United States v. Wilkes

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-50063
Plaintiff-Appellee,
v.  D.C. No.
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
 UNITED STATES v. WILKES 19097
COUNSEL

Reuben C. Cahn, Shereen J. Charlick (argued) and Gabriel L.
Cohan, Federal Defenders of San Diego, Inc., San Diego, Cal-
ifornia, for the defendant-appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter,
Jason Forge (argued), Valerie H. Chu and Phillip L. B. Halp-
ern, 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” Cunning-
ham, 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 pay-
ments 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 lobby-
ist, 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 docu-
ments into electronic format, which he named Automated
Data Conversion Systems (“ADCS Program”). Wilkes then
19098 UNITED STATES v. WILKES
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 obtain-
ing 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 bud-
get. To solicit his support for ADCS’s programs, Wilkes
expended tens of thousands of dollars on meals for Cunning-
ham, 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 govern-
ment funding through another document scanning and conver-
sion program called the Global Infrastructure Data Capture
Program (“GIDC”). When the DOD decided to redirect mil-
lions of dollars from Wilkes’s scanning project to another use,
Wade, acting on Wilkes’s behalf, threatened to have a DOD
 UNITED STATES v. WILKES 19099
official fired. Cunningham intervened, and government offi-
cials 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 con-
tracts for document conversion to contracts to supply equip-
ment 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 con-
tractor 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 din-
ing, 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 compli-
cated series of financial transactions among multiple compa-
nies, 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
19100 UNITED STATES v. WILKES
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 prosecu-
tion witnesses. The district court denied Wilkes’s request
based on its conclusion that it could not compel a defense wit-
ness’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 con-
spiracy (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 dis-
trict 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 eviden-
 UNITED STATES v. WILKES 19101
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 prose-
cution relied on multiple honest services fraud theories,
including the conflict-of-interest/undisclosed self-dealing the-
ory later invalidated in Skilling. Finally, Wilkes asserts that
the criminal forfeiture judgment violates the Sixth Amend-
ment 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
19102 UNITED STATES v. WILKES
United States v. Alvarez, 358 F.3d 1194, 1216 (9th Cir.
2004)).

Wilkes maintains that the district court should have com-
pelled the prosecution to grant use immunity to defense wit-
ness 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 enti-
tled to compelled use immunity for Williams because Wilkes
failed to provide a valid offer of proof of Williams’s testi-
mony 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 dem-
onstrated Williams would invoke his Fifth Amendment privi-
lege if called to testify, and that the exercise of that privilege
would be valid. Over the objection of the government, the dis-
trict court allowed the defense to make a proffer as to Wil-
liams’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
 UNITED STATES v. WILKES 19103
equipment that Mr. Wilkes purchased on his own
and brought to Panama. The dispute about the bar-
coding 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 appropri-
ate for the court to make determinations of who gets
immunity and who doesn’t.

In the first instance, under our system of Govern-
ment, that’s a prosecutorial decision. And unless I
can find that the way in which discretion was exer-
19104 UNITED STATES v. WILKES
cised was unfair so as to deny the defendant a due
process right, then it’s not appropriate for me to sub-
stitute 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 miscon-
duct, 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 defen-
dant’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
 UNITED STATES v. WILKES 19105
defense witness whose testimony would have
directly contradicted that of the government witness,
with the effect of so distorting the fact-finding pro-
cess 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). More-
over, the “test requires only that the proffered defense testi-
mony 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 sup-
ported 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 repeat-
edly expressed its concern that not granting Williams immu-
nity would have the effect of distorting the fact-finding
process. The court nonetheless refused to compel use immu-
nity 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 distor-
tion 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
19106 UNITED STATES v. WILKES
“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 immu-
nity agreements the government gave to its other witnesses”
to determine whether compelled use immunity was constitu-
tionally 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 disclos-
ing 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. More-
land, 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 punish-
ment, irrespective of the good faith or bad faith of the prose-
cution.” Brady, 373 U.S. at 87. “Suppressed evidence must be
 UNITED STATES v. WILKES 19107
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 suppres-
sion 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 will-
fully 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 decision-
making” 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 suppres-
sion of the proffer sessions undermined confidence in the ver-
dict because prosecutors told jurors that Combs had no
incentive to lie, “while withholding evidence casting doubt
upon his credibility.” Appellant Reply Br. 22-23.
19108 UNITED STATES v. WILKES
[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 sub-
ject to disclosure under Brady or Giglio. While evidence that
impeaches a witness’s credibility falls within the Brady prin-
ciple when the reliability of the witness “may well be determi-
native of guilt or innocence,” Giglio, 405 U.S. at 154, Wilkes
has failed to establish that the disclosure of the proffer ses-
sions 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 incen-
tive 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 signifi-
cant 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 con-
victed) with Heishman v. Ayers, 621 F.3d 1030, 1035 (9th Cir.
2010) (holding that there was no likelihood that the sup-
pressed evidence, including proof of perjury, criminal activity
and cooperation with the government, would have changed
 UNITED STATES v. WILKES 19109
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 demon-
strated 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 possi-
bly 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 Concili-
ation 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 ver-
dict 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 proba-
bility 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 bene-
19110 UNITED STATES v. WILKES
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 evi-
dence 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 tempo-
rarily compromised in this case by the irresponsible and ille-
gal 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 mis-
 UNITED STATES v. WILKES 19111
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 harm-
less 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 gov-
erning 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 informa-
tion.

