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9/10. The U.S. District Court (DC) held a pre-trial hearing on numerous
defense and prosecution motions in US v. Stevens. Judge Sullivan ruled against the defense on key motions,
and postponed decisions on others. The defense made some minor progress in
obtaining commitments from the prosecution on pre-trial discovery issues.
 The arguments at this hearing suggest that the
defense will shortly bring a motion to suppress wiretap evidence, a motion
to exclude a key prosecution witness from testifying, and other evidentiary
motions. Judge Emmet
Sullivan (at left) made statements suggesting that he will not be not
favorably disposed to such motions.
Judge Sullivan previously rejected
Sen. Ted Stevens' (R-AK) effort to
have the case transferred to Anchorage, Alaska. He also previously granted
Sen. Stevens' request for a speedy trial. Jury selection is scheduled to
begin in Washington DC on September 22.
 Sen. Stevens (at
right) is up for re-election in November. He did not attend the hearing.
The case is not going well for Sen. Stevens.
Indictment. On July 29, 2008, a grand jury of the U.S.
District Court (DC) returned an
indictment [27 pages in PDF] that charges Sen. Stevens with
seven counts of violation of
18 U.S.C. § 1001 in connection with his alleged failure to disclose
receipt of things of value on his annual Senate Financial Disclosure Forms
(SFDF) for the years 1999 through 2006.
The indictment alleges that Sen. Stevens failed to disclose "home
improvements" to his house in Girdwood, Alaska, performed by others,
including a "second-story wraparound deck, new plumbing, new electrical
wiring" and other remodeling and additions.
It further alleges that he received these things of value from the Veco
Corporation, an oil industry services company based in Alaska. These allegations
are relevant to the charges.
§1001(a) provides, in part, that "whoever, in any matter
within the jurisdiction of the executive, legislative, or judicial branch
of the Government of the United States, knowingly and willfully -- (1)
falsifies, conceals, or covers up by any trick, scheme, or device a
material fact; (2) makes any materially false, fictitious, or fraudulent
statement or representation; or (3) makes or uses any false writing or
document knowing the same to contain any materially false, fictitious, or
fraudulent statement or entry; shall be fined" or "imprisoned
...".
The indictment also alleges facts that would be relevant to charges of violation of
Chapter 11 of the Criminal Code, which pertains to "Bribery, Graft, and
Conflicts of Interest", but which are not necessary to prove violation of
§1001.
For example, Paragraph 17 states "It was a part of the scheme that STEVENS,
while during that same time period that he was concealing his continuing receipt
of things of value from ALLEN and VECO from 1999 to 2006, received and accepted
solicitations for multiple official actions from ALLEN and other VECO employees,
and knowing that STEVENS could and did use his official position and his office
on behalf of VECO during that same time period. These solicitation for official
action, some of which were made directly to STEVENS, included ..."
That is, under a §1001/SFDF charge, the alleged illegality is the
non-disclosure of receipt of things of value, which receipt may be legal. Under a bribery charge, the
illegality lies in the receipt of the thing of value, even if it is disclosed.
Moreover, bribery is a substantially more serious offense, and one that carries
a greater stigma for voters and jurors.
The DOJ decision to bring §1001/SFDF charges, rather than bribery charges,
was likely based in part on the DOJ's desire to have the case tried in
Washington DC, before a Democratic judge and jury, rather than in Anchorage,
Alaska, before a judge and jury who would be more favorably disposed to Sen. Stevens. See,
story titled "DOJ Obtains Indictment of Sen. Stevens in DC" in TLJ Daily E-Mail
Alert No. 1,802, July 29, 2008.
Judge Sullivan was appointed to the District Court by former President
Clinton. However, he previously held District of Columbia judgeships under
appointment from former President Reagan, and the first President Bush.
The decision to bring §1001/SFDF charges was likely based also on
the prosecution's inability to find any evidence of any quid pro quo agreements
between Sen. Stevens and Veco.
Statute of Limitations. Judge Sullivan denied the defense motion to
dismiss Count 1 as time barred. This count alleges failure to disclose
information on the 1999 and 2000 SFDFs, as well as failure to disclose
information on subsequent SFDFs, as part of a scheme to violate §1001.
