U.S. v. Kohring

• Decision Date: 11 March 2011
• Docket Number: No. 08–30170.,08–30170.
• Citation: 637 F.3d 895
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Victor H. KOHRING, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

637 F.3d 895

84 Fed. R. Evid. Serv. 1332

11 Cal. Daily Op. Serv. 3109

2011 Daily Journal D.A.R. 3692

UNITED STATES of America, Plaintiff–Appellee,

v.Victor H. KOHRING, Defendant–Appellant.

No. 08–30170.

United States Court of Appeals, Ninth Circuit.

Argued Oct. 6, 2010.Submitted and Filed March 11, 2011.

Michael Filipovic; Assistant Federal Public Defender; Seattle, WA, for the appellant.Kevin R. Gingras; United States Department of Justice; Washington, D.C., for the appellee.Appeal from the United States District Court for the District of Alaska, John W. Sedwick, District Judge, Presiding. D.C. No. 3:07–cr–00055–JWS–1.Before: BETTY B. FLETCHER, A. WALLACE TASHIMA and SIDNEY R. THOMAS, Circuit Judges.Opinion by Judge THOMAS; Partial Concurrence and Partial Dissent by Judge B. FLETCHER.

OPINION

THOMAS, Circuit Judge:

Victor Kohring filed this appeal after being convicted of three public corruption charges. While the case was pending on appeal, we remanded it to the district court for the limited purpose of determining whether the government had breached its disclosure obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and, if so, the remedy to which Kohring is entitled. The district court determined the prosecution had failed to disclose favorable evidence to Kohring, but it concluded the government did not violate Brady/Giglio because the newly-disclosed information is not material. We agree with the district court that the prosecution suppressed favorable material, but we respectfully disagree with its conclusion as to materiality. We conclude that the newly-disclosed information, when viewed collectively, is material and that the prosecution violated Brady/Giglio. We vacate Kohring's conviction and remand to the district court for a new trial.

I

Victor Kohring, a former member of the Alaska State House of Representatives, was convicted in federal district court on three counts of public corruption felonies: conspiracy to commit extortion and attempted extortion under color of official right and bribery under 18 U.S.C. § 371 (Count 1), attempted interference with commerce by extortion induced under color of official right in violation of 18 U.S.C. § 1951(a) (Count 3), and bribery concerning programs receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(B) (Count 4). Kohring was acquitted of Count 2—interference with commerce by extortion induced under color of official right in violation of 18 U.S.C. § 1951(a).

Kohring was charged after a federal investigation suggested he had accepted several cash payments and other benefits from Bill Allen in exchange for various legislative acts benefitting VECO Corporation, Allen's oil field services company that had interests in the construction of a natural gas pipeline in Alaska. The evidence tended to show a lengthy, ongoing relationship between Allen and Kohring, but most of the evidence presented at trial related to transactions in 2006, during or near in time to Alaska's state legislative session in Juneau. Many of these transactions were documented in surreptitious audio and video recordings.

A

The government's case against Kohring consisted primarily of (1) recorded conversations between Kohring, Allen, and Rick Smith, another VECO executive; (2) testimony of Allen and Smith, who both reached plea agreements in exchange for their cooperation; and (3) the testimony of an FBI agent concerning statements Kohring made when his office was searched.

In a February 21, 2006, recorded telephone conversation between Smith and Kohring, the two discussed how the recently introduced Petroleum Production Tax bill would further VECO's interest in the development of a natural gas pipeline. The bill, while helpful to VECO, was contrary to Kohring's anti-tax philosophy. The two agreed to meet with Allen over dinner at the Island Pub restaurant on February 23, 2006, presumably to discuss matters further. A recorded conversation from March 4, 2006, between Allen and Smith, suggested that Allen had paid Kohring $1,000 at the Island Pub dinner.

A surreptitious video recording from March 30, 2006, captured a meeting between Kohring, Allen, and Smith in “Suite 604,” a room in a local hotel that VECO rented during legislative sessions. The video recording captured three transactions—(1) Kohring asking Allen for help with a $17,000 credit card debt, (2) Allen giving Kohring money to “put in Easter eggs for his daughter,” and (3) Allen paying Kohring money “for his daughter's Girl Scout uniform.”

