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A federal appeals court has upheld the conviction of a former defense contractor on charges of bribing disgraced U.S. Rep. Randall “Duke” Cunningham, but ordered a hearing on a constitutional issue that could open the door to a new trial. The U.S. Court of Appeals for the 9th Circuit refused on Oct. 19 to reverse the 2007 conviction of Brent Wilkes for paying bribes to Cunningham in exchange for $80 million in government contracts. The bribes included a houseboat in Washington, mortgage payments on Cunningham’s house and a Hawaiian vacation replete with prostitutes. The unanimous panel rejected arguments involving numerous allegations of prosecutorial misconduct and the U.S. Supreme Court’s ruling in Skilling v. U.S.A., which placed limits on the government’s use of “honest services” fraud. “Wilkes has not demonstrated that the cumulative effect of the alleged…violations, grand jury violations, and false and improper arguments would have altered the verdict,” wrote Judge Arthur Alarcon, joined by Diarmuid O’Scannlain and Barry Silverman on the panel. “In Skilling, the Supreme Court held that honest services fraud theories other than bribery and kickback schemes are invalid. The evidence against Wilkes of honest services fraud, however, was sufficient to convict because the government proved that Wilkes engaged in a scheme to defraud the United States and its citizens of their right to Cunningham’s honest services, and that this scheme involved both quid pro quo bribery and material misrepresentations.” However, the panel remanded the case to U.S. District Judge Larry Burns in San Diego, ordering an evidentiary hearing into whether Wilkes’s rights under the Fifth and Sixth amendments were violated when Burns refused to grant immunity to a defense witness named Michael Williams, former vice president of operations at Wilkes’s firm, ADCS Inc. Wilkes has asserted that had Williams been allowed to testify under immunity, he would have contradicted several of the government’s witnesses. If Burns finds that constitutional violations occurred, Wilkes could move for a new trial. Wilkes’s attorney, Shereen Charlick, chief trial attorney at Federal Defenders of San Diego Inc., did not return a call for comment. Assistant U.S. Attorney Jason Forge, who argued the case for the U.S. attorney’s office in San Diego, declined to comment. Wilkes was convicted of 13 counts — one of conspiracy, one of bribery of a public official, one of money laundering and 10 of honest services wire fraud. He was ordered to forfeit $636,116 and pay a fine of $500,000. He was sentenced to 12 years in federal prison. Wilkes was the founder of ADCS, which secured government contracts to convert paper documents to electronic format. The bribes went to Cunningham, who represented northern San Diego and sat on the House Appropriations Committee. Cunningham pleaded guilty in 2006 to conspiracy and tax evasion, admitting that he took $2.4 million in bribes from Wilkes and others. He is serving more than eight years in a federal prison in Tucson, Ariz. In rejecting Wilkes’s request to immunize Williams, Burns concluded that, despite a showing that the witness could have provided “material and relevant evidence” that would have countered the government’s case, he was not entitled to immunity absent a finding of prosecutorial misconduct. In calling for an evidentiary hearing, the panel cited the 9th Circuit precedent U.S. v. Straub, published in 2008, following the Wilkes trial. That ruling established a test allowing judges to grant immunity without a finding of prosecutorial misconduct when, “in exceptional cases, the fact-finding process may be so distorted through the prosecution’s decisions to grant immunity to its own witnesses while denying immunity to a witness with directly contradictory testimony that the defendant’s due process right to a fair trial is violated.” “Under this Court’s holding in Straub, the district court’s determination that it was not authorized to compel use immunity for defense witness Williams absent a finding of prosecutorial misconduct was erroneous,” the panel wrote in the Wilkes case. Contact Amanda Bronstad at [email protected].

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