Ninth Circuit Vacates Public Corruption Conviction Due to Brady/Giglio Violation by Prosecution

On March 11, 2011, the Ninth Circuit Court of Appeals, in United States v. Kohring, vacated a defendant's conviction and remanded the case for a new trial because the prosecution concealed materially favorable evidence that should have been disclosed to the defendant prior to trial in violation of Brady/Giglio disclosure requirements.

Victor Korhing, a former member of the Alaska State House of Representatives, was convicted in federal district court on three (3) counts of public corruption felonies:  (1) conspiracy to commit extortion under color of official right and bribery; (2) attempted interference with commerce by extortion; and (3) bribery concerning programs receiving federal funds. The investigation suggested that Kohring had accepted several cash payments and other benefits in exchange for various legislative acts benefitting VECO Corporation (an oil field services company that had interest in the construction of a natural gas pipeline in Alaska.)

Kohring appealed his convictions and moved for the Court to order the government to disclose all evidence favorable to the accused under Brady/Giglio. There are three elements used to determine whether the prosecution has committed a Brady/Giglio violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensured.  

The case was remanded back to the District Court for further proceedings regarding whether the prosecution had breached its obligation of full disclosure under Brady/Giglio, and if so, whether Kohring was prejudiced and entitled to a remedy. For the first time on remand, the government disclosed several thousand pages of documents. The newly provided information illustrated inconsistent information from the government's key witnesses regarding how much money Kohring had actually illegally accepted. In the District Court, Kohring argued that this information could have been used to impeach the government's key witnesses. Kohring moved for the District Court to dismiss the indictment or order a new trial, alleging Brady/Giglio violations based on the prosecution's failure to disclose material information. The District Court denied Kohring's motion, stating that the prosecution had suppressed favorable material but the suppressed material did not prejudice Kohring at his trial.

Kohring appealed the decision of the District Court. The Ninth Circuit stated that the evidence withheld was material to Kohring's defense when viewed collectively and Kohring was prejudiced by the suppression of such evidence at his trial. Accordingly, the Ninth Circuit vacated Kohring's conviction and remanded the case for a new trial.

Read a copy of the Ninth Circuit Court of Appeals' decision in United States v. Kohring

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