FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 08-50063 Plaintiff-Appellee,

D.C. No.

v.  07-cr-00330-LAB

BRENT ROGER WILKES,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted

August 29, 2011—Pasadena, California

Filed October 19, 2011

Before: Arthur L. Alarcón, Diarmuid F. O’Scannlain, and

Barry G. Silverman, Circuit Judges.

Opinion by Judge Alarcón

19091
COUNSEL

Reuben C. Cahn, Shereen J. Charlick (argued) and Gabriel L.

Cohan, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter,

Jason Forge (argued), Valerie H. Chu and Phillip L. B. Halpern, Assistant United States Attorneys, San Diego, California,

for the plaintiff-appellee.

OPINION

ALARCÓN, Senior Circuit Judge:

Brent Wilkes appeals his convictions on multiple counts of

conspiracy, honest services wire fraud, bribery, and money

laundering. This case centered around the political corruption

of former California Congressman Randall “Duke” Cunningham, who provided lucrative government defense contracts to

Wilkes and others in exchange for expensive meals, lavish

trips, a houseboat in Washington, D.C., and mortgage payments for his multi-million dollar home in San Diego County.

Wilkes appeals his convictions.

I

Brent Wilkes, a San Diego native, worked as an accountant

in the early 1990s. In 1993, he became a lobbyist for Audre

Co., a San Diego based software company. As Audre’s lobbyist, Wilkes met with members of Congress to sell Audre’s

document conversion system to government agencies. Wilkes

left Audre in 1994. In 1995, Wilkes drafted a congressional

proposal for a government-funded program to convert documents into electronic format, which he named Automated

Data Conversion Systems (“ADCS Program”). Wilkes then

UNITED STATES v. WILKES 19097
started his own company named after that program, ADCS,

Inc. (“ADCS”). In May 1995, Wilkes hired his nephew, Joel

Combs, to work as a software person for ADCS. Wilkes later

hired a consultant, Mitchell Wade, to assist ADCS in obtaining government contracts. Michael Williams was also hired as

vice president of operations for ADCS. 

From ADCS’s inception, Wilkes traveled from San Diego

to Washington, D.C. to meet with Congressmen Cunningham

and Duncan Hunter to secure the appropriation of federal

funding for the ADCS Program. In 1997, Cunningham was

appointed to the House Appropriations Committee, which had

the power to add money (i.e. earmarks) to the President’s budget. To solicit his support for ADCS’s programs, Wilkes

expended tens of thousands of dollars on meals for Cunningham, treated the Congressman to trips, and devised a plan to

give Cunningham over $100,000 disguised as payments for

Wilkes’s purchase of the “Kelly C,” the houseboat on which

Cunningham lived while in Washington, D.C. In return for the

benefits he gave Cunningham, Wilkes received government

contracts worth millions of dollars through Cunningham’s

earmarks.

In 1998, with Cunningham’s support, ADCS received a

government contract to scan documents in Panama for the

Department of Defense (“DOD”). Wilkes regularly billed the

government for poor work, work never done, and equipment

he supposedly bought for the government. When government

officials expressed their concerns about ADCS, Wilkes used

Cunningham’s influence to pressure them to continue to fund

contracts for the company. 

In 2000, Wilkes and Cunningham began seeking government funding through another document scanning and conversion program called the Global Infrastructure Data Capture

Program (“GIDC”). When the DOD decided to redirect millions of dollars from Wilkes’s scanning project to another use,

Wade, acting on Wilkes’s behalf, threatened to have a DOD

19098 UNITED STATES v. WILKES
official fired. Cunningham intervened, and government officials caved in to his pressure by diverting to Wilkes millions

of dollars from counter-terrorism funds. 

In 2001, Wilkes and Wade shifted their focus from contracts for document conversion to contracts to supply equipment and software for the Office of the Secretary of Defense

(“OSD”). Wade testified that, with Cunningham’s support, he

and Wilkes marked up — by as much as 600% — the price

of off-the-shelf equipment they sold to the government.

Despite the high profit margins on the supply contracts,

Wilkes and Wade failed to deliver the equipment that was

requested by the government. 

By 2001, Wade also began building his own relationship

with Cunningham and made various secret payoffs to the

Congressman. In 2003, Wade had managed to insert his own

company, MZM, Inc., in place of ADCS, as the prime contractor for the OSD contract. Cunningham made additional

appropriations requests for MZM, Inc. 

In August 2003, seeing that Wade’s earmarks were getting

bigger, Wilkes treated Cunningham to a lavish Hawaiian

vacation filled with a variety of diversions including fine dining, scuba diving, and evenings with prostitutes. In return,

Cunningham earmarked $16 million for Wilkes and Wade as

part of the GIDC program the following month and listed

GIDC as one of his two top priorities in 2004. 

In 2004, Cunningham was responsible for securing millions

of dollars in appropriations for Wilkes’s and Wade’s benefit.

In exchange, Wade paid off a first mortgage in Cunningham’s

residence in the amount of $500,000 and, through a complicated series of financial transactions among multiple companies, Wilkes paid off $525,000 on Cunningham’s second

mortgage. 

In 2005, the San Diego Union-Tribune published an article

exposing Wade’s bribery scheme. Wade began cooperating

UNITED STATES v. WILKES 19099
with prosecutors. In August 2005, ADCS’s offices were

searched, and Wilkes’s business records and computers were

seized. 

On February 13, 2007, a federal grand jury returned a 25-

count Indictment against Wilkes. On May 10, 2007, a federal

grand jury returned a 25-count Superseding Indictment

against Wilkes. Wilkes’s jury trial commenced on October 3,

2007. At trial, Wilkes requested immunity for defense witness

Michael Williams, who he contended would offer testimony

that contradicted the testimony of several immunized prosecution witnesses. The district court denied Wilkes’s request

based on its conclusion that it could not compel a defense witness’s immunity 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 (18 U.S.C. § 371), ten counts of honest services wire

fraud (18 U.S.C. §§ 1343 and 1346 ), one count of bribery of

a public official (18 U.S.C. § 201), and one count of money

laundering (18 U.S.C. § 1956(a)(1)(B)(i)). After the district

court discharged the jury, it imposed criminal forfeiture

against Wilkes in the amount of $636,116. The district court

also imposed a fine against Wilkes in the amount of $500,000.

The district court issued its written judgment on February

19, 2008. Wilkes timely filed his notice of appeal on February

19, 2008. The district court had jurisdiction pursuant to 18

U.S.C. § 3231. This court has jurisdiction to review the district court’s final judgment pursuant to 28 U.S.C. § 1291.

II

Wilkes challenges his convictions on multiple grounds.

First, he argues that his Fifth and Sixth Amendment rights

were violated when the district court declined to compel use

immunity for defense witness Michael Williams. Having

reviewed this issue de novo, we remand in part for an eviden19100 UNITED STATES v. WILKES
tiary hearing regarding whether the district court should have

granted Williams use immunity pursuant to United States v.

Straub, 538 F.3d 1147 (9th Cir. 2008), a case decided by this

court after the district court declined to grant use immunity to

Williams.

Wilkes also argues on appeal that his Fifth and Sixth

Amendment rights were violated: (1) when prosecutors failed

to comply with the mandates of Brady v. Maryland, 373 U.S.

83 (1963) and Giglio v. United States, 405 U.S. 150 (1972);

(2) when prosecutors committed misconduct by engaging in

improper closing arguments; and, (3) when the district court

refused to grant Wilkes’s request to continue the trial to allow

time for him to prepare. Wilkes further contends that there

was insufficient evidence of honest services fraud, bribery,

and money laundering to support his convictions, and that the

jury was misinstructed on those offenses. He also maintains

that the recent holding in Skilling v. United States, 130 S. Ct.

