken place on November 3, 2020. The joint session began at approximately 1:00 p.m. Shortly thereafter, by approximately 1:30 p.m., the House and Senate adjourned to separate chambers to resolve a particular objection. Vice President Michael R. Pence was present and presiding, first in the joint session, and then in the Senate chamber." From https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/Greg%20Rubenacker%20Statement%20of%20Facts.pdf

3.  How the agency got information about the individual being charged."

"On January 7, 2021, the FBI received several tips from the public (tipsters) that PATRICK MONTGOMERY of Littleton, Colorado, was seen in photographs posted on Facebook inside the Capitol building Senate Chambers on January 6, 2021. The persons providing the tips also indicated that MONTGOMERY had posted photographs from inside the Senate Chamber on that same day.
A tipster, who will be referred to as T-1, identified MONTGOMERY as the man circled in a photograph below, wherein he appears to be standing inside the Senate Chambers:
MONTGOMERY appears to be part of the crowd that entered the Senate Chambers on January 6, 2021, and, as explained below, MONTGOMERY is wearing the same clothes as he was wearing outside the Capitol building on January 6, 2021. Your Affiant spoke with T-1 on January 12, 2021. T-1 told your Affiant that IT is a Facebook friend of MONTGOMERY and that IT knew MONTGOMERY because they worked together as river guides for three years.
Another tipster, who will be referred to as T-2, provided a post from MONTGOMERY’S Facebook page, wherein a member of the public posted on Facebook the photograph above and a commented to MONTGOMERY asking, “Is this you? I saw it on another page and it looked like

Case 1:21-mj-00044-RMM Document 1-1 Filed 01/13/21 Page 3 of 8
you.” T-1 responded, “I have saved this photo and will be indetifying [sic] you to authorities,” to which MONTGOMERY replied, “Got nothing to hide...”
Following this post, MONTGOMERY corresponded with T-1 by email on January 7, 2021. T-1 provided the email exchange to your Affiant. MONTGOMERY’S email address contains the name of MONTGOMERY’S hunting company, Pmonte Outdoors: pmonte3006@[redacted]. In response to T-1 stating, “You have been reported to the police in DC as well as the FBI,” MONTGOMERY responded, “I’m not a scared cat or running from anything. . . . Im [sic] so deeply covered by the best Federal Defense lawyers in the country in case you chicken shit cry boys don’t want it takes to defend our freedom from these corrupt politicians.” MONTGOMERY went on to explain, “I didn’t storm the castle violently. My group was let in peacefully by the police we were talking to with respect. We came a[n]d left peacefully before the anarchist and Antifa showed up breaking shit and being hoodlums.”  From https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/Patrick%20Montgomery%20Statement%20of%20Facts.pdf       

4.  Description of the person and what that person did

"At approximately 2:30 p.m. on January 6, 2021, I was performing my official duties on the first floor of the United States Capitol building. In reacting to the crowd that had breached a window of the building, I moved to a hallway in the northwest corner of the building, i.e., the Senate wing of the Capitol building. While there, I attempted to form a barrier with other officers to stop or deter additional individuals from entering the Capitol building. In the course of this effort and while inside the Capitol building, I encountered an adult male who later identified himself to me as Mark Jefferson LEFFINGWELL. LEFFINGWELL attempted to push past me and other officers. When he was deterred from advancing further into the building, LEFFINGWELL punched me repeatedly with a closed fist. I was struck in the helmet that I was wearing and in the chest. Working with other officers, I was able to gain control over LEFFINGWELL, who attempted to struggle while being detained. I transported LEFFINGWELL to United States Capitol Police headquarters for processing. While in custody, but prior to being advised of his Miranda rights, LEFFINGWELL spontaneously apologized for striking the officer. When told that the officer who LEFFINGWELL had struck was me, LEFFINGWELL apologized to me for striking me."  From:  https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/Mark%20Jefferson%20Leffingwell%20Statement%20of%20Facts.pdf

5.  List of the specific charges.

"Based on the foregoing, your affiant submits that there is probable cause to believe that BRIAN MCCREARY violated 18 U.S.C. § 1752(a)(1) and (2), which makes it a crime to (1) knowingly enter or remain in any restricted building or grounds without lawful authority to do; and (2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engage in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions. For purposes of Section 1752 of Title 18, a “restricted building” includes a posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service, including the Vice President, is or will be temporarily visiting; or any building or grounds so restricted in conjunction with an event designated as a special event of national significance.
Finally, your affiant submits there is also probable cause to believe that BRIAN MCCREARY violated 40 U.S.C. § 5104(e)(2), which makes it a crime to willfully and knowingly: (D) utter loud, threatening, or abusive language, or engage in disorderly or disruptive conduct, at any place in the Grounds or in any of the Capitol Buildings with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress or either House of Congress, or the orderly conduct in that building of a hearing before, or any deliberations of, a committee of Congress or either House of Congress; (E) obstruct, or impede passage through or within, the Grounds or any of the Capitol Buildings; and (G) parade, demonstrate, or picket in any of the Capitol Buildings." From:  https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/Brian%20McCreary%20Statement%20of%20Facts.pdf

When I started writing this post I went through various statements and took some excerpts to give you a sense of what they say.  As I looked at various statements I realized they followed a general pattern.  So I went back and developed the above list of examples of each of the five part of the statements.  

So, now that I've finished that, I have already given you a lot of excerpts.  But below are the ones I started out with.  

From this Statement of Fact

"TIMOTHY LOUIS HALE-CUSANELLI (HALE-CUSANELLI) of Colts Neck, New Jersey, traveled to the District of Columbia to participate in a rally and protest at the U.S. Capitol. HALE-CUSANELLI is enlisted in the United States Army Reserves, and also works as a contractor at Naval Weapons Station Earle where he maintains a “Secret” security clearance and has access to a variety of munitions.

On January 12, 2021, I received information from an individual who has been enrolled as a Confidential Human Source (“CHS”) with NCIS. The CHS reported that HALE-CUSANELLI told the CHS that HALE-CUSANELLI was present at the riot at the United States Capitol Building and, as part of the riot, he entered the Capitol building itself. HALE-CUSANELLI then showed CHS videos on his cell phone which depicted HALE- CUSANELLI making harassing and derogatory statements toward Capitol Police officers both inside and outside the Capitol building.

During our meeting on January 12, 2021, the CHS reported to me that HALE-CUSANELLI is an avowed white supremacist and Nazi sympathizer who posts video opinion statements on YouTube proffering extreme political opinions and viewpoints under the title the “Based Hermes Show.” HALE-CUSANELLI also posts similar content in other forums. Prior to traveling to the rally and protest on January 6, 2021, HALE-CUSANELLI wrote “Trust the plan, it’s the final countdown, stay tuned next episode” and 'Trust the plan, major announcement soon.'”

From this Statement of Fact

"On or about January 6, 2021, an individual called the FBI’s National Threat Operations Center to report that the individual seen in the widely circulated Getty Images photograph (Figure 1) was named ADAM JOHNSON. The caller claimed that ADAM JOHNSON was a resident of Bradenton, Florida, and that the caller knew this information because he/she shared a mutual friend with ADAM JOHNSON. The FBI conducted research on government databases and learned that there was an individual named ADAM JOHNSON associated with residences in two cities in Florida: Bradenton and Parrish (which is near Bradenton). A search of the Florida’s Department of Motor Vehicles returned ADAM JOHNSON’s driver’s license photograph. By comparing this photograph to the image of PERSON 1, your affiant reasonably believes that PERSON 1 is identical to ADAM JOHNSON.

On or about January 8, 2021, the FBI consulted with members of the Speaker’s staff and learned that before the forced entry to the Capitol building began on January 6, 2021, the Speaker’s lectern was stored in the Speaker’s Suite, located under a staircase to the third floor on the House side of the Capitol building. On or about January 7, 2021, the lectern was found by a member of the Senate staff in the Red corridor of the Senate wing off the Rotunda in the Capitol building. According to the House of Representatives’ curator, the Speaker’s lectern has a market value of more than $1,000."

From this Statement of Facts:

"SCHAFFER was among the rioters who sprayed United States Capitol Police officers with “bear spray,” a form of capsaicin pepper spray sold by many outdoors retailers, as part of their efforts to push the officers back inside the Capitol and breach the Capitol Building themselves. SCHAFFER was photographed and captured on surveillance video carrying “bear spray” and engaging in verbal altercations with Capitol Police officers inside the Capitol Building.SCHAFFER is seen holding a clear sunglasses in one photograph, and bear spray in other photographs.

