What’s Wrong With This Picture? Wilkes Sprung From Slammer!

Almost like it was a Friday evening news or document dump coming out of the Bush White House, news has just hit the wires that convict Brent Wilkes has been released from prison pending appeal.

A federal appeals court has ordered the release from prison of former Poway defense contractor Brent Wilkes while he pursues an appeal of his bribery conviction and 12-year sentence.

The order from the 9th U.S. Circuit Court of Appeals was issued Thursday by judges Thomas G. Nelson and A. Wallace Tashima. Wilkes was convicted in November of bribing former Congressman Randy "Duke" Cunningham and sentenced three months later to 144 months in prison. He immediately appealed the conviction and sought to remain free, but U.S. District Judge Larry Burns refused and ordered him into custody.

In a brief order, Nelson and Tashima said it was unlikely that Wilkes poses a danger to the community or would flee if he were released.

Moreover, the judges said his appeal raised a "substantial question" of law or fact, that "is likely to result in reversal, an order for a new trial, or a sentence that does not include a term of imprisonment."

That was certainly fast; Wilkes was only sentenced about a month ago. Things sure work faster and better if you are a card carrying wingnut member of the Cheney/Bush criminal cabal as opposed to, say for instance, a Democratic governor in the Gooper infested South eh? Now, don’t get me wrong, I made the last statement somewhat tongue in cheek. I don’t think that the timeframe was necessarily accelerated as to Wilkes at all; however, anybody that now doesn’t understand how egregious and malicious the treatment of Don Siegelman was needs to give up the ghost, because any argument to the contrary just doesn’t fly. Are the judges in the 9th Circuit really nine times faster and better than those in the 11th Circuit? Or was something else going on? Go figure….

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28 replies
    • bmaz says:

      I don’t think so; I don’t really see how that could be here. The timeframe on Wilkes is what i would expect normally; Siegelman is the outlier. The two circuits are unrelated, far apart, and not controlled by the DOJ (judges not prosecutors run the ship after conviction).

      Ishmael – Yeah, now THAT part absolutely blindsided me. I didn’t pay real close attention to the proceedings, but good enough to get a feel for it, and i am not sure what the manifest error is supposed to be here.

  1. Ishmael says:

    Wow. This is a surprise – I had thought that the law on release pending appeal, based on the submissions made during the Libby trial and the Conrad Black trial, was that the test for “substantial question” was quite strict, leaning towards “substantial probability’ – does a different standard rule in the Wild Wild West? Or did he just get lucky with the judges on the panel?

  2. MarieRoget says:

    WIlkes hardly leaves an impression of his sit-me-down-upon on the cell bunk & he’s out the door? Quite a contrast to watching Seigelman in a ragged shirt today asking to spend some quiet time w/his family.

  3. Mary says:

    It’s going to be plenty interesting to see what kind of manifest error is involved.

    Completely OT, but name one thing that could get 5 former Secretaries of State – Powell, Christopher, Albright, Baker and Kissinger – to agree unanimously.

    Closing GITMO.

    And while Kissinger tries to make it seem like it had to happen, and the Clintonistas try to make pacifying noises too, Baker comes out strongest of the 5:

    “It gives us a very, very bad name, not just internationally,” he said. “I have a great deal of difficulty understanding how we can hold someone, pick someone up, particularly someone who might be an American citizen — even if they were caught somewhere abroad, acting against American interests — and hold them without ever giving them an opportunity to appear before a magistrate.”

    Well, maybe counsel for Pepsico, or Chevron, or Lockheed, or Boeing can fill him in – – – or Ashcroft’s lobbying crew (I hear if he asks Abramoff or Kevin Ring he can get whatever answer he wants from Ashcroft) – – – or this Judge on the 9th Circuit who used to head OLC, or these nifty law profs at Berkely and Harvard —– Baker just needs to ask the right guys (or gals – Rice or Townsend will be happy to answer too) and they’ll fill him in.

  4. Gerald says:

    Well, maybe it is “get out of jail free” week.

    However they let one woman out and then said they calculated her sentence wrong and put her back in.

    I thought for the Siegelman case that the court reporter died, or something.

    • bmaz says:

      True, but that should not have been the cause of much delay in and of itself. Current court reporting equipment produces transcript files that are 98-99% accurate in real time. All they needed to do was assign a substitute reporter to clean up the minor errors. Whatever other reasons could impinge on the delay, the court reporter’s death should not have been a significant one.

