The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER DENYING MOTION FOR A NEW TRIAL
On November 5, 2007, a jury convicted Brent Wilkes of one count of conspiracy, ten counts of honest-services fraud, one count of money laundering, and one count of bribing a public official. He was sentenced on February 19, 2008 to 12 years in prison. The charges against him arose out of his complicity in the corruption scandal surrounding San Diego Congressman Randall "Duke" Cunningham; specifically, Wilkes was convicted of lavishing Cunningham with money and other benefits in exchange for Cunningham steering defense contracts to Wilkes's business. Now before the Court is Wilkes's motion for a new trial on the basis of newly discovered evidence. Wilkes filed the motion on November 4, 2010, just one day before the deadline set by Rule 33 of the Federal Rules of Criminal Procedure.*fn1
The new evidence that Wilkes claims to have discovered, and that he argues is exculpatory, is twofold. First, Wilkes submits two declarations recently signed by Cunningham in which Cunningham says Wilkes did not bribe him. Second, Wilkes submits the pleadings from criminal cases against a co-conspirator of Cunningham's, Thomas Kontogiannis, establishing that Kontogiannis orchestrated a massive mortgage fraud scheme. Wilkes also accuses the government of prosecutorial misconduct because of statements it made to the jury in closing argument about the reason Cunningham did not testify against Wilkes, but this accusation folds into Wilkes's argument that Cunningham's recent declarations call his conviction into doubt and necessitate a new trial.
Rule 33 allows the Court to "vacate any judgment and grant a new trial if the interest of justice so requires." A defendant, like Wilkes, who seeks a new trial on the basis of newly discovered evidence must prove
(1) the evidence is newly discovered; (2) the defendant was diligent in seeking the evidence; (3) the evidence is material to the issues at trial; (4) the evidence is not (a) cumulative or (b) merely impeaching; and (5) the evidence indicates the defendant would probably be acquitted in a new trial.
United States v. Hinkson, 585 F.3d 1247, 1264 (9th Cir. 2009) (en banc) (citing United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005)). Motions for a new trial should be granted "only in exceptional cases in which the evidence preponderates heavily against the verdict." United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981).
II. New Evidence from Cunningham
Much of Wilkes's newly discovered evidence comes from Cunningham himself. Before describing that allegedly new and exculpatory evidence that Wilkes has reveived from Cunningham, some background is in order.
A. Cunningham's Offense and Sentence
Cunningham pled guilty to one count of conspiracy and one count of tax evasion on November 28, 2005. (See United States v. Cunningham, 5-CR-2137, Doc. No. 4.) His plea agreement, in no uncertain terms, contained admissions that Wilkes bribed him. For example:
Defendant used his public office and took other official action to pressure and influence United States Department of Defense personnel to award and execute government contracts in a manner that would benefit Coconspirator No. 1 [Wilkes] . . . , which defendant did, in part, because of his receipt of . . . payments and benefits, and not because using [Wilkes] . . . was in the best interest of the country. (Id. at p. 6:19--26.) On March 3, 2006, Cunningham was sentenced to 100 months in prison. (Cunningham, Doc. No. 31.) His counsel conceded at sentencing that "Cunningham violated an important public trust," that "his crimes were egregious," that "his conduct warrants severe punishment," and that "he deserves a lengthy prison term." (Cunningham Sentencing Transcript, pp. 13:23--14:1.) Cunningham, for his part, admitted he "made a very wrong turn" and that he "rationalized decisions that I knew were wrong." (Cunningham Sentencing Transcript, p. 51:7--10.) He said, "Repentance will be a lifelong endeavor." (Cunningham Sentencing Transcript, p. 52:12.) He said, "I will spend every day for the rest of my life seeking to atone and seek forgiveness for what I have done to my family, my friends, and the people of San Diego who have trusted me." (Cunningham Sentencing Transcript, p. 54:4--6.) He said, "I have ripped my life to shreds due to my actions, to my actions that I did myself. Not because someone else did it to me. I did it to myself. I made those decisions. I could have said no, and I didn't." (Cunningham Sentencing Transcript, p. 54:7--10.)
In early January 2010, nearly four years after he was sentenced, Cunningham asked the Court to clarify whether his original sentence included the benefit of a downward departure, under Rule 35 of the Federal Rules of Criminal Procedure, for Cunningham's "substantial assistance" to the United States' prosecution of his co-conspirators. (Cunningham, Doc. No. 36.) The Court treated the request as a passive demand that the United States file a Rule 35 request on Cunningham's behalf, but noted it lacked authority to grant relief under the Rule. (Cunningham, Doc. No. 41, p. 6. (citing United States v. Flores, 559 F.3d 1016, 1019 (9th Cir. 2009) ("Even if a defendant has provided substantial assistance, we may not grant relief unless the government's refusal to file a [d]eparture motion was based on impermissible motives, constituted a breach of a plea agreement, or was not rationally related to a legitimate government purpose.")).) The Court also noted that Cunningham's request was untimely, and that this posed a jurisdictional bar to the Court's consideration of it. (Cunningham, Doc. No. 41, p. 6 (citing United States v. Hetrick, 627 F.2d 1007, 1010--11 (9th Cir. 1980)).)
Several months after Cunningham asked the Court to shorten his sentence, he wrote another letter to the Court complaining that an IRS lien on his Congressional and military retirement exceeded the restitution obligations imposed by the Court as part of his criminal judgment. (Cunningham, Doc. No. 46.) As a ...