The photographs show SCHAFFER in a blue hooded sweatshirt under a tactical vest with a baseball cap that reads “Oath Keepers Lifetime Member.” The “Oath Keepers” is an organization that characterizes itself as a militia of former law enforcement and military personnel and has often, as a group, urged President Trump to declare Martial Law in order to prevent the Congress from certifying the Electoral College Results.

SCHAFFER, who is the front man of the heavy metal band “Iced Earth,” has long held far-right extremist views. During an interview in 2017, SCHAFFER identified himself as an “anarchist” and referred to the federal government as a “criminal enterprise.” During that same interview, SCHAFFER stated that the 2016 Presidential election was 'rigged.'”

If You Can't Impugn A Nominee, What's The Point Of The Hearing Process?

Senator Elizabeth Warren was silenced in the Senate debate over the attorney general debate  for reading a letter written by Coretta Scott King that said, in part,

 "Mr. Sessions has used the awesome powers of his office in a shabby attempt to intimidate and frighten elderly black voters.  For this reprehensible conduct, he should not be rewarded with a federal judgeship."

Impugn

The Senate GOP invoked a rule against impugning a colleague.  Here's a copy of the rule from a Tweet by Senator Hatch:

And to clarify a bit more, here are some dictionary definitions of 'impugn.'

• to challenge as false (another's statements, motives, etc.); cast doubt upon. (Dictionary.com)
• to assail by words or arguments :  oppose or attack as false or lacking integrity (Merriam-Webster)
• to cause people to doubt or not trust someone’s character, honesty, or ability (Cambridge dictionary)
• To attack as false or questionable; challenge in argument: impugn a political opponent's record. (Free Dictionary)

It's admirable that the Senate has rules that forbid Senators from insulting one another.  But what happens when a Senator actually conducts him or herself in a way that is "unworthy or unbecoming of a Senator"?  Everyone is supposed to pretend it didn't happen?  

I can wholeheartedly support the idea of 'falsely impugning' being banned, but if one is simply calling out an actual behavior unworthy of a Senator, shouldn't that be allowable?

Senate Confirmation Hearings

But let's also recognize that in this session (no pun intended) Mr. Jeff Sessions (rather than Senator Jeff Sessions) is being considered for the position of Attorney General. Sessions has two distinct roles here.   It is not in his role as a fellow Senator that he is being impugned,  but in his role as a candidate for Attorney General whose qualifications are being debated. (I'm assuming here that Sessions doesn't get to vote on his own nomination, but maybe I'm wrong. It appears I am wrong.)

If a Senator cannot raise questions about a presidential nominee in confirmation hearings, what is the point of the the hearing?  The fact that the nominee also happens to be a US Senator should be irrelevant.   To say it is ok to impugn nominees as long as they are not Senators is a joke.

Why Is Warren's Speech Relevant

The words that were so offensive were the words of Coretta Scott King speaking from personal observation.  This is the wife of civil rights leader Martin Luther King.  She was intimately involved in the event she writes about.

The event she alluded to was the prosecution, by then Alabama Attorney General Jeff Sessions, of a black voting rights worker, Albert Turner, who was helping elderly black voters to register to vote and to actually vote.  The jury acquitted Turner.  

Abuse Of Power

I'm trying to write this as objectively as possible, but it's hard. Up to this point I've done ok.  But to write dispassionately about outrageous abuses of power is to support the abuse. I should say abuses.

First, there is the silencing of Senator Warren and the words of Coretta Scott King.  The silencing of the voices of black and white women by white men isn't new.  That doesn't make it right.

Second is the idea of Sessions as the attorney general.   The attorney general is supposed to uphold the law and to protect the civil rights of Americans and this nominee's record is so poor as to be laughable, yet he's close to confirmation.  (Not everyone agrees.) This is the perfect Stephen Bannon appointee.

The damage being done to American democracy by Donald Trump and his henchmen will take so much time to undo, and the suffering and injustices that come from it will never be totally undone.  

And both Alaskan US Senators voted along with the other Republicans to silence Sen. Warren.  I don't expect anything else from Sullivan, but Murkowski knows better.  She's already voted against DeVos, does she think this vote will buy her forgiveness from Trump's vengeance? 

CREW Synopsis of DOJ Documents on Don Young

This posts builds from Cliff Groh's post at Alaska Political Corruption that cites Charlie Savage's New York Times' May 31 article about the Public Integrity Section's (PIN) checkered record of late. PIN's the Justice Department branch that prosecuted the Alaska corruption cases, including the Stevens case, and the John Edward's case, but dropped their case against Don Young. It also includes links to Citizens for Responsibility and Ethics in Washington's (CREW) report on the documents it got through Freedom of Information Act requests from DOJ regarding Don Young.

First, here are the excerpts from the Charlie Savage article that mention Young:

The two failed cases were the most nationally visible efforts in recent years by the public integrity section, which was criticized in 2010 after closing out, without bringing charges, a series of long-running investigations into current or former members of Congress including Senator John Ensign of Nevada and Representatives Tom DeLay of Texas, Jerry Lewis of California, Allan B. Mollohan of West Virginia and Don Young of Alaska. . .

“The cases that they are deciding to prosecute, and not prosecute, reflect an incoherent strategy,” she said. “At some points they are willing to be incredibly aggressive, like with John Edwards, and on the other hand they are overly cautious in refusing to prosecute people like John Ensign and Don Young.” 

. . . Mr. Smith, seeking a fresh start for the unit, urged prosecutors to file charges or close cases in which investigations had lingered. The wave of closed cases — including the decision in August 2010 not to charge Mr. Young, another Alaska Republican — led critics to accuse the section of being gun-shy. . . 

The Citizens for Responsibility and Ethics in Washington later sued the Justice Department to obtain documents related to the Young investigation. This spring, it obtained a draft indictment showing that investigators considered charging him with so-called honest services fraud for accepting and expecting a stream of trips, meals, golf outings and other items of value from lobbyists in exchange for official actions like meetings, letters and legislation. 

Savage goes on to say that  "honest services fraud" had been greatly limited by the Supreme Court in Enron's Jeff Skilling case and that Congress hadn't taken action to  restore its scope. 


Citizens for Responsibility and Ethics in Washington (CREW) has a synopsis (which Alaska Political Corruption links) of what the PIN investigation of Young produced.   Here are some excerpts of their findings. [I've left in the footnotes]

Over the course of three years, the FBI, with assistance from U.S. Attorneys’ Offices, interviewed dozens of witnesses and amassed a wealth of evidence concerning not only Rep. Young’s role in the Coconut Road earmark, but his misuse of campaign funds to finance personal expenses of both himself and his wife Lu Young. The two used Rep. Young’s campaign account as a personal piggy bank they reached into to cover such things as personal travel home to Alaska,2 restaurants unrelated to campaign activities, and laundry and dry cleaning.3    According to at least one witness, Rep. Young treated any travel to Alaska as campaign related, regardless of its purpose.4    Both he and his wife routinely obtained $300 cash advances for their trips to Anchorage to cover tips and incidental expenses, a practice eventually stopped on the advice of counsel.5    One witness described cash left for Rep. Young either in his hotel room or his condominium.6    Lu Young also sought reimbursement from campaign funds
[1 Young Document 2 (references are to the bates numbers on the documents produced by the FBI).  2 See, e.g., Young Document 192. 3 Young Document 193. 4 Young Document 194. 5 Young Document 195.   6 Id. ]

for additional expenses incurred during trips to Alaska, such as lunches with friends.7    In addition, Rep. Young kept a sports utility vehicle parked in the congressional garage for which he sought monthly reimbursement from campaign funds for mileage, even though the vehicle apparently never left the garage.8
Witnesses interviewed by the FBI paint a fairly negative picture of Rep. Young’s wife Lu, who perceived herself to be “the elected official,” but also acted as a kind of office manager, screening people who came into Rep. Young’s office.9    Described as having “a sense of entitlement about most things,” she submitted many of her personal expenses for reimbursement from campaign funds, including meals with friends and family.10    This practice apparently stopped at some point after years of abuse on the advice of counsel.11    Another witness told the FBI Lu Young received “countless bracelets and ivory while in the DC office,” as well as diamond earrings during a Las Vegas trip,12 while another described Rep. Young and his wife as the recipients of lavish gifts.13

Travel to the Youngs’ two houses in Fort Yukon, Alaska, was covered in large part by campaign funds. The campaign typically paid half of the cost of a charter flight to Fort Yukon, with the congressional office picking up the rest of the cost, which it attributed to Lu Young.14    In some instances, however, the campaign paid for the entire cost of the chartered flight.15    The Youngs also used these flights to transport building supplies.16    Even though these trips were paid for with campaign funds, no campaign events ever took place in Fort Yukon.17
On multiple occasions, Rep. Young went on hunting trips to various hunting resorts in New
[7 Id. 8 See id. 9 Young Document 193. 10 Young Document 194. 11 Young Document 193. 12 Young Document 198. 13 Young Document 250. 14 Young Document 196. 15 Id. 16 Id. 17 Id.]

