Tuesday, March 11, 2014
Ninth Circuit Panel Upholds Conviction in Bribery of Congressman Cunningham
Court Rejects Ex-Lawmaker’s ‘Self-Serving’ Declaration Denying He Was Bribed
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed a former defense contractor’s conviction of bribing a member of Congress.
The panel, which in a 2011 decision ordered a new hearing on Brent R. Wilkes’ bid for a new trial, upheld the district judge’s denial of relief. Judge Milan D. Smith said the court was satisfied that none of the issues raised by Wilkes would have changed the outcome of the trial.
Former U.S. Congressman
Former Defense Contractor
Wilkes was convicted on 13 counts stemming from payments of cash and other benefits to Randy Cunningham in exchange for the congressman’s assistance in procuring contracts. The former Republican representative from San Diego was sentenced to more than eight years in prison after pleading guilty to fraud charges, while Wilkes drew a 12-year sentence and was fined $500,000 and ordered to forfeit more than $636,000.
Wilkes spent 11 months in custody before being released on bail pending appeal. Cunningham was released from prison last year.
Also sentenced to prison as a result of the scandal were Kyle “Dusty” Foggo, a longtime friend of Wilkes who drew a 37-month sentence after admitting he steered a CIA contract to him, and Mitchell Wade, who once worked for Wilkes as a consultant. Wade later started his own contracting firm, and paid, by his admission, more than $1 million to Cunningham before the San Diego Union-Tribune ran a news story exposing the scheme.
Wade then began cooperating with prosecutors and eventually received a 30-month sentence.
In the 2011 ruling, the court largely sided with the government, rejecting Wilkes’ challenge to the use of a federal statute making it a crime to fraudulently deprive the citizenry of the “honest services” of a public official.
But the panel ordered a hearing on whether immunity should have been granted to a potential defense witness who would have contradicted testimony presented by prosecutors.
Wilkes was indicted in 2007. The indictment charged that he and his company, Automated Document Conversion Systems—a maker of software which converted government documents from paper to electronic format—obtained millions of dollars in business by steering money and favors to the congressman.
Williams’ testimony that he did not see any fraudulent invoices would not have been very valuable because he also admitted that he did not review all the invoices, according to the ruling.
It was also alleged, and immunized witnesses testified, that much of the work for which Wilkes was paid wasn’t done, or was done poorly, and that equipment that the government was charged for was not used to perform the contracted work.
Earmarks and Prostitutes
Wilkes allegedly received more than $80 million in earmarks that Cunningham, then a member of the House Appropriations Committee, slipped into bills. One of the claims made by prosecutors was that Wilkes arranged prostitutes’ services for the congressman.
Convicted of 10 counts of honest services wire fraud and one count each of bribery, conspiracy, and money laundering, Wilkes contended on appeal that District Judge Larry Burns should have granted use immunity to Michael Williams. Wilkes claimed that Williams, an ADCS vice president, would have refuted the allegations of non-existent or substandard work.
Burns found that Williams’ proposed testimony would have been relevant and material, and favorable to the defense, but that the court could not grant immunity to a defense witness absent a showing that the government’s decision to deny the witness immunity amounted to prosecutorial misconduct, which the judge said was not shown.
Subsequent to Wilkes’ conviction, the Ninth Circuit decided United States v. Straub (2008) 538 F.3d 1147. The case held that the district court may, in order to prevent fundamental unfairness, be constitutionally required to grant use immunity to a defense witness upon a showing that the testimony will directly contradict that of an immunized prosecution witness.
Prosecutors argued that Straub does not compel reversal in Wilkes’ case because Williams’ testimony would not directly contradict the government’s immunized witnesses. But the panel in Wilkes’ first appeal said the district judge would have to hold an evidentiary hearing to examine Williams’ proposed testimony and the specifics of the prosecution’s immunity agreements in detail.
After hearing Williams’ proffered testimony, Burns found that it did not directly contradict that of an immunized government witness. The district judge also ruled that Williams’ failure to testify did not amount to a due process violation because he had no knowledge of the bribes paid to Cunningham, had no personal knowledge related to the charged offenses, and most of the conduct charged in the indictment occurred before Williams joined ADCS.
Smith, writing for the Ninth Circuit, said Burns was correct because the defense could not identify “a single direct contradiction between the testimony Williams would have offered at trial and testimony offered by an immunized government witness.”
The judge went on to say that Burns correctly denied a new trial motion contending that a declaration by Cunningham—in which the disgraced lawmaker claimed he never paid Wilkes a bribe—was newly discovered, material evidence.
Not only was the evidence available at time of trial, the appellate jurist said, it was hardly persuasive.
“Self-serving declarations by a convicted criminal are unlikely to persuade a jury, especially where those statements are directly contradicted by Cunningham’s own sworn statements at his plea colloquy,” Smith wrote, noting that the government presented 29 witnesses and a “mountain” of documentary evidence pointing to Wilkes’ guilt.
The case is United States v. Wilkes, 11-50152.
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