2896 (2010) compels reversal on all counts because the prosecution relied on multiple honest services fraud theories,

including the conflict-of-interest/undisclosed self-dealing theory later invalidated in Skilling. Finally, Wilkes asserts that

the criminal forfeiture judgment violates the Sixth Amendment since the jury did not return a verdict on that charge. We

affirm because we conclude the district court did not commit

reversible error in its rulings on these issues.

III

A

Wilkes argues that his Fifth and Sixth Amendment rights

were violated when the district court declined to compel use

immunity for defense witness Williams. “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. Factual findings underlying the district court’s ruling

are reviewed for clear error.” Straub, 538 F.3d at 1156 (citing

UNITED STATES v. WILKES 19101
United States v. Alvarez, 358 F.3d 1194, 1216 (9th Cir.

2004)). 

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.

At trial, the district court concluded that Wilkes had demonstrated Williams would invoke his Fifth Amendment privilege if called to testify, and that the exercise of that privilege

would be valid. Over the objection of the government, the district court allowed the defense to make a proffer as to Williams’s testimony at an ex parte sidebar conference. The

transcript of the proffer was filed under seal. The government

did not have access to defense counsel’s proffer to the district

court until we granted its motion to have those portions of the

record unsealed just prior to oral argument in this appeal. The

transcript of the sidebar conference indicates that Williams

would testify that:

in 1998 he began working with ADCS as part of his

employment. He began managing and overseeing all

major projects, especially and including the Panama

project. He oversaw all the work. There was real

work being performed. He would testify about

adverse conditions that work was being done [sic],

the timetable and the fact that the employees were

working long hours. He would testify about the

19102 UNITED STATES v. WILKES
equipment that Mr. Wilkes purchased on his own

and brought to Panama. The dispute about the barcoding of the equipment and he would . . . also [be]

greatly important to the relationship between the

prime [contractor] . . . to that which was MCSI . . .

He can speak to Joel Combs and what Combs did or

didn’t do, even though Mr. Combs readily admits he

is a ball dropper. . . . [G]iven the proper context, Mr.

Williams can explain this gentleman’s intent to go

off on his own which is going to be central to [the]

defense.

ER 3678. 

The district court concluded that “[g]iven the proffer of

[Wilkes’s counsel] at sidebar, I find that Mr. Williams would

have admissible relevant testimony to offer. It would not be

cumulative. And given the proffer, as I said, it would be

exculpatory.” ER 2477-79. The district court stated:

I have to tell you the proffer I have as to what this

fellow can offer strikes me as 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 court, having fully heard all counsel, denies the

motion to convey use immunity. Here, as I said,

unless it’s somehow tethered to the suggestion of

prosecutorial misconduct, I don’t think it’s appropriate for the court to make determinations of who gets

immunity and who doesn’t.

In the first instance, under our system of Government, that’s a prosecutorial decision. And unless I

can find that the way in which discretion was exerUNITED STATES v. WILKES 19103
cised was unfair so as to deny the defendant a due

process right, then it’s not appropriate for me to substitute my judgment for that of the prosecutor. I do

have a concern about the effect of not granting

immunity in this case, but I would have the same

concern if it was a different privilege implicated over

which I’d have no authority to pierce the privilege

and order a witness to testify, any number of other

privileges. So it’s an effect that the criminal justice

system lives with and accommodates. And that

alone, contrary to a broad reading of Westerdahl, is

not sufficient to authorize me to exercise authority to

grant use immunity pursuant to 18 U.S.C. § 6003.

ER 2480-94.

B

[1] After Wilkes was convicted, this court clarified the

two-part test by which the defendant may seek to compel the

prosecutor to grant use immunity as a matter of due process.

In Straub, we held that a district court can compel a defense

witness’s immunity absent a finding of prosecutorial misconduct, where “in exceptional cases, the fact-finding process

may be so distorted through the prosecution’s decisions to

grant immunity to its own witness while denying immunity to

a witness with directly contradictory testimony that the defendant’s due process right to a fair trial is violated.” Straub, 538

F.3d at 1166. Under the clarified test, the defendant must first

show that the defense witness’s testimony was relevant. Id. at

1157. Second, the defendant must show either that

(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

19104 UNITED STATES v. WILKES
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.

Id. at 1162. The “relevance requirement is minimal, . . . . [and

t]he defendant need not show that the testimony sought was

either clearly exculpatory or essential to the defense.” Id. at

1163 (internal quotation marks and citations omitted). Moreover, the “test requires only that the proffered defense testimony directly contradict[s] the government witness’s

testimony on a relevant issue, not that the testimony would

have compelled the jury to exonerate the defendant.” Id.

“[T]estimony satisfies the test for ‘directly contradictory’

[where] the testimony, if believed by the jury, could have supported a finding that the testimony directly contradicted that

of the government’s witness.” Id.

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.

The government argues on appeal that there was no distortion of the fact-finding process because Williams’s testimony

would not directly contradict the testimony of immunized

government witnesses. Thus, the government maintains, “the

refusal to immunize Williams did not distort the fact-finding

process in any away whatsoever, let alone to such an extent

as to deny Wilkes a fundamentally fair trial.” The district

court concluded, however, that the proffered testimony would

UNITED STATES v. WILKES 19105
“counter” the testimony presented by the prosecution through

immunized government witnesses, and the government did

not challenge that finding as clearly erroneous.

[2] 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 (internal quotation

marks omitted).

IV

Wilkes argues that his Fifth and Sixth Amendment rights

were violated when prosecutors failed to disclose evidence

about cooperating witnesses as required under the holdings of

Brady, 373 U.S. 83 and Giglio, 405 U.S. 150. He also argues

that prosecutors committed misconduct by unlawfully disclosing grand jury information before the commencement of the

trial. Wilkes further contends that the prosecution committed

misconduct by making improper arguments in summation.

Alleged Brady and Giglio violations are reviewed de novo.

United States v. Blanco, 392 F.3d 382, 387 (9th Cir. 2004).

Prosecutorial misconduct is reviewed for plain error where, as

here, a defendant fails to object at trial. United States v. Moreland, 622 F.3d 1147, 1158 (9th Cir. 2010) (citing Fed. R.

Crim. P. 52(b)).

A

[3] “[T]he suppression by the prosecution of evidence

favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. “Suppressed evidence must be

19106 UNITED STATES v. WILKES
considered collectively, not item by item, and is material only

if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would

have been different.” Hein v. Sullivan, 601 F.3d 897, 906 (9th

Cir. 2010) (internal quotation marks and citations omitted).

“There is a reasonable probability of prejudice when suppression of evidence undermines confidence in the outcome of the

trial.” United States v. Kohring, 637 F.3d 895, 902 (9th Cir.

2011) (internal quotation marks and citations omitted).

“There are three elements of a Brady/Giglio violation: ‘(1)

the evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; (2) that

evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.’ ”

Id. at 901 (quoting United States v. Williams, 547 F.3d 1187,

1202 (9th Cir. 2008)) (internal quotation marks omitted); see

also Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Wilkes

has not established any violations under Brady or Giglio

because he has not shown prejudice. The evidence about

cooperating witnesses that Wilkes alleges was improperly

withheld did not contain any new impeachment information

and would therefore be unlikely to have altered the verdict.

Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154.

1

At trial, the prosecution explained that the decision to grant

Combs immunity was the result of “months of decisionmaking” based on proffers. ER 2484. The proffer sessions,

however, were not provided to the defense. Wilkes contends

that “Giglio v. United States, 405 U.S. 150 (1972) required

disclosure of Combs’ ‘proffer’ sessions, not merely his FBI

interviews.” Appellant Br. 55. Wilkes maintains that suppression of the proffer sessions undermined confidence in the verdict because prosecutors told jurors that Combs had no

incentive to lie, “while withholding evidence casting doubt

upon his credibility.” Appellant Reply Br. 22-23. 