Kohring began that meeting by asking Allen “how [Kohring] could deal with” his $17,000 credit card debt. Kohring explained that he accumulated the debt on account of medical bills and had been unable to pay it off with only his legislative salary. He told Allen and Smith he had “a situation ... it's a financial matter” that he thought “potentially, could hurt [him] politically” and “[would] be a public record.” He asked Allen and Smith if they “would ... consider helping [him] and suggest some options to [him] as to what could be done.” Allen did not give Kohring money at that time, but he assured Kohring that he would see what he could do. Kohring responded, “I wanna do everything ... completely above board, of course.” Indeed, he told Allen and Smith that he would pose “hypothetical questions” regarding any assistance to the ethics committee advisor for the Legislature. Allen responded, “I don't know if that's real smart.... I wouldn't even say to anybody that you're in a bind.” Kohring demurred. At the end of their meeting, Kohring asked, “What can I do at this point to help you guys? Any—anything? ... Just keep lobbying my colleagues for a governor's, ah, plan, right?”

At the same Suite 604 meeting, Allen gave Kohring money ostensibly (1) to put in his daughter's Easter eggs and (2) for his daughter's Girl Scout uniform. The video recording shows Allen asking Kohring when he was taking off for the Easter holiday and then telling Kohring how he used to put money in Easter eggs for children to find. Allen then reached into his wallet for cash to give to Kohring and asked Smith, “Have you got any hundreds? ... [G]ive me a hundred.” Kohring then told Allen the $50 he sent his daughter for her Girl Scout uniform “was a little short” and that “[s]he'll need about a hundred.” Allen handed Kohring more cash. The video recording did not capture the amount of money transacted. Kohring stated that he received only “around $100” at the meeting. Allen, though, testified he paid Kohring between $700–$1,100 at the meeting. Smith said Kohring received as much as $1,000, but he could only approximate because he did not know for sure how much was given.

The government also introduced evidence that on June 8, 2006—the final day of the special legislative session for passing the Petroleum Production Tax—Allen called Kohring to arrange a meeting at a local McDonald's restaurant. Allen testified at trial that he met Kohring at the restaurant, they walked back to Suite 604, and, while they were outside the hotel, Allen gave Kohring $600–$700. The government tied this testimony to another Suite 604 recording where Kohring told Allen he would have left town to prevent a vote on the Pipeline Production Tax if Allen had wanted him to do so.

B

At trial, the district court instructed the jury on the elements of each count and the time frames alleged in the government's Superceding Indictment. But neither the instructions nor the general verdict forms made specific reference to any of the acts alleged or connected specific acts to the individual counts. Kohring was convicted on conspiracy to commit extortion (Counts 1), attempted extortion (Count 3), and bribery (Count 4) but acquitted of extortion (Count 2). No special interrogatories were provided to the jury as part of the verdict form, and the trial court denied Kohring's request to interview the jury.

Kohring initially appealed his convictions on grounds not relevant here. Meanwhile, essentially the same prosecution team that was prosecuting Kohring was also prosecuting Senator Ted Stevens in Washington, D.C., on public corruption charges. See United States v. Stevens, Criminal Case No. 08–231 (D.D.C.). The government prosecuted Senator Stevens because he failed to disclose gifts he had received from Allen, as required by the Ethics in Government Act, see 5 U.S.C. App'x 4 §§ 101–505. Senator Stevens was convicted on several counts. After his conviction, though, it became apparent that the prosecution team had failed to provide Senator Stevens' with favorable discovery pertaining to a key witness—Bill Allen. A new group of government lawyers reviewed the matter, and they moved to dismiss all charges against Senator Stevens with prejudice, based on the undisclosed Brady/Giglio material.

After Senator Stevens' charges were dismissed, Kohring moved us to order the government to disclose, under Brady/Giglio, all evidence “favorable to the accused.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. The government then moved us to remand the matter to the district court for further proceedings under Brady/Giglio. We ordered Kohring released pending appeal and remanded the matter to the district court for the limited purpose of determining whether the government had breached its obligation of full disclosure under Brady/Giglio and, if so, whether Kohring was prejudiced and entitled to a remedy.

C

On remand, the government disclosed, for the first time, several thousand pages of documents, including “FBI 302 reports,” undated and dated handwritten notes from interviews with Allen and Smith, e-mails, various memoranda, and police reports.

After receiving the material, Kohring moved the district court to dismiss the Superceding Indictment or, alternatively, order a new trial. Kohring alleged Brady/Giglio violations, based on the prosecution's...