In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 22-2268 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

GILBERT DEAN BICKNELL, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Central District of Illinois. 

No. 4:20-cr-40046 — Sara Darrow, Chief Judge. 

____________________ 

ARGUED MAY 31, 2023 — DECIDED JULY 19, 2023 

____________________ 

Before ROVNER, HAMILTON, and SCUDDER, Circuit Judges. 

SCUDDER, Circuit Judge. In Brady v. Maryland, the Supreme 

Court established that the government violates a criminal defendant’s right to due process when it suppresses evidence 

favorable to the defendant. 373 U.S. 83, 87 (1963). A decade 

later, in Giglio v. United States, the Court confirmed that 

Brady’s disclosure requirement applies to evidence that could 

be used to impeach a government witness. 405 U.S. 150, 154–

55 (1972). While Brady and Giglio recognize important 
2 No. 22-2268 

protections for criminal defendants, the government’s failure 

to adhere to their mandate does not result in automatic relief. 

Rather, a defendant must show that undisclosed information 

was “material either to guilt or to punishment.” Brady, 373 

U.S. at 87; see also Giglio, 405 U.S. at 154–55. 

That caveat—Brady’s materiality requirement—explains 

the result here. Gilbert Bicknell was left completely in the 

dark about evidence that would have been useful to impeach 

a witness who testified against him at sentencing. That evidence would not have affected the outcome of his sentencing, 

though, so the government’s failure to disclose does not lead 

to relief under Brady or Giglio. 

But make no mistake: the government’s failure to adhere 

to its disclosure obligation deeply troubles us. It failed to inform a criminal defendant before sentencing that one of the 

government’s key witnesses—the defendant’s own son—

would be testifying pursuant to a cooperation agreement. 

That agreement was a textbook example of Giglio information, 

and it is very unsettling that more care was not taken to ensure its disclosure before sentencing. Though we must affirm, 

we do so reluctantly. 

I

A 

In July 2020 police observed Gilbert Bicknell and his son 

Michael at a gas station in Edwards, Illinois. Gilbert gave Michael a brown package that police later discovered contained 

methamphetamine. Michael left the gas station in his car, followed by Gilbert in his truck and the police in three squad 

cars. When the police saw Michael commit a minor traffic violation, they activated their lights and sirens. One squad car 
No. 22-2268 3

quickly passed Gilbert’s truck and sped after Michael’s car. 

Before the other cars could follow suit, Gilbert swerved over 

the center line of the road, briefly preventing the officers from 

passing his truck. He then pulled over, and the remaining 

squad cars passed to follow Michael. In time a federal indictment followed, charging Gilbert and Michael with possession 

with intent to distribute methamphetamine. See 21 U.S.C. 

§ 841(a)(1), (b)(1)(A). 

Gilbert pleaded guilty in August 2021. In an effort to avoid 

the mandatory minimum sentence of ten years, Gilbert contended that he should be considered eligible for so-called 

safety-valve relief pursuant to 18 U.S.C. § 3553(f), which authorizes a district court to impose a sentence below the otherwise statutory mandatory minimum in narrow circumstances. Specifically, § 3553(f) applies only to low-level defendants charged with certain drug crimes who “truthfully 

provide[ ] to the Government all information and evidence 

the defendant has concerning the offense or offenses that 

were part of the same course of conduct or of a common 

scheme or plan.” § 3553(f)(5). Gilbert claimed he was truthful 

in his safety-valve proffer—the interview where he could provide information to the government—and should therefore 

receive relief from § 841(b)(1)(A)’s mandatory minimum tenyear sentence. 

The government disagreed, taking an altogether different 

view of Gilbert’s candor during the safety-valve proffer. The 

government believed Gilbert failed to own up to the full extent of his criminal conduct. It justified this opposition in part 

with information it had obtained from Michael, who had 

given a similar proffer. Michael’s proffered testimony—

which the government gave Gilbert a redacted copy of—
4 No. 22-2268 

implicated Gilbert in criminal conduct beyond what Gilbert 

had been willing to acknowledge during his own proffer. Separate and apart from its opposition to safety-valve relief, the 

government requested an obstruction-of-justice enhancement 

based on Gilbert’s purported efforts to interfere with the police’s pursuit of Michael during the brief car chase. 

What happened next gave rise to the government’s alleged 

failure to adhere to its Brady and Giglio obligations. In February 2022, while Gilbert was awaiting sentencing, Michael 

pleaded guilty pursuant to a plea agreement in which he 

agreed to cooperate with the government, including by 

providing information about his father Gilbert’s criminal conduct. Perhaps owing to a clerical oversight, the plea agreement itself was not entered into the district court’s docket. The 

docket did include a minute entry stating that Michael entered a guilty plea, but it did not specify that the plea was 

pursuant to a written agreement. The government never disclosed the agreement to Gilbert or his lawyer. 

B 

The district court set Michael and Gilbert’s sentencing 

hearings for the same date—July 7, 2022. At Gilbert’s hearing, 

the government called Michael to testify against his father. 