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 testi-
mony. 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:
19112 UNITED STATES v. WILKES
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 evi-
dence.

Hein, 601 F.3d at 912-13 (citation omitted). “[D]efense coun-
sel’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 convic-
tion.” Id. at 12-13. Prosecutors and defense lawyers are given
“wide latitude” in closing arguments. United States v. Sayet-
sitty, 107 F.3d 1405, 1409 (9th Cir. 1997). “Prosecutors have
considerable leeway to strike ‘hard blows’ based on the evi-
dence 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 his-
tory 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 wit-
ness constitute “prejudicial misconduct [that] violated [his]
due process rights.” Appellant Br. 59. Wilkes argues that the
remarks were improper because they did not constitute evi-
 UNITED STATES v. WILKES 19113
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’ pur-
ported 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 Cun-
ningham, which reveals that “he was waiting at court to tes-
tify 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 Cunning-
ham 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 consensually-
recorded phone calls to Tommy Kontogiannis — i.e.[,] noth-
ing 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 per-
sonal 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
19114 UNITED STATES v. WILKES
such crime.” Id. at 17-18. The Court reasoned that the “over-
whelming evidence [presented by the prosecution] . . . elimi-
nates 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 addi-
tion, the government presented substantial evidence of
Wilkes’ conspiracy, fraud, bribery and money laundering,
thereby “eliminat[ing]” any lingering doubt that the prosecu-
tor’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 doc-
trine” 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 prosecu-
tor’s misstatement that the government was powerless to com-
pel 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 tes-
tify 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
 UNITED STATES v. WILKES 19115
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. Accord-
ingly, 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 que-
rying ‘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 gov-
ernment behind a witness through personal assurances of the
witness’s veracity, or suggesting that information not pres-
ented 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 evi-
dence, including that one of the two sides is lying.” Id. (inter-
nal citations and quotation marks omitted). Furthermore,
prosecutors are permitted to respond to defense counsel’s
attempts to impeach the credibility of government witnesses.
19116 UNITED STATES v. WILKES
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 credi-
bility). Thus, statements made by the prosecution do not con-
stitute 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 per-
sonal opinion that witnesses for the prosecution were lying
and trying to mislead the jury throughout his closing argu-
ment. For example, defense counsel argued that, in his opin-
ion, 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, prose-
cution 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 prosecu-
tors] 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 prose-
cution 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 evi-
dence.

ER 3004. The prosecutor’s argument that its witnesses told
the truth, rather than Wilkes, was not vouching but was “sim-
 UNITED STATES v. WILKES 19117
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 code-
fendants). 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 tell-
ing 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 assur-
ing the veracity of its witnesses, and did not reflect the prose-
cutor’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 evi-
dence 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
19118 UNITED STATES v. WILKES
that preposterous charade to believe [Wilkes is] not guilty.”)
Wilkes also maintains that it was impermissible for prosecu-
tors 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 govern-
ment engaged in improper burden-shifting. In Perlaza, this
court reversed the defendant’s convictions because the prose-
cution erroneously told jurors that the “presumption [of inno-
cence] . . . 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 prose-
cutor’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 wit-
ness’s credibility and “once you conclude they’re not credi-
ble, case is over.”).
 UNITED STATES v. WILKES 19119
[15] Wilkes’s citation to United States v. Stanfield, 521
F.2d 1122 (9th Cir. 1975) is equally unpersuasive. In Stan-
field, 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 con-
sideration 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 evi-
dence had been presented to the jury. Accordingly, the state-
ment cannot be said to have obscured the correct standard for
jury consideration. Wilkes has not established that the prose-
cutors engaged in improper burden-shifting, and has also
failed to demonstrate that prejudice resulted from these state-
ments.

