United States v. Brent Wilkes ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50152
Plaintiff-Appellee,
D.C. No.
v. 3:07-cr-00330-
LAB-1
BRENT ROGER WILKES,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 12-50257
Plaintiff-Appellee,
D.C. No.
v. 3:07-cr-00330-
LAB-1
BRENT ROGER WILKES,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
January 6, 2014—Pasadena, California
Filed March 10, 2014
2 UNITED STATES V. WILKES
Before: William A. Fletcher, Milan D. Smith, Jr.,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY*
Criminal Law
The panel affirmed the district court in a case in which
Brent Wilkes was convicted of wire fraud, bribery,
conspiracy, and money laundering, in connection with his
long-running scheme to bribe former Congressman Randall
“Duke” Cunningham.
The panel held that the district court’s failure to compel
use immunity for a proposed defense witness, Michael
Williams, did not violate Wilkes’s right to a fair trial because
Wilkes is unable to identify a direct contradiction between the
testimony Williams would have offered at trial and testimony
offered by an immunized government witness.
The panel rejected Wilkes’s contention that determination
of the amount of his criminal forfeiture by the district judge,
as opposed to a jury, violated his Sixth Amendment right to
a jury trial.
The panel held that the district court did not err in
denying Wilkes’s motion for a new trial based on “newly
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. WILKES 3
discovered” evidence – declarations from Cunningham
stating that Wilkes is innocent and court documents relating
to a fraud scheme run by a co-conspirator in the bribery
scheme. The panel stated that it is clear that the new
evidence would not “probably result in acquittal.”
COUNSEL
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.
OPINION
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, 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
4 UNITED STATES V. WILKES
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.
FACTS AND PRIOR PROCEEDINGS
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
UNITED STATES V. WILKES 5
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. 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,
6 UNITED STATES V. WILKES
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.
UNITED STATES V. WILKES 7
JURISDICTION AND STANDARD OF REVIEW
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.
DISCUSSION
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 evidence should compel
us to grant him a new trial. We disagree, and affirm the
district court.
I. Compelled Immunity
Wilkes contends that the district court’s failure to compel
use immunity for Williams violated his right to a fair trial
under Straub. In support of this argument, Wilkes points to
eight alleged contradictions between Williams’s proffered
testimony and testimony offered by Combs, who was granted
use immunity, and Wade, who received a favorable plea
agreement from the government. The record, however,
makes clear that Williams never directly contradicts
testimony offered by Combs or Wade.
8 UNITED STATES V. WILKES
A. Legal Standard for Compelled Immunity
In Straub, we held that a defendant could establish a Fifth
and Sixth Amendment violation by showing that: “(1) the
defense witness’s testimony was relevant; and (2) either
(a) the prosecution intentionally caused the defense witness
to invoke the Fifth Amendment right against
self-incrimination with the purpose of distorting the
fact-finding process; or (b) 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.”1 Straub, 538 F.3d
at 1162. Straub also recognized that “[a] survey of our
opinions suggests that in the majority of cases where a
defendant seeks to compel immunity for a witness, that
witness’s testimony will not be ‘directly contradictory’ to that
of the prosecution’s witness, or there will have been no
distortion of the fact-finding process, and the district court
may deny immunity on those bases.” Id. at 1161.
1
Our cases make clear that government witnesses who are granted
favorable plea deals in return for their testimony are encompassed by
Straub’s use of the term “immunized.” See United States v. Young,
86 F.3d 944, 948 (9th Cir. 1996) (“Of the remaining four witnesses who
testified against Young, two . . . had entered into plea agreements with the
government, and two . . . received immunity. In light of these plea
agreements and grants of immunity, there is a serious danger that the
government’s denial of immunity to Delfs—the only witness who could
have impeached Drake as the government’s critical witness—distorted the
fact-finding process.”).