Michael’s testimony aligned with his proffer, implicating Gilbert in more criminal activity than Gilbert himself had been 

willing to acknowledge. The prosecutor also elicited testimony that Michael had pleaded “open”—without the benefit 

of a written plea agreement. The district court sought clarification on this point, and Michael again testified that he had 

no written plea agreement. 
No. 22-2268 5

To be sure, Michael’s repeated assertions that he pleaded 

open were untrue. Making matters worse, the prosecutor who 

elicited this testimony was the very same one who signed Michael’s plea agreement in February 2022. 

The district court seemed to sense that something was 

amiss and, during a break in the proceedings following Michael’s testimony, managed to locate the written plea agreement. The district court then informed the parties of the discovery. Still, Gilbert’s lawyer did not move to recall Michael 

as a witness for further cross examination. 

Yet that is not all that came out of the sentencing hearing. 

Michael had also acknowledged on direct examination that he 

was testifying against his father in the hope of receiving a reduced sentence. Gilbert’s lawyer never followed up on this 

testimony by probing Michael’s motivations for testifying. 

Nor did he ever ask Michael whether, contrary to his directexamination testimony, he had entered into a cooperation 

agreement with the government. 

The government had called a second witness too—the case 

agent who had conducted Gilbert’s safety-valve proffer. The 

agent testified to his own observations from that interview, 

explaining that Gilbert had tried to minimize his own criminal conduct and that he generally came across as not credible. 

At the close of the hearing, the district court found that, on 

the whole, Michael gave credible testimony. After reaching 

the same conclusion about the case agent’s testimony, the district court denied Gilbert’s request for safety-valve relief. 

Before concluding, the district court also addressed the 

government’s request for an obstruction-of-justice enhancement. The district court found that the government had not 
6 No. 22-2268 

met its burden of showing that Gilbert intentionally obstructed the officers who were trying to apprehend Michael 

when he swerved across the center line of the road during his 

initial encounter with police in July 2020. But the district court 

made plain that Gilbert’s conduct (specifically, his failure to 

immediately pull over) remained troubling and demonstrated a lack of respect for authority. The court later considered this very same conduct as an aggravating factor when 

setting Gilbert’s sentence. See 18 U.S.C. § 3553(a)(1) (requiring 

district courts to consider “the history and characteristics of 

the defendant” at sentencing). 

In the end, the district court sentenced Gilbert to 156 

months. Gilbert now appeals, challenging both the government’s failure to disclose Michael’s plea agreement and what 

he sees as inconsistent findings of fact regarding his failure to 

pull over while driving. 

II

A 

On appeal the government acknowledges that Michael’s 

plea agreement is exactly the kind of impeachment evidence 

that is covered by Giglio. And it is well-established that “Brady

applies to sentencing.” United States v. Severson, 3 F.3d 1005, 

1013 (7th Cir. 1993). 

From there it should have been clear as day that the government had an “affirmative duty to disclose” the plea agreement in advance of Gilbert’s sentencing. Anderson v. City of 

Rockford, 932 F.3d 494, 504 (7th Cir. 2019); Strickler v. Greene, 

527 U.S. 263, 281 (1999) (highlighting “the prosecution’s broad 

duty of disclosure” even while recognizing “that not every violation of that duty necessarily establishes that the outcome 
No. 22-2268 7

was unjust”). The Supreme Court has instructed that “the 

prudent prosecutor will resolve doubtful questions in favor 

of disclosure.” United States v. Agurs, 427 U.S. 97, 108 (1976); 

see also Connick v. Thompson, 563 U.S. 51, 66–67 (2011) (“Prosecutors are not only equipped but are also ethically bound to 

know what Brady entails and to perform legal research when 

they are uncertain.”). “Such disclosure will serve to justify 

trust in the prosecutor as ‘the representative ... of a sovereignty ... whose interest ... in a criminal prosecution is not 

that it shall win a case, but that justice shall be done.’” Kyles v. 

Whitley, 514 U.S. 419, 439 (1995) (alterations in original) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). 

But nondisclosure does not automatically entitle a defendant to relief on appeal. The withheld evidence must be material, meaning there must be “a reasonable probability that, 

had the evidence been disclosed, the result of the proceeding 

would have been different.” Turner v. United States, 582 U.S. 

313, 325 (2017) (quoting Cone v. Bell, 556 U.S. 449, 470 (2009)). 

In the context of impeachment evidence, we must assess “the 

overall strength of the prosecution case, the importance of the 

particular witness’s credibility to the prosecution case, the 

strength of the concealed impeachment material, and how the 

concealed material compares to other attacks the defense was 

able to make on the witness’s credibility.” Sims v. Hyatte, 914 

F.3d 1078, 1089 (7th Cir. 2019); see also Turner, 582 U.S. at 324–

25 (instructing courts to review undisclosed evidence “in the 

context of the entire record” (quoting Agurs, 427 U.S. at 112)). 

