United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-2491/2868
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United States of America, *
*
Appellee/Cross-Appellant, *
*
v. * Appeals from the United States
* District Court for the Northern
Kim Lee Sykes, * District of Iowa
*
Appellant/Cross-Appellee. *
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Submitted: February 12, 1998
Filed: May 7, 1998
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Before McMILLIAN and LOKEN, Circuit Judges, and BOGUE,1 District Judge.
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BOGUE, Senior District Judge
On February 20, 1997 a jury convicted the defendant, Kim Lee Sykes, on one
count of distribution of "crack" cocaine and one count of conspiracy to distribute 50
grams or more of "crack" cocaine. 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(B)(iii), 846, and
1
The Honorable Andrew W. Bogue, Senior United States District Judge for the
District of South Dakota, sitting by designation.
841 (b)(1)(A). Sykes appeals the district court's2 denial of his various pretrial motions
to suppress. The Government cross-appeals the district court's refusal to impose a two-
level upward adjustment to the base offense level for obstruction of justice. We affirm.
I.
In September 1989, Sykes was the target of a controlled buy of "crack" cocaine
conducted by agents of the Federal Drug Task Force in Waterloo, Iowa. After
consulting with his attorney, Sykes signed a plea agreement with the federal
prosecutors and agreed to cooperate with agents of the task force. The plea agreement
provided that Sykes would plead guilty to a two count information charging him with
possession, distribution, and conspiracy to possess and distribute "crack" cocaine. In
return, the Government granted Sykes a "limited-use" immunity, agreeing that no other
criminal charges would be filed against Sykes based upon the information then in the
Government's possession or later provided by Sykes pursuant to his agreement to
cooperate. Over the course of approximately one month following the signing of the
plea agreement, Sykes was debriefed three times regarding his involvement in
controlled substance trafficking. With his attorney present at all three interviews,
Sykes made candid admissions about his involvement in drug trafficking. Sykes' last
interview was conducted on October 10, 1989. In February 1990, Sykes was
scheduled to be tried in Iowa state court on state drug trafficking charges. Prior to the
trial Sykes left the United States, moved to Saudi Arabia, and remained abroad for
approximately five years. In May 1995, as he re-entered the United States from
Canada, Sykes was arrested on a federal warrant issued three months after he left the
country. Thereafter, he was indicted on charges stemming from the controlled buy
conducted in 1989.
2
The Honorable Michael J. Melloy, United States District Judge for the Northern
District of Iowa, Eastern Division.
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Prior to trial in this case Sykes filed a four-part motion seeking to suppress, inter
alia, statements made by Sykes during his debriefings with the Government pursuant
to the plea agreement. In his motion Sykes alleged that despite the written plea
agreement between him and the Government, his attorney, Thompson, and the United
States Attorney amended the agreement orally by agreeing that any information
provided by Sykes pursuant to the agreement would not be used against him in any
manner. In other words, Sykes argued his statements were entitled to “full-use”
immunity per the plea agreement. Sykes further alleged that on the belief he enjoyed
full immunity, he made statements and provided information that were inculpatory as
to the crimes with which he was charged. Following a hearing on the motion, the
district court found that Thompson made no agreements with the Government other
than the original plea agreement signed by Sykes, and that even if he had, under the
plea agreement Sykes was entitled to no immunity whatsoever because he breached the
terms of his agreement to cooperate by absconding from the country for five years. The
district court denied the motion. Sykes filed a motion for reconsideration and for
further findings relative to his suppression motion. Sykes also filed a motion to
suppress the statements based on violations of his Sixth Amendment right to effective
assistance of counsel, claiming Thompson’s representations that he indeed had full
immunity fell below the standard of reasonableness. The district court held a second
motion hearing and thereafter denied Sykes’ motion, finding that Thompson did not
advise Sykes concerning the existence of any immunity beyond the written agreement,
and that Sykes never relied upon any such representations by Thompson.
II.
On appeal Sykes argues that his statements made during his debriefings should
have been suppressed because they were rendered involuntary by the fact that the
Government reneged on its promise to grant full immunity for Sykes' cooperation.
Alternatively, Sykes argues if no such agreement existed at the time he was debriefed,
then he was denied effective assistance of counsel because his attorney advised him
that he in fact had full immunity, and he relied on that advice to his detriment.
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Before we can sustain either of Sykes' positions we must find, contrary to the
district court's findings, either the existence of an oral agreement for full immunity, or,
that Thompson advised Sykes of a full immunity agreement despite that none existed
and Sykes relied on the erroneous advice in giving the inculpatory statements at the
debriefings. We review the facts supporting the district court's denial of a motion to
suppress for clear error, and we review de novo the legal conclusions that are based
upon those facts. United States v. Cunningham, 133 F.3d 1070, 1072 (8th Cir. 1998).
At the suppression hearing Thompson did not testify that he in fact thought he
had an oral agreement for full immunity. Rather, the record shows that Thompson
believed the written plea agreement signed by Sykes was somewhat "fluid." There was
oral and written evidence presented that Thompson was hopeful that if Sykes provided
substantial assistance to the Government, it would in turn drop or reduce the charges
against Sykes or otherwise recommend leniency to the district court. Other than Sykes'
testimony that Thompson had assured him he had full immunity, there is no evidence
in the record that an oral agreement for immunity had ever been reached. Moreover,
the United States Attorney who prepared the plea agreement testified that if such an
agreement had been reached, it would have been memorialized in a writing signed by
the parties. The district court, who had an opportunity to observe the demeanor of the
witnesses, is afforded great deference in its assessment of the witnesses' credibility.
Cunningham, 133 F.3d at 1072. We cannot say the district court clearly erred in
finding that no oral agreement for full immunity existed, and that Thompson did not
communicate any belief in the existence of such agreement to Sykes. We therefore
conclude that Sykes' motions to suppress were properly denied.
III.
The Government cross-appeals the district court's denial of an upward
adjustment for obstruction of justice under U.S.S.G. § 3C1.1. Although the parties do
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not contest the district court's factual findings relative to Sykes' departure from the
country, they disagree as to whether such conduct amounts to obstruction of justice.
Our review of this legal interpretation of a guideline is de novo. United States v. Eagle,
133 F.3d 608, 611 (8th Cir. 1998). We have thoroughly reviewed the record and find
no error in the district court's determination that Sykes' conduct in connection with his
absence from the United States did not warrant an obstruction of justice adjustment.
Affirmed.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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