UNITED STATES V. WILKES 9
We have found direct contradictions where witnesses
offer differing accounts of factual circumstances. For
example, in Straub, immunized government witness Adams
admitted that, if asked, he would deny that he had walked into
a bar in 2003 and confessed to Mike Baumann that he had
“just shot a guy.” Straub, 538 F.3d at 1162. The defense
sought to compel immunity for Baumann, who was prepared
to testify that Adams, the key prosecution witness, had
arguably confessed to the very crime attributed to Straub. Id.
at 1162–63.
Similarly, in United States v. Young, the government
offered testimony from John Drake to the effect that two
defendants, Tamez and Young, used Drake as a middleman
to distribute cocaine. 86 F.3d at 946. Tamez and Young
sought immunity for David Delfs, who was prepared to testify
that he had heard government witness Drake state that he was
“falsely accusing somebody as being [his] supplier in the
Tri-Cities.” Id. at 947. Delf’s testimony—that Drake said
either Tamez or Young was falsely accused—directly
contradicted Drake’s own testimony—that Tamez and Young
both supplied him with cocaine. Accordingly, we remanded
the case to the district court for the purpose of determining
whether the failure to grant immunity had intentionally
distorted the fact-finding process. Id. at 949; see also
Benjamin v. Prosper, No. 2:03–cv–1166, 2010 WL 4630252
at *12–14 (E.D. Cal. 2010) (noting that proffered witness
who would testify that she had stolen Sudafed directly
contradicted police offer’s statement that the defendant had
stolen the drugs).
By contrast, in United States v. Alvarez we held that
failure to immunize a defense witness was appropriate where
that witness “had been to several ‘stash’ house locations and
10 UNITED STATES V. WILKES
would have testified that [the defendant’s] home was not one
of those she visited.” 358 F.3d at 1216. We held that “this
does not directly contradict the testimony of the
government’s witnesses that [the defendant’s] house was in
fact used to store cocaine in 1996. In fact, [the defense
witness] was not present during any of the shipments of
cocaine to various ‘stash’ houses, so she was not in a position
to directly contradict the government’s witnesses’ testimony
that implicated [the defendant] in the scheme.” Id.
Our cases thus illustrate what Aristotle expressed more
than two-thousand years ago—that “contradictory
propositions are not true simultaneously.” Aristotle,
Metaphysics, Book IV 1011b13–14. Thus, a witness directly
contradicts another witness if their respective testimonies
cannot simultaneously be true, although in this context the
proffered defense testimony “need only support (as opposed
to compel) a finding by the jury that it was ‘directly
contradictory.’” Straub, 538 F.3d at 1163. We next turn to
the question of whether Williams’s testimony directly
contradicts testimony given by either Combs or Wade.
B. Combs’s Testimony
Wilkes alleges that Williams’s proffered testimony would
have directly contradicted immunized government witness
Combs’s testimony in six respects: (1) the level of demand
for Wilkes’s VP-Max Software; (2) the identity of the
Panama Project Manager; (3) whether ADCS had billed the
government for equipment that it had not purchased;
(4) whether ADCS had billed for work that it had not
completed; (5) the reason that Wilkes opposed bar-coding the
equipment used in Panama; and (6) whether ADCS had billed
the government for a useless “ROI Task Plan.”
UNITED STATES V. WILKES 11
1. Demand for VP-Max Software
When Combs started at ADCS in late 1995, he was tasked
with selling document-scanning software (VP-Max) to the
DoD. ADCS hoped to sell more copies of the software.
However, after an initial software purchase, the DoD declined
to purchase any more copies of VP-Max. Combs testified
that Wilkes sent him to “creat[e] a demand amongst the
military to buy the software” but that he did not discover
much demand for the product and was unable to generate any
additional sales. Combs further testified that Wilkes showed
him a letter—written by Wilkes and signed by
Cunningham—aimed at pressuring the DoD to purchase more
VP-Max software. After Cunningham’s involvement, the
DoD purchased more software.