UNITED STATES v. WILKES 19107
[4] Wilkes has not cited any authority, and we have found

none, holding that the government must disclose all proffers

irrespective of whether the proffers contain information subject to disclosure under Brady or Giglio. While evidence that

impeaches a witness’s credibility falls within the Brady principle when the reliability of the witness “may well be determinative of guilt or innocence,” Giglio, 405 U.S. at 154, Wilkes

has failed to establish that the disclosure of the proffer sessions would have served to impeach Combs’s credibility. He

has also not demonstrated that any impeachment value would

not have been cumulative. 

This court has held that evidence is material if it is “of a

different character than evidence already known to the

defense.” Kohring, 637 F.3d at 904 (holding that evidence of

a key witness’s prior sexual misconduct was material because

it “would have shed light on the magnitude of Allen’s incentive to cooperate with authorities and would have revealed

that he had much more at stake than was already known to the

jury”). Evidence is cumulative, however, if the grounds for

impeachment are “ ‘no secret’ to the jury.” Id. at 908. Here,

the jury knew that Combs had immunity and was also aware

of Combs’s involvement in the Cunningham bribery scheme.

[5] Moreover, the government’s case did not hinge on

Combs’s testimony. While Combs may have been a significant witness, the government presented over two-dozen other

witnesses and extensive documentary evidence of Wilkes’s

guilt. Compare Maxwell v. Roe, 628 F.3d 486, 512 (9th Cir.

2010) (finding Brady violation where the jury’s assessment of

the witness’s credibility was crucial to the outcome of the trial

because the prosecution itself admitted that the evidence

against the defendant was weak and if the jury had not

believed the witness, the defendant may not have been convicted) with Heishman v. Ayers, 621 F.3d 1030, 1035 (9th Cir.

2010) (holding that there was no likelihood that the suppressed evidence, including proof of perjury, criminal activity

and cooperation with the government, would have changed

19108 UNITED STATES v. WILKES
the jury’s verdict because it was “similar to and cumulative of

the extremely thorough impeachment during [the witness’s]

cross-examination”). Accordingly, Wilkes has not demonstrated that there is a reasonable likelihood that the withheld

information concerning Combs’s proffer sessions would have

changed the verdict. See Giglio, 405 U.S. at 154 (We do not

“automatically require a new trial whenever a combing of the

prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the

verdict.”) (internal quotation marks and citations omitted).

2

Five days after Wade testified at Wilkes’s trial but before

the jury reached its verdict, Wade settled his Federal Election

Commission (“FEC”) criminal and civil liability in a Conciliation Agreement which imposed a $1,000,000 fine upon him.

Wilkes contends that the government’s failure to disclose

information concerning Wade’s negotiation of criminal and

civil liability with the FEC undermined confidence in the verdict because the withheld evidence casts doubt upon Wade’s

credibility. Wilkes argues that the fact that Wade agreed to

pay the fine within 30 days reveals that Wade had “ready

access to at least $1,000,000 which could’ve come from his

admitted criminal activity — fertile ground for

cross[-]examination denied to Wilkes.” Appellant Br. 56-57.

[6] “[T]here is never a real ‘Brady violation’ unless the

nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a

different verdict.” Strickler, 527 U.S. at 281. Wilkes has

failed to establish that there is a reasonable probability that

information concerning Wade’s negotiation of criminal and

civil liability with the FEC would have altered the verdict.

The jury was well aware of Wade’s ill-gotten gains. Both the

government and Wilkes elicited extensive testimony from

Wade that he made a great deal of money from his crimes,

including tens of millions in appropriations for his own beneUNITED STATES v. WILKES 19109
fit and $20 million through the sale of his business. The jury

also heard argument from the government that “Mitch Wade

learned his lessons from Brent Wilkes. Did he take it to

another level? You bet he did. Is he a crook? You bet he is.”

ER 3018. Thus, there is no reasonable likelihood that the evidence of Wade’s negotiation with the FEC could have

changed the jury’s verdict because it was “similar to and

cumulative of the extremely thorough impeachment during

[Wade’s] cross-examination.” See Heishman, 621 F.3d at

1035 (A “witness may be ‘so thoroughly impeached’ that

even evidence of perjury at trial is ‘merely cumulative’ ”)

(quoting United States v. Polizzi, 801 F.2d 1543, 1551 (9th

Cir. 1986)).

B

Wilkes maintains that the prosecution’s pretrial unlawful

disclosure of grand jury information compromised the grand

jury’s independence and constituted structural error. To obtain

reversal based on prosecutorial misconduct, a defendant must

establish “both misconduct and prejudice.” United States v.

Wright, 625 F.3d 583, 609-10 (9th Cir. 2010). “A finding of

prejudice . . . requires that the conduct have some impact on

the outcome of the proceeding — i.e., a reasonable probability

that the result of the proceeding would have been different or

that it so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Hein v. Sullivan,

601 F.3d 897, 905 n.4 (9th Cir. 2010). 

The district court found that before the February 13, 2007

indictment was issued, at least three newspaper articles were

published identifying Wilkes as a target of the grand jury

probe and predicting that he would be indicted. The trial

judge concluded that “the public interest was at least temporarily compromised in this case by the irresponsible and illegal actions of one or more government agents who leaked

secret grand jury information to news reporters,” but that

“Wilkes was not prejudiced by the alleged governmental mis19110 UNITED STATES v. WILKES
conduct in this case, and that it had no material [e]ffect on the

verdict.” Doc. No. 171.

[7] As the government correctly asserts, grand jury leaks

are the kind of non-structural errors that are rendered harmless by the trial jury’s verdict. See Polizzi, 500 F.2d at 888

(“If a grand jury is prejudiced by outside sources when in fact

there is insufficient evidence to indict, the greatest safeguard

to the liberty of the accused is the petit jury and the rules governing its determination of a defendant’s guilt or innocence.”)

(quoting Silverthorne v. United States, 400 F.2d 627, 634 (9th

Cir. 1968)). Wilkes does not contend, nor has he established,

that the petit jury that convicted him was at all affected by

information that was improperly leaked before the indictment

issued. Accordingly, Wilkes has failed to demonstrate that he

was prejudiced by the leaking of secret grand jury information.

C

Wilkes contends that prosecutors committed misconduct in

their summation by making false and improper arguments. He

maintains that the prosecutor’s argument that they did not call

former Congressman Cunningham as a witness because they

did not want to give him a sentence reduction was both

improper and false. Wilkes also maintains that prosecutors

falsely argued that its witnesses had no motives to lie and

improperly shifted the burden by informing the jury that in

order to find Wilkes not guilty, they had to believe his testimony. Wilkes further argues that the prosecution improperly

appealed to jurors’ passions and prejudices by “repeatedly

urging them to ‘vindicate their rights’ and convict Wilkes

because he used their money.” ER 3005, 3021.

1

In determining whether a prosecutor’s comment rendered a

trial constitutionally unfair, this court considers the following

factors: 

UNITED STATES v. WILKES 19111
whether the comment misstated the evidence,

whether the judge admonished the jury to disregard

the comment, whether the comment was invited by

defense counsel in its summation, whether defense

counsel had an adequate opportunity to rebut the

comment, the prominence of the comment in the

context of the entire trial and the weight of the evidence. 

Hein, 601 F.3d at 912-13 (citation omitted). “[D]efense counsel’s conduct, as well as the nature of the prosecutor’s

response, is relevant.” United States v. Young, 470 U.S. 1, 12

(1985). “[I]f the prosecutor’s remarks were ‘invited,’ and did

no more than respond substantially in order to ‘right the

scale,’ such comments would not warrant reversing a conviction.” Id. at 12-13. Prosecutors and defense lawyers are given

“wide latitude” in closing arguments. United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997). “Prosecutors have

considerable leeway to strike ‘hard blows’ based on the evidence and all reasonable inferences from the evidence.”

United States v. Henderson, 241 F.3d 638, 652 (9th Cir.

