United States v. Bryant

• Decision Date: 17 April 2014
• Docket Number: No. 13–1578.,13–1578.
• Citation: 750 F.3d 642
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Freddell BRYANT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

750 F.3d 642

UNITED STATES of America, Plaintiff–Appellee,

v.Freddell BRYANT, Defendant–Appellant.

No. 13–1578.

United States Court of Appeals,Seventh Circuit.

Argued Dec. 2, 2013.

Decided April 17, 2014.

Eugene L. Miller, Attorney, Office of the United States Attorney, Urbana, IL, for Plaintiff–Appellee.

Ishan Kharshedji Bhabha, Attorney, Jenner & Block LLP, Washington, DC, Barry Levenstam, Attorney, Jenner & Block LLP, Chicago, IL, for Defendant–Appellant.

Before BAUER and FLAUM, Circuit Judges, and VAN BOKKELEN, District Judge.^*

VAN BOKKELEN, District Judge.

The former gang leader Freddell Bryant elected to become an informant for the United States to avoid an otherwise mandatory life sentence for a drug charge. He obtained immunity from the direct use of statements he would give the federal government under their agreement, though not from federal use of any admissions he might make in assisting state law enforcement.

Bryant went on to provide information to Illinois authorities under a separate agreement to which the United States was not a party. In this state agreement, Illinois promised him that his statements would not be used against him directly in “any criminal prosecution,” but required in exchange that he tell the truth. Bryant confessed to the state authorities that he played a central role in a triple murder. Illinois then shared Bryant's cooperation statements with the United States. The United States proceeded to use the confessions directly, over his objection, to convict him of three murder counts. On appeal, Bryant attempts to show that this violated his contractual or constitutional rights. We disagree and therefore affirm the districtcourt's denial of his pretrial motions, albeit not for all of the same reasons the district court cited.

I. Background

In his heyday, Freddell Bryant, also known as Freddy Moe, was a cocaine-running “general” in the Black P. Stones gang. He plunged into desperation, however, when a federal grand jury indicted him on April 4, 2007, alleging: (1) conspiracy to distribute fifty grams or more of crack cocaine and 500 grams or more of cocaine, from October 2003 through March 2007; (2) possession of 500 grams or more of cocaine with intent to distribute it on July 12, 2004; (3) possession of a firearm in furtherance of a drug-trafficking crime on October 17, 2003; and (4) possession of a firearm by a felon. Count 1 threatened particularly devastating consequences. Due to Bryant's two prior drug felonies and the allegation that at least fifty grams of crack were involved, the penalties statute mandated a sentence of “life imprisonment without release.” See21 U.S.C. § 841(b)(1)(A)(iii) (version effective from July 27, 2006, to April 14, 2009). To avoid life, he would have to beat count 1 on the merits or else earn the government's help by assisting it as an informant. See18 U.S.C. § 3553(e) (enabling this method of evading an otherwise mandatory minimum sentence).

On the day before trial was set to begin, Bryant opted to plead guilty and cooperate. To hold their arrangement together, he and the federal government reduced to writing two separate but linked agreements. They had one agreement regarding Bryant's guilty plea and the government's sentencing recommendation. The second, the cooperation agreement, was put down in a letter from the assistant U.S. attorney to Bryant's then-lawyer. In it, the government immunized Bryant from the direct use of the statements he would provide in cooperating as required by the agreement: ¹

Dear ...:

It is our understanding that your client, Freddell Bryant, desires to cooperate with the United States of America (“United States”) in its efforts to enforce federal law on the condition that his statements are protected by a grant of use immunity to prevent him from facing any greater criminal liability as a result of cooperating. This letter is intended as a grant of conditional direct use immunity.

To avoid any misunderstanding, the specific terms of this grant of use immunity are:

1. The United States agrees that no statement made or information provided pursuant to this agreement may be directly introduced as evidence against your client in any criminal case, including sentencing, excepting (1) a prosecution for making a false statement or perjury, and (2) use as impeachment or rebuttal evidence should he subsequently testify or take a factual position contrary to the information he provides. The United States will be free to make indirect, or derivative, use of his statements. This agreement means only that the fact he made certain incriminating statements pursuant to this agreement may not itself be introduced as evidence against him. The United States will also remain free to discharge its duty to the court by informing the court of any information he provides. The court will be notified that such information was obtained pursuant to this grant of use immunity.

