The Honorable Andrew W. Bogue, Senior United States District Judge for the 1

District of South Dakota, sitting by designation.

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, District Judge. 1

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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
The Honorable Michael J. Melloy, United States District Judge for the Northern 2

District of Iowa, Eastern Division.

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841 (b)(1)(A). Sykes appeals the district court's denial of his various pretrial motions 2

to suppress. The Government cross-appeals the district court's refusal to impose a twolevel 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.
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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.