Sunday, October 23, 2011

Case o' The Week: Ninth Gives Defense Welcome Immunity Shot - Wilkes

California Congressman Randall "Duke" Cunningham (right) took his resignation hard, after being caught in a massive bribery and corruption scandal. Duke's alleged co-conspirator, Brent Wilkes, has cause for a more joyful reaction: the Ninth just sent his case back down after conviction when the defense was denied court-ordered immunity for an important witness. United States v. Wilkes, 2011 WL 4953070 (9th Cir. Oct. 19, 2011), decision available here.

Players: Big win for San Diego Ass’t Fed. Defenders Shereen Charlick and Gabriel Cohan.

Facts: Wilkes’ company converted government docs to an electronic format. Id. at *1. To win government contracts Wilkes spent tens of thousands of dollars on meals, trips, and payments to former California Congressman Randall “Duke” Cunningham. Id. The bribes and contracts escalated for eight years, until a newspaper exposed the scheme and Wilkes was charged with a variety of federal offenses. Id. At trial Wilkes sought immunity for defense witness Williams, whom he contented would contradict the testimony of prosecution-immunized witnesses. Id. at *2. The district court denied the motion, holding that it “could not compel a defense witness’s immunity absent a finding of prosecutorial misconduct.” Id. Wilkes was convicted of thirteen counts, and appealed. Id.

Issue(s): “Wilkes maintains that the district court should have compelled the prosecution to grant use immunity to defense witness Williams because had he been granted immunity, his testimony would have corroborated Wilkes’s testimony and directly contradicted the testimony of immunized government witnesses. The government contends that Wilkes was not entitled to compelled use immunity for Williams because Wilkes failed to provide a valid offer of proof of Williams’s testimony in the presence of the witness’s counsel and counsel for the government. Wilkes’s ex parte proffer to the district court was thus meaningless, the government argues, because there was no reason to believe Williams would have testified as Wilkes proffered.” Id. at *3.

Held: “Here, the district court concluded that Wilkes had proffered testimony by Williams that would have been ‘material and relevant evidence that the defense would want to present to counter some of what’s been presented by the United States through immunized witnesses.’ The district court also repeatedly expressed its concern that not granting Williams immunity would have the effect of distorting the fact-finding process. The court nonetheless refused to compel use immunity because it concluded that it was powerless to do so absent a finding of prosecutorial misconduct.” Id. at *5.

“In view of this court’s ruling in Straub that a finding of prosecutorial misconduct is not required to compel use immunity, this matter must be remanded to the district court for an evidentiary hearing so the trial court can gather ‘greater detail about [Williams’s] proposed testimony and the immunity agreements the government gave to its other witnesses’ to determine whether compelled use immunity was constitutionally required. Straub, 538 F.3d at 1151.” Id. at *6.

Of Note: Sadly, other issues in this long opinion didn’t fare as well as the defense-immunity question. Of particular concern is the Court’s tolerance for withholding proffer sessions from the defense. Id. at *6-*7. Wilkes argued a Brady / Giglio violation when the government failed to disclose proffer sessions of an important witness. Id. at *7. Judge Alarcón, in our view, incorrectly characterizes these sessions as “cumulative” – the defense already knew that the government witness had immunity, and knew of the witness’s involvement of in the bribery scheme. Id. at *7.

However, as anyone who has proffered a snitch knows, Judge Alarcón’s justification misses the point: those secret sessions are where a cooperator’s story is “polished” (or “dictated”) into an acceptable script for the government. It is the changes in a cooperator’s story, revealed in proffer sessions, that is the Giglio gold – not the obvious fact that the cooperator is also a crook.

The disclosure of Gilgio material from proffer sessions is a challenge that needs further work: Wilkes’ analysis gives the issue short shrift.

How to Use: When hunting immunity for defense witnesses, compare Wilkes to another post-Straub case, Flores-Blanco. See blog here. The key difference in the two Ninth Circuit decisions? In Wilkes, there were prosecution-immunized witnesses; in Flores-Blanco, not. That key fact can give much sharper teeth to a Straub challenge to failure to order immunity for defense witnesses.

For Further Reading: President Obama has nominated a replacement for Ninth Circuit Judge Rymer: Paul Watford (above left). See article here. A former AUSA and a Justice Ginsburg clerk, 44-year old Watford will presumably have a different confirmation experience than (now-California Supreme Court Justice) Goodwin Liu.

Image of Randall "Duke" Cunningham from
Image of Judicialnominee Paul Watford from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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Anonymous Anonymous said...

Watford was actually a Ginsburg clerk, not a Scalia clerk.

Sunday, October 23, 2011 2:30:00 PM  
Blogger Steve Kalar said...

Thank you for the correction, Anon.: I misread the cited article, which referred to the clerkship experience of a lawyer interviewed about Mr. Watford. The error has been corrected in the blog posting.

Sunday, October 23, 2011 2:40:00 PM  
Blogger it's my blog said...

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Monday, October 24, 2011 4:14:00 AM  
Anonymous Anonymous said...

"Scandle"? Really? That's as glaring a typo as I've seen in a while. Otherwise love the work.

Tuesday, October 25, 2011 2:27:00 PM  
Blogger Steve Kalar said...

A "scandleous" error indeed. Thank you for the correction, and the kind words -- typo fixed above. SGK

Tuesday, October 25, 2011 3:16:00 PM  

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