York, Texas, Arizona, New Mexico, and Montana paid for with campaign funds.18    In some instances, these trips coincided with campaign trips, but the hunting trips themselves were not campaign events.19    In at least one instance, a planned fund raising event was never held, but the hunting trip still went forward.20
Rep. Young failed to disclose these hunting trips on his annual financial disclosure forms. On August 17, 2010, DOJ’s Public Integrity Section referred this matter to the House Committee on Standards of Official Conduct on August 17, 2010, for possible violations of the Ethics in Government Act.21    Apparently the House Ethics Committee already had commenced its own investigation, as the referral memo references the fact Rep. Young, through counsel, had previously provided the documentation regarding these trips to the committee.22

 The whole document is here.  

This four page synopsis appears to be based on the documents CREW received through Freedom of Information Act (FOIA) requests.  You can see the requests and Department of Justice (DOJ) responses here.  First are the requests.  The responses are at the bottom of page one and top of page two.

Schuelke's Ted Stevens Trial Report - Summary and Full Report Here

The Ted Stevens Trial Misconduct Report was made public today.  It's 500 and some pages.  It's the report on the prosecutors conduct in the Ted Stevens trial which led to Obama's attorney general to dismiss the case and verdict shortly after Obama took office.


The report was ordered  April 2009 by the  Emmet G. Sullivan who was the judge in the case.    The report, dated November 14, 2011, was written by Henry F. Schuelke III and William Shields and was released today, despite an appeal by one of the prosecutors investigated, Edward Sullivan, to not release it.

I have had enough time to scan the table of contents - 16 pages worth - and and the Summary of Findings, but not much more.   Here is the Summary of Findings and below  I've uploaded the whole report to Scribd so that I could make it more easily readable here for anyone with time on their hands and/or a burning interest.  I'll try to go through it in the next few days.

Executive Summary

The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness. Months after the trial, when a new team of prosecutors discovered, in short order, some of the exculpatory information that had been withheld, the Department of Justice (“DOJ”) moved to set aside the verdict and to dismiss the indictment with prejudice.

The Government recently discovered that a witness interview of Bill Allen took place on April 15, 2008. While no memorandum of interview or agent notes exist for this interview, notes taken by two prosecutors who participated in the April 15 interview reflect that Bill Allen was asked about a note dated October 6, 2002, that was sent from the defendant to Bill Allen. The note was introduced at trial as Government Exhibit 495 and was referred to as the "Torricelli note." The notes of the April 15 interview indicate that Bill Allen said, among other things, in substance and in part, that he (Bill Allen) did not recall talking to Bob Persons regarding giving a bill to the defendant. This statement by Allen during the April 15 interview was inconsistent with Allen's recollection at trial, where he described a conversation with Persons about the Torricelli note. In addition, the April 15 interview notes indicate that Allen estimated that if his workers had performed efficiently, the fair market value of the work his corporation performed on defendant's Girdwood chalet would have been $80,000. Upon the discovery of the interview notes last week, the Government immediately provided a copy to defense counsel.

Defendant Stevens was not informed prior to or during trial of the statements by Bill Allen on April 15, 2008. This information could have been used by the defendant to cross-examine Bill Allen and in arguments to the jury. The Government also acknowledges that the Government's Opposition to Defendant's Motion for a New Trial provided an account of the Government's interviews of Bill Allen that is inaccurate. See Opposition at 42-43 (Dkt. No. 269).

37

Case 1:09-mc-00198-EGS    Document 84    Filed 03/15/12    Page 49 of 525

Stevens, Motion of the United States to Set Aside the Verdict and Dismiss the Indictment with Prejudice, April 1, 2009, at 1-2 (Dkt. No. 324).

Our investigation revealed that, in addition to the failure to disclose Mr. Allen’s statements on April 15, 2008, that he did not recall speaking with Mr. Persons about Senator Stevens’s requests for bills and that the value of VECO’s work on Senator Steven’s home in Alaska was $80,000 (and not $250,000 as alleged in the indictment), other, significant Brady/Giglio information was intentionally withheld, including the following:

•    Mr. Bottini and Mr. Goeke withheld and concealed significant exculpatory information which they obtained from Robert “Rocky” Williams, a prospective government witness, during pre-trial witness preparation interviews in August and September 2008;

•    Mr. Bottini and Mr. Goeke withheld and concealed significant impeachment information regarding Mr. Allen, their key witness against Senator Stevens, which was obtained from Bambi Tyree by another federal prosecutor during an unrelated prosecution in July 2004; and

•    Mr. Bottini failed to correct materially false testimony given by Mr. Allen during his cross-examination in Stevens which Mr. Bottini knew at the time was false.

The information withheld from the defense would have significantly corroborated the trial testimony of Senator Stevens and Catherine Stevens, his wife, on the central issue in the case, supported defense attempts to expose Mr. Allen’s CYA testimony as a recent fabrication, and provided additional grounds to impeach his credibility and to question the integrity of the prosecution itself. See United States v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995)(“The gravity of the prosecutors' misconduct . . . may support, but it can never compel, an inference that the prosecutors resorted to improper tactics because they were justifiably fearful that without such tactics the defendants might be acquitted.” (citations omitted); United States v. Remington, 191 F.2d 246, 251 (2d Cir. 1951)(“Evidence of efforts to suppress testimony of evidence in any form like the spoilation of documents is affirmative evidence of the weakness of the prosecution's case.”)(footnote omitted).

Sen Ted Stevens Trial Misconduct Report

Since I sat through most of the three trials in Anchorage that led up to the Stevens trial in DC, I have some thoughts about the four prosecutors I witnessed here who are the subject of the report -  Joseph W. Bottini,  James A. Goeke, Nicholas A. Marsh, and Edward P. Sullivan.   The other two, Brenda K. Morris and  William M. Welch III, were not involved in the Anchorage cases.  I am getting more than the normal number of hits today for my post on Nicholas Marsh's death and also for observations on Mary Beth Kepner, the FBI agent in charge of the investigation.

Redistricting Board's Submission to DOJ - Part 1

The Alaska Redistricting Board submitted its plan for approval from the Department of Justice (DOJ) on August 9, 2011.  DOJ has 60 days to approve or not - which gets us to about October 10 or 11.  It's taken me a while to get to posting about this, but I do think people should know about it.  So I'm finally getting Part 1 up.

Alaska is one of 16 states (I've seen different numbers, but this seems to be the most common) that are required to have their decennial redistricting plans cleared by the DOJ.  I haven't tracked down the specifics of what got Alaska onto the list.  You can read more on the Voting Rights Act on Wikipedia.  Here's a bit from the Minnesota Senate website on preclearance under the Voting Rights Act:

In 1975, Congress extended the preclearance requirements for an additional seven years (through the 1980 redistricting cycle). The 1975 amendments added to the list of tests and devices the conduct of registration and elections in only the English language in those states or political subdivisions where more than 5 percent of the voting age population belonged to a single language minority group (including Alaskan natives, Native Americans, Asian Americans and people of Spanish heritage). The 1975 amendments also required the use of bilingual election materials and assistance if 5 percent of the jurisdiction's voting age citizens were of a single language minority and the illiteracy rate of that language minority group was greater than the national average. Finally, the coverage formula was extended to include jurisdictions that maintained any test or device and had less than half of their voting age population either registered on November 1, 1972, or casting votes in the 1972 presidential election. In all, 16 states or parts of states now are covered by Section 5 preclearance requirements, as shown in table 6.  [red font added]

You can get a .pdf copy of the Alaska Redistricting Board's  submission at the Redistricting Board's website. (See DOJ Submissions on the right at the Board's website) They sent in lots of material. 

