Judge in Cunningham-linked case rejects secrecy

He also denies bid to cut Wilkes' bail

4 Jun 2008 // The San Diego federal judge handling what's left of the Rep. Randy “Duke” Cunningham corruption case told lawyers yesterday that they have to follow an appeals court decision that their requests to file documents in secret must be done publicly.

Judge Larry Burns released some papers requesting a sentencing delay wrongly filed in secret, but blacked out so much information that it's unclear why the papers should be secret, other than that they concern an “ongoing investigation.”

In a related case, the judge refused to lower the bail for former Poway executive Brent Wilkes, convicted of bribing the congressman in an effort to land government business.

In dealing with the papers requesting the sentencing delay for a New York mortgage broker who helped launder a bribe, the judge blacked out 3½ paragraphs.

The redacted documents don't shed much light on why the broker, John T. Michael, wanted his sentencing delayed until Aug. 25, although a government lawyer mentioned grand jury proceedings in a hypothetical discussion about the case.

Michael pleaded guilty in February to lying to a grand jury and conspiring to launder money.

By making the documents public, Burns followed a decision from the 9th U.S. Circuit Court of Appeals that said requests to file papers in secret must be done openly so the public has a chance to oppose the secrecy.

Burns said the time might come later when the information he blacked out could be made public.

Burns acted in response to a motion by a lawyer for The San Diego Union-Tribune, KGTV/Channel 10 and KFMB/Channel 8. The news organizations opposed the secret filings.

The media also wanted to see a letter – mentioned in open court but unavailable in the court file – by an attorney for Thomas Kontogiannis, who was convicted of money laundering in the Cunningham case and sentenced to eight years in prison.

But citing a cryptic ruling from the appeals court, Burns said he couldn't release papers delivered to his office in an envelope marked “Top Secret.”

The appeals court ruling governing that filing concerned a law on national security secrets called the Classified Information Procedures Act.

Late Monday afternoon, Burns rejected a request for lower bail from Wilkes, the contractor convicted of bribing Cunningham and sentenced to 12 years in prison. In March, the appeals court had ordered that Wilkes be allowed release on bail pending his appeal.

Burns said he would accept real estate and retirement accounts from Wilkes' brother and sister-in-law as collateral, but only if they recognized that they might have to pay upward of $100,000 in taxes.

Using the retirement accounts as collateral might count as a disbursement under federal tax laws and trigger a tax bill, the judge said.

The couple changed their minds, saying in court filings they didn't trust the judge or the criminal justice system. As a result, Wilkes didn't have the $1.4 million collateral for the $2 million bond that Burns required.

Wilkes' attorney asked Burns to lower bail to about $500,000, and accused prosecutors of intimidating Wilkes' family with tax consequences. Burns didn't budge.

Cunningham, the former Republican congressman from Rancho Santa Fe, pleaded guilty in November 2005 to charges of conspiracy and tax evasion in the case that centered on his receiving bribes in return for influencing the awarding of defense contracts.

Cunningham is serving an eight-year and four-month sentence in a prison near Tucson.