The