2000).

a

In closing argument, Wilkes’s counsel stated to the jury:

“Why didn’t [the prosecution] put Congressman Cunningham

on? . . . They can say what they want. The fact that they didn’t

call him speaks volumes about the fact that they didn’t believe

him.” ER 2996. In response, the government told the jury that

it was “not going to put the most corrupt politician in the history of this country on the witness stand and give him a

chance to get a break in his sentence.” ER 3017; Appellee Br.

58. Wilkes contends that the prosecutors’ remarks to the jury

concerning their reasons for not calling Cunningham as a witness constitute “prejudicial misconduct [that] violated [his]

due process rights.” Appellant Br. 59. Wilkes argues that the

remarks were improper because they did not constitute evi19112 UNITED STATES v. WILKES
dence and prosecutors may not supply facts not in evidence

as they may be given undue weight. See, e.g. United States v.

Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992) (“A prosecutor has

no business telling the jury his individual impressions of the

evidence.”) Wilkes further argues that the prosecutors’ purported reason for not calling Cunningham — that they did not

want to give Cunningham a reduction in his sentence — was

false. Appellant Br. 59. Wilkes points to a letter from Cunningham, which reveals that “he was waiting at court to testify but was told the judge’s rulings about the scope of

rebuttal didn’t permit it.” Appellant Br. 59; ER 3571. 

The government argues that it has never used Cunningham

as a witness in any proceeding and that “Wilkes expressly

invited the Government to answer why Cunningham was not

called as a witness.” Appellee Br. 55-56. It further maintains

that “one of the reasons the Government did not call Cunningham at trial was because prosecutors did not trust him to

refrain from fabricating testimony that he believed would help

the prosecution (and thus enhance his chances for a reduced

sentence).” Id. The government notes that, “Although years

before Wilkes’s trial, the Government had recommended a

two-level Guidelines’ reduction for Cunningham’s substantial

assistance, that assistance was limited to waiving protections

under the Speech or Debate Clause and making consensuallyrecorded phone calls to Tommy Kontogiannis — i.e.[,] nothing requiring Cunningham’s testimony.” Appellee Br. 56

n.24.

[8] In United States v. Young, 470 U.S. 1 (1985), the

Supreme Court explained that courts should examine rebuttal

arguments in the context of the arguments that they rebut. The

Court held that although the prosecutor’s expression of personal opinion as to the defendant’s guilt was improper, “any

potential harm from this remark was mitigated by the jury’s

understanding that the prosecutor was countering defense

counsel’s repeated attacks on the prosecution’s integrity and

defense counsel’s argument that the evidence established no

UNITED STATES v. WILKES 19113
such crime.” Id. at 17-18. The Court reasoned that the “overwhelming evidence [presented by the prosecution] . . . eliminates any lingering doubt that the prosecutor’s remarks

unfairly prejudiced the jury’s deliberations or exploited the

Government’s prestige in the eyes of the jury.” Id. at 19.

[9] Here, as in Young, Wilkes invited the government to

answer why it did not call Cunningham as a witness. In addition, the government presented substantial evidence of

Wilkes’ conspiracy, fraud, bribery and money laundering,

thereby “eliminat[ing]” any lingering doubt that the prosecutor’s remarks unfairly prejudiced the jury’s deliberations.” Id.

Wilkes cites to United States v. Kojayan, 8 F.3d 1315 (9th

Cir. 1993), which held that while the “invited response doctrine” from Young may excuse certain arguments that would

normally be reversible error, “it can’t sanitize the prosecutor’s

misstatements to the jury.” Id. at 1331-32. In Kojayan, this

court reversed the defendant’s conviction based on a prosecutor’s misstatement that the government was powerless to compel a witness to testify when, in fact, the witness had entered

into a plea agreement with the government and had promised

to testify at trial. Id. at 1318-19. Wilkes, however, has failed

to demonstrate that the prosecutor’s reasons for not calling

Cunningham as a witness constituted “misstatements.” While

Cunningham may have offered assistance to the government,

he did not testify at any trial. In addition, prosecutors offered

other legitimate reasons for not calling Cunningham to the

stand, including the fact that they did not think he could testify truthfully.

The district court in this case repeatedly instructed the jury

that comments by counsel are not evidence. For instance, the

court admonished the jury: “Remember — this should be

engraved in the front of your foreheads now — things that the

lawyers say are not evidence.” SER 238, 239, 240, 241, 242,

243. This same admonishment was also included in the jury

instructions sent into the jury room. See Wright, 625 F.3d at

19114 UNITED STATES v. WILKES
613 (improper statements rendered harmless by court’s

instruction that arguments by lawyers are not evidence).

[10] Wilkes expressly invited the government to explain its

reasons for not calling Cunningham as a witness. Accordingly, the government’s statements were not improper and

given the overwhelming evidence against Wilkes in this case,

Wilkes has not demonstrated that these statements resulted in

any prejudice.

b

Wilkes contends that the prosecution improperly argued

that their witnesses had no motive to lie. He asserts that this

argument was “clearly false in light of Combs’ and Wade’s

criminal exposure, but also false as to the [DOD] officials and

lobbyists who faced possible repercussions for interactions

with Cunningham, or by signing off on certain contracts.”

Appellant Br. 59. Wilkes also maintains that the prosecutors

“vouched for Combs’ credibility, telling the jury that his

immunity agreement ‘obligates him to tell the truth’ and querying ‘why in the world, what incentive does he have to get

up there and lie about his uncle? There’s nothing.’ ” ER 3004,

3017.

[11] “Vouching consists of placing the prestige of the government behind a witness through personal assurances of the

witness’s veracity, or suggesting that information not presented to the jury supports the witness’s testimony.” United

States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993).

This court has found that vouching is “especially problematic

in cases where the credibility of the witness is crucial.” Id.

(internal citations and quotation marks omitted). Prosecutors

may, however, “argue reasonable inferences based on the evidence, including that one of the two sides is lying.” Id. (internal citations and quotation marks omitted). Furthermore,

prosecutors are permitted to respond to defense counsel’s

attempts to impeach the credibility of government witnesses.

UNITED STATES v. WILKES 19115
See id. at 1278-79 (finding the prosecutor did not improperly

vouch by eliciting testimony about the truthfulness provision

of a witness’s plea agreement because it was offered in

response to defense counsel’s attacks on the witness’s credibility). Thus, statements made by the prosecution do not constitute improper vouching where the argument that witnesses

had no motive to lie is a permissible response to the defense

counsel’s earlier attacks on the witnesses’s credibility.

[12] Here, Wilkes’s counsel repeatedly offered his personal opinion that witnesses for the prosecution were lying

and trying to mislead the jury throughout his closing argument. For example, defense counsel argued that, in his opinion, prosecution witness Frank Collins “lied” when he

testified “because Frank Collins has an ax to grind.” ER 2988.

Defense counsel also told the jury that in his opinion, prosecution witness Joel Combs “certainly tried to mislead you.”

ER 2992. Further, defense counsel stated his opinion that

“one of the biggest problems in this case is that [the prosecutors] have consistently tried to mislead you,” (ER 2972) by

doing a “a slight of hand during this trial and during their

closing argument yesterday.” ER 2977.

[13] In rebuttal to defense counsel’s summation, the prosecution asked the jury:

Do you think, Ladies and Gentlemen, over a dozen

witnesses with absolutely no dog in this fight got up

on the witness stand and lied to you? Or, Ladies and

Gentlemen, do you think the Defendant got up on the

stand and lied to you; the Defendant, the man with

more incentive, more motive to lie than all of the

other witnesses combined? Of course he did. He had

no choice. He was looking at a mountain of evidence.

