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Story Last modified at 9:39 p.m. on Wednesday, March 30, 2011

Court tosses Kott conviction
New trial uncertain for Eagle River lawmaker

BY ZAZ HOLLANDER
Alaska Star

A federal appeals court has overturned the 2007 conviction of former Rep. Pete Kott, the Republican who represented Eagle River for 14 years.

Kott served roughly a year in federal prison on a six-year sentence for bribery, extortion and conspiracy charges. Prosecutors accused him of taking money and the promise of a lobbyist job from former Veco Corp. executive Bill Allen in exchange for his support of a reduced oil production tax.

But he was ordered released in 2009 after questions arose about the prosecution of the case against him.

And in a March 24 ruling, a three-judge panel of the 9th U.S. Circuit Court of Appeals found that federal prosecutors failed to disclose evidence that could have boosted Kott's defense.

Among the missing facts: Anchorage Police Department files suggesting Allen sexually abused underage girls and then tried to conceal his behavior by telling them to lie, according to the decision. Prosecutors also failed to disclose Allen's "numerous prior inconsistent statements" about money paid Kott and why he was getting the money.

Much of the evidence "could have been used to undermine Allen's credibility while bolstering Kott's," the panel wrote.

The 9th Circuit decision vacates Kott's conviction, remanding the case back to the U.S. District Court for a new trial. It's unclear, however, whether federal prosecutors will ask for one.

A representative of the U.S. Department of Justice declined to comment. Kott was not available for an interview.

His Seattle attorney, Sheryl Gordon McCloud, spoke with Kott last week after the decision came out. "He and I were both extremely pleased," McCloud said.

The decision proved that the prosecution's failings constituted much more than just a legal technicality, she said. "The government withheld evidence that showed that their star witness was a liar and a perjurer and had made statements in the past that contradicted what he said at trial."

Kott ran a flooring business with his son until his conviction and is doing some flooring work again, the attorney said.

The case against him began in 2006 when the FBI caught Allen on audio and videotape apparently trying to pay off legislators to vote for reduced oil production taxes, an issue before the Legislature. Allen pleaded guilty to bribing lawmakers including Kott and agreed to testify in return for less jail time.

Federal prosecutors said Kott left a message on Allen's voice mail in 2006, before the legislative session got under way: "Things start tomorrow. I just wanted to get what our instructions are."

Allen and former Veco vice-president Rick Smith testified during the trial that they wrote a phony invoice for $7,993 to Kott's Hardwood Flooring that was actually a way to pay Kott's son to work on Kott's re-election campaign.

A video shot in Suite 604 of the Baranof shows Allen counting something that he testified was $1,000 in cash he was giving Kott.

Asked about the video, McCloud said, "There's videotaped evidence of guys using crude language and talking about politics in Alaska ... and Bill Allen's willingness to help Pete out with loans and stuff.

"There's no videotapes proving criminal acts," she continued. "They needed Bill Allen to testify to his interpretation of what was on those tapes."

McCloud said she couldn't say whether the government would decide to request a new trial – or whether they would have Allen testify again.

"At this point I think we could certainly explain why nobody could believe him," she said.

The 9th Circuit decision in Kott's case is the latest in a series of blows against federal prosecutors involved in a corruption probe that netted convictions against not only Kott and fellow former legislator Vic Kohring, a Wasilla Republican, but former U.S. Sen. Ted Stevens. All three convictions have now been thrown out.

The Kott decision came just a few weeks after the 9th Circuit overturned Kohring's conviction for similar reasons – prosecutors didn't disclose evidence about Allen that could have helped Kohring's defense.

The U.S. Justice Department ordered Kott released in 2009 after a federal judge dismissed the case against Stevens after learning that prosecutors withheld evidence about Allen that could have helped Stevens in his defense.

The 4,000 pages of evidence released at that point helped McCloud pinpoint the "gems" she cited as part of Kott's appeal, she said.

Two of the three 9th Circuit judges did not take the next step of dismissing the case outright because federal prosecutors "acted flagrantly, willfully [or] in bad faith."

One judge, however, wrote that she believed the case should have been dismissed. "I am deeply troubled by the government's lack of contrition in this case," wrote the judge, Betty Fletcher.

Along with the police investigation into Allen's alleged sexual exploitation of minors and attempts to get them to commit perjury, other evidence pointed to Allen's "questionable mental health" around the time of Kott's trial, Fletcher wrote.

Zaz Hollander can be reached at zaz.hollander@alaskastar.com.



This article published in The Alaska Star on Wednesday, March 30, 2011.