A key part is the Submission Statement.  The statement is 18 pages long and essentially goes through the steps of how the plan was developed.  It's relatively straightforward, though it is written by an attorney for attorneys in the Department of Justice and uses a lot of terms of art that people familiar with the topic will understand, but others might find hard to get through.  This isn't a criticism, just a warning.

As I understand this, the key thing the DOJ must do is determine that there has been no retrogression - or as the board's attorney would assert, "No unjustifiable retrogression."  The Voting Rights Act was passed in 1965, shortly after the Civil Rights Act was passed to ensure that barriers to voting under segregation in the South would be removed and that African-Americans would be able to not only vote, but have meaningful votes.  Part of this means that they wouldn't be gerrymandered into districts that diluted their voting strength.  But this applies to other minorities whose voting strength is diluted by the way districts are drawn.

Alaska is one of the 16 states because the courts, in the past, found discrimination against Alaska Natives.  Part of the test of the fairness of the districts is whether the votes of Alaska Natives can make a difference, whether their percentage in the population is reflected in the voting results.  Past law suits have resulted in what are called Native Districts.  From the Board's submission:

Alaska Natives are the only minority group covered under the Voting Rights Act (“VRA” or “Act”) of sufficient size and geographic concentration in Alaska that qualify as a language minority of potential concern for purposes of redistricting. The proposed redistricting plan is free from discriminatory purpose and will not result in retrogression in the position of Alaska Natives with respect to their exercise of the electoral franchise because it maintains the same number of effective Alaska Native legislative districts as the Benchmark plan.

"Same number of effective districts" is the key phrase here. 

The Benchmark Plan reflects the current legislative districts with the 2010 Census population data. Using the target “effectiveness’ standard derived by Dr. Handley, the Benchmark Plan contains four “effective” Alaska Native House districts (Districts 37, 38, 39 and 40) and three “effective” Alaska Native Senate districts (Districts R, S and T) that consistently elect Alaska Native-preferred candidates even when voting is polarized. Additionally, there is one “equal opportunity” House district (District 6) that contains substantial Alaska Native voting age populations but did not always elect the minority-preferred candidate, and one “influence” district (District 5) that has consistently elected an Alaska Native even though not always the Alaska Native-preferred candidate.

What does that mean?

Benchmark plan, as I understand this, is the plan the new one is evaluated against.  It's the final 2001 plan which was the basis for the existing Alaska legislative districts which, until the new plan is adopted, is still in effect.  The VRA requires that there be no 'retrogression,' that is, no decrease in the number of Native districts from the benchmark plan.

It turns out there are different kinds of "Native" districts:

Effective districts - consistently elect Alaska Native-preferred candidates even when voting is polarized. [Polarized voting means that non-Natives vote as a bloc against the candidates the Native voters favor.]

Equal opportunity districts -  contain substantial Alaska Native voting age populations but did not always elect the minority-preferred candidate,  [Minority here means Native]


Influence districts - consistently elected an Alaska Native even though not always the Alaska Native-preferred candidate.  [The key example used here was District 5 where a Republican Native was elected over the Native preferred Native.]

Actually, the terminology used last time and at the beginning of the process this time included "majority" and "influence" districts.  I discussed the old terms - Majority-minority and Minority-influence districts- in a post last April for those who need more than this post to get to sleep.

In any case, no retrogression means maintaining nine Native districts at least six of which are, in the new lingo, "Effective Districts" plus three "Influence Districts." 

The Board's submission explains to the DOJ - which of course understands the terminology since they created it - how things had changed in Alaska (ie. many rural Alaska Natives had moved into the cities thus decreasing the populations of the previous Native districts) and how the Board adapted to the changes.  I would note that the census indicates there are enough Alaska Natives living in Anchorage to make a Native Majority district, but since they are scattered throughout the Anchorage area and not 'geographically concentrated,'  it's probably impossible to create such a district.



Why is it likely to be approved?

I'm not an expert on this and I'm simply going on what I absorbed watching the Board meetings.   On the whole, I'm guessing the DOJ will approve the plan even though one of the districts (38) is very large and combines suburbs of Fairbanks with Yupik speaking coastal villages off the road system.

• The old plan contained a similarly large district (but without such an urban area)
• None of the private groups that submitted alternative plans were able to come up with more than nine Native districts - though perhaps DOJ might find that they have better districts
• There have been no court challenges regarding the Voting Rights Act districts (the deadline for suing is long past) and 
• the Voting Rights Act consultant, Lisa Handley, is someone who works closely with the Department of Justice on these sorts of issues.   As she presented herself to the Board, she's pretty current on the standards they use to approve and she herself approved the plan before it got sent in.  

But it's much less expensive to send in comments to the DOJ than to file a law suit, so perhaps people who think the VRA standards were not met have sent their comments to DOJ.


There are three law suits - two from Fairbanks  about District 38 and one from Petersburg.  District 38, which splits relatively close Yupik villages from Bethel and connects them to Fairbanks, may be of interest to DOJ as well, but I wouldn't hold my breath.  The Board had a difficult job crafting a plan with nine Native districts which also following the other standards set forth in the Alaska Constitution and statutes - particularly having compact and socio-economically integrated districts.  It's hard getting districts the right size (close to 17,755 people each) and meeting all the criteria.  And, as the Board's attorney told the Board, Federal law supersedes the State Constitution and Statutes.


Coming Soon

What I've discussed above is the important part of the Submission.  But my time has been spent recently focused on the section of the Submission called "Publicity and Participation."  It's the part I have the most expertise in and the part I encountered daily as I blogged the Board.  It's also the part where I think the board did poorly.   I spent a fair amount of time comparing what the Submission says to what I experienced.  I've sent a lengthy comment on that to the DOJ and am figuring out how to make that into a reasonably sized post.  I'll get something up on that soon.

Observations on Mary Beth Kepner and the Justice Department's Impending Report

I was starting to get hits from people googling "Mary Beth Kepner" so I checked to see what was up.

AP Reporter Peter Yost wrote yesterday:

A draft Justice Department report has found that two federal prosecutors and an FBI agent engaged in misconduct in the corruption trial of Sen. Ted Stevens, a lawyer familiar with the matter said Tuesday.

The findings emerged from an investigation by the department's Office of Professional Responsibility looking into the failure by prosecutors to turn over evidence favorable to defense lawyers in Stevens' corruption trial. The Alaska Republican died in a plane crash in August.

The lawyer said the draft report makes misconduct findings against prosecutors Joseph Bottini and James Goeke and FBI agent Mary Beth Kepner.

I don't have any special knowledge of the investigation or the findings.  But I did sit in most of the political corruption trial sessions in Anchorage where I watched Bottini, Goeke, and Kepner.  I've had Kepner talk with one of my classes.  I've read about undercover witness Frank Prewitt's book on the investigation - Last Bridge to Nowhere - and I've read and analyzed FBI agent Chad Joy's complaint against his boss (Mary Beth Kepner) carefully and posted about much of this.

All I can say is that when the report is final, there will probably be some press releases, some newspaper articles, and people will cluck their tongues about corrupt government officials, and take another sip of coffee, and skip to the celebrity de jour divorce/drug arrest/car accident story.

I would just say there is more to this story.  It's clear that in trial in DC evidence was not given to the defense that should have been given.  This is not a minor incident to brush under the rug.   It's not clear it would have changed the outcome of the trial, though it may well have.  It's also clear in my mind that prosecutors have a lot of power to 'persuade' cooperation and this power can easily be abused.  It's also clear that white collar crimes offer serious challenges to law enforcement and without informants it's pretty difficult to get needed evidence.  But when the public reads the news, their corrupt official meme seems to win out over their tendency to support the law enforcement guys in The Wire or CSI.

My incentive in this particular case is that I know more about this than most cases and I have unanswered questions.  There may be perfectly valid answers to all my questions, but I think I have an obligation to ask them in the hopes that those valid answers are revealed.  And my focus is on Mary Beth Kepner, because, of the people involved, she is the one I had most contact with. 