  5. chrisc says:

    a few more details

    “This would be a rare instance where the court of appeals reviewed and then reversed a district court’s determination about bond,” said San Diego criminal defense lawyer Pat Hall.

    He said it also means that the appeals court thinks there is some merit to Wilkes’ arguments.

    “They would have to have reviewed some of the issues being presented and come to some preliminary conclusions,” he said.

    The two judges who made this ruling, Thomas Nelson and A. Wallace Tashima, are not necessarily going to be on the three-judge panel that will review the entire case.

    On the other hand, it is not unusual to see high-profile white collar crime defendants remain free while the appeal works its way through the system, said Shaun Martin, a law professor at the University of San Diego School of Law who writes a blog on appellate cases.

    While Wilkes has a shot at remaining free while his case is appealed, he has another problem.

    Last week prosecutors filed a notice with the court that they are considering appealing the sentence Burns handed down. Prosecutors were seeking a longer term of between 16 and 25 years.

    The notice filed March 21 said that if an appeal were filed – and no final decision has been made by the Department of Justice – the grounds would be that Burns incorrectly applied the federal sentencing guidelines, and the 12-year term Wilkes received was “unreasonable.”

    So, apparently everyone thinks Judge Burns made mistakes.

    Also of interest – Wilke’s lawyer is Sharleen Charlick, the public defender. I thought Judge Burns ordered Wilkes to reimburse the court for the public defender because he hid assets from the court.

  6. earlofhuntingdon says:

    I imagine Wilkes was not frog-marched out of the courtroom in manacles by a gleeful USA either, nor moved from jail house to jail house like Don Siegelman. And how long did it take for Wilkes’ trial judge to have the transcript delivered for the “immediately filed” appeal?

    I might disagree with the 9th Circuit about Wilkes being a flight risk and a danger to society, but at least he had his day in court and a post-trial process that worked as it should. As the 9th Circuit would say about “free speech”, it doesn’t mean anything unless you apply the same standard to your opponent that you apply to yourself. All things that Alabama, under the kindly hand of Karl Rove, is reinventing in Rove’s image. If Siegelman gets a new trial there, I expect his judge will be Roy Bean.

    • bmaz says:

      Well, he was taken into custody at the time of sentencing; so while not quite as brutal as Siegelman, it was fairly abrupt.

      ChrisC – Attorney Hall is exactly right. The better question is what the hell were the grounds that were so compelling? I always had an issue getting the Michaels case confused with the Wilkes case and another one over there; but i can’t remember anything that earth shattering as to Wilkes that would make the 9th overturn the trial judge in such an in your face manner. What am I missing?

  7. chrisc says:

    Wilkes hasn’t been released yet. He had been held in the local federal jail since Feb 19th and was on his way to a federal prison in Arizona.

    Wilkes could be out of custody as early as next week, Charlick said. The appeals court ordered Burns to hold a hearing to set Wilkes’ conditions for release.

  8. chrisc says:

    In a brief order, a two-judge panel of the court said Wilkes had met both tests to remain free while he appeals his case – he is not a threat to flee, and his appeal raises a substantial question of law or fact that is likely to result in a reversal of his conviction, new trial, or lesser sentence.

    The appeal seems to be based on : 1) the leak that the grand jury was going to indict and 2) that a Michael Williams, a former ADCS employee should have been given immunity to testify for the defense(first time I have heard about this) and 3) prosecutors committed misconduct in their closing arguments to the jury.
    Again, these are Charlick’s arguments for Wilkes. Hey, that freebe defender is doing a better job for Wilkes than the high priced Geragos.

    IANAL- I have no idea if these kind of arguments will hold up. The one about the leaks seams weak because none of the jury knew about it. I do not know what Williams might have said- he didn’t testify- he invoked the 5th.

    Re: Kontogiannis and Michael- Michael entered a guilty plea- so the only significant news is what will his sentence be. There are still a few mysteries surrounding Kontogiannis, especially related to his mortgage fraud and whatever was the super-secret reason the AUSAs were treating him like a national treasure instead of a criminal. But I do not think any of that affects Wilkes’ appeal in any way.

