United States v. Brent Wilkes

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.