At the evidentiary hearing conducted by the district court
for the purpose of ascertaining the contents of Williams’s
potential testimony, Williams testified he was “familiar” with
VP-Max, that he thought it was a worthwhile product, and
that “there seemed to be” demand for the product. These
general impressions about VP-Max’s merits do not directly
contradict Combs’s testimony about his specific experiences
selling VP-Max—both statements can simultaneously be true.
2. Identity of the Project Manager in Panama
In 1998, ADCS secured a contract to scan documents in
Panama. Wilkes put his nephew Combs in charge of the
project, despite the fact that Wilkes thought he was a “ball
dropper.” At Wilkes’s trial, Combs testified that he was the
manager of the Panama Project on October 27, 1998. Combs
also testified on cross-examination that he was the project
12 UNITED STATES V. WILKES
manager before Williams was hired, and that he believed that
Williams had been hired in November of “1998, 1999.”
Williams testified that he was hired in September of 1998,
and that he became the manager of the Panama Project
“relatively soon after” that, a time period of “a couple of
months.” Williams again does not directly contradict Combs,
who noted that Williams took over the Panama Project
sometime in November of 1998.
3. Equipment for the Panama Project
On October 27, 1998, ADCS submitted a $3 million
invoice for equipment purchased in connection with the
Panama Project. Combs testified that ADCS had not actually
purchased any of the equipment listed on the invoice at the
time it was submitted.
Williams testified that “most of the equipment that was
used [in Panama] was . . . there when [he] arrived.” He
further testified that “subsequent to the equipment being
there, [he] did an analysis on the invoices and the purchases
of [that] equipment. And I did know, from that, that [Wilkes]
did purchase it.” Finally, in response to the question of
whether ADCS had ever invoiced the government for
equipment it never purchased, Williams responded, “not to
my knowledge.”
None of this testimony contradicts what Combs actually
said. Combs testified that the equipment listed on the
October 27, 1998 invoice had not been purchased at the time
ADCS submitted an invoice seeking payment for purchasing
that equipment. By contrast, Williams stated after he had
taken over the project, some time later he reviewed invoices
UNITED STATES V. WILKES 13
and determined that Wilkes had purchased the equipment
being used in the Panama project. It is entirely possible that
the equipment was purchased between the time that ADCS
submitted the invoice that Combs identified as false and the
time that Williams observed that the equipment had been
purchased.
4. Billing for Nonexistent Work
ADCS also submitted two invoices for services rendered
on the Panama Project on October 27 and 28, 1998. Combs
testified that ADCS had not actually completed the tasks
reflected in the invoices at the time they were submitted. By
contrast, Williams testified that “to the best of [his]
knowledge” ADCS did not bill the government for work that
it did not do, but admitted that “[he] didn’t always see the
invoices that were submitted.”
Combs’s testimony states that two invoices, submitted in
late October 1998, billed the government for work that was
not completed. Williams does not state that those two
invoices accurately reflected work that ADCS had completed,
nor is it clear that he could have done so, as he was not
involved in the Panama Project at the time. Further,
Williams’s testimony that he did not recall any fraudulent
invoices being submitted does not contradict Combs, because
Williams admitted that he did not see all of the invoices.
5. Bar-coding Dispute
Combs testified that the government wanted to place bar-
codes on equipment used in the Panama Project for
identification, but that Wilkes told Combs that he did not
want the equipment labeled because “[h]e wanted to be able
14 UNITED STATES V. WILKES
to move it to other projects or anywhere,” and bar-coding
would identify the equipment as belonging to the
government. Combs further testified that the government had
paid for the equipment, but that Wilkes had moved the
equipment to other locations.
Williams testified that the bar-coding problem was “that
if the equipment belonged to ADCS and not the government,
then by the government applying bar-codes to that equipment
it would imply their ownership.” Williams further testified
that it “was [his] understanding” that at the time the bar-
coding dispute arose the government had not paid for the
equipment. Finally, Williams testified that he and Wilkes had
not talked about opposing bar-coding because ADCS was
trying to steal the equipment.