Here are some of the unanswered questions in my mind:

1.   What's the story behind the Bush Administration allowing its Justice Department to investigate and prosecute the senior Republican US Senator?  Yes, the Justice Department should impartially go after anyone suspected of a violation, but there are so many possible cases, they have to prioritize.  It would seem to require a very serious offense to go after such an important member of the President's own political party.  Or some serious conflict between the President and the Senator.  It's particularly strange considering that the Bush Justice Department, under Bush friend Alberto Gonzales  was firing Republican Appointed US Attorneys for not prosecuting Democrats on what many have said were politically motivated charges and hiring based on political affiliation.

I've raised these and related questions in a post which notes things that don't make sense to me and some speculation of possible explanations.  Note, these all need further investigation to document.  I called that one Checkered Swan at the Stevens Trial?

2.   Why did Chad Joy go public with his internal complaint, which was more a personal grievance because he felt he was harmed than a whistle-blower complaint (he never talked about how the public or the targets were harmed, only how he personally was harmed.) I've written about this at length.

• What Does the FBI Internal Complaint Tell Us? - detailed analysis, almost line by line, of Chad Joy's complaint.
  
  
• Code of Silence or Mob Silence? - pursued the question of why a new FBI agent would complain about subjective administrative discretion issues of his 17 year veteran superior, when in most criminal justice areas there's a strict code of silence that protects colleagues who steal, torture, and even murder.

3.  What's the real story of Mary Beth Kepner?  Is she an ace investigator who's been framed?  An evil temptress whose charms have seduced normally savvy witnesses and this blogger?  Or a good investigator who worked near the borders of what's appropriate to find ways to get the needed evidence on corrupt officials? 

Kepner doesn't not fit one's image of an FBI agent.  She's a warm, young (everyone is young these days), bright woman with a disarming smile and a sly sense of humor.  She has an undergraduate degree in engineering and set up this investigation which netted three high profile prosecutions plus other plea bargaining agreements in Alaska and convicted the senior Republican US Senator before it all came crashing down because of serious mishandling of evidence in the DC trial. 

She has convinced a couple of men who had highly successful careers, in part, by being able to read people - Veco President Bill Allen and former Commissioner of Corrections and then private prison lobbyist Frank Prewitt.  So, if I was hoodwinked by Kepner, I was in the company of people with far greater experience with deceptive people than I. 

• Let's Get Real About Mary Beth Kepner - This post was in response to charges that she was having an affair with Bill Allen.  I acknowledge that people's sex lives are a constant surprise and that I could be totally wrong, but the notion that Kepner would be having an affair with Allen seems to be stretching credibility to its limits.  In this post I explain why.
  
• Frank Prewitt's Last Bridge to Nowhere - I watched Prewitt testify in court and read his book, which I reviewed at length.  This post reviews his book, in which he trashes most people involved with the exception of Mary Beth Kepner.

4.  What are the current internal politics in the Justice Department as this report comes out with the power to blame and exonerate?

We want to believe that investigations are totally objective and the guilty parties get their due - no more, no less.  But we also know that people have relationships, biases, loyalties and other factors that may erode that objectivity.  Apparently Attorney General Eric Holder and Brenda Morris, the lead prosecutor in the case, are good friends.  From an April 2009 Huffington Post report on a Katie Couric interview with Eric Holder:

KATIE COURIC: You're reportedly close to the lead prosecutor, Brenda Morris, who's under investigation for failing, among other things, to disclose crucial information to defense lawyers in this case. Another target of the investigation is, apparently, William Welch, who's head of the office, ironically, of public integrity. Will you fire either one of them? Will they stay on during the course of these investigations?
ERIC HOLDER: Unless there's some basis for me to decide if they have something wrong-- they'll remain in place.

If he weren't close, he would have denied the characterization.

Morris

 recently surfaced in a high-profile public corruption investigation involving Alabama lawmakers and gambling legislation.
The cases are the first public indication that the prosecutors have continued to handle sensitive matters for the department since Stevens’ conviction on false statement charges was thrown out roughly one year ago.

So, the three people who will end up taking the fall are all Alaska based.  Joseph Bottini has a reputation as a hard but fair prosecutor.  The younger James Goeke I don't know much about except seeing him in court and a brief exchange in the federal building cafeteria.  And Mary Beth Kepner.  It's clear that there were conflicts between the Alaska prosecutors who had developed the case and knew all the details and the DC team members who joined late in the case to lead the prosecution when the investigation moved to DC for the Stevens case. 

The only Washington based member of the team who might have been implicated was the young and brainy prosecutor Nicolas Marsh who committed suicide in late September and who reportedly told friends that he was going to be the scapegoat in the report. (I suspect this man had never seriously failed in his life before but that's a guess and needs more research.)

It's easy for someone like me to take the facts that are available and jump to conclusions about what happened.  Clearly the investigators will have had access to a lot more information than I have.  I'm just reporting what I do know in terms of background information that raises questions in my mind.  I'll be looking at the report to see which of my questions are addressed.  I suspect the report will be narrowly focused.  We'll see.  

As I'm about to post this, I see that Cliff Groh's Alaska Political Corruption blog covers the AP report and an NPR report on the investigations this afternoon.

[UPDATE:  March 15, 2012 - The report is now out.  Edward Sullivan one of the DC based prosecutors who worked on the Alaska cases and was not mentioned in the AP Report this post originally began with, is also mentioned and appealed the release of the report.]

"Allen was a sitting duck" and other thoughts about the sentencing hearing

I've posted my very unofficial and rough transcript of the sentencing hearing and one with just Allen's statement to the court. So let me now write down some of my reactions to what I saw.

He was a sitting duck . . . He was vulnerable.

Defense attorney Bundy tried to portray Allen as the victim of greedy legislators who took advantage of his zeal for the PPT (variously called the Petroleum Profits Tax and Petroleum Production Tax) and his generosity.

Bundy: There was no organizing, strategy to talk to legislators to agree on one side, that was the strategy, lobbyists do that all the time, spending billions of dollars on health in DC now, What happened in this situation, because of Mr. Allen’s obvious desire to have PPT passed, he bellied that was the right way. and they knew his history of generosity, he was a sitting duck for these people. They came to him. Mr. Kohring had to approach, Mr. Kott had to approach. 


Sedwick: What about 7 years of payments to Sen. B. Doesn’t that give us insight to what was in Allen’s mind?

Bundy: It is not illegal to pay a legislator to give advice. Nothing - Sen B was on the payroll before he became a Senator. To say Mr. Allen was an organizer way overstates his role. There was no secret he wanted to the PPT passed. The illegal solicitation was made by others. He didn’t solicit anyone. They came to him. He was vulnerable. They came to him.

I had to restrain myself so I didn't burst out laughing at this characterization. The judge wasn't buying it either.


Why didn't they mention the deal to not pursue Allen's kids?

Sentencing is based on guidelines and then factors that might kick you to a higher level or down to a lower level. According to criminaldefenselawyer:

How the Sentencing Guidelines Work
The court sentencing guidelines take into account both the seriousness of the offense and the offender’s criminal history, as well as mandatory sentencing guidelines, including federal criminal sentencing guidelines and federal prison sentencing guidelines for federal cases.
OFFENSE SERIOUSNESS
The sentencing guidelines provide 43 levels of offense seriousness— the more serious the crime, the higher the offense level.
BASE OFFENSE LEVEL
Each type of crime is assigned a base offense level, which is the starting point for determining the seriousness of a particular offense. More serious types of crime have higher base offense levels (for example, a trespass has a base offense level of 4, while kidnapping has a base offense level of 32).[There's more details at the link.]

In this case there was a lot of discussion about how Allen had agreed to cooperate immediately when he was taken in to the FBI headquarters and shown some of the tapes of him in his Baranof Hotel suite; about how much work he did for the prosecution; how he was important in getting the various convictions this investigation has gotten. So all this cooperation meant that he ended up getting more than the normal lowering of levels. OK, sort of.

But what wasn't mentioned was the agreement that was discussed in the press and at the Kott and Kohring trials, that part of his agreement to cooperate included immunity to prosecution for his children. Given that he thought they needed such immunity, I'd say this was a big benefit that he'd already gotten for his cooperation. It would seem to me that it should have been factored in. Perhaps in the agreement it was also not supposed to affect the figuring of what level he deserved. It just seemed like a glaring omission to me. Perhaps an attorney can comment and explain why it wasn't mentioned.

