Wednesday, September 26, 2007

Prosecutors Try to Block Duress/Necessity Defense in Cunningham Bribery Case

Federal prosecutors in San Diego filed a motion to preclude Brent Wilkes, who is accused of paying former Congressman Randy "Duke" Cunningham over $650,000 in bribes, from raising claims of duress and necessity as a defense to the charges.  These classic criminal law defenses are unusual in white collar crime cases because the threat is usually one of physical violence or other potential personal harm, not a threat to one's business.  Wilkes is charged with bribery and aiding an honest services fraud violation for giving Cunningham cash along with gifts ranging from private jet rides to "payments for prostitutes" in exchange for receiving no-bid defense contracts that Cunningham arranged.  The former Congressman is serving a 100-month sentence after pleading guilty to accepting the bribes.

In its brief (available below), the government claims that Wilkes "might seek to argue that he was coerced or extorted into bribing Cunningham to get government business."  Making it clear that the prosecutors will be aggressive, the brief notes that Wilkes didn't act as if Cunningham had threatened him, or that he needed to pay the bribes to realize a greater social good, pointing to one evening spent in a hot tub with prostitutes to show that the conduct was voluntary.  According to the brief:

The two remained friendly enough throughout this period that they shared numerous vacations, including a vacation in Hawaii in August 2003, during which Wilkes and Cunningham relaxed in a hot tub with prostitutes hired by Wilkes. No reasonable juror could believe that during that long period, despite outward appearances, Wilkes was secretly operating under a imminent threat of serious bodily injury or death, or some other harm sufficient to justify bribery, and could never find a way to inform law enforcement of such threats.

A necessity or duress defense generally requires a defendant to admit to the conduct but seeks to avoid a conviction on the ground that he or she should not be held responsible because of extenuating circumstances.  The cases involving the defenses usually involve a single act, or at least acts that occur over a short period of time before the threatened harm dissipates.  Whether Wilkes will even raise the defense is an open question, and the government filing makes it clear the case will involve a few salacious moments. (ph)

Download us_v_wilkes_in_limine_motion_duress_necessity_sept_24_2007.pdf

http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/09/prosecutors-try.html

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