United States v. Bicknell, No. 22-2268 (7th Cir. 2023)
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Gilbert and his son Michael were charged with possession with intent to distribute methamphetamine. Gilbert pleaded guilty and sought “safety-valve relief” from the mandatory minimum 10-year sentence. While Gilbert was awaiting sentencing, Michael pleaded guilty and agreed to cooperate including by providing information about Gilbert’s criminal conduct. The plea agreement itself was not entered into the court’s docket. The government never disclosed the agreement to Gilbert or his lawyer. At Gilbert’s sentencing hearing, Michael testified against his father. The prosecutor elicited false testimony that Michael had pleaded “open”—without the benefit of a written plea agreement. The court subsequently located the written plea agreement and informed the parties. Gilbert’s lawyer did not move to recall Michael for further cross-examination nor did he probe Michael’s motivations for testifying. The court denied Gilbert’s request for safety-valve relief and sentenced Gilbert to 156 months.
The Seventh Circuit “reluctantly” affirmed. To obtain relief for a “Brady” violation, a defendant must show that undisclosed information was “material either to guilt or to punishment.” While Gilbert was completely in the dark about evidence that would have been useful to impeach a witness who testified against him, that evidence would not have affected the outcome of his sentencing. The court described the prosecution’s conduct as “unsettling.”
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