Judge Sullivan Denies Several of Sen. Stevens' Pre-Trial Motions

September 10, 2008. 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.