Comparing sentences of others to insure fairness

The judge mentioned that the public will compare Allen's sentencing with the sentencing of the others involved - Pete Kott and Vic Kohring. He said this was not an appropriate comparison because neither of them admitted their guilt, showed any remorse, or cooperated with the prosecution.

Not mentioned was Tom Anderson. Tom's case didn't directly involve Allen, though Tom had been employed by VECO during one out of session period, his case didn't involve the PPT tax or money from Allen. However, it was the first case to go to trial from this whole investigation. He got five years - two more than Allen. (Though his fine was minimal and Allen's was the maximum.)

People I've talked to agree that Anderson's sentence was high. People believe that, in hopes of sending a message to the others under investigation or indicted to cooperate, Anderson got a pretty stiff sentence. And Anderson, in his statement to the court at sentencing DID admit his guilt and remorse. And Anderson DID cooperate with the FBI for several months. Now he did stop that cooperation, but his conduct was very different from Kott and Kohring. It just seems that his sentence should also have been compared as well as Kott and Kohring's.


Bribes versus Gratuities

This was raised by Judge Sedwick because bribes raise the sentencing by 12 levels and illegal gratuities would only raise it by 9 levels. He distinguished between the two by saying (this is a rough quote) "series of large payments made to State Sen. B - over extended period to insure in general in long run, not for performance of specific acts. Illegal gratuities, not bribes." Later he said a bribe was more of a payment for a specific act, a quid pro quo.

Prosecutor Trusty reminded the judge that Allen pleaded guilty to bribery, not to illegal gratuities.

There was also more discussion about the amount in illegal gratuities to Sen B was far greater than the relatively small amounts in bribes to Kott and Kohring but if these got mixed and then separated later, it would have little impact on the sentence.

In my fuzzy understanding of all this, this seems to have some implications - others can help clarify this perhaps. First, it reminds us what came out in the Kott trial, that Allen pleaded guilty to bribing State Sen. B, who is understood to be Sen. Ben Stevens. While the damage done by the prosecutors' mishandling of the Ted Stevens evidence has raised questions about whether the rest of the investigation will indeed proceed, it should be clear that if Allen pleaded guilty to bribing Sen. B, then probably Sen. B might well be guilty of receiving bribes.

(On the other hand, if Allen pleaded guilty to bribing Senator B because the Feds also had information on his alleged carrying on with a 15 year old girl and they would ignore that to focus on the political corruption - this was the Public Integrity Section of the FBI and not a vice squad - then maybe it's not that strong a case on Sen. B.)

It also raises the question of whether Sedwick thinks state legislators who are hired by companies that have a strong interest in specific legislation are receiving illegal gratuities, something the State of Alaska has denied, if I have my fact straight.


This will have to do it for now. This is all speculation so if I'm headed in the wrong direction, please explain why and get me in the right direction.

Bill Allen Sentencing

[Bill Allen was sentenced today. In a previous post today, I've put up my notes on Mr. Allen's statement to the court. This post includes my notes on what transpired in court as best as I could keep track. Allen's statement is repeated in here. Rick Smith was also sentenced - 21 months and $10,000. I'll post on that later along with comments on both sessions. Picture is after sentencing, leaving the federal building. ]

U.S. District Court for the District of Alaska
Wednesday, October 28, 2009

8:30 AM

3:07-CR-00057-JWS

Judge Sedwick

Anchorage Courtroom 3

USA

vs. BILL J. ALLEN

(James Trusty)

(George Terwilliger)

(Kevin Gingras)

(Robert Bundy)

(Peter Koski)

IMPOSITION OF SENTENCE

I got into the courtroom a few minutes late. Given predictions of possible snow I debated the bus, the bike, the car. Walking was out because I knew I couldn’t get up that early. In the end I decided to take the bike and get some fresh air on the way.

There were empty seats, but not many.

Most of this is pretty technical - how the guidelines work for sentencing. Based on various factors, sentencing is based on what level the defendant falls. Factors include the type of crime and then factors such as past record, cooperation with the prosecutors (a big deal in this case), remorse, etc. So that’s what most of this is about.

The sentence in the end was 3 years and $750,000 fine. I’ll give all the details here and then do another post where I’ll try to sort through what struck me as interesting.

Note: I typed as fast as I could, but the attorneys spoke faster than I could type. This is a rough approximation of what happened while I was in the courtroom. Judging from how I did in previous court sessions, this is maybe 60% of what was actually said, but you get the gist. But wait for the official court transcripts for the certain details.

Note 2: The names of all the attorneys are above. Bundy spoke most on behalf of Allen, but Terwilliger spoke at the end. For the Prosecution, I think Trusty did all the talking.


Very Rough Transcript:

8:34am

Objection lacks merit - would have reduced by 12 levels factual basis

2 other objections
1. use of guideline 2v1.1 relating to bribes rather that unlawful gratuities. If correct, adjusted upward by only 9 levels instead of 12

role in offense - 111-113 of pre-sentence report

Additional points
Both objected to discussion of James Clark, but I agree that Clark is bound n the conspiracy of PPT thus overruled

Beverly Masek and Stevens, US Rep A - will not be considered so nee not be addressed

Allen objections to info on scheme in 1980s using VECO employees to contribute to candidates. I think it relevant and should be included

Everything else supported by preponderance of evidence

2c1.1 - bribes 2c1.2 - gratuities - hear these arguments. My preliminary feeling is that gratuities applies

Account 1 - series of large payments made to State Sen. B - over extended period to insure in general in long run, not for performance of specific acts. Illegal gratuities, not bribes. If consider Kohring and Kott, if they were bribes, a small portion.


[Trusty:] Bribe v. Gratuity - nothing irrational the way court is approaching it. I would point out, first, that he has pleaded guilty to bribe e related nothing about out gratuities, it seems to me using the language that acknowledges quid pro quo - bribe

Q [Judge asking]: Focus on payments to State Sen B - not sure anything shows factual basis were bribes.

Prosecutor Trusty: I would submit Par. 4 p. ?? most operative - chronology describing the fact of payments and describing what is received in return. Less specific than PPT but does in fact indicate payments provided in exchange for giving advice, lobbying colleagues, and taking legislative acts. The bribe doesn’t have to be exclusively wedded to a single issue before the legislature. More of a standing retaining circumstance. Amount of years supersedes or extends beyond 200? legislature. Particularly 2006.

Other point - since each guideline is going to be grouped together ultimately, if some part is bribes and some gratuities, then at the end of the day, may end up with same sentencing.

Q: Count 2 carries maximum of 5 years, second 10

Prosecutor Trusty: I think you have those reversed.

Q: Directs court to use either one or the other without saying why.

Prosecutor Trusty: I think some is gratuities and some is bribes, overall loss amount/benefits amount is grouped, means the highest grouping controls.

Q: Your view, grouping two counts which are relevant - IRS count has no bearing ?

Prosecutor Trusty: Yes, Would be setting up two groups and ultimately grouping them anyway.

Q: The overwhelming payment here is for Sen B, and it seems warrant... ??

Allen Attorney: Bundy

Court given ability to choose which to use. Theres a huge difference here in the three levels in terms of dollar amounts - 10 or 12 level adjustment. To start at bribery amount 12 instead of 9 is a huge difference. When you have a guideline range that is changed dramatically like that, the court must find a clear and convincing evidence for that. We would say it is ambiguous.

Payments over 6-7 years - here the bribe should account for all of that.

Sedwick: I agree with Bundy that for 3 level difference need more certainty. I have no evidence the Sen B money was bribe - it may be, but no evidence. If ambiguous court is required to choose the more lenient.

Will use 2C1.2 - that difference is 3 levels.

Trusty: Will the court reflect our objection?

Sedwick: Yes


2.
Particularly video tapes I think the roll adjustment is correct.

Bundy: Roll adjustment - as in the pre-sentence report, what we saw in Kohring and Kott proceedings. Mr. Allen really wasn’t an organizer of much of anything. What occurred is people approaching Mr. Allen and asking for favors.

Sedwick: ARe you telling me there was no organization, no strategy?

Bundy: There was no organizing, strategy to talk to legislators to agree on one side, that was the strategy, lobbyists do that all the time, spending billions of dollars on health in DC now, What happened in this situation, because of Mr. Allen’s obvious desire to have PPT passed, he bellied that was the right way. and they knew his history of generosity, he was a sitting duck for these people. They came to him. Mr. Kohring had to approach, Mr. Kott had to approach. 

