The Superseding Indictments--What They Tell Us

by emptywheel

As has been reported, the government filed superseding indictments in both the Wilkes/Michael and the Wilkes/Foggo case yesterday. The new Wilkes/Michael is by far the less interesting. It appears virtually unchanged (paragraphs 99 and 119 have an extra hard return, which is why the paragraph numbers don't line up), except the superseding indictment lists John Thomas Michael on charges where previously only Wilkes had been listed: the Conspiracy and Unlawful Monetary Transactions counts, and one of two Money Laundering count. In other words, the government seems to have simply added to the number of counts they're charging Michael with.

Now, Michael was the President and minority owner of a company, Coastal Capital Corporation, of which Thomas Kontogiannis' daughter is the majority owner. Kontogiannis is known to be co-conspirator number 3, and most times Michael is named in the indictment, Kontogiannis is also named. So I wonder if this superseding indictment reflects a change in strategy as a way to get Michael to flip on Kontogiannis.

Wilkes/Foggo Covering Up the CIA's Air Flights

As I said, the changes to the Wilkes/Foggo indictment are far more interesting. The new facts alleged get to the real heart of the Wilkes/Foggo scheme--an effort to get $100 million in contracts to provide commercial cover for the CIA's extraordinary rendition flights (about which Laura Rozen has been reporting for over a year). According to the indictment, the scheme to get the air service contract started in December 2004 and continued until the FBI raided Brent Wilkes' business in August 2005. Which explains these two cynically humorous entries in the indictment:

(96) On or about August 12, 2005, FOGGO sent WILKES an email telling him he would check on the status of his proposal to provide commercial cover for CIA air operations.

(97) On or about August 16, 2005, following the execution of search warrants at WILKES's San Diego business headquarters, FOGGO instruced a CIA employee that they should no longer use WILKES to provide commercial cover for air operations as federal agents had searched his business.

After the raid, it seems, the business between Foggo and Wilkes ceased. It sort of makes you wonder, though, about the other air service contracts the CIA was negotiating at the time. Are they all this corrupt?

Now, either to make the aviation-related charges to stick, or to use the aviation deal to make the indictment as a whole stronger, the goverment added significantly to the indictment, which:

• Establishes the ethical requirements on Foggo CFR 2635.101(a), 2635.702(a), and 2635.502(a)(2), paying particular attention to the last statue, the requirement to give proper notification before engaging in some arrangement that would raise a question about his impartiality.
• Extends the end date of the conspiracy from April 2005 to September 2006, though Foggo's most recent declaration that left off gifts from Wilkes.
• Provides significantly more details how Foggo helped Wilkes pursue the aviation deal, including:
  • Suggested contractors to form joint ventures with Wilkes
  • Recommended Wilkes for contracts for which he had no expertise (including running a Sensitive Compartmentalized Information Facility)
  • Hid Wilkes' lack of experience in aviation
  • Provided Wilkes with "sensitive, internal information related to our national security" to help him draft a proposal
  • Influenced CIA employees to pick Wilkes for the aviation contract
  • Provided internal CIA information even though Wilkes didn't have the security clearance to get classified information [note: the indictment is rather fuzzy on what kind of classification this information had]

As I said, it's hard to tell whether the Air Services bit was added with this superseding indictment because DOJ is so distracted they've only now approved that bit, to add to the rest of the charges, or because they figured out a way to put it in, even though the CIA had not yet given Wilkes the business.

Wilkes Makes Foggo the Trustee In Case He Dies

There are three other interesting new details in the superseding indictment.

First, in addition to helping Wilkes get the Air Services contract, Foggo was also trying to send business Wilkes' way for a Secure Compartmentalized Information Facility (SCIF) Wilkes had built on his Poway facility. So in addition to sharing sensitive information, Foggo was also trying to get people to store their sensitive information at Wilkes' business.

There are two details about efforts Foggo made to get someone an immigration visa:

• On March 30, 2003, Foggo asked Wilkes if Cunningham could help him get an immigration visa for someone he just met
• On January 25, 2004 Foggo asked a Wilkes employee to write a letter helping him get someone a visa

These details aren't related specifically to any of the charges. I do wonder, though, who this person was and why Foggo was so intent on getting this guy a visa (though it's not entirely clear the visa was designated for the same person). And I wonder why this detail was included among the charges. (Though it is the one thing where Foggo attempted to leverage Wilkes' control over Duke Cunningham to get something.

And finally, there's this weird bit. Twice during the span of the alleged crimes, Wilkes made Foggo trustee over his trusts in case Wilkes should die. And for one of these, Foggo was made the sole trustee, presumably over Wilkes family.

• On February 21, 2003, naming Foggo the third trustee of the Wilkes family trust in case Wilkes died
• On May 12, 2004, Wilkes made Foggo the sole trustee of his life insurance trust

Why was Wilkes making Foggo the trustee of his life insurance trust? And how much money was in there?

[Btw, interesting fact--a long-time reader informed me yesterday that Wilkes' crowd all lived in the gated community up the hill from the neighborhood I used to live in in Poway, CA--probably a 1/4 mile from me. I suspected as much. This was the gated community that my high school friends would sneak into using the code *6969 so they could park with their boyfrinds. All the alleged crimes happened after my family left. But still--who knew I had such thuggish neighbors?]

Comments

[readerOfTeaLeaves]

EW, quick question - the text you cite states that Foggo wanted Wilkes' help obtaining: "...an immigration visa for someone he just met," and also "...get someone a visa...". Unless there is something I missed that specifies the individual is male, then that person could easily have been female. Either way, it does seem an odd request.