This is where Gilbert’s position falls short. No doubt Michael’s plea agreement would have been useful impeachment 

evidence, as it would have definitively shown that he was cooperating with the government and, in the interest of 
8 No. 22-2268 

receiving a reduced sentence, may have had an incentive to 

slant his testimony. But the fact that Michael testified as a government witness was itself enough to make plain to anyone at 

the hearing—including Gilbert, his lawyer, and the district 

court—that he was cooperating with the government. Remember too that Michael admitted his desire for a reduced 

sentence while on the witness stand. 

Michael’s stated hope for a lesser sentence gave Gilbert’s 

lawyer ample ammunition to cross-examine Michael on his 

credibility even without the plea agreement. Indeed, the 

agreement would have been duplicative of those same lines 

of questioning. See United States v. Morris, 498 F.3d 634, 640 

(7th Cir. 2007) (holding that a prosecutor’s incorrect statements that a cooperating witness would remain subject to the 

statutory minimum sentence were immaterial where it was 

clear “that [the witness] was receiving a substantial benefit for 

his testimony and, more importantly, that he had strong incentives to please the government”). Gilbert’s lawyer opted 

not to challenge Michael’s credibility based on the information he had available to him, but his decision not to use 

that evidence does not make the plea agreement any less 

cumulative. 

Further weakening Gilbert’s position, this is not a circumstance where “the prosecution had no case” without Michael’s testimony. Sims, 914 F.3d at 1089; see also Giglio, 405 

U.S. at 154 (“[W]ithout [the challenged testimony] there could 

have been no indictment and no evidence to carry the case to 

the jury.”). In addition to relying on Michael’s testimony, the 

district court gave meaningful weight to the testimony of Gilbert’s case agent, which separately undermined Gilbert’s 

safety-valve proffer. Indeed, the district court relied on 
No. 22-2268 9

Michael’s testimony only “as it [was] consistent, per the 

agent’s testimony, with other information that [the agent] obtained during his investigation.” 

It is also important to highlight that this all happened at 

sentencing, where the district court—rather than a jury—sat 

as the finder of fact. Given the district court’s extensive experience with sentencing hearings like this one, we can say with 

sufficient confidence that Michael’s incentives to cooperate 

with the government, including by testifying against his father, were apparent when the court ruled on Gilbert’s safetyvalve eligibility. Furthermore, the district court became aware 

of Michael’s plea agreement before imposing Gilbert’s sentence. Had the district court thought the plea agreement 

raised new, material questions about Michael’s credibility, it 

could have reopened the record and given Gilbert’s lawyer a 

chance to further cross-examine Michael. That the district 

court did not do so suggests that the plea agreement did not 

affect its analysis very much, and we defer to the district 

court’s weighing of this kind of evidence at sentencing. See 

United States v. Ranjel, 872 F.3d 815, 818 (7th Cir. 2017). 

After taking our own hard look at everything that transpired here, we simply do not see a reasonable probability 

that a timely disclosure of Michael’s plea agreement would 

have changed the outcome of Gilbert’s sentencing hearing. In 

short, the agreement was not material, so there was—technically speaking—no Brady or Giglio violation. See Strickler, 527 

U.S. at 281–82. 

B 

One brief issue remains. Gilbert contends that the district 

court made inconsistent findings of fact regarding his driving 
10 No. 22-2268 

during the brief car chase on the day of the drug transaction. 

Recall that the district court rejected the government’s attempt to impose an obstruction-of-justice enhancement but 

later relied on the same underlying facts as an aggravating 

factor in setting Gilbert’s sentence. Gilbert sees these results 

as incompatible with one another. 

We disagree. The fact that the district court agreed with 

Gilbert on the bottom line with respect to the obstruction enhancement does not mean the district court needed to accept 

Gilbert’s preferred narrative down to every last detail. 

Nor do we see any tension in the district court’s conclusions. The obstruction enhancement requires a defendant to 

intend to obstruct justice, see U.S.S.G. § 3C1.1, and the district 

court found the evidence did not prove Gilbert’s intent. But 

intent to obstruct justice is not necessary under § 3553(a), 

which looks more broadly at the “history and characteristics 

of the defendant.” So Gilbert’s failure to pull over when 

chased by police cars with their lights and sirens on could still 

establish that, as the district court put it, he “was not succumbing to the authority that was being shown at that time.” 

III

The result in this case is in many ways unsatisfying. The 

government failed to disclose clear Giglio material. And we 

worry that the government will react to the bottom line of this 

opinion by breathing a sigh of relief and seeing the appeal as 

some type of win. That would badly miss the mark. The only 

acceptable way for the government to respond to what happened here is to use this case as an opportunity to take steps 

to underscore within its ranks that there is no excuse—certainly not busyness or heavy caseloads—for failing to 
No. 22-2268 11

diligently abide by the disclosure demands imposed by Brady

and Giglio. Far too much is at stake in criminal law for the 

government to not attend to its disclosure obligations with 

more care and attention. 

With this parting emphasis, we AFFIRM.