Piece of ex-Alaska Rep. Weyhrauch's case goes to Supreme Court

McClatchy NewspapersDecember 7, 2009 

WASHINGTON — A case with roots in the Alaska political corruption investigation has worked its way up to the U.S. Supreme Court, which this week will take a look at it and another case in which an anti-corruption statute is now in question.

The Supreme Court on Tuesday will be looking at a narrow piece of former Alaska Rep. Bruce Weyhrauch's pending criminal case: whether prosecutors need to prove that Weyhrauch violated a state disclosure law to gain a conviction on federal mail-fraud statutes. Weyhrauch's case has not yet gone to trial.

The high court will be looking at the use of the 28-word "honest services fraud" statute adopted by Congress in 1988. The law governing such fraud is often used in the cases of public officials where federal prosecutors can't prove they accepted bribes -- but where they have enough evidence to show that those officials took freebies such as tickets or jobs.

The statute is based on the idea that people are entitled to the honest services of elected officials and executives in charge of big companies. But it often has very liberal applications, said Shana Regon, director of white collar crime policy at the National Association of Criminal Defense Lawyers, which filed a friend of the court brief in the case.

"The statute is 28 words, and no one knows what it means," Regon said.

Weyhrauch's case landed at the Supreme Court after the 9th U.S. Circuit Court of Appeals ruled against him and his case came to the attention of several high-profile criminal defense attorneys concerned about abuse of the honest services statute. They contacted his attorney, Doug Pope of Anchorage, who began working with a team that includes a veteran of 17 Supreme Court arguments, Washington, D.C., attorney Don Ayer.

On Tuesday, Pope and attorney Ray Brown, also of Alaska, will sit at the counsel bench at the Supreme Court while Ayer argues the case.

"I feel good about getting the case there, that was the important thing," Pope said. "My view is that this case should never have been brought against Bruce."

Weyhrauch's case is one of three similar honest services fraud cases the justices have chosen to hear this year, as they take a look at how prosecutors have been interpreting the statute. Tuesday, they'll first hear the case of former newspaper magnate Conrad Black, whose 2007 conviction was based in part on the assertion he deprived his company of his honest services. Next year, they'll take a look at how the law was applied in the case of Jeffrey Skilling, former CEO of the now-bankrupt energy giant, Enron.

Weyhrauch's case involves much lower stakes, but also is probably more straightforward, Pope said.

"The law is the law, but you win and lose cases on the facts," Pope said. "And the facts are really good here."

Weyhrauch, a Juneau Republican, solicited legal work from the oil-field service company Veco Corp. at a time when Veco was pushing hard to win support for lower oil taxes in the state Legislature. Federal prosecutors said Weyhrauch should have disclosed his job search as a conflict of interest.

But Weyhrauch's attorneys argued that state law didn't specifically require such disclosure and as a result, the federal fraud statute couldn't be used to charge him with defrauding Alaskans of his "honest services."

A District Court judge in Alaska agreed with Weyhrauch, but the government appealed and won in the 9th Circuit U.S. Court of Appeals. The appeals court sided with prosecutors, saying legislators had a duty to disclose such conflicts. The court reasoned that even if a state has weak ethics laws, it was no reason for its citizens to be deprived of the honest services of their public officials.

Other circuit courts, though, have made contradictory rulings, hence the Supreme Court's willingness to step in to clear up the confusion.

Even some former federal prosecutors question the use of honest services fraud in corruption cases. Often, they use honest services fraud because it reduces the burden of proof prosecutors must meet, said Richard Craig Smith, a former federal prosecutor who now heads up the white collar crime practice at Fulbright & Jaworski in Washington, D.C.

Speaking at a seminar on the matter held last week by the Washington Legal Foundation, Smith said that it is difficult for prosecutors to prove bribery.

"Who wants to prove a quid pro quo?" he said. "Who wants that burden of really proving corrupt intent when you can simply say, 'he had a duty, he breached your duty, therefore he should be guilty.'"

But Smith acknowledges that he is "kind of torn" on the subject. Prosecutors have used the law to prosecute people in places where state law is weak and there is clear evidence of wrongdoing on the part of people in power.

"When you have the inability or lack of political will by state and local officials to address a corruption problem in their community," he said, "this statute allows the government to get its hands around it."

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