The 1999 and 2000 filings occurred beyond the five year statutory limitation.
However, Judge Sullivan reasoned that the five year limitation does not operate
as a bar because there is a "continuing offense". That is, the offense was not
completed at the time of the filing of the allegedly false SFDFs. Rather, by
continuing over time not to revise his filings, Sen. Stevens continued
to violate the statute.
Count 1 thus remains, and the prosecution can introduce evidence from as far
back as 1999.
This also leaves Sen. Stevens with a significant appeal point. However, if
the jury convicts, and Sen. Stevens loses his election, a successful appeal will
be of limited value to him.
Prejudicial Evidence. The defense scored no victories at the hearing on restricting the evidence admitted at trial to matters relevant
to the seven counts in the indictment.
The prosecution has charged Sen. Stevens with violation of §1001, but not
with receiving bribes. Also, in arguing against moving the case to Alaska, the
prosecution argued that the case involves only non-disclosure on financial
forms, which were filed in Washington DC.
Now, having obtained an indictment, and successfully kept the case in its
home court, the prosecution states that it plans to introduce evidence that
would be appropriate were this a bribery case. Under §1001(a)(2) it need only
prove that Sen. Stevens knowingly and intentionally made a materially false
statement on a SFDF regarding receipt of things of value. It need not prove that
there was any impropriety in the receipt of the things of value, and any quid
pro quo for the items. Yet, the prosecution now seeks to introduce unnecessary
evidence implying, but not proving, such impropriety.
If the prosecution actually possesses, and is able to introduce at trial, the
evidence that it claims to possess, it has a strong case that Sen. Stevens did
violate §1001. Yet, annual SFDFs are hardly the stuff of major political corruption,
and may not impress all members of the jury. The prosecution likely seeks to
introduce superfluous evidence to tarnish Sen. Stevens before the jury, and to
give the jury further incentive to return a guilty verdict.
So far, Judge Sullivan appears willing to allow the prosecution this tactic.
Many judges would not.
The defense wants paragraph 17 excised from the indictment. It does not want
the jury to get a copy of the indictment. And, it seeks the exclusion of
prejudicial evidence.
The prosecution argued that the language in paragraph 17 is relevant to
intent, materiality, and motive.
Judge Sullivan stated that this "is not a quid pro quo case". The prosecution
conceded that Sen. Stevens "is not doing one for the other", and "nobody intends
to try to prove that at trial".
The defense argued that Paragraph 17 and evidence related to the allegations
in Paragraph 17 would be prejudicial. The defense argued that Sen. Stevens
"listens to his Alaska constituents, and he tries to help them". It further
argued that if the prosecution introduces Paragraph 17 evidence, the defense
will have to introduce extensive evidence that helping constituents is what
Senators do.
Judge Sullivan asked the defense, "How are you prejudiced?" He
offered to give the defense a jury instruction pertaining to Paragraph 17.
Speech or Debate Clause. The defense has filed a motion to dismiss the
complaint based upon the speech or debate clause of the Constitution. There are
also motions pertaining to the admissibility of evidence under this clause.
The Constitution provides that "The Senators and Representatives ... for any
Speech or Debate in either House, they shall not be questioned in any other
Place."
The prosecution argued that the motion should be denied. It further stated
that it wants to introduce evidence of certain communications between Sen.
Stevens and Veco, and certain "non-legislative acts" by Sen. Stevens.
The defense argued that much of the evidence that it seeks to exclude relates
to Senate legislation, and/or that Veco did not benefit from the legislation
involved. It continued that while the prosecution would not present evidence of
the legislation or Sen. Stevens' votes, the defense, to respond to the prosecution,
would have to introduce evidence of legislation and votes, and in some
situations, that Veco did not benefit from the legislation.
Judge Sullivan took this question under advisement. He said that his ruling
will be "prompt".
Grand Jury Testimony. The defense seeks access to grand jury
transcripts, which are ordinarily not subject to discovery.
One pertinent question is whether the prosecution presented evidence to the
grand jury in violation of the speech or debate clause.