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 govern-
ment 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 cheat-
ing 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. Weather-
spoon, 410 F.3d 1142 (9th Cir. 2005) is inappropriate because
19120 UNITED STATES v. WILKES
the statements in that case did not speak to the question of
defendant’s guilt, but rather “were clearly designed to encour-
age 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 Wea-
therspoon, 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 demon-
strated any prejudice.

e

Wilkes maintains that “this Court should analyze the over-
all cumulative impact of all errors upon the fundamental fair-
ness 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
 UNITED STATES v. WILKES 19121
allegations of prejudice where, as here, the convictions are
based on largely uncorroborated testimony of a single accom-
plice 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 viola-
tions, and false and improper arguments would have altered
the verdict. Wilkes has not established any Brady/Giglio vio-
lations. He does not even allege, nor does he establish, that
the grand jury leaks caused his trial to be prejudiced. The gov-
ernment’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 preju-
dice. Moreover, in contrast to this circuit’s cases that reversed
a defendant’s convictions based on cumulative error, the gov-
ernment 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 coun-
sel 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). Prej-
udice 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) (quot-
ing United States v. Mejia, 69 F.3d 309, 317 (9th Cir. 1995)).
19122 UNITED STATES v. WILKES
[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 num-
ber of documents that he contends he could have used to bol-
ster 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 laun-
dering, 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 favor-
able 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 the-
ory.” 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 constitu-
tional 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 Chap-
man v. California, 386 U.S. 18, 24 (1967)). “In the absence
 UNITED STATES v. WILKES 19123
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 substan-
tial rights of a defendant when it affects the outcome of the
proceedings. Moreland, 604 F.3d at 1077. Even if these con-
ditions 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 ser-
vices 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 misrepresen-
tations. 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 sat-
isfied.”).

[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 sat-
isfied 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 sepa-
rate substantive count of bribery in violation of 18 U.S.C.
19124 UNITED STATES v. WILKES
§ 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 con-
cealment 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 pro-
ceeds of unlawful activity are illegal if they are “designed in
whole or in part . . . to conceal or disguise the nature, the loca-
tion, the source, the ownership, or the control of the proceeds
of specified unlawful activity” (“concealment money launder-
ing”).

To convict a person for money laundering under 18
U.S.C. § 1956(a)(1)(B)(i), the government must
 UNITED STATES v. WILKES 19125
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 unlaw-
ful 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 behav-
ior that masks the relationship between an individual and his
illegally obtained proceeds; it has no application to the trans-
parent 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 com-
merce while obfuscating their source.”); United States v.
Sanders, 929 F.2d 1466, 1472 (10th Cir. 1991) (“[T]he pur-
pose 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 per-
son 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 transac-
tion. . . .” United States v. Seward, 272 F.3d 831, 836 (7th Cir.
19126 UNITED STATES v. WILKES
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’ char-
acter 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 divvy-
ing 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 indepen-
dent manipulation of the proceeds required for money laun-
dering.” Id. at 324.

“Classic examples of § 1956(a)(1)(B)(i) violations involve
drug dealers who receive tainted money and then try to ‘laun-
der’ 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 offi-
cials, as in United States v. Murphy, 768 F.2d 1518
(7th Cir. 1985). Judge Murphy took money from liti-
gants in cases over which he presided. Doing this
deprived the public of his honest services. He did not
 UNITED STATES v. WILKES 19127
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 pro-
ceeds 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 pro-
ceeds.”).

[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
19128 UNITED STATES v. WILKES
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 sepa-
rately 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 pun-
ishable 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 Cap-
ital directly. Again, he did not. Instead, he wired $525,000
from WBR Equities to Parkview Financial, Inc. In the mean-
time, Parkview Financial and Coastal had engaged in a series
of transactions of their own, which provided additional buff-
ers between the corrupt contract and the payoff of Cunning-
ham’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 prop-
erty through relatively straightforward transactions that
“amount[ed] to no more than divvying up the joint venture’s
 UNITED STATES v. WILKES 19129
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, “tak-
ing 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 pres-
ented 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 trans-
actions 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.
19130 UNITED STATES v. WILKES
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 laun-
dering because the criminalized act is the reinvestment of ille-
gal 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 launder-
ing in 18 U.S.C. § 1956, is defined as ‘profits’ or ‘receipts’
(also called ‘gross receipts’). After concluding that no defini-
tion 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.,
1
Congress 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).
 UNITED STATES v. WILKES 19131
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 viola-
tion of the illegal-lottery statute would also be a vio-
lation 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 def-
inition 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 con-
cluded that “ ‘proceeds’ means ‘profits’ where viewing ‘pro-
ceeds’ 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
19132 UNITED STATES v. WILKES
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 San-
tos 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 wealth-
acquiring 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 co-
conspirators 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 deci-
sion 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
 UNITED STATES v. WILKES 19133
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) (“Pre-
amendment 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 immu-
nity for defense witness Williams absent a finding of prosecu-
torial 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
19134 UNITED STATES v. WILKES
district court with instructions to conduct an evidentiary hear-
ing 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.