Former Juneau Rep. Bruce Weyhrauch appears to be on the verge of a big victory in his fight against federal corruption charges. Weyhrauch is hoping to get a key charge against him dismissed. The charge is one of four on which he was indicted in May of 2007 and has yet to stand trial.
His attorney, Douglas Pope of Anchorage, who has been battling with federal prosecutors over the last year, said it is looking increasingly likely that a federal appeals courts may side with Weyhrauch.
The effort by the U.S. Department of Justice to keep the case alive has even involved U.S. Attorney General Michael Mukasey.
If the prosecutors aren't successful at the appeals court, it could be the first major setback for a federal criminal investigation into the Alaska Legislature that has so far racked up a string of victories and sent lawmakers, lobbyists and others to prison.
Weyhrauch has already won a ruling at the trial court level dismissing evidence supporting a key charge involving mail fraud. Federal prosecutor Nicholas Marsh appealed to the Ninth Circuit Court of Appeals to reinstate the charge.
An increasingly frustrated federal appeals court looks ready to dismiss the appeal, after it appeared Marsh did not have required certification from the U.S. Attorney for Alaska to appeal the trial court's dismissal.
Congress requires a U.S. Attorney certify that any appeal is not for purposes of delay, and the evidence in question is substantial proof of fact in the proceeding. Assistant attorneys are not allowed to appeal by themselves.
Pope said he is "optimistic" a three-judge panel from the Ninth Circuit will rule in Weyhrauch's favor against the federal government.
"The panel was pretty upset with the government at the oral argument," Pope said.
Pope said he had a good chance to win on the merits of why the charges should be dismissed, but then the certification issue came up.
Marsh is with the U.S. Department of Justice's Public Integrity Section in Washington, D.C., which handled the case. The U.S. Attorney for Alaska and the entire Alaska U.S. Attorney's office has recused itself from the case due to potential conflicts of interest.
Federal prosecutors haven't been able to show the appeals court who certified the appeal, despite suggesting that Marsh had the authority to do it on his own, or that the chief of the Public Integrity Section had the authority.
In early September the court issued yet another order demanding evidence of the certification be provided to the court.
"The government has now made three unsuccessful attempts to comply with the certification requirements," the court said. "Although we appreciate that the circumstances of this case are unique and that the issue tendered on the merits is a significant and serious one, at some point we must call a halt to our repeated attempts to induce a proper certification; so far it appears that there is 'no one there.'"
That order said the panel was giving the feds one last opportunity to provide proof of certification.
On Sept. 19 Attorney General Mukasey certified the appeal from 10 months ago, and asked that it be allowed to be done retroactively.
Pope has objected to that argument, saying the statute passed by Congress was clear and intended to ensure that appeals were handled appropriately.
Weyhrauch has already won one significant victory. The delays in his case meant that it was separated from that of former Rep. Pete Kott, D-Eagle River, who was convicted a year ago.
The two were to have been tried together, but the delay led to the separating of Weyhrauch's more nuanced case from that of Kott. Weyhrauch's case hinges on interpretation of state and federal conflict of interest rules and a possible offer of future employment, while Kott took bribes in exchange for his actions as a legislator.
Weyhrauch is continuing to practice law in Juneau and waiting for the legal proceedings to conclude, Pope said.
"Bruce and his family have been hung out to dry here for a long time," he said.
Kott is serving a sentence in federal prison in Oregon with a projected release date in 2013.
Even if the Ninth Circuit panel rules in Weyhrauch's favor, Pope said he did not expect that to end the issue. An appeal to the full Ninth Circuit or the U.S. Supreme Court is likely, no matter which side prevails, Pope said.
Weyhrauch is also facing other charges unrelated to the appeal.
Contact reporter Pat Forgey at 523-2250 or firstname.lastname@example.org.