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United States v. Wilkes

United States Court of Appeals, Ninth Circuit

March 10, 2014

BRENT ROGER WILKES, Defendant-Appellant

Argued and Submitted, Pasadena, California: January 6, 2014.

Appeal from the United States District Court for the Southern District of California. D.C. No. 3:07-cr-00330-LAB-1, D.C. No. 3:07-cr-00330-LAB-1. Larry A. Burns, District Judge, Presiding.

Shereen Joy Charlick (argued), Assistant Federal Public Defender, San Diego, California, for Defendant-Appellant.

Phillip Lawrence Halpern (argued), Valerie Hsieh Chu, and Bruce R. Castetter, Assistant United States Attorneys, San Diego, California, for Plaintiff-Appellee.

Before: William A. Fletcher, Milan D. Smith, Jr., and Paul J. Watford, Circuit Judges. Opinion by Judge Milan D. Smith, Jr.


Page 1102

M. SMITH, Circuit Judge:

On November 5, 2007, a jury convicted Brent Wilkes on thirteen charges, including wire fraud, bribery, conspiracy, and money laundering, in connection with his long-running scheme to bribe former Congressman Randall " Duke" Cunningham. Wilkes was sentenced to 144 months in prison and ordered to pay a $636,116 criminal forfeiture or a $500,000 fine. Following our remand in United States v. Wilkes,

Page 1103

662 F.3d 524 (9th Cir. 2011) ( Wilkes I ), Wilkes raises three issues in this appeal.

Wilkes first argues that his right to a fair trial was violated under United States v. Straub, 538 F.3d 1147 (9th Cir. 2008)--which permitted a defendant to prove a Fifth and Sixth Amendment violation by showing that " the prosecution granted immunity to a government witness in order to obtain that witness's testimony, but denied immunity to a defense witness whose testimony would have directly contradicted that of the government witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial." Straub, 538 F.3d at 1162. Wilkes further argues that the district court violated his Sixth Amendment right to a jury trial because the amount of his criminal forfeiture was not determined by a jury. Finally, Wilkes argues that the district court erred in denying his motion for a new trial. These arguments are unavailing, and we affirm the district court.


Wilkes created Automated Data Conversion Systems (ADCS)--named after an eponymous Department of Defense (DoD) program proposed by Wilkes--in order to pursue valuable defense contracts. Wilkes obtained and retained these contracts by virtue of his close ties to Congressman Cunningham. The details of Wilkes's scheme are described in Wilkes I, 662 F.3d 530-31.

At trial, the government introduced the testimony of 29 witnesses, who testified to a significant number of bribes paid by Wilkes to Cunningham. In addition to presenting evidence of Wilkes's payments to Cunningham, the government introduced evidence that ADCS failed to perform work required by the DoD contracts it had acquired, and that work performed by ADCS was of poor quality. In support of the latter proposition, the government introduced testimony from Wilkes's nephew, Joel Combs. The government also introduced testimony from Michael Wade, a consultant hired by Wilkes to help ADCS obtain government contracts. Wade and Combs both testified about ADCS's work scanning documents in Panama (the Panama Project), as well as testifying more generally about Wilkes's scheme. Because Combs intended to invoke his Fifth Amendment privilege against self-incrimination at trial, the government granted him use immunity. The government had also entered into a favorable plea agreement with Wade in return for his testimony against his co-conspirators. Wilkes then requested use immunity for his witness, Michael Williams, who he contended would offer testimony that directly contradicted the testimony of Combs and Wade. The district court denied Wilkes's request based on its conclusion that it could not compel the granting of immunity to a defense witness absent a finding of prosecutorial misconduct.

On November 5, 2007, after four days of deliberation, the jury found Wilkes guilty on thirteen counts: one count of conspiracy, ten counts of honest services wire fraud, one count of bribery of a public official, and one count of money laundering. After the district court discharged the jury, it imposed criminal forfeiture against Wilkes in the amount of $636,116, or, in the alternative, a fine in the sum of $500,000.

Wilkes appealed his conviction, alleging, inter alia, that his Fifth and Sixth Amendment rights had been violated by the district court's failure to compel immunity for Williams, and that his Sixth Amendment rights had been violated because the district judge, rather than the jury, determined the amount of his criminal forfeiture.

Page 1104

While his case was on appeal, we decided Straub, which clarified that a defendant could be entitled to compelled immunity for a defense witness in situations where that witness would directly contradict an immunized government witness's testimony, and where the failure of the defense witness to testify deprived a defendant of his right to a fair trial. Straub, 538 F.3d at 1162. We remanded Wilkes's case to the district court with instructions that it determine whether Wilkes was entitled to compelled immunity for Williams; we rejected all of Wilkes's other claims.

On remand, the district court held an evidentiary hearing, during which Williams proffered the testimony that he would have given at Wilkes's trial had he been granted immunity. The district court concluded that Williams's testimony did not directly contradict that of an immunized government witness. The district court also concluded that Williams's 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.

Wilkes also filed a motion for a new trial on the basis of " new evidence," consisting of declarations obtained from Cunningham corroborating Wilkes's testimony that he had not bribed the congressman, and court records supposedly corroborating Wilkes's testimony that money allegedly given to Cunningham as a bribe had instead been lost in a fraud scheme. The district court rejected the motion because the " new" evidence was available to Wilkes at the time of trial and " [did] not in any way establish a probability of acquitting him."

Wilkes now appeals both those rulings, and he renews his Sixth Amendment challenge to the district court's imposition of a criminal forfeiture.


We have jurisdiction over this consolidated appeal pursuant to 28 U.S.C. § 1291. The question of whether a district court erred by refusing to compel use immunity is a mixed question of law and fact that we review de novo. United States v. Alvarez, 358 F.3d 1194, 1216 (9th Cir. 2004). Factual findings underlying the district court's ruling are reviewed for clear error. Id.


Wilkes raises three issues in this appeal. First, he argues that the district court erred in concluding that Williams was not entitled to compelled use immunity. Second, Wilkes argues that he has a Sixth Amendment right to have the amount of his criminal forfeiture decided by a jury. Finally, Wilkes argues that newly discovered ...

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