U.S. v. Hyles

• Citation: 521 F.3d 946
• Decision Date: 08 April 2008
• Docket Number: No. 07-1328.,07-1328.
• Parties: UNITED STATES of America, Appellee, v. Tonya Johnson HYLES, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

521 F.3d 946

UNITED STATES of America, Appellee, v. Tonya Johnson HYLES, Appellant.

No. 07-1328.

United States Court of Appeals, Eighth Circuit.

Submitted: November 14, 2007.

Filed: April 8, 2008.

Kevin M. Schad, argued, Lebenon, OH, for appellant.

Cristian Stevens, AUSA, argued, St. Louis, MO, for appellee.

Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

A jury convicted Tonya Johnson Hyles ("Hyles") of conspiracy to use interstate facilities to commit murder for hire in violation of 18 U.S.C. § 1958(a), aiding and abetting murder for hire in violation of 18 U.S.C. §§ 2 and 1958, possessing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(l)(A)(I), and conspiracy to deliver a firearm to a felon in violation of 18 U.S.C. §§ 922(g)(1) and 371. She was sentenced to life imprisonment plus five years, and three years of supervised release. She argues that her convictions must be vacated because of: 1) a non-prosecution agreement; 2) insufficient evidence; 3) a variance between the indictment and the evidence at trial; 4) Government misconduct in closing argument; 5) insufficient verdict to impose a life sentence; and 6) two erroneously admitted hearsay statements. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

The facts of this case are set forth in United States v. Cannon, 475 F.3d 1013 (8th Cir.), cert, denied, ___ U.S. ___, 128 S.Ct. 365, 169 L.Ed.2d 143 (2007), and United States v. Tyrese Hyles, 479 F.3d 958 (8th Cir.2007). Facts are reiterated here as relevant to Hyles's appeal, presenting them in a light most favorable to the verdict. See United States v. Birdine, 515 F.3d 842, 844 (8th Cir.2008).

On August 10, 2000, in Caruthersville, Missouri, Coy Smith testified against Tyrese Hyles ("Tyrese"), Hyles's husband (then boyfriend). After the preliminary hearing in the state drug case, Tyrese devised a plan to have Smith murdered. He asked David Carter, his cellmate at the County Jail, to kill Smith. Tyrese promised to have Hyles bail Carter out of jail and to give Carter a 1984 Pontiac in exchange for the murder. Carter agreed. That same day, Hyles bailed Carter out of jail, listing the car as collateral and informing the bondsman that she had just sold Carter the car.

That afternoon, Hyles asked Samuel Anderson to borrow a gun. Anderson agreed to give Hyles the gun and said he would bring it to her house. According to Anderson, Hyles said "that's fucked up that Coy had testified against Tyrese" and "that she's going to get somebody to take care of his ass" Five to ten minutes later, Anderson brought a Beretta stainless steel gun to Hyles's residence. He handed her the gun and told her to place it in the cabinet. Carter, who was hiding in Hyles's house when the gun was delivered, retrieved it from the cabinet and left.

Carter never killed Smith. Instead, he returned the gun to Anderson a couple of days later. He was rearrested on August 18 and taken to the County Jail. There, he saw Tyrese again. Carter testified that Tyrese said "that it was fucked up, he would have did it for me."

About the same time, Tyrese and Hyles were also arranging to have Amesheo Cannon kill Smith. Cannon lived with his mother in Memphis, Tennessee, where he was under parole supervision. Phone records, from the evening of August 10, showed several phone calls made from Tyrese's cell at the County Jail to Hyles's residence — including calls made at 7:50 and 8:34. There were also four calls from Cannon's mother's house in Memphis, to Hyles's house in Caruthersville — at 8:11, 8:23, 8:39, and 8:43. The last call lasted 51 minutes and overlapped with the second call from Tyrese's jail cell.

April Leatherwood, Cannon's girlfriend, testified that, on August 14, Cannon called her from Memphis, saying that Hyles was driving him to Caruthersville from Memphis. Hendrietta Nichols, also Cannon's girlfriend, testified that she and Hyles drove to Memphis to pick up Cannon and that Cannon drove them all back to Caruthersville. A couple of days later, Anderson gave Cannon the same gun he had originally given Hyles. He testified that he saw Cannon get out of the passenger side of Hyles's Pontiac, but could not see the driver. According to Anderson, Cannon stated that he was going to "take care of that for Tyrese."

