In the Courts

The government had alleged that Kohring sought and received money from Allen, based on recorded conversations between the two; the testimony of Allen and another VECO executive, Rick Smith; and testimony from an FBI agent who searched Kohring's office. The recorded and videotaped conversations showed Allen providing cash to Kohring on several occasions.

Following conviction, Kohring appealed. While the appeal was pending, the same prosecution team dismissed charges against Senator Ted Stevens, following the revelation that it had failed to provide the defense with information about Bill Allen, also a key witness in that case. Kohring moved to have the government disclose all Brady/Giglio evidence and the Ninth Circuit remanded the case to the District Court to address the discovery issues. After the government disclosed several thousand pages of additional documents, Kohring moved to dismiss the superceding indictment.

The District Court denied the motion, finding that, although material favorable to the defense had been suppressed, that suppression was not prejudicial. Specifically, the court found that the new evidence did not create doubt about Kohring's solicitation of $17,000, which the court determined supported the convictions on all three counts.

On appeal, the Ninth Circuit found that Kohring had been prejudiced by the suppression and, thus, required a new trial. The court explained that it would only find prejudice or materiality if there was “'a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different'” (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

The court first noted that, despite the District Court's analysis, the jury may have based its conviction on transactions other than the $17,000 solicitation. Because there was only a general verdict form, and the jury was neither instructed on the specific acts supporting each count nor given the superceding indictment, there was simply no way to know.

The court also reviewed the additional evidence at issue, finding that some of it would be relevant, admissible, and material. It found that evidence that Allen had been accused of sexually exploiting minors, soliciting perjury from those minors, and convincing one to be unavailable as a witness would have either gone to his character for truthfulness or been fodder for impeachment. In addition, the fact that there was already evidence of bias did not make this evidence of a different bias cumulative ' this indicated that Allen had much more at stake in his cooperation than had been previously known. The court found that exclusion of this evidence violated the Sixth Amendment's confrontation clause.

The court determined that other evidence provided exculpatory and impeachment evidence related to Allen's difficulty remembering key facts and differences of opinion about the amount of money provided. Although some of the evidence was merely cumulative and thus non-material because Kohring's attorney “took full advantage of Allen's poor memory” at trial, the evidence related to disagreements about the amount of money provided was not. The court found that this evidence showed a difference in recollection between Smith and Allen, with Smith indicating at times that he recalled a payment amount much closer to what Kohring testified to at trial.

The court further concluded that evidence that Allen never asked Kohring to do anything in exchange for the money provided was material and should have been disclosed. This evidence added to what was presented at trial by showing that there was no quid pro quo. Ultimately, the court found that the evidence omitted undermined confidence in the outcome of the trial and gave rise to the reasonable probability that the result of the proceeding would have been different. Thus, there was a violation of Brady/Giglio. However, the court found that the remedy for this violation would be a new trial and not a dismissal of the superceding indictment. In this case, there was not evidence that the government acted “flagrantly, willfully, and in bad faith” or that there was “outrageous government conduct.”

A dissent by Judge William Fletcher agreed with the court in all aspects but the remedy. Judge Fletcher felt that this case demonstrated clear evidence of “flagrant, willful bad-faith misbehavior.” In addition, he opined that the government's continual refusal to accept responsibility demanded a harsher remedy than a new trial. Thus, he would have dismissed the indictment.

Export Regulations Governing Technology Not Vague

In United States v. Guo, No. 09-50394, 3695-96 (9th Cir. Mar. 17, 2011), the U.S. Court of Appeals for the Ninth Circuit affirmed the conviction of Zhi Yong Guo on charges of conspiring and attempting to export controlled thermal imaging cameras.

The defendant was a Chinese national who owned a company trying to develop photoelectric technologies. He had tried unsuccessfully to obtain thermal imaging cameras in the past from the United States. These cameras are restricted; anyone who wants to take them out of the country needs to have a license from the Department of Commerce. Guo finally convinced a friend ' Tai Wei Chao, a U.S. citizen ' to help. Chao placed an order for three cameras from FLIR Systems and had them shipped to a friend of his in California. This third party then sent them on to China.

Due to the unusual buyer, FLIR alerted the Department of Commerce to the purchase and, when Guo and Chao later purchased an additional 10 cameras to take out of the country, they were stopped by federal agents at the airport.

Following conviction, Guo appealed, claiming that the statute in question (50 U.S.C. ' 1705) was unconstitutionally vague. The court reviewed the somewhat complicated regulatory structure of the export control laws, finding that it did require reference to four different sources to determine whether an item was restricted for a particular country. The court found, however, that mere complexity did not make the statutory scheme unconstitutionally vague. In fact, the provisions at issue described in great detail the particular technology prohibited. As a result, they provided both clear guidance to the ordinary citizen that this item was prohibited and clear direction to law enforcement. Thus, they did not violate the principal of due process. In addition, the court found that the scienter requirement in the statute made it clear that the defendant had to know about the prohibition and have intended to violate it.

In the Courts and Business Crimes Hotline were written by Associate Editor Kenneth S. Clark and Matthew J. Alexander, respectively. Both are associates at Kirkland & Ellis LLP, Washington, DC.

Conviction of Former AK State Rep Vacated Due to Government Discovery Violations

In United States v. Kohring, No. 08-30170 (9th Cir. Mar. 11, 2011), the U.S. Court of Appeals for the Ninth Circuit vacated the defendant's conviction and remanded the case to the district court for a new trial based on the government's violations of the discovery requirements in Brady v. Maryland , 373 U.S. 83, 87 (1963) (requiring disclosure of material favorable to the accused) and Giglio v. United States , 405 U.S. 150, 155-56 (1972) (extending disclosure requirements to material impeachment evidence).