Sedwick: What about 7 years of payments to SEn. B. Doesn’t that give us insight to what was in Allen’s mind?

Bundy: It is not illegal to pay a legislator to give advice. Nothing - Sen B was on the payroll before he became a Senator. To say Mr. Allen was an organizer way overstates his role. There was no secret he wanted to the PPT passed. The illegal solicitation was made by others. He didn’t solicit anyone. They came to him. He was vulnerable. They came to him.

Prosecutor Trusty: I would submit 4 levels is appropriate here. Question is whether Allen is a leader or organizer of a scheme.
Actions of Allen as the court knows them - reflective of court
Person in charge of doling out promises, favors,
The way others treat Mr. Allen - people who sit there and report, repeatedly to Mr. Allen. People Mr. Allen can look in the eye and say I own your hind quarters. That says something. Someone in that position wouldn’t be talked to in that manner.

I don’t know the role in 2007, but was a non-binding estimate. Being a manager, if the court went for 2 level adjustment suggests there is someone higher than the manager, and there simply isn’t one. He isn’t just one of the players. No one above. No middle ground, the scope of the scheme covers the fie participants - Allen, Smith, State Sen B, state Senators A and C.

Payments between 1995 and 2001 are not part of the criminal conduct. Consultation is not illegal, but sham consultation payments are.

When people look people n the eye and says he owns them, and he is the center of the conspiracy, no one higher than him, there is no question at all.

Judge Sedwick: I think it’s clear he was the leader, as Mr. X points out, there is no one else who could have been. It may be correct that some of the minions knew how to take advantage of Mr. Allen, but only because it was known he was willing to put lots of money into what he wanted.

Also indicate, that I disagree with argument in Bundy’s brief that it has to be proven by clear and convincing, but it is clear and convincing aNYway.

advisory from 78-97 months, this is before considering motion for downward adjustment, and he is eligible for downward because all five conditions have been met.

Mr. Trusty:

Mere threshold of making a motion, …. some highlights, undisputed . Mr. Allen made an immediate decision to cooperate, and he has cooperated in a proactive manner, testified, made himself available, about 71 consultations, consented and participated in consensual recordings, and close circuit tv in his home on about 11 occasions. Clearly, Mr. Allen is worthy of this and we have submitted a motion of 8 level departure. this is a bit different from custom of this court because it goes beyond the normal 50% standard in this court. But we think it is justified here. What makes them unravel is having an insider that makes them unravel. Mr. Allen did the right thing by way of cooperation. Also note the cooperation with Judge Sullivan. We filed a second amendment to the plea agreement, that Mr. Schuelke’s probe would be a component of the cooperation. We think it might have been covered by the original plea, but modified it just in case.

[As I understand it, Schuelke was appointed by Judge Sullivan in the Ted Stevens case, to investigate the allegations of wrongdoings on the part of the prosecutors.]

9:08

Administrative proceedings would not be part of the plea agreement or modified pa.

In our assessment, guilty pleas have been secured with Mr. Allen's cooperation. Mr. Smith was guided by Mr. Allen. Indictments of individuals. What should b e considered in the reduction -

I would suggest to the court it would be appropriate for the court to assume Mr. Allen will continue to be available - as in Weyhrauch case. That would also be determined. Rather than amorphous sentencing or excluding that.

Judge Sedwick: I assume that he will continue in that role with Mr. Weyhrauch.

I have accepted the letter form Mr. S?

Bundy: We maintain strenuously that Mr. Allen has been forthright with the govt.

Judge Sedwick: I assume that.

Bundy: Govt. papers misstated, policy in this district when rule 31.c that ordinarily in plea agreement, the court cannot go below or the govt. will drop the agreement. It will not be lower than ½ unless extraordinary cooperation has occurred. Were 311c agreement, ….??? then there is no such policy.

Judge Sedwick c1c c1b court is free It doesn’t matter.

Bundy: If this were ?? would not be constrained. No policy that prevents….

Judge Sedwick: One thing that sometimes come out where 5k1 motion, cooperating witness has run great personal risk of being assassinated or having family killed. I’ve had a case where one witnessed took a ten year minimum because he was so scared. Was Allen under such a risk?

Bundy: Not aware of such a risk, but the level of

Judge Sedwick: I understand that, but I don’t think any of the witnesses…

Bundy: None of the witnesses, but some deranged person in the community…..

Court knows from medical examination, it was much more difficult for him to go through the gigantic amounts of information.

Judge Sedwick: I’ve seen Mr. Allen testify, I understand.

Trusty: You talk about threat, we have no information that there was any such information about a threat, and of course we would have shared that info had we had it.

Judge Sedwick: didn’t suggest you hid information.

Govt. asked for 8 level reduction, Appears to be appropriate. In connection with some federal crimes, victims allowed to speak at the hearing. Unlike bank robbery, the crimes here have no individual victims, but rather the public at large. Mr. Ray Metcalfe has asked to speak. Since I find he has suffered no particular harm, I find he doesn’t have a right to speak as in various cases named….. So Mr. Metcalfe doesn’t have right to speak

Not hear from Attorneys. Also address amount of fine. I’m seriously considering maximum fine by law $750K

Bundy: I’d like to make sure, on the record, ???? Amounts attributed to Mr. Kohring. $17,000 that Mr. K asked of Mr. Allen and court found he was good for that request. But he never gave him, never loaned him, never did anything illegal to fix his medical or master card payment.

Judge Sedwick: Does it make any difference in the sentencing?

Bundy: I don’t think so. And Mr. Kott assess $???? for a job he never got, Amount court finally approved came from Mr. Allen’s testimony in the Kott trial - that clearly is not, based on the plea agreement, is not allowed to be used.
From Sen. B’s payment - most considered to be legal - all but about 10% should not be considered.

Judge Sedwick. That

Mr. Terwilliger: Thank you for giving me the privilege of appearing in this court before your honor.

Judge Sedwick: To be honest, jut about any attorney can appear here.

Mr. Trusty [Terwilliger]: Niceties thank yous. Grateful for the professionalism with which we’ve been dealt with by our colleagues from the govt. Highlight a few:

1. Important but housekeeping
a. request that Mr. Allen serve his time in one of two federal prison camps - Sheridan Oregon or Tucson, Arizona, so he can have support of family without having to travel great distance.

We know how difficult this is, consider three factors:
1. alluded already by Bundy, Mr. Allen’s age and medical conditions
2. proportionality and balance - balancing the good in Mr. Allen’s life and what has been not good - violations of the law
3. Keen sense of justice


Age - 72 years old, going on 73. From both the PSR and Government recommendations, his normal life expectancy, not counting health problems, would have mr. allen spend ½ the rest of his life in jail. All the medications he takes, impaired cognitive functions, appreciate your comments, all are going to make his service of time more difficult than had he not had those conditions and ask you to take them into consideration.

Proportion and balance - Fair to say Allen created a record, that he is extremely hardworking, dedicated, goal oriented individual, Company he built from nothing with no education remarkable. Patriarchal with family and employees. I know you’ve looked at this. He’s done extraordinary things for people out of generosity. What happened here int terms of his involvement can be explained and not excused. he became focused on this pipeline on the benefits it would bring to Alaska, and allowed himself to turn his generosity into illegal behavior. Separating illegal from while there may be a body who view the pipeline or oil exploration may think not good for Alaska. He had views which are protected by the constitution. He allowed his goals to overcome his responsibility to obey the law. So, in doing what he did, he did cross the line.

All of that wrong has to be measured against what he did when he agreed to cooperate - a decision he made without an attorney


Public Corruption is indeed a serious wrong. I spent time in the Justice Department and understand the dangers of public corruption. I was arrested by your words - C has way of eroding democracy….” no one can disagree with that. What he did when he was confronted with this, in all cases where corruption is removed, it takes someone inside who can help out.

If prosecutors thought he was the worst, they wouldn’t have made a deal with him.

What got the job done, was not the surveillance and video, it was Mr. Allen’s corruption.

We understand public opinion is very strong, the ADN tells us.

I’m struck what the Federal system means in cases like this. Federal court have always stood as a bulwark against runaway justice. the most difficult task and awesome responsibility a judge can face is to decide a person’s face in the face of strong public sentiment. We ask you to consider this.