ER 3004. The prosecutor’s argument that its witnesses told

the truth, rather than Wilkes, was not vouching but was “sim19116 UNITED STATES v. WILKES
ply an inference from evidence in the record.” Necoechea,

986 F.2d at 1279 (explaining that a prosecutor improperly

vouches where he makes statements that bolster a government

witness’s credibility by referring to facts not in the record,

such as explaining why a witness did not testify against codefendants). In direct response to defense counsel’s express

statements to the jury that government witnesses were lying,

the prosecutor here merely argued that its witnesses were telling the truth; “an argument the prosecutor had to make in

order to convict [Wilkes].” Id. That argument did not imply

that the government had personal knowledge of or was assuring the veracity of its witnesses, and did not reflect the prosecutor’s personal beliefs. Id.

Moreover, Wilkes has failed to establish that he suffered

prejudice as a result of the alleged vouching. This 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. See Necoechea, 986 F.2d at 1280-81

(finding that even improper vouching did not require reversal

because the witness’s testimony was thoroughly impeached,

the jury was instructed that an attorney’s statements are not

evidence, and, while the witness provided the strongest direct

evidence of a crucial element in the prosecution’s case, there

was significant circumstantial evidence that connected the

defendant with the conspiracy). The government’s statement

in closing argument that Wade’s immunity obligated him to

tell the truth was information the jury had already heard when

defense counsel cross-examined Wade about his immunity

and Wade responded that it was “only predicated on the

truth.” ER 2188; See also ER 3019.

c

Wilkes contends that “prosecutors improperly told jurors

that in order to find Wilkes not guilty, they had to believe his

testimony.” Appellant Br. 60; ER 3017 (“You have to believe

UNITED STATES v. WILKES 19117
that preposterous charade to believe [Wilkes is] not guilty.”)

Wilkes also maintains that it was impermissible for prosecutors to argue that “each [government witness], if you think

about their testimony and what they told you, you either have

to believe all of those people or you believe Brent Wilkes.

That’s the choice before you. You can’t believe both.” Id.; ER

2937. 

Wilkes’s argues that United States v. Perlaza, 439 F.3d

1149 (9th Cir. 2006) supports his contention that the government engaged in improper burden-shifting. In Perlaza, this

court reversed the defendant’s convictions because the prosecution erroneously told jurors that the “presumption [of innocence] . . . is going to vanish when you start deliberating. And

that’s when the presumption of guilt is going to take over

you.” 439 F.3d at 1169 (emphasis added) (internal quotation

marks omitted). A misstatement of the government’s correct

burden of persuasion is not, however, comparable to a prosecutor’s statement that the jury had to believe the defendant to

believe he was not guilty.

[14] The prosecution made the alleged improper statement

after explaining at length to the jury what it had to prove in

order for the jury to find Wilkes guilty. In this context, such

a statement is considered to be nothing more than an “isolated

moment” in a 28-day trial. See Moreland, 622 F.3d at 1162-

63 (not improper burden-shifting where the prosecution had

reviewed the legal elements of what the jury would have to

find in order to convict the defendant and statement was an

“ ‘isolated moment’ in a 34-day trial”) (internal citations

omitted). In “a case that essentially reduces to which of two

conflicting stories is true, it may be reasonable to infer, and

hence to argue, that one of two sides is lying.” United States

v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991); see also

Moreland, 622 F.3d at 1163 (finding that the prosecution did

not commit misconduct when it asked jurors to assess a witness’s credibility and “once you conclude they’re not credible, case is over.”).

19118 UNITED STATES v. WILKES
[15] Wilkes’s citation to United States v. Stanfield, 521

F.2d 1122 (9th Cir. 1975) is equally unpersuasive. In Stanfield, this court reversed because of improper statements by

the trial judge where the judge undertook to make the opening

statements for each side to the jury. By asking the jury, “to

look as you hear the evidence for what you will think in your

own mind is the truthful version,” this court found that the

judge’s statements obscured the correct standard for jury consideration of evidence in a criminal case. Id. at 1124-25 n.1.

Unlike in Stanfield, the statement that Wilkes challenges was

made by the prosecutor at closing argument, after the evidence had been presented to the jury. Accordingly, the statement cannot be said to have obscured the correct standard for

jury consideration. Wilkes has not established that the prosecutors engaged in improper burden-shifting, and has also

failed to demonstrate that prejudice resulted from these statements.

d

Wilkes argues that prosecutors “improperly appealed to

jurors’ passions and prejudices, repeatedly urging them to

‘vindicate their own rights’ and convict Wilkes because he

used their money.” ER 3021; ER 3005, 3021. The government grounded its arguments in the instructions and proof, as

indicated in the following statements, which Wilkes now

challenges:

If paying prostitutes to sleep with a Congressman

with whom you have business going on is not cheating us out of our rights to that Congressman’s honest

services, then our rights mean nothing. They’re

worth nothing. But, you know, ladies and gentlemen,

from the instructions, our rights do exist. They mean

something. You will vindicate those rights here.

ER 3005. Wilkes’s reliance on United States v. Weatherspoon, 410 F.3d 1142 (9th Cir. 2005) is inappropriate because

UNITED STATES v. WILKES 19119
the statements in that case did not speak to the question of

defendant’s guilt, but rather “were clearly designed to encourage the jury to enter a verdict on the basis of emotion rather

than fact.” Id. at 1149-50. There, the government argued that

“[c]onvicting [the defendant] is gonna make you comfortable

knowing there’s not convicted felons on the street with loaded

handguns, that there’s not convicted felons carrying around

semiautomatic . . . .” Id. at 1149. Moreover, unlike in Weatherspoon, the government presented a strong case against

Wilkes and any harm that may have resulted from the above

statements was mitigated by jury instructions stating that

attorney’s statements are not evidence. Cf. id. at 1151-52

(finding that improper vouching presented a strong possibility

of prejudice where the case was not particularly strong and

there was no adequate curative jury instruction).

[16] Wilkes has failed to show that the government

improperly appealed to juror’s passions and prejudices. In

light of the government’s strong case against Wilkes and the

court’s curative jury instruction, Wilkes has also not demonstrated any prejudice.

e

Wilkes maintains that “this Court should analyze the overall cumulative impact of all errors upon the fundamental fairness of the trial.” Appellant Br. 54. He contends that the

“Brady/Giglio violations, the grand jury violations, and the

false and improper arguments, separately and cumulatively

require reversal.” Appellant Br. 62-63.

“In some cases, although no single trial error examined in

isolation is sufficiently prejudicial to warrant reversal, the

cumulative effect of multiple errors may still prejudice a

defendant.” United States v. Frederick, 78 F.3d 1370, 1381

(9th Cir. 1996). “[W]here the government’s case is weak, a

defendant is more likely to be prejudiced by the effect of

cumulative errors.” Id. “Our court is particularly sensitive to

19120 UNITED STATES v. WILKES
allegations of prejudice where, as here, the convictions are

based on largely uncorroborated testimony of a single accomplice or co-conspirator.” United States v. Wallace, 848 F.2d

1464, 1475 (9th Cir. 1988).

[17] Wilkes has not demonstrated that the cumulative

effect of the alleged Brady/Giglio violations, grand jury violations, and false and improper arguments would have altered

the verdict. Wilkes has not established any Brady/Giglio violations. He does not even allege, nor does he establish, that

the grand jury leaks caused his trial to be prejudiced. The government’s alleged improper arguments to the jury, which

Wilkes challenges on appeal, do not constitute plain error

because Wilkes has failed to show both misconduct and prejudice. Moreover, in contrast to this circuit’s cases that reversed

a defendant’s convictions based on cumulative error, the government in this case presented ample evidence of Wilkes’s

guilt. Cf. Frederick, 78 F.3d at 1381; Wallace, 848 F.2d at

1475.

V

[18] Wilkes maintains that his Fifth and Sixth Amendment

rights were violated by the district court’s denial of his

requests for a continuance of trial in order to enable his counsel to review voluminous discovery. Denials of motions for

trial continuances are reviewed for abuse of discretion. United

States v. Garrett, 179 F.3d 1143, 1144-45 (9th Cir. 1999). “A

trial court clearly abuses its discretion only if denial of the

continuance was arbitrary or unreasonable.” United States v.

