United States v. Wilkes

An honest services fraud conviction supported by a separate bribery count, is not insufficient for reliance on theories other than bribery or kickbacks. In addition, there is no merger in a money laundering conviction involving concealment because the crime concerns the gross receipts and not merely the profits of the underlying crime.

Wilkes was convicted on counts of conspiracy, bribery, honest services wire fraud, and money laundering in relation to government contracts procured with the support of former California Congressman Randall “Duke” Cunningham. Wilkes argued that his 5th and 6th Amendment rights were violated due to: (1) the court’s refusal to grant immunity for defense witness Michael Williams, (2) alleged prosecutorial misconduct, and (3) denial of his request for a continuance. Wilkes also argued that Skilling v. United States, 130 S. Ct. 2896 (2010), compelled reversal on all counts and that there was insufficient evidence to support a conviction of honest services fraud. The Ninth Circuit remanded the question of immunity, due to a decision that came down after Wilkes’ conviction, holding that a district court could compel immunity of a defense witness absent prosecutorial misconduct. The Ninth Circuit also found that Wilkes failed to show the prejudicial effect of alleged prosecutorial misconduct for the denied continuance request. Wilkes’ conviction for honest services fraud was confirmed, as the Ninth Circuit held that the jury’s separate conviction of bribery rendered harmless any reliance on theories invalidated by Skilling. In addition, the Ninth Circuit held the evidence was sufficient to support a money laundering conviction because one could reasonably infer that the alleged laundering transactions were a deliberate concealment and thus a separate crime, and that “proceeds” included all receipts rather than illegally obtained profits alone, so there is no merger with the underlying crime. AFFIRMED in part, REMANDED in part.