On August 20, Hyles and Cannon drove by Smith's house. Hyles was driving the Pontiac, with Cannon in the passenger seat. Afterwards, Hyles and Cannon went to the County Jail to talk to Tyrese. They were seen yelling up to Tyrese's cell window from outside the jail. The next morning, on August 21, the police found Smith shot to death in bed.

Several days later, Cannon told Anderson how he killed Smith, explaining how he shot Smith one time behind the head and then fired another shot. On August 29 and September 3, Cannon was issued traffic summonses while driving the Pontiac. A sheriffs deputy also recovered photographs from Cannon's jail cell depicting the Pontiac, and Tyrese and Cannon posing together.

II.

Hyles claims that her convictions must be vacated because the Government violated a non-prosecution agreement.

This court reviews de novo the interpretation and enforcement of a nonprosecution agreement. United States v. Claiming, 211 F.3d 1085, 1087 (8th Cir. 2000). Within the context of constitutional safeguards for due process, non-prosecution agreements may be enforced under principles of contract law. United States v. Crawford, 20 F.3d 933, 935 (8th Cir. 1994). "Only a material breach is sufficient to excuse the government of its performance." Id.

As relevant here, the proffer letter stated:

It is my understanding that Tonya Johnson Hyles wishes to explore the possibility of cooperating with the U.S. Government....

Before the Government comes to an agreement with Tonya ..., she must submit to an interview ... for the purpose of assessing the credibility and value of the assistance, evidence and possible testimony that she can provide. Only if the Government determines that your client's information and ability to develop information is honest, reliable and worthwhile, will the Government enter into any agreement....

With respect to and in exchange for your client's proffer, the only promises made on behalf of the Government in consideration for the proffer are as follows:

(1) Unless otherwise provided herein, any statement made by your client will not be used directly against her in the present or any subsequent prosecution....

At this time the Government is not entering into any plea agreement or negotiations or representing that it will enter into any plea agreement or negotiations. Any plea agreement or negotiations the Government may enter into will be determined after the interview and shall be left to the sole discretion of the United States Government.

Hyles signed the letter, indicating she understood "there are no promises by the Government to enter into any agreement."

The first indictment against Hyles was dismissed subsequently. At an evidentiary hearing on this issue, the FBI agent testified:

We knew she had been lying. I think at that point, myself and Mr. Price felt like she still was not giving us everything she knew. The indictment was not dismissed because we thought she was telling the truth and telling us everything that she knew about it. That's certainly not the reason for the dismissal of the indictment.

The FBI agent also asserted that the indictment was dismissed because "the trial date on Ms. Hyles was approaching, was quite near, and we had the issue of pursuing charges against Mr. Cannon and Mr. Hyles, and those were the primary focus." The agent further replied yes to whether Hyles had "stopped being a useful witness on February 8th of 2005."

The district court¹ found that there was no agreement: "The record is clear, however, based on the proffer letter, defendant's actions vis a vis the proffer, the determination by the United States Attorney's office that defendant had not given complete, truthful and candid information, and the testimony presented to the Court that an agreement defendant seeks to enforce was never formed." The court did not err in this conclusion.

The proffer letter was not a non-prosecution agreement. The letter contained an agreement to "engage in negotiations involving specific concessions" by the Government in exchange for further cooperation if the Government believed the information in the proffer was "truthful, candid and meritorious." The letter also provided use immunity (with some limitations). However, these provisions do not amount to a non-prosecution agreement. Moreover, the fact that the Government dismissed the first indictment does not establish a non-prosecution agreement. The first indictment was not dismissed due to Hyles's past cooperation or the expectation of future cooperation. The Government had concerns about her truthfulness and decided, instead, to focus on the Tyrese and Cannon prosecutions. Therefore, the Government did not breach a non-prosecution agreement.

Hyles contends the district court erred in not making an independent determination whether she materially breached the agreement. Because there is not a non-prosecution agreement in this case, the court did not err.

Hyles further argues the Government violated her Fifth Amendment rights by using her statements, made under the agreement, against her at trial. At trial, the Government introduced excerpts from Hyles's Grand Jury testimony. The proffer letter, though, expressly stated: "Further, if your client knowingly provides untruthful information or if she knowingly withholds the full truth from Government agents ... during the course of the proffer, the promise not to directly use what she says against her shall be null and void...." Because Hyles signed the letter, indicating she understood it, and the Government believed she was knowingly withholding the full truth, the...