Brent Roger Wilkes is nothing if not tenacious. In November 2007, he was convicted of wire fraud, bribery, conspiracy and money laundering, all in connection with a scheme to bribe former California State Congressman Randall “Duke” Cunningham and to defraud the Department of Defense. Mr. Wilkes has been fighting the good fight for the last seven years but the Ninth Circuit recently handed him another loss.
The opinion raises interesting questions about the government’s one-sided use of immunity to obtain convictions and the near-impossibility of a defendant forcing the government to grant immunity to a defense witness.
To put this in perspective, one statistical analysis in 2012 shows that the success rate for defendants seeking use immunity for defense witnesses is less than 4%.
The Original Trial
The trial centered on the conduct of Mr. Wilkes’ company, Automated Data Conversion Systems (ADCS). According to the government, ADCS was created to pursue defense contracts. But according to the government, Mr. Wilkes bribed Mr. Cunningham to obtain and retain those contracts.
The prosecutors attacked Mr. Wilkes from two angles. First, they went after him for bribery. They presented twenty-nine witnesses, each testifying to bribes Mr. Wilkes paid to Mr. Cunningham. Next, the government tried to show that ADCS did poor quality work for the Department of Defense, and on occasion failed to perform the service it was contracted to do. To testify to the quality of ADCS’ work, the government called two witnesses: Michael Wade, a consultant for ADCS, and Joel Combs, Mr. Wilkes’ nephew.
The Government’s Use of, Well, Use Immunity
The government offered to protect both Wade and Combs in return for their assistance at trial. Prosecutors offered Mr. Wade a favorable plea agreement to encourage him to testify. They went even further with Mr. Combs, granting him use immunity for his testimony. As a result, Mr. Combs was free to give testimony, assured that neither his statements nor any evidence derived from them could be used against him.
It probably goes without saying but use immunity is a powerful incentive to get a witness to talk. Use immunity is not as broad as transactional (sometimes called “blanket” or “full” or “total”) immunity, but it’s a pretty sweet deal for someone facing serious charges.
Mr. Wilkes tried to even the odds. He asked the district court to compel the prosecution to grant one of his witnesses, Michael Williams, use immunity as well. The district court denied Wilkes’ request, saying that it could only compel the government to grant use immunity if there was a showing of prosecutorial misconduct.
After being found guilty of conspiracy, bribery of a public official, money laundering, and ten counts of honest services wire fraud, he was sentenced to 144 months in prison. The judge also ordered Mr. Wilkes wither to pay criminal forfeiture of $636,116 or a fine of $500,000.
First Appeal Leads to Remand
Mr. Wilkes appealed. He raised several arguments in his first appeal, including:
- That the district court violated Mr. Wilkes’ Fifth and Sixth Amendment rights when it refused to compel the prosecutor to grant Mr. Williams use immunity; and
- That the court also violated his Sixth Amendment right to a jury trial when, after dismissing the jury, the judge determined the amount of criminal forfeiture due.
Then, the law regarding compelled immunity changed in Mr. Wilkes’ favor. United States v. Straub came before the Ninth Circuit. 538 F. 3d 1147 (9th Cir. 2008). In Straub, the Court held that a prosecutor might violate a defendant’s Fifth and Sixth Amendment rights when she grants immunity to a government witness, yet refuses to do the same for a defense witness. If the defense witness’ testimony would (1) directly contradict the government witness’ account and (2) her testimony’s absence distorts the fact-finding process such that the trial lacks fundamental fairness, the defendant has been denied due process.
Recognizing the shift in the law, the Ninth Circuit remanded the case to the district court.
What Happened on Remand
Following the directions of the Ninth Circuit, the district court held an evidentiary hearing to see whether Straub applied. The judge heard Mr. Williams’ testimony and found that it did not directly contradict either Mr. Wade’s or Mr. Combs’ testimony.
Because Mr. Williams had no knowledge of bribes and no personal knowledge of the charged offenses, the district court ruled, there was no violation of Mr. Wilkes’ due process rights in the trial.
The court also denied Mr. Wilkes’s motion for a new trial. Mr. Wilkes wanted a chance to introduce as new evidence a set of declarations from Congressman Cunningham. Mr. Cunningham was finally willing to testify that Mr. Wilkes had not bribed him. The court denied the motion.
The Second Appeal
Mr. Wilkes, undaunted, filed a second appeal, this time arguing three main points:
- Mr. Wilkes again raised the issue of use immunity. He contended that the district court erred when it determined Mr. Williams’ testimony did not directly contradict the testimony of the government witnesses.
- He also maintained that his Sixth Amendment right to a jury trial was violated when the district court judge determined the amount he owed in criminal forfeiture, rather than the jury. Though the Supreme Court case, Libretti v. United States, 516 U.S. 29 (1995), held that the there is no Sixth Amendment right to a jury verdict in criminal forfeiture proceedings, Mr. Wilkes argued that Apprendi was extended to criminal forfeiture by Southern Union Co. v. United States, 132 S. Ct. 2344 (2012).
- Finally, Mr. Wilkes argued that his new evidence entitled him to a new trial, and that the second district court judge erred when he ruled otherwise.
The Ninth Circuit was not swayed by Mr. Wilkes’ petition. In a relatively short opinion, the Court walked through Mr. Wilkes’ arguments and defeated them one by one.
No Directly Contradictory Testimony
First, the court considered whether the government violated Mr. Wilkes’ Fifth and Sixth Amendment rights under Straub. The Court began by defining a “direct” contradiction as two witnesses offering different accounts of factual circumstances. In other words, the court explained, two accounts are directly contradictory if they cannot both be true at the same time.
Once it established that definition, the court examined the record and analyzed the relevant statements from Mr. Williams, Mr. Wade, and Mr. Combs. Comparing the testimony of the government witnesses with Mr. Williams’ testimony at the hearing on remand, the court found nothing directly contradictory.
The testimonies overlapped on matters like the level of demand for ADCS’ software, whether ADCS had billed for work that it had not completed, and why Mr. Wilkes opposed equipment-tracking procedures.
For example, in one relevant statement, Mr. Combs described two invoices that ACS submitted on October 27 and 28, 1998. He went on to testify that ADCS had not completed the tasks on the invoice when they were submitted. Mr. Williams, in contrast, simply said that ADCS only billed the government for work it had completed. Nevertheless, he admitted that he did not review every invoice that had been submitted.
According to the court, Mr. Wilkes failed the Straub test’s first prong because the testimony was not directly contradictory, and so there was no error in denying immunity to Mr. Williams.
The Rest of the Appeal
Once it determined that Mr. Wilkes had a fair trial, the Court of Appeals rejected Mr. Wilkes’ second and third arguments. It rejected Mr. Wilkes’ argument that the Southern Union decision extended Apprendi to determinations of forfeiture amounts (and overruled Libretti). Libretti controlled, according to the court, and plainly held that there was no right to a have a jury determine the amount of Mr. Wilkes’ criminal forfeiture.
The court then found no error in the denial of the motion for a new trial, calling Mr. Cunningham’s “newly discovered” testimony mere “self-serving declarations by a convicted criminal.”
The “prosecutorial misconduct” test used in most circuits creates a high hurdle for defendants seeking to have their own witnesses granted immunity. The Ninth Circuit’s definition of what is a “direct” contradiction raises it even higher. The government can fairly easily show that two witnesses’ testimony did not directly conflict on an issue, so it’s hard to see how this deck is not stacked against a defendant from the start.
Without the carrot of immunity, defendants simply cannot encourage witnesses to testify for them the same way the government can. Their 4% success rate won’t change anytime soon.