DOJ-misconduct-Stevens

The following transaction was entered on 07/17/2013 at 1:18:04 PM PDT and filed on 07/17/2013

Case Name:	USA v. Victor Kohring
Case Number:  	08-30170
Document(s):	Document(s)

Docket Text:
Filed order (A. WALLACE TASHIMA and SIDNEY R. THOMAS) Defendant Kohring has requested that we recall the mandate in this case and order the district court to dismiss the indictment. Kohring’s motion is based on special prosecutor Hank Schuelke’s report on prosecutorial misconduct in the government’s case against former Senator Ted Stevens. He argues that the government has committed fraud upon the Court, and claims that if this panel had been aware of the information, it would have ordered dismissal as a sanction, rather than remand for a new trial. We will recall a mandate only “in extraordinary circumstances.” Calderon v. Thompson, 523 U.S. 538, 550 (1998). The power to recall a mandate is “one of last resort, to be held in reserve against grave, unforeseen contingencies.” Id. In our original opinion, we vacated the convictions because of the government’s Brady/Giglio violations, and remanded the case for a new trial. United States v. Kohring, 637 F.3d 895, 911-12 (9th Cir. 2011). We declined to exercise our supervisory powers to order the dismissal of the indictment. Id. at 912-13. In his petition for rehearing, Kohring raised many of the same issues that he presents in his motion to recall the mandate. We considered those issues, but denied the petition for rehearing. On remand, Kohring pled guilty to one count of the indictment. We agree with Kohring that the representations made by the government to this Court, upon which he bases his fraud claim, were “cryptic.” However, it is far from clear that they were fraudulent. Further, the length of time taken after discovery of the facts giving rise to a potential mandate recall is an important consideration in considering whether the mandate should be recalled. Calderon, 523 U.S. at 552. Kohring’s motion to recall the mandate was filed almost a year after the report became public. Under the circumstances presented by this case, we decline to exercise the extraordinary remedy of recalling the mandate. The motion to recall the mandate is DENIED. [8707532] (SM)