Combs testified about a private conversation that he had
had with Wilkes. Even if Wilkes gave Williams other
reasons for not bar-coding the equipment, that does not
contradict Combs’s testimony about the meeting.
Furthermore, Williams only states that “it was his
understanding” that the equipment was owned by ADCS.
Clearly he could have held that understanding concurrently
with the events described in Combs’s testimony.
6. ROI Analysis
On September 30, 1998, ADCS submitted a $135,795
invoice for an “ROI.” An “ROI Task Plan” was attached to
the invoice. Combs testified that he prepared the task plan,
but that he had no experience doing so. Combs also testified
that the document was incomplete, and that when he
submitted the document to the government “[t]here was
immediate push-back” because the document was useless.
UNITED STATES V. WILKES 15
Williams testified that ADCS was responsible for
preparing an ROI report, and that ADCS had subcontracted
that work to PricewaterhouseCoopers. He further testified
that “to the extent that it was completed and delivered, [he]
believed that [it was of value to the government].” Williams
also admitted that he had never seen the “ROI Task Plan”
appended to the September 30 invoice, and that it was not the
document he prepared with PricewaterhouseCoopers.
Williams and Combs appear to be referencing completely
different documents. The document that Combs worked on,
and which he describes as useless, titled “ROI Task Plan,” is
appended to the September 30 invoice. Williams admits to
never having seen that document, nor did he have any
involvement with the Panama Project at that point.
Williams’s testimony at most indicates that ADCS later
completed a full ROI analysis, but does nothing to dispute
Combs’s contention that the September 1998 invoice sought
payment for poor-quality work.
C. Wade’s Testimony
Wilkes argues that Williams’s testimony would have
contradicted Wade’s testimony in two respects: (1) whether
DoD officials’ concerns about ADCS’s performance on the
Panama Project were “justified,” and (2) whether ADCS
planned a “change in focus” involving hardware sales. As
with Combs’s testimony, Williams’s testimony does not
directly contradict Wade’s.
16 UNITED STATES V. WILKES
1. DoD Officials’ Concerns about Wilkes’s Work
in Panama
Wade testified that Gary Jones and Paul Behrens, two
officials with the DoD, expressed concerns over “pricing and
performance,” including issues surrounding the inventory of
equipment. Wade further testified that those concerns were
“justified,” and that he and Wilkes had met to discuss their
response. Wade noted that the plan was to meet the officials,
and if Wilkes and Wade did not allay their suspicions, to
involve Cunningham. Wade also testified that Bob Fromm,
a different DoD official, expressed concerns, and that they
were “justified.”
Williams testified that government concerns that Wilkes
was blocking the bar-coding effort to steal the equipment
were not “justified.” He also testified that concerns about
ADCS billing for work that it did not do were not “justified.”
These statements do not directly contradict Wade’s testimony
in the manner contemplated by Straub. Wade’s statement
that the concerns were “justified” is a matter of opinion. Two
parties can truthfully hold differing opinions at the same time.
Accordingly, Williams’s testimony does not amount to a
direct contradiction.
2. Whether ADCS Planned a “Change in Focus”
Wade also testified that he and Wilkes discussed a
“change in focus” from “scanning to buying hardware and
software.” Wade further testified that he and Wilkes would
mark up, sometimes by 600 percent, the cost of the equipment
sold to the government, which was more lucrative than
providing scanning services.
UNITED STATES V. WILKES 17
Williams testified that he did not believe ADCS was only
awarded a hardware contract due to a “change in focus.” But
this does not directly contradict Wade’s testimony regarding
a specific conversation between Wade and Wilkes. Williams
merely notes that, as far as he was aware, one specific
contract awarded to ADCS for hardware was not awarded
“because ADCS decided to have a shift in focus.”
Wilkes thus fails the first prong of the Straub test. He is
unable to identify a single direct contradiction between the
testimony Williams would have offered at trial and testimony
offered by an immunized government witness. Accordingly,
the district court’s conclusion that failure to compel use
immunity for Williams did not violate Wilkes’s right to a fair
trial is correct. Straub, 538 F.3d at 1162.
II. Forfeiture
Wilkes argues that determination of the amount of his
criminal forfeiture by the district judge, as opposed to a jury,
violated his Sixth Amendment right to a jury trial. Wilkes
argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Alleyne v. United States, 133 S. Ct. 2151 (2013), require that
the jury find facts justifying an increase in either end of the
range of the prescribed penalty. Wilkes further argues that
Southern Union Co. v. United States, 132 S. Ct. 2344 (2012),
applied Apprendi and, by extension, Alleyne, to monetary
penalties—which he contends includes criminal forfeiture.
Wilkes’s argument is directly contradicted by binding
Supreme Court precedent. In Libretti v. United States,
516 U.S. 29, 48–49 (1995), the Court expressly held that
there is no Sixth Amendment right to a jury verdict in a
criminal forfeiture proceeding. The Supreme Court has
18 UNITED STATES V. WILKES
cautioned courts of appeals against concluding that “recent
cases have, by implication, overruled an earlier precedent.”
Agostini v. Felton, 521 U.S. 203, 237 (1997). Thus, “[i]f a
precedent of [the Supreme] Court has direct application in a
case, yet appears to rest on reasons rejected in some other line
of decisions, the Court of Appeals should follow the case
which directly controls, leaving to [the Supreme] Court the
prerogative of overruling its own decisions.” Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989). In compliance with the Supreme Court’s instructions,
we reject the argument that Southern Union implicitly
overruled Libretti.
III. New Trial
Finally, Wilkes moved for a new trial in the district court
based on “newly discovered” evidence—declarations from
Cunningham stating that Wilkes is innocent and court
documents relating to a fraud scheme run by Tommy
Kontogiannis, a co-conspirator in the bribery scheme. The
district court denied the motion, noting that “[t]he evidence
[Wilkes] brings to bear — Cunningham’s declarations and
proof of the Kontogiannis fraud — was available to him at
the time of trial, and, in any event, the Court is extremely
confident that it does not in any way establish a probability of
acquitting him.” We agree.
In order to obtain a new trial based on newly discovered
evidence, Wilkes must establish that: (1) the evidence is
newly discovered; (2) his failure to discover the evidence
sooner was not the result of a lack of diligence; (3) the
evidence is material; (4) the evidence is neither cumulative
nor merely impeaching; and (5) the evidence indicates a new
UNITED STATES V. WILKES 19
trial would probably result in acquittal. United States v.
Harrington, 410 F.3d 598, 601 (9th Cir. 2005).
We need not address the first four prongs, because it is
clear that the new evidence would not “probably result in
acquittal.” Id. at 601. In Wilkes I, we noted that “[t]his was
not a close case . . . . While Combs’s testimony may have
significantly helped the government’s case, prosecutors also
presented over two-dozen other witnesses and extensive
documentary evidence of Wilkes’s guilt.” Wilkes I, 662 F.3d
at 541. Wilkes argues that declarations obtained from
Cunningham—which state that Wilkes never bribed
Cunningham—and court documents related to a mortgage
fraud scheme run by Cunningham’s associate Kontogiannis—
which Wilkes argues show he lost money to the scheme
rather than used Kontogiannis as a means to bribe
Cunningham—would likely result in his acquittal, despite this
mountain of evidence.
Self-serving declarations by a convicted criminal,
however, are unlikely to persuade a jury, especially where
those statements are directly contradicted by Cunningham’s
own sworn statements at his plea colloquy. The evidence of
Kontogiannis’s fraud scheme also would not likely have
resulted in acquittal because there is no new evidence to
support the argument that Wilkes paid Kontogiannis as part
of that scheme, instead of as a bribe to Cunningham.
CONCLUSION
For the foregoing reasons we AFFIRM the district court.