Mr. Trusty: Housekeeping, place keeping, my understanding that federal institutions carefully

Judge Sedwick: I’ve never turned down a recommendation to house someone near family

Trusty: Mr. T puts finger on key issue - balancing wildly conflicting interests. I don’t envy the court. I think Mr. Allen can be a very polarizing figure, may be a polarizing person himself.

Picture of man who loves family, supports family. I don’t dispute. Admirable upbringing from hard scrabble to responsible positions.

But has created a swath of harm by Mr. Allen’s corruption. Harmed institutions very visibly and calls for punishment.

Assume truth lies somewhere in between. Not useful in this case. Truth embraces the extremes. It’s really both his generosity and the harm of his corruption. A difficult balance. Reasonable minds can disagree.

Important to acknowledge cooperation to erode guidelines to where they are now. But also conflicting need for punishment because he was the center of the spokes of this wheel of corruption. Whatever word we want to use, corrosive, graft, this was very devastating to Alaska.

I heard a lot about Mr. Allen’s motivation. Something he didn’t intend evil, he was pushing what he thought was good for alaska, but how he pursued it became corrupt. There is some truth - that Mr. allen, in his mind, could justify his corruption.

But bribery requires out and out greed. They trade their honor for a pittance. The birbr the man who hands out the money, decides he wants the profit despite the harm.

[Allen watching closely.]

He made that decision, not as a one time event, but a regular, corrupt process, Years of affecting the political process.

We’re not blind that there was extensive cooperation. The system anticipates the cooperation that takes place. We don’t ignore the governments position. This calculation does not ignore the benefits of that cooperation. Also strikes a balance.

We know that our guideline range is now 33-41 months, Our recommendation was 46 months. May have said “in the vicinity” we think it appropriate, difficult balance. 41 months sentence appropriate.

Ability to pay is clearly in play here. We think the maximum fine of $750K is appropriate - makes a message. Appropriate component to impose that maximum fine.

We believe under all the tangled circumstances of his history and conduct. Imprisonment in 41 months, originally said 46, maximum fine.

Judge Sedwick: Mr. Allen, you have a right to speak:


Bill Allen: I can’t talk fast. I started. . . went to Alaska in 1968, it was good timing, They needed people like me to develop the Cook Inlet. Oil companies wanted me to go in and I did, I went , I was really wanting to do oil pipeline. I didn’t know anything about politics at that time. I could see we weren’t going to get any pipeline.

Boom in North Sea. I went there. 1000 people in platforms, So it came along pretty good. I also had VECO. Hard to take care of VECO here in Alaska and company in North Sea, Tough time doing both. I think we got the oil pipeline about ‘75 and so I started trying to sell my part of the company in the North Sea. I was successful. I took that money back to Alaska and put it on the Slope. I went up there, Done it myself. Took me a year to get all the shops set up. It was successful. So I both the timing was great. When I seen that we were going to produce about 2 million barrels a day. I thought, boy Alaska really needs to make sure that they keep that. I think Prudhoe producing about 2 million, about 20 % of the oil used in the Lower 48. From that Alaska really, good deal for Alaska. Look at all the buildings, libraries, roads. When I come up to Alaska in ‘68, they thought it was great, but some of the media didn’t like oil for some reason. I don’t understand why.

When I got . . and decided if i could help with oil, I hired a lobbyist. He said the best thing I could do is fundraisers for guys who have the same minds I have to protect oil and we have a pretty good tax here. It was really balanced. Anyway those fundraisers, we did a lot of good people, legislators About that time lobbyist and I parted ways and I got more personally involved in the political process. We needed ….. and that is the reason I thought about that time I hired Rick Smith to help with the fund raisers. He’s good at that. A little more than 2 years. Big war between Times and Anchorage Daily News. Had a bigger . . .than I had. . . I had [Anchorage Times] for about 15 years. What they thought - conservative people think When Murkowski was elected. I think he done a good job. Hard headed. Other than that he done a good job. Got the three producers together. Really got together I thought man I can really… All they wanted was clarity on their oil taxes and they would build the natural oil pipeline. And they would put more money in oil - heavy oil big job, West ??/, Almost as much oil as Prudhoe but hard to produce.

So we had a . . . between oil companies and state, They need to be married. It got close. Tried to push it too far, over the line. But I did. When they nailed me in 2006, it was a 30 Aug. 2006. They give me a tape that really embarrassed me. I can’t talk anyway. When they were taping it, hell I could tell I was half drunk. I didn’t like looking at myself.

I made two decisions. I was going to do the right things. I quit drinking. I haven’t had a drop of alcohol since 2006. I’m not an alcoholic, but you do a lot of drinking. Not as good as it should be.

I’d like to apologize to you, to the people here in Alaska. Instead of me really helping them. I pushed them down really. I thought I was. I worked with the govt. 2 years. It was like a job. We probably done five to seven days a week trying to get ready for all these trials. I couldn’t [work?] full time, because of what I had to do to help them. It was hard a lot of people who were my friends. So your honor, I respectfully, go ahead and sentence me. Try to remember I tried.

Judge Sedwick. Thank you Mr. Allen.


The lawyers and some of you in the auditorium who have been at previous trials know I need to consider certain factors.

Congress chose to list:
Par. Nature and circumstances of the defendant - that’s really two factors, here they go in two direction. The effect of corruption on political process affects us all Democracy doesn’t work if corrupt. We can see that around the world. We are blessed in a country where that isn’t true. We enjoy the benefits of a true democracy. Time to time we face corruption. So this is a very serious offense.

The characteristics of the defendant points in another direction. Though not all commendable. His participation in the political campaign work in the 80s show he tried to affect that process.

To affect politics now requires large amounts of money. Large advertising campaigns.

But Mr. Bundy and Mr. T’s comments and letters of support, he is a person who is generous and has done a lot of good in the community, so this factor is difficult to assess. The balance of the offense and characteristics of the defendant.

Some in the guidelines or a little higher are appropriate. Seriousness of the offense requires relatively stiff sentnce. PROMOTION g respect for the law, just. Mr. Allen does have some medical needs.

Defendant isn’t likely to pursue further criminal conduct. He didn’t have much eduction but is very intelligent. Anyone in Allen’s position would think twice bore engaging in the type of activity in which he was engaged. Conspiracy almost always unravels. You are putting your life in the hands of other people, who are by definition are criminals.

2. US Sentencing commission - level 20, category 1 = between 3-4 months, People will compare to Pete Kott and Vic Kohring. Big differences. Mr. Allen has cooperated. Mr. Kohring and Kott had the opportunity to cooperate and they refused. Also refused to take responsibility for their crimes. Not an appropriate comparison.

What Mr. Allen did is very substantial . Rare for government to recommend level less than ½. The only thing that would have made it stronger would have been if there had been threats against his life and family.


In this case, the person at the top of the pyramid who decided to cooperate. There are no real victims, but the people in this room, except perhaps the lawyers for DC. I’m directed by congress to impose a sentence that is no more than necessary.

Mr. T asked me to consider Mr. A’s health.

to achieve all the objectives, cooperation, 3 years of prison is required. Less than that would be insufficient. Greater than that doesn’t take into consideration his cooperation and his personal conditions and the difficulty he will face in prison. The people there are not dangerous, but it is punishment, it is prison. Their daily regimen is directed by others, not them. It is a miserable existence.

The fine. The crime here committed for more than one reason. I don’t doubt that he believes he was doing things for the best interest. But so do the people of opposing views, but they don’t commit crimes. Mr. A did commit a crime and it did involve a lot of money. Hundreds of millions if not billions of dollars for the people of the state. If that money had been left to the oil companies, Mr. A and his company would have gotten some of that money. 10s if not 100s of millions for his company.

If I were able to impose a larger fine I would. The maximum is $750K.

Sentence; 36 months on count 1, 2, 3, to be served consecutively, concurrently.

Probation.

Drug testing is suspended.
Required by statue, collection of DNA sample.
Submit to search of person, vehicle, place of employment on reasonable suspicion of contraband.

Until fine is paid, access to financial records.

Fine of $750K, Interest on fine will not be waived.
No fire arms.

Special assessment of $300

Conditions remain in effect until report to institution. Won’t report until told where to report.

Court advises me I said consecutively I meant concurrently.

In Sheridan, Oregon or Tucson.

In your plea agreement you waived your right to appeal. Normally , not appealable, but if you have some issue, you need to take it up in