    • bmaz says:

      Thanks! I knew that about Michael and TK; it was more the pre-trial motion matters that I was more concerned with on all these, and, over time, they have all kind of blended into one in my mush brain. That said, I liked the stuff Michael’s lawyers (also either PD or PD panel appointments) did a lot better that any of Wilkes’ attorney’s stuff (Geragos), which, as you said, was not particularly impressive. I will be honest, those three things listed don’t do squat for me. If that is all they got, I do not see how they got that ruling. As long as his last name isn’t Bybee, I am pretty much willing to usually give 9th Circuit judges the benefit of the doubt though (although it was easier with Mary Schroeder as Chief Judge than Kosinski).

      Is there a link or anything to their appellate brief? If not, I can probably pull it off of PACER.

      • chrisc says:

        I haven’t seen the brief but there is a NCT news article here

        I think John T Michael had a for-pay laywer- not a public defender. He might have had to sell a few of the family beamers and/or boat to pay for him. When “the family” was having at it on TPM, someone (likely from the Kontogiannis side) slammed JTM’s lawyer for not being classy enough. I think the lawyer had a good laugh when he spilled the beans on TommyK’s mortgage fraud.

        • bmaz says:

          I’ve seen that one, i think the original version of it is what i wrote this thing off of. I’ll see if I can find the brief. Looks from a quick check like you are right and I was wrong, but whoever his lawyers were (guy named Granger out of New York), I thought Michael’s motion to dismiss was done a lot better than any of Wilkes’stuff.

  9. chrisc says:

    sorry, that news article is not about the appellate brief- it is about the AUSAs filing for Wilkes to get more time.
    Check the link at chris@13 for the latest news article from SDUT

  10. chrisc says:

    bmaz, here is Geragos motion for a new trial.
    It just barely touches on Michael Williams- mostly with respect to not knowing what immunity was offered to Joel Coombs.

    With regard to prosecution misconduct in summation, Geragos complained that Forge told the jury the prosecution did not call Cunningham because they didn’t want to give him any breaks on his sentence. Geragos claims that Forge shouldn’t have given the jury his opinion about something that wasn’t presented in the evidence.
    And in fact, they did give him a sentencing break.

    And there are some other evidentiary errors mentioned that Geragos felt warranted a new trial

    • bmaz says:

      Yep, seen Geragos new trial motion; it looks like the same baloney if the SDUT is reporting this accurately (they are better than most to be honest); but if that is it, I really am shocked the 9th sprung him.

  11. bmaz says:

    Well. I have checked out the docket on Wilkes’ appeal. Here is the initial docketing order/schedule:

    Filed in D.C. on 2/22/08; setting schedule as follows: transcript shall be ordered by 3/14/08 for Brent Roger Wilkes; Fee payment due 3/7/08; transcript shall be filed by 4/13/08; appellants’ briefs, excerpts due by 5/23/08 for Brent Roger Wilkes; appellees’ brief due 6/22/08 for USA; appellants’ reply brief due by 7/6/08 for Brent Roger Wilkes. (RT required: yes) ( Sentence imp 144 months) (MOATT) [08-50063]

    I think the briefing schedule was stayed for a period of time, so those dates are likely to really be further out than stated here. Does not look like the transcript nor the appellate brief are filed and it would not let me pull up the Wilkes Release Motion. Pretty clear that this decision was not based on anything more than was contained in the new trial motion Geragos did. I am not buying that that was a sufficient basis to say it “raised a substantial question of law or fact, that is likely to result in reversal, an order for a new trial, or a sentence that does not include a term of imprisonment.”

    I will also note that the third judge at the 9th Circuyit level that has had his hands on this matter is none other than the cretinous Jay Bybee; although it doe not appear that he was involved in the release order.

    • skdadl says:

      Well, I needed to, MR, and I’m severely caffeinated, so thank you. I had just been reading Scott Horton on torture as well, and thinking that this was a funny way to spend a beautiful spring Saturday morning. But then I stumbled on to the perfect antidote to too much torture-reading — I went back to Horton’s “No Comment” main page and remembered what he tries to do for us most days with his ever-so-apt quotations from timeless literature and the wonderful art he reproduces, scattered here and there between the seriously depressing reporting of crime in high places.

      Oh, and look! There’s Neil doing the same thing here. Clear minds — somehow it is reassuring to know that so many persist.

  12. Neil says:

    “When you live in times of terror, when everything is a conspiracy, then everyone must play the detective.” – Walter Benjamin

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