2. In return, your client agrees that he will provide complete and truthful information to law enforcement officials regarding his criminal conduct and everything he knows or has reason to believe about the criminal conduct of others....

3. He agrees to provide complete and truthful testimony to any grand jury, trial jury, or judge in any proceeding in which he may be called to testify by the United States.

4. Your client further acknowledges and agrees that he understands that the United States's [ sic ] grant of use immunity herein is conditioned, in part, upon his complete compliance with paragraphs 2 and 3. Should he knowingly make any materially false statement or omission in providing information or testimony under this agreement, the United States will be entitled to use his statements and evidence he provides, directly and indirectly, to institute and support a criminal prosecution for any offense, as well as a prosecution for giving false statements and perjury.

5. For instance, your client must neither conceal or [ sic ] minimize his own actions or involvement in any offense, nor conceal, minimize, fabricate, or exaggerate anyone else's actions or involvement in any offense. He must be completely truthful about the facts, whatever those may be.

* * *

13. Any violation of any part of this agreement by your client will void this agreement in its entirety and will release the United States from any obligation under this agreement.

* * *

This letter embodies the entirety of the United States's [ sic ] use immunity agreement with your client. No other promise or agreement exists between your client and the United States regarding immunity.

(Appellant's Separate App. 1–3.)

As required, Bryant assisted the government. For example, at a jury trial in August 2009, he testified to the drug trafficking of Keric Franklin, a member of his own gang.

However, Bryant's prospects took another turn for the worse in early 2010, when members of local law enforcement began to suspect him of involvement in a March 2007 triple murder in Danville, Illinois. The investigation prompted Bryant to enter into a second cooperation agreement; this time, with the Vermillion County State's Attorney. The United States did not review or become a party to the state agreement, and did not know of its specifics when executed on January 14, 2010.

In this second cooperation agreement, Bryant promised Illinois that he would “give a complete and truthful taped statementregarding the 2007 Danville triple homicide investigation ... [;] specifically[,] a detailed account of who the shooters were and their roles in the murders.” In addition to the foregoing “complete and truthful” language, the state cooperation agreement said explicitly that “any violation of any part of [the] Agreement by Fredell [ sic ] Bryant [would] void [the] Agreement in its entirety and ... release the Vermillion County State's Attorney's Office from any obligation under [the] Agreement.” Although this agreement recited Bryant's “acknowledge [ment]” that he was not receiving a grant of immunity, it also explained that anything Bryant would say “during the statement [could] not and [would] not be used directly against [him] in any criminal prosecution.” Nowhere, however, did the state cooperation agreement require that Bryant testify.

With the two separate cooperation agreements in place, Bryant gave various members of state law-enforcement agencies two recorded statements about the triple murder; the first on January 14, 2010, and the second on February 24, 2010. On both occasions, Bryant admitted playing a central role. He explained that the victims, Rodney Pepper, Madisen Leverenz, and Tabreyan McCullough, were killed because “some drugs and money came up missing.” But whereas during the first session Bryant claimed he himself shot all three victims, he later reinitiated contact with law enforcement to change his story, and did so on February 24, 2010. During this second session, Bryant said his associates, David Moore and Jerome Harris, were the ones who had shot Leverenz and McCullough.

Two months later, by the April 29, 2010, date of Bryant's drug sentencing, the government was satisfied with his cooperation. During an off-record, in camera portion of that hearing, the assistant U.S. attorney explained to the sentencing judge the nature and value of Bryant's service. Though an account of those in camera proceedings was not made available to this Court, we do know that on the record, the assistant U.S. attorney characterized Bryant as having “fulfilled” his “plea agreement and the agreements made in that plea agreement.” ² (Tr. Sentencing Hr'g, Apr. 29, 2010, 11:5–13.) When the judge asked about the possibility of a motion by the government for further reduction of Bryant's sentence to reward post-sentencing cooperation, seeFed.R.Crim.P. 35(b), the prosecutor replied, “I guess that's always a possibility, but it's ... not been anticipated.”

The district court credited Bryant with providing truthful trial...