[freepatriot]

tells me that mr wilkes and mr foggo fucked up really bad

they don't "ReFile" this stuff unless they think they got you

and in this case, the charges didn't lapse. There was no failure to file charges at the first arraignment, a judge never dismissed the original indictment

the government just said "forget that first indictment, we got a better one"

IANAL, but I recommend that mr foggo and mr wilkes come to some kind of agreement with the government real soon, before the government decides to "ReFile" again

side question, what's the name of the dead guy in the abramoff imbroglio, anybody ???

[emptywheel]

Good point--I thought about that just as I was posting this.

But the references seem to be a reference to the son of Wilkes' water contact.

On or about March 30, 2003, FOGGO sent WILKES an email inquiring whether he could get "Duke" [Cunningham] to assist in obtaining an immigration visa on behalf of an individual who FOGGO had just met (later to become FOGGO's business contact who assisted WILKES in delivering water to the CIA).

[snip]

On or about January 25, 2004, FOGGO asked Wilkes Subordinate X if he could write a letter (falsely indicating that the son of Foggo's Water Contact was going to work for a WILKES controlled company) so that he would beable to get a visa to stay in the United States.

I guess that makes it more clear, too, why these details appear in the indictment. But I still don't understand it. Why couldn't the shell corporations have said this guy was working for them. What am I missing?

[obsessed]

Well, that was worth the wait! Another mouth-watering analysis.

But my question remains: Wasn't the extraordinary liability of firing Lam undertaken to prevent precisely this type of further development work on the West Cunningham Wing of the House of Scandal? What gives?

[obsessed]

Konstantinos "Gus" Boulis was the guy Casino Jack had wacked in the Southeast Wing of the House of Scandal.

Kontogiannis versus Konstantinos - close, but no felafel

[emptywheel]

obsessed

As far as I can tell, Karen Hewitt, Lam's interim replacement, has stayed fairly uninvolved in this. THey've added on AUSA to the case (Valerie Chu). But otherwise, it seems to be the same AUSAs on the original indictment, with Hewitt largely uninvolved.

Then figure that some of the people who might have tried to spike this at Main Justice are rather occupied--or at least trying to look clean in case their actions on this ever become known.

I actually DO wonder whether the aviation charges were the ones DOJ was fighting in late January/early February--after all, they basically admit that the CIA has shell companies set up to hide their aviation needs, including extraordinary rendition. One of filings from last week made reference to these charges (I think the snarky one on changing venue), so it's clear they've been floating out there as the big fruit of this case.

[njr]

SunCruise murder victim: Max Boulis

you got a tie, freepatriot?

[obsessed]

I wonder if a properly motivated Foggo & Wilkes could successfully nail Cheney.

[emptywheel]

obsessed

I think you'd have to get Wilkes and Wade to flip, not Foggo. The MZM contracts relating to the WH (and domestic spying) are on the other of the indictments, the Cunningham, Wade, Wilkes side.

But even then, I doubt there's enough there to bring down Cheney.

[randiego]

hah EW - funny commentary about Poway. Longtime San Diegan (Clairemont), I used to work in Rancho Bernardo, with a lot of Poway people. The ironic thing about Poway is that they always set themselves as above the other communities around them - better people and better schools, etc.

[emptywheel]

randiego

And this reader says that neighborhood is the snobbiest of the area (which I guess means I was a snob-squared when I was 16). When I went to PHS they called us Cowpie High, to make fun of our snobbiness.

[William Ockham]

Did anybody else notice the references to somebody (Joel Combs or the person who was in contact with him, I'm not clear from the context) using a TPG Advisors email address. Are they talking about TPG Advsiors, as in the Texas Pacific Group? TPG is a company run by former employees of the Bass family in Ft. Worth, Texas. TPG is widely thought to have CIA connections, in addition to having access to billions in capitol.

[emptywheel]

Yeah, I was wondering about that, William--and that's all new stuff with this superseding indictment.

[hauksdottir]

In a conspiracy, do you need some quid pro quo? Some way of proving a benefit to all the primary parties?

If the visas for the water carrier and his son are the only benefit Foggo asked for and got from the relationship, one does have to wonder at their importance. Who are these people? Nationality? Why could they not get visas any other way? Unsavory history? Perhaps the person delivering water was also an arms dealer? Was that Arrowhead spring water? ;) (Yes, it's a pun, but the water is bottled in southern California)

Rendition so that people can get tortured out-of-sight and possibility of legal assistance is so un-American that I hope that EVERY person involved in the scheme, including the President who signed off on it as well as all the enablers, suffers full penalties, and even that is too good for them.

[lukery]

great work as always EW.

Is it standard practice for congressmen to be able to put their thumbs on the scales regarding visa applications?

[mesquite]

I smell the evil hand of Dick Cheney. Whose hand is in EVERYTHING, but has not been associated with the Justice travesty yet? I think Marcy's later comment points to not wanting disclosure on extraordianry rendition contracts. I wouldn't be surprised if CHENEY was Lam's problem, of which was never spoken aloud. Just like Voldemort, the name is rarely said out loud. And Cheney could easily be the impetus to carry this through, even with the elections going the way they did and the prospect of oversight.

[TheOtherWA]

Hasn't Mitchell Wade already flipped? One very big reason Cheney better not lie to Waxman about the MZM deal, since Waxman likely knows a lot about it.

[emptywheel]

TheOtherWA

Yes, he has. But the MZM deal with Cheney is one thing that STILL remains unmentioned in the indictment. The Dukestir purchase is, but not MZM's deal with OVP.

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