Victor Kohring had been convicted of three counts ' conspiracy to commit extortion and attempted extortion, attempted interference with commerce by extortion, and bribery concerning programs receiving federal funds ' all arising from his activities as a member of the Alaska State House of Representatives. The charges involved Kohring's dealings with Bill Allen, who ran an oil field services company called VECO Corporation and was promoting the construction of a natural gas pipeline in Alaska.

The government had alleged that Kohring sought and received money from Allen, based on recorded conversations between the two; the testimony of Allen and another VECO executive, Rick Smith; and testimony from an FBI agent who searched Kohring's office. The recorded and videotaped conversations showed Allen providing cash to Kohring on several occasions.

Following conviction, Kohring appealed. While the appeal was pending, the same prosecution team dismissed charges against Senator Ted Stevens, following the revelation that it had failed to provide the defense with information about Bill Allen, also a key witness in that case. Kohring moved to have the government disclose all Brady/Giglio evidence and the Ninth Circuit remanded the case to the District Court to address the discovery issues. After the government disclosed several thousand pages of additional documents, Kohring moved to dismiss the superceding indictment.

The District Court denied the motion, finding that, although material favorable to the defense had been suppressed, that suppression was not prejudicial. Specifically, the court found that the new evidence did not create doubt about Kohring's solicitation of $17,000, which the court determined supported the convictions on all three counts.

On appeal, the Ninth Circuit found that Kohring had been prejudiced by the suppression and, thus, required a new trial. The court explained that it would only find prejudice or materiality if there was “'a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different'” (quoting United States v. Bagley , 473 U.S. 667, 682 (1985)).

The court first noted that, despite the District Court's analysis, the jury may have based its conviction on transactions other than the $17,000 solicitation. Because there was only a general verdict form, and the jury was neither instructed on the specific acts supporting each count nor given the superceding indictment, there was simply no way to know.

The court also reviewed the additional evidence at issue, finding that some of it would be relevant, admissible, and material. It found that evidence that Allen had been accused of sexually exploiting minors, soliciting perjury from those minors, and convincing one to be unavailable as a witness would have either gone to his character for truthfulness or been fodder for impeachment. In addition, the fact that there was already evidence of bias did not make this evidence of a different bias cumulative ' this indicated that Allen had much more at stake in his cooperation than had been previously known. The court found that exclusion of this evidence violated the Sixth Amendment's confrontation clause.

The court determined that other evidence provided exculpatory and impeachment evidence related to Allen's difficulty remembering key facts and differences of opinion about the amount of money provided. Although some of the evidence was merely cumulative and thus non-material because Kohring's attorney “took full advantage of Allen's poor memory” at trial, the evidence related to disagreements about the amount of money provided was not. The court found that this evidence showed a difference in recollection between Smith and Allen, with Smith indicating at times that he recalled a payment amount much closer to what Kohring testified to at trial.

The court further concluded that evidence that Allen never asked Kohring to do anything in exchange for the money provided was material and should have been disclosed. This evidence added to what was presented at trial by showing that there was no quid pro quo. Ultimately, the court found that the evidence omitted undermined confidence in the outcome of the trial and gave rise to the reasonable probability that the result of the proceeding would have been different. Thus, there was a violation of Brady/Giglio. However, the court found that the remedy for this violation would be a new trial and not a dismissal of the superceding indictment. In this case, there was not evidence that the government acted “flagrantly, willfully, and in bad faith” or that there was “outrageous government conduct.”

A dissent by Judge William Fletcher agreed with the court in all aspects but the remedy. Judge Fletcher felt that this case demonstrated clear evidence of “flagrant, willful bad-faith misbehavior.” In addition, he opined that the government's continual refusal to accept responsibility demanded a harsher remedy than a new trial. Thus, he would have dismissed the indictment.

Export Regulations Governing Technology Not Vague

In United States v. Guo, No. 09-50394, 3695-96 (9th Cir. Mar. 17, 2011), the U.S. Court of Appeals for the Ninth Circuit affirmed the conviction of Zhi Yong Guo on charges of conspiring and attempting to export controlled thermal imaging cameras.

The defendant was a Chinese national who owned a company trying to develop photoelectric technologies. He had tried unsuccessfully to obtain thermal imaging cameras in the past from the United States. These cameras are restricted; anyone who wants to take them out of the country needs to have a license from the Department of Commerce. Guo finally convinced a friend ' Tai Wei Chao, a U.S. citizen ' to help. Chao placed an order for three cameras from FLIR Systems and had them shipped to a friend of his in California. This third party then sent them on to China.

Due to the unusual buyer, FLIR alerted the Department of Commerce to the purchase and, when Guo and Chao later purchased an additional 10 cameras to take out of the country, they were stopped by federal agents at the airport.

Following conviction, Guo appealed, claiming that the statute in question (50 U.S.C. ' 1705) was unconstitutionally vague. The court reviewed the somewhat complicated regulatory structure of the export control laws, finding that it did require reference to four different sources to determine whether an item was restricted for a particular country. The court found, however, that mere complexity did not make the statutory scheme unconstitutionally vague. In fact, the provisions at issue described in great detail the particular technology prohibited. As a result, they provided both clear guidance to the ordinary citizen that this item was prohibited and clear direction to law enforcement. Thus, they did not violate the principal of due process. In addition, the court found that the scienter requirement in the statute made it clear that the defendant had to know about the prohibition and have intended to violate it.

In the Courts and Business Crimes Hotline were written by Associate Editor Kenneth S. Clark and Matthew J. Alexander, respectively. Both are associates at Kirkland & Ellis LLP, Washington, DC.