The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER DENYING DEFENDANT'S APPLICATIONS FOR RULE 17 SUBPOENAS
Defendant Brent Roger Wilkes has filed two applications for court authorization to issue subpoenas for 20 prospective witnesses pursuant to Rule 17(b) and (c) of the Federal Rules of Criminal Procedure. The list of prospective witnesses Wilkes seeks to examine include several news reporters, the United States prosecutors who were assigned to prosecute the case against him, a former United States Attorney for this judicial district, and a current United States Attorney for another judicial district and his Executive Assistant. The application is opposed by two of the reporters and by the United States. Having considered the pleadings and the relevant legal authorities, the Court SUSTAINS the objections and DENIES Wilkes' application for the issuance of subpoenas.
The request for Rule 17 subpoenas in this case stems from a criminal investigation into the bribing of former United States Congressman Randy "Duke" Cunningham. Cunningham pled guilty to accepting bribes in 2005 and was sentenced to prison. The investigation of the matter continued through 2007, and culminated in an indictment issued on February 13, 2007 charging Wilkes and John T. Michael with conspiracy, honest services wire fraud, and bribing Cunningham, among other crimes.
Before the indictment issued February 13, at least three newspaper articles were published identifying Wilkes as a target of the grand jury probe and predicting he would soon be indicted. For example, an article written by Scot Paltrow appeared in The Wall Street Journal on January 19, 2007.*fn1 Mr. Paltrow identified Mr. Wilkes as "a key figure in the case" who had "become the focus of the investigation," and noted "[p]eople with knowledge of that investigation said prosecutors are bringing last-minute witnesses before a grand jury and expect Mr. Wilkes will be indicted early next month."
A second wire service article detailing allegedly leaked grand jury information was published in the North County Times on January 31, 2007.*fn2 That article quoted two unnamed federal officials saying "the U.S. Attorney's Office in San Diego is close to seeking an indictment against Poway defense contractor Brent Wilkes, who allegedly bribed Randy 'Duke' Cunningham in return for millions of dollars in government contracts.." The source of the information, the article reported, was someone "with intimate knowledge of the case" who "spoke on the condition of anonymity." According to the newspaper's source, a preliminary draft indictment had been circulated and was under review "by many eyes.."
A third wire service article written by reporter Allison Hoffman of the Associated Press appeared on February 1, 2007.*fn3 Ms. Hoffman wrote:
Federal prosecutors are preparing to seek indictments against . a San Diego defense contractor linked to the bribery scandal that sent former U.S. Rep. Randy "Duke" Cunningham to prison, two government officials familiar with the investigation said Wednesday. The officials, who spoke to The Associated Press only on the condition of anonymity because grand jury proceedings are secret and the charges have not been finalized, said prosecutors plan to ask a San Diego grand jury to return charges of honest services wire fraud and conspiracy against . Brent Wilkes.
The officials said [an] indictment is being prepared that would charge Wilkes and two other alleged Cunningham co-conspirators -- New York businessman Thomas Kontogiannis and his nephew, John T. Michael -- with bribery and several conspiracy counts.
The indictments are likely to be returned within the next few weeks, the officials said.
After the indictment against Mr. Wilkes and Mr. Michael was returned, Mr. Wilkes' counsel, Mark Geragos, alerted the Court to the apparent grand jury leaks and sought a hearing to determine the identities of the leakers [See Transcript, March 19, 2007, at 41]. The Court agreed at the time to entertain the motion, [id.], but thereafter no written motion was filed. Several month later, and shortly before the scheduled trial date, Mr. Geragos made a second oral motion renewing his request for a hearing to determine whether the alleged grand jury leaks might justify dismissal of the indictment against his client, or some other sanction against the government. The Court reiterated its willingness to consider the motion, but deferred scheduling a hearing on the matter because the trial date was imminent. Mr. Wilkes was subsequently tried and convicted by a jury on all counts of the indictment.
Before a jury was impaneled to hear this case, each prospective juror was individually prescreened by the court and the parties for exposure to pretrial publicity. All prospective jurors completed an extensive 18-page questionnaire asking whether they had read anything about the case, whether they knew or had formed an opinion about any of the participants in the trial, and whether they held any opinion that Wilkes was either guilty or innocent. In addition, before the jury was finally impaneled in this case, all prospective jurors were personally questioned by the court and counsel regarding whether they had been exposed in advance to any aspect of the case. Of the fifteen people who were ultimately chosen by the parties to hear the case, only four had read or heard anything about it. None had read ...