Torres-Rodriguez, 930 F.2d 1375, 1383 (9th Cir. 1991). Prejudice resulting from the denial of the continuance must be

established. United States v. Kloehn, 620 F.3d 1122, 1127

(9th Cir. 2010). “Where the denial of a continuance prevents

the introduction of specific evidence, the prejudice inquiry

focuses on the significance of that evidence.” United States v.

Rivera-Guerrero, 426 F.3d 1130, 1142 (9th Cir. 2005) (quoting United States v. Mejia, 69 F.3d 309, 317 (9th Cir. 1995)).

UNITED STATES v. WILKES 19121
[19] Wilkes has failed to establish that actual prejudice

resulted from the denial because he has not shown that his

verdict would have been different had the district court

granted his request for continuance. See Armant v. Marquez,

772 F.2d 552, 556-57 (9th Cir. 1985) (“At a minimum . . . in

order to succeed, [a defendant] must show some prejudice

from the court’s denial.”). Although Wilkes identified a number of documents that he contends he could have used to bolster his defense had he been afforded additional time, these

documents do not support Wilkes’s contention that his

defense would have been bolstered by them. Moreover, some

of the documents identified were clearly available to Wilkes

at the time of trial as evidenced by the fact that they were

marked as defense exhibits.

VI

Wilkes contends that the Supreme Court’s recent decision

in Skilling v. United States, 130 S. Ct. 2896 (2010) compels

reversal of all counts — but especially those predicated upon

honest services fraud, including the conspiracy, money laundering, and criminal forfeiture counts — because the evidence

presented at trial was insufficient to convict him on all counts,

and the jury was misinstructed on these counts. Sufficiency of

the evidence is reviewed de novo. Moreland, 622 F.3d at

1168. This court reviews the evidence in the light most favorable to the prosecution to determine whether any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt. Id. “[C]onstitutional error occurs

when a jury is instructed on alternative theories of guilt and

returns a general verdict that may rest on a legally invalid theory.” Skilling, 130 S. Ct. at 2934 (citing Yates v. United

States, 354 U.S. 298 (1957)). “Any omission or misstatement

of an element of an offense in the jury instructions is constitutional error and, therefore, requires reversal unless we find the

error ‘harmless beyond a reasonable doubt.’ ” United States v.

Kilbride, 584 F.3d 1240, 1247 (9th Cir. 2009) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). “In the absence

19122 UNITED STATES v. WILKES
of a timely objection to the jury instructions, we review for

plain error.” Id. (internal quotation marks omitted). Plain error

requires the court to find (1) an error that is (2) plain and (3)

affects substantial rights. Id. An error prejudices the substantial rights of a defendant when it affects the outcome of the

proceedings. Moreland, 604 F.3d at 1077. Even if these conditions are met, this court may only exercise its discretion to

correct the error if it seriously affects the fairness, integrity,

or public reputation of judicial proceedings. Id.

[20] In Skilling, the Supreme Court held that honest services fraud theories other than bribery and kickback schemes

are invalid. 130 S. Ct. at 2931. 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. See United States v. Bohonus, 628 F.2d 1167, 1171

(9th Cir. 1980) (“The requisite ‘scheme . . . to defraud’ is

found in the deprivation of the public’s right to honest and

faithful government. When a public official is bribed, he is

paid for making a decision while purporting to be exercising

his independent discretion. The fraud element is therefore satisfied.”).

[21] The jury convicted Wilkes of federal bribery under 18

U.S.C. § 201. The government presented substantial evidence

that Wilkes engaged “in a course of conduct of favors and

gifts” in exchange for benefits and support from Cunningham.

See United States v. Kincaid-Chauncey, 556 F.3d 923, 943

(9th Cir. 2009) (bribery violation’s requisite quid pro quo satisfied by “ ‘a course of conduct of favors and gifts flowing to

a public official in exchange for a pattern of official actions

favorable to the donor’ ”) (quoting United States v. Jennings,

160 F.3d 1006, 1014 (4th Cir. 1998)) (footnote and additional

citations omitted). Thus, the jury’s guilty verdict on the separate substantive count of bribery in violation of 18 U.S.C.

UNITED STATES v. WILKES 19123
§ 201 confirms beyond any reasonable doubt that the jury

would have convicted Wilkes of honest services fraud if the

court’s definition had been limited to the bribery basis that

Skilling expressly approved. Any error concerning the jury

instruction was harmless. See Neder v. United States, 527

U.S. 1, 18 (1999) (error is harmless where it is “clear beyond

a reasonable doubt that a rational jury would have found the

defendant guilty absent the error”).

VII

A

Wilkes contends that the evidence presented at trial was

insufficient to support a conviction of concealment money

laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and

that the district court erred in instructing the jury on the concealment money laundering count. Insufficient evidence

claims are reviewed de novo, Moreland, 622 F.3d at 1162, as

are claims of instructional error. Kilbride, 584 F.3d at 1247.

[22] “The federal money laundering statute, 18 U.S.C.

§ 1956, prohibits specified transfers of money derived from

unlawful activities. Subsection (a)(1) makes it unlawful to

engage in certain financial transactions, while subsection

(a)(2) criminalizes certain kinds of transportation.” Regalado

Cuellar v. United States, 553 U.S. 550, 556 (2008). Wilkes

was convicted under the financial transactions provision,

§ 1956(a)(1).

[23] Under § 1956(a)(1)(B)(i), transactions involving proceeds of unlawful activity are illegal if they are “designed in

whole or in part . . . to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds

of specified unlawful activity” (“concealment money laundering”).

To convict a person for money laundering under 18

U.S.C. § 1956(a)(1)(B)(i), the government must

19124 UNITED STATES v. WILKES
prove that (1) the defendant conducted or attempted

to conduct a financial transaction; (2) the transaction

involved the proceeds of unlawful activity; (3) the

defendant knew that the proceeds were from unlawful activity; and (4) the defendant knew “that the

transaction [was] designed in whole or in part — (i)

to conceal or disguise the nature, the location, the

source, the ownership, or the control of the proceeds

of specified unlawful activity.”

United States v. Adefehinti, 510 F.3d 319, 322 (D.C. Cir.

2007) (quoting 18 U.S.C. § 1956(a)(1)(B)(i)).

Thus, “[t]he money laundering statute criminalizes behavior that masks the relationship between an individual and his

illegally obtained proceeds; it has no application to the transparent division or deposit of those proceeds. ‘In its classic

form, the money launderer folds ill-gotten funds into the

receipts of a legitimate business.’ ” Id. at 322 (citing United

States v. Esterman, 324 F.3d 565, 570 (7th Cir. 2003)); see

also United States v. Majors, 196 F.3d 1206, 1212 n.12 (11th

Cir. 1999) (“Section 1956(a)(1)(B)(i) is a provision structured

to reach those types of money laundering activities designed

to conceal or disguise the attributes of proceeds produced by

unlawful activity.”); United States v. Wynn, 61 F.3d 921, 926

(D.C. Cir. 1995) (“[T]he activity that section 1956 seeks to

prevent [is] injecting illegal proceeds into the stream of commerce while obfuscating their source.”); United States v.

Sanders, 929 F.2d 1466, 1472 (10th Cir. 1991) (“[T]he purpose of the [concealment] money laundering statute is to

reach commercial transactions intended (at least in part) to

disguise the relationship of the item purchased with the person providing the proceeds and that the proceeds used to

make the purchase were obtained from illegal activities.”).

[24] “[T]ransactions that created the criminally-derived

proceeds must be distinct from the money-laundering transaction. . . .” United States v. Seward, 272 F.3d 831, 836 (7th Cir.