Judge Sullivan stated at the hearing that he will view certain testimony
in camera before making his decision.
Separation of Powers. Judge Sullivan denied the defense motion to
dismiss the indictment for violation of the separation of powers doctrine.
This was weak motion.
In contrast, the DOJ engaged in an unprecedented assault upon the
separation of powers in its pending criminal prosecution of
Rep. William Jefferson (D-LA) when it
raided a House of Representatives office building late in the night of May 20,
2006. (Rep. Jefferson won re-election in 2006 despite pending charges.)
Vagueness. The Court denied the defense motion to dismiss the
indictment for vagueness. This too was a weak motion.
Wiretaps. The DOJ conducted extensive Title III wiretapping,
including of phone conversations of Sen. Stevens. The government plans to
introduce wiretap evidence at trial.
The parties have not yet submitted their witness and exhibit lists.
The hearing addressed the defense request for discovery of certain FBI
records related to statutorily required minimization efforts. The prosecution
argued that the request for records is too burdensome because of the extent of
the wiretapping, and because it would have to manually redact privileged work
product information from the records.
The parties agreed to settle for production of records related only to those
conversations that the prosecution intends to introduce at trial.
This suggests that the defense will shortly file a motion to suppress
certain wiretap evidence, and that one of the bases for the motion will be
failure to minimize.
This motion has not been filed, and hence, Judge Sullivan has not ruled on
it. However, he may have indicted his disposition on this and other forthcoming
motions to suppress evidence. He spoke in detail about his desire not to receive
any motions on evidentiary matters that are not made in good faith.
Photographs. The prosecution disclosed also that it has about 2,200
photographs, mostly taken at Sen. Stevens' house in Girdwood, Alaska, and that
it intends to introduce some at trial.
These pictures would show the home improvements allegedly not disclosed
on SFDFs by Sen. Stevens.
The defense sought production of all photo metadata. The prosecution argued
that this would be too burdensome. The parties agreed that the prosecution would
produce only metadata for pictures that it intends to introduce at trial.
This suggests that the defense may move to suppress certain prosecution
photographs.
Bill Allen. The defense also seeks "information" from the prosecution
regarding the medical condition of Bill Allen, a former CEO of Veco. He is
likely to be a key prosecution witness.
The prosecution said that it has no "private or personal records" to produce,
but did not state whether it possesses other "information".
Allen previously testified regarding injury to his brain suffered in a
motorcycle accident. The defense stated that he testified that a quarter of his
brain died. The prosecution argued that he suffered loss to his speech capability,
and that his testimony was vague. It further argued that he meant to convey that
an amount of his brain the size of a quarter had died.
This suggests that there may be a forthcoming defense motion to disqualify
Allen from testifying, based upon mental incompetence.
Prior Convictions. Judge Sullivan also deferred his ruling on the
prosecution's motion to exclude evidence of prior convictions of government
witnesses.
Veco. Veco was acquired by CH2M Hill in September of 2007. CH2M Hill has long done
business in Alaska, as well as elsewhere in the U.S., in Canada, and in the
Middle East.
Alaska is the site of major oil fields. Large oil companies do business in
Alaska. Veco was not an oil company. Rather, it contracted to perform services
for oil companies. For decades, Veco not only performed oil field services,
construction, and post Exxon Valdez spill operations. It also undertook on its
own less savory tasks, such as dealings with the state legislature and the Teamsters and
other unions -- entities with histories of corruption.
It may have engaged in a wide range of activities, including most recently
pursuing legislation via bribery of state legislators, in an effort
to enhance its standing with oil companies, to win contracts from them.
The hearing, with breaks and delays, consumed much of Wednesday, September
10. There was one moment of levity. At the end of the hearing Judge Sullivan
reviewed the likely schedule for the first days of the trial. He asked the
defense if it would make its opening after the prosecution made its opening
statement, or at the
beginning of the defense's case.
Brendan Sullivan,
Sen. Stevens' lead counsel, stood up and said that he would like to make his opening statement
before the prosecution.
Disclosure. David Carney, author of this story, is an ex-Alaskan
who voted for Sen. Stevens in the 1984 Senate election.
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