The opinion of the court was delivered by: John W. Sedwick United States District Judge
[Re: Motion at Docket 404]
At docket 404, defendant Peter Kott moves to vacate his conviction and dismiss the indictment or, in the alternative, for discovery of additional Brady information and an evidentiary hearing. At docket 415, the government opposes the motion. Kott replies at docket 418. Oral argument was heard on November 17, 2009.
On May 3, 2007, Kott and Bruce Weyhrauch, both of whom had been serving in the Alaska legislature at times pertinent to this case, were indicted on several charges arising out of a public corruption conspiracy orchestrated by Bill Allen, who was the chairman of a large oil field services company, VECO. Prior to trial, the charges against Weyhrauch were severed because the United States took an interlocutory appeal of this court's ruling on a legal issue. That issue is now pending before the United States Supreme Court. In addition to the conspiracy charge in Count 1 for violating 18 U.S.C. § 371, Kott faced three substantive counts. Count 2 charged Kott with Hobbs Act extortion under color of official right in violation of 18 U.S.C. § 1951(a). Count 4 charged him with federal programs bribery in violation of 18 U.S.C. § 666(a)(1)(B), while Count 6 charged Kott with honest services wire fraud in violation of 18 U.S.C. §§ 1343 and 1346. The other counts charged crimes by Weyhrauch.*fn1
Those identified in Count 1 as conspirators included Allen, Rick Smith, who was VECO's vice-president for government relations, Kott, Weyhrauch and State Senator A. Influencing activity in the Alaska State Legislature relating to tax legislation commonly known as the PPT--a subject of immense importance to VECO and its customers--was the primary focus of the conspirators' activities. The PPT was also of great importance to the State of Alaska, for the legislation was intended to dramatically effect taxation of the oil industry, from which the bulk of Alaska's revenue is derived. The indictment alleged numerous overt acts committed in connection with the conspiracy, and in Count 2, the indictment identified the following particular acts by Kott: receipt of funds totaling $8,993, $2,750 in polling expenses, and a future contract as a lobbyist for VECO.
Trial commenced on September 5, 2007. The principal witnesses at trial were Allen, Smith, and Kott, but it is fair to say that the most significant evidence came in the form of audio-visual recordings of activities in Suite 604 of the Baranof Hotel in Juneau, whence Allen and Smith orchestrated the effort to control the outcome of legislative action on the PPT. These recordings were surreptitiously made pursuant to Title III authorization. On September 25, 2007, the jury returned verdicts convicting Kott on Count 1 (conspiracy), Count 2 (Hobbs Act extortion under color of official right), and Count 4 (federal programs bribery). Kott was acquitted of the honest services wire fraud charge in Count 6.
Kott appealed his sentence and conviction. Meanwhile, the same team of federal lawyers and FBI agents who were involved in prosecuting Kott undertook (with the assistance of additional federal prosecutors) the prosecution of United States Senator Ted Stevens. Stevens was prosecuted in Washington, DC on charges that he failed to disclose gifts received from Allen on the financial disclosure reports he was required to prepare and file pursuant to the Ethics in Government Act. Stevens was convicted on several counts. However, subsequent to his conviction, it was discovered that the team of prosecutors had failed to provide appropriate discovery to Stevens' lawyers. After the matter was reviewed by a new group of government lawyers, the government moved to dismiss all charges against Stevens with prejudice based on failure to disclose Brady material pertaining to a key witness, namely Bill Allen.*fn2
Having become aware of the developments in the Stevens case, shortly before oral argument on his appeal was to be heard, Kott filed a motion seeking to require the United States to disclose all evidence "favorable to the accused" pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963). As noted above, Allen was also a primary witness in the Kott prosecution, as was Rick Smith. While the new team of government lawyers was still in the process of reviewing the available information looking for any additional Brady material that had not been provided to Kott, the government took the extraordinary step of asking the Court of Appeals to remand Kott's case to this court for further proceedings. The government explained that "the [review] process has uncovered material that, at this stage, appears to be information that should have been, but was not disclosed to [Kott] before trial."*fn3 The government also withdrew its opposition to Kott's motion for bail pending appeal.
The Court of Appeals granted Kott's motion for bail pending appeal, upon terms and conditions which were set by this court, and remanded the case to this court with explicit instructions to determine "(1) whether the government breached its obligation of full disclosure under Brady and Giglio v. United States, 405 U.S. 150, 154 (1972); (2) if so, whether the defendant was prejudiced by the violation; and (3) if the defendant was prejudiced, what the remedy should be."*fn4 This court has also been instructed "to follow whatever procedure it deems appropriate and expeditious in its discretion."*fn5 Kott was promptly released from prison on the same terms which had applied prior to trial pending resolution of the matter on remand.*fn6 Thereafter, the government certified that it had completed its review and production of Brady materials to Kott.*fn7 The newly-disclosed materials include FBI 302s and other documents which would be useful in attacking the credibility of Allen and Smith, and which show inconsistent statements by Allen and Smith. The matter has been fully briefed, argued, and is now ripe for decision.
In Brady, the United States Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."*fn8 Since Brady, the Court has expanded the scope of the prosecution's duty to disclose evidence in the absence of a request by the accused,*fn9 as well as the breadth of impeachment and exculpatory evidence.*fn10 Such evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."*fn11
Moreover, the rule encompasses evidence "known only to police investigators and not to the prosecutor."*fn12 In order to comply with Brady, therefore, "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police."*fn13
In a related line of cases, the Court held that due process may be violated where the government fails to disclose perjury by or the cooperation of its chief witnesses. In Napue v. Illinois, the Court considered the implications of perjured testimony by a prosecution witness on a criminal defendant's due process rights.*fn14 The Court held that "[t]he principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness."*fn15 In Giglio v. United States, the Court extended Brady and Napue to evidence of promises made to government witnesses in exchange for cooperation.*fn16 The Court held that the failure of the government to disclose a promise made to a witness would constitute a violation of due process requiring a new trial, ...