UNITED STATES v. WILKES 19125
2001); see also United States v. Mankarious, 151 F.3d 694,

705 (7th Cir. 1998) (“[M]oney laundering criminalizes a

transaction in proceeds, not the transaction that creates the

proceeds.”). Furthermore, where a defendant takes no steps to

disguise or conceal the source or destination of the funds,

leaving an easy-to-follow trail in moving money around,

those “transactions conspicuously lack the ‘convoluted’ character associated with money laundering.” Adefehinti, 510 F.3d

at 322, 324 (reversing convictions for money laundering

under 18 U.S.C. § 1956(a)(1)(B)(i) where defendants merely

allocated the proceeds from a fraudulent sale of property

through transactions that “amount[ed] to no more than divvying up the joint venture’s gains, albeit illegally obtained”).

“Having carried out a fraud of which concealment was an

integral part, defendants cannot be charged with the same

concealment a second time, as if it were the sort of independent manipulation of the proceeds required for money laundering.” Id. at 324.

“Classic examples of § 1956(a)(1)(B)(i) violations involve

drug dealers who receive tainted money and then try to ‘launder’ it by using it in apparently legitimate transactions.”

United States v. Pretty, 98 F.3d 1213, 1220 (10th Cir. 1996).

In those cases, “the laundering naturally occurs after the

underlying drug crime is complete.” Id. “Section 1956 covers

far more than merely ‘classic’ money laundering, however.”

Id. “The legislative history . . . stresses the wide scope of

money laundering and notes the complexity of schemes in

which criminals ‘disguise the illegal nature and true sources

of their income.’ ” Id. (citing S. Rep. No. 433, 99th Cong., 2d

Sess. (1986)). As the Seventh Circuit explained in United

States v. Boscarino, 437 F.3d 634 (7th Cir. 2006):

Consider, for example, the bribery of public officials, as in United States v. Murphy, 768 F.2d 1518

(7th Cir. 1985). Judge Murphy took money from litigants in cases over which he presided. Doing this

deprived the public of his honest services. He did not

19126 UNITED STATES v. WILKES
take money from the public coffers, but the bribes

were ‘proceeds’ of the scheme to defraud, and if he

had engaged in financial transactions with these proceeds Judge Murphy could have been convicted of

money laundering as well as the scheme to defraud

the public.

Boscarino, 437 F.3d at 636. That is exactly what happened in

United States v. Pretty, 98 F.3d 1213 (10th Cir. 1996).

In Pretty, a jury convicted defendants Pretty and Whitehead

of 32 counts of “(1) engaging in a bribery or kickback

scheme, in violation of 18 U.S.C. § 666; (2) conspiring to

engage in this scheme, in violation of 18 U.S.C. § 371; and

(3) money laundering, in violation of 18 U.S.C. §§ 1956,

1957.” Pretty, 98 F.3d at 1216-17. The government uncovered

numerous financial transactions among Patricia Whitehead,

Deputy State Treasurer for the State of Oklahoma, Pretty, and

another — Patrick Kuhse — demonstrating that Whitehead

was receiving kickbacks from Kuhse, often through Pretty as

a middleman, in return for sending business his way. Id. at

1216. On appeal, Whitehead argued that those “transactions

cannot be the basis of § 1956(a)(1)(B)(i) [concealment money

laundering] liability because they were part and parcel of the

kickback scheme.” Id. at 1220. See e.g., Majors, 196 F.3d at

1212 (“A violation of the concealment provision must ‘follow

in time’ the completion of the underlying transaction as an

activity designed to conceal or disguise the origins of the proceeds.”).

[25] The charges under § 1956(a)(1)(B)(i) were based on

a trust set up by Pretty and funded by Kuhse, who pled guilty

to money laundering in a separate proceeding. Pretty, 98 F.3d

at 1220; United States v. Kuhse, No. 98-6076, 1998 U.S. App.

LEXIS 27612, at *2 (10th Cir. Oct. 28, 1998). Pretty

approved a loan to Whitehead and her husband from the trust

to finance the Whiteheads’ new house. Pretty, 98 F.3d at

1220. The defendants claimed that the transactions were

UNITED STATES v. WILKES 19127
negotiated at arms’ length. Id. The Tenth Circuit concluded

that the jury’s inference that the intent of the transactions at

issue was at least in part to conceal the source of the funds

was a reasonable one. Id. The court explained that “[a] direct

payment from Kuhse to Whitehead would have violated § 666

without constituting money laundering. The effort to disguise

the source of the money was an additional act that is separately punishable under § 1956(a)(1)(B)(i), notwithstanding

the simultaneity of the two crimes.” Id. at 1220-21.

[26] Here, Wilkes’s multiple transfers are separately punishable under § 1956(a)(1)(B)(i). On May 6, 2004, Wade

issued a $5,970,000 check, to ADCS, Inc. Wilkes had this

check deposited into an ADCS, Inc. account. At that point,

Wilkes could have sent $525,000 to Cunningham or Coastal

directly. That conduct would have violated 18 U.S.C. § 201

(bribery), without violating 18 U.S.C. § 1956(a)(1)(B)(i)

(money laundering). Pretty, 98 F.3d at 1220-21. Instead,

Wilkes transferred the $525,000 to another of his accounts,

WBR Equities. At that point, Wilkes could have sent the

$525,000 from WBR Equities to Cunningham or Coastal Capital directly. Again, he did not. Instead, he wired $525,000

from WBR Equities to Parkview Financial, Inc. In the meantime, Parkview Financial and Coastal had engaged in a series

of transactions of their own, which provided additional buffers between the corrupt contract and the payoff of Cunningham’s mortgage. Concealing this connection appears to be the

dominant, if not the only, purpose of these multi-layered

transactions.

[27] The prosecution argued, and the jury apparently

found, that the charged money laundering transaction was the

last in a series of transactions made to conceal Wilkes’s

$525,000 payment to Cunningham for securing government

contracts for Wilkes. Unlike in Adefehinti, where defendants

merely allocated the proceeds from a fraudulent sale of property through relatively straightforward transactions that

“amount[ed] to no more than divvying up the joint venture’s

19128 UNITED STATES v. WILKES
gains, albeit illegally obtained,” 510 F.3d at 322, Wilkes’s

effort to disguise the source of the kickback to Cunningham

was an additional act that is separately punishable under

§ 1956(a)(1)(B)(i). Pretty, 98 F.3d at 1220-21.

[28] Unlike bribery, which requires proving the intent to

influence or induce a public official beyond a reasonable

doubt, concealment money laundering merely requires that

the financial transaction be designed to “conceal . . . the

source . . . or control . . . of the proceeds of the specified

unlawful activity.” 18 U.S.C. § 1956(a)(1)(B)(i). Though the

payoff to Cunningham came from attorney Thomas Cusack

via a purchaser, Rodney Baussan, and not from Wilkes, “taking steps to make funds appear legitimate is the common

meaning of the term ‘money laundering.’ ” Regalado Cuellar,

553 U.S. at 558. The evidence presented at trial was sufficient

to allow a reasonable finder of fact to determine that Wilkes

engaged in a number of financial transactions, including

transferring the money to three different accounts within the

course of a single week, in an attempt to conceal both the

source and future ownership of the money. The evidence presented was sufficient to support the reasonable inference that

Wilkes’s financial transactions — intended to pay $525,000

to Cunningham — were “convoluted,” rather than “simple

transactions that can be followed with relative ease, or transactions that involve nothing but the initial crime,” and thus

sufficient to convict Wilkes of concealment money laundering

as to the financial transaction described in Count 20 of the

indictment. Adefehinti, 510 F.3d at 322-24.

B

Wilkes also argues that “the jury instructions regarding

money-laundering are constitutionally deficient because they

do not correctly define ‘proceeds’ . . . and they also direct a

verdict against the defendant.” Appellant Br. 82. Wilkes

argues that United States v. Santos, 553 U.S. 507 (2008) is

applicable here and thus raises a question of merger. 

UNITED STATES v. WILKES 19129
Unlike Wilkes who was convicted of concealment money

laundering under 18 U.S.C. § 1956(a)(1)(B)(i), Santos was

convicted of gambling and promotional money laundering

crimes under 18 U.S.C. § 1956(a)(1)(A)(i). Santos, 553 U.S.

at 509-10. Under § 1956(a)(1)(A)(i), transactions involving

proceeds of unlawful activity that “promote” criminal activity

are illegal (“promotional money laundering”). Promotional

money laundering is “different from traditional money laundering because the criminalized act is the reinvestment of illegal proceeds rather than the concealment of those proceeds.”

United States v. Jolivet, 224 F.3d 902, 909 (8th Cir. 2000). 

A person commits “promotional” money laundering

if, (1) “knowing that the property involved in a

financial transaction represents the proceeds of some

form of unlawful activity,” he (2) “conducts or

attempts to conduct such a financial transaction

which in fact involves the proceeds of specified

unlawful activity,” (3) “with the intent to promote

the carrying on of specified unlawful activity.” 

United States v. Cedeno-Perez, 579 F.3d 54, 57 (1st Cir.

2009) (quoting 18 U.S.C. § 1956(a)(1)(A)(i)).

In Santos, “[t]he Court addressed the question whether

‘proceeds,’ left undefined in the definition of money laundering in 18 U.S.C. § 1956, is defined as ‘profits’ or ‘receipts’

(also called ‘gross receipts’). After concluding that no definition predominated, a plurality determined the rule of lenity

required the narrower ‘profits’ definition be adopted.”

1 United

States v. Webster, 623 F.3d 901, 905 (9th Cir. 2010) cert.

denied, 131 S. Ct. 1836 (2011) (citing Santos, 128 S. Ct. at

2024 (Scalia, J., joined by Souter, Thomas, & Ginsburg, J.J.,

1Congress has since amended 18 U.S.C. § 1956 to define “proceeds” as

“any property derived from or obtained or retained, directly or indirectly,

through some form of unlawful activity, including the gross receipts of

such activity.” 18 U.S.C. § 1956(c)(9). 

19130 UNITED STATES v. WILKES
and announcing the judgment of the Court)). The Court

explained that to hold otherwise in the promotional money

laundering context would create a merger problem, because:

[i]f “proceeds” meant “receipts,” nearly every violation of the illegal-lottery statute would also be a violation of the money-laundering statute, because

paying a winning bettor is a transaction involving

receipts that the defendant intends to promote the

carrying on of the lottery. Since few lotteries, if any,

will not pay their winners, the statute criminalizing

illegal lotteries, 18 U.S.C. § 1955, would “merge”

with the money-laundering statute. 

Santos, 553 U.S. at 515-16. Thus, “a criminal who enters into

a transaction paying the expenses of his illegal activity cannot

possibly violate the money-laundering statute, because by definition profits consist of what remains after expenses are paid.

Defraying an activity’s costs with its receipts simply will not

be covered.” Id. at 517. 

Relying on Santos, Wilkes argues that the government

failed to prove the second element of the money laundering

offense because money laundering involves profits, while the

wire transfer of $525,000 from WBR Equities in San Diego,

California to Financial Company “A” in Rosedale, New York

(which was to be used to pay off the second mortgage on

Cunningham’s Rancho Santa Fe home), was merely an

expense associated with the bribery and, thus, not “proceeds”

under 18 U.S.C. § 1956(a)(1)(B)(i).

In United States v. Van Alstyne, 584 F.3d 803 (9th Cir.

2009), this court construed Santos as a decision “with less

than clear results,” Van Alstyne, 584 F.3d at 807, but concluded that “ ‘proceeds’ means ‘profits’ where viewing ‘proceeds’ as ‘receipts’ would present a ‘merger’ problem of the

kind that troubled the plurality and concurrence in Santos.”

Id. at 814. In other words, under Santos, “proceeds” as used

UNITED STATES v. WILKES 19131
in 18 U.S.C. § 1956 means “gross receipts” except where the

money transfers are “inherent in the scheme.” United States

v. Ferguson, 412 Fed. Appx. 974, 975-977 (9th Cir. 2011).

In Webster, we “recognize[d] that four Justices in the Santos plurality stated that the merger problem might exist for

certain payments among conspirators.” Webster, 623 F.3d at

906 (citing Santos, 128 S. Ct. at 2026-27 (Scalia, J., joined by

Souter, Thomas, & Ginsburg, J.J.) (stating, “any wealthacquiring crime with multiple participants would become

money laundering when the initial recipient of the wealth

gives his confederates their shares”)). This court noted in

Webster, however, that “this minority view is not controlling”

and that “five Justices in Santos expressly agreed that ‘the

legislative history of § 1956 makes it clear that Congress

intended the term ‘proceeds’ to include gross revenues from

the sale of contraband and the operation of organized crime

syndicates involving such sales.” Webster, 623 F.3d at 906

(citing Santos, 128 S. Ct. at 2032 (Stevens, J., concurring in

the judgment)); see Santos, 128 S. Ct. at 2035 & n.1 (Alito,

J., dissenting).

Accordingly, we held in Webster that under Santos, where

“a money laundering count is based on transfers among coconspirators of money from the sale of drugs, ‘proceeds’

includes all ‘receipts’ from such sales.” Id. (citing Klamath

Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589

F.3d 1027, 1034 (9th Cir. 2009) (explaining that, when the

Supreme Court issues “no majority opinion and the plurality

takes a legal position more far-reaching than the position of

a concurring [J]ustice or [J]ustices[,] . . . the narrowest view

that commands a majority of [J]ustices is the law” (citing

Marks v. United States, 430 U.S. 188, 193 (1977))).

[29] Wilkes has not shown that the Supreme Court’s decision in Santos required the jury instructions regarding money

laundering to define “proceeds” as “profits.” Under Webster,

Wilkes’s money laundering count was based on a transfer to

19132 UNITED STATES v. WILKES
a co-conspirator of money from honest services fraud and

bribery such that “proceeds” would include all “receipts”

from the fraud. Additionally, under Boscarino, 437 F.3d at

636, the bribes paid to Cunningham constituted “proceeds” of

the scheme to defraud. Wilkes’s multiple transfers of funds

was an additional act that is separately punishable under

§ 1956(a)(1)(B)(i), as previously explained. Wilkes’s merger

argument, thus, lacks merit.

VIII

Wilkes argues that the criminal forfeiture imposed upon

him, the amount of which was determined by the trial court

rather than by the jury, violated the Sixth Amendment in view

of the holding in Apprendi v. New Jersey, 530 U.S. 466

(2000). Wilkes, however, has not shown that he made a

timely request for a jury determination of criminal forfeiture

as required under Federal Rule of Criminal Procedure

32.2(b)(4) (2008) (amended 2009); see, e.g., United States v.

Poulin, 690 F. Supp. 2d 415, 433 (E.D. Va. 2010) (“Preamendment Rule 32.2 clearly requires Defendant to make an

express request that the jury be retained in order to invoke

that right.”). Wilkes waived his right to challenge the judge’s

determination of forfeiture on appeal, thus we review for plain

error. United States v. Hively, 437 F.3d 752, 763 (8th Cir.

2006). Wilkes has not shown that the district court plainly

erred in its forfeiture order. Id.

CONCLUSION

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. Because the district court

concluded that the proffered testimony would “counter” the

testimony presented by the prosecution through immunized

government witnesses, and the government did not challenge

that finding as clearly erroneous, we remand this matter to the

UNITED STATES v. WILKES 19133
district court with instructions to conduct an evidentiary hearing to determine whether compelled use immunity regarding

Williams’s proposed testimony was constitutionally required.

Straub, 538 F.3d at 1151.

We affirm the district court’s judgment of conviction in all

other respects.

AFFIRMED in part and REMANDED in part with

instructions.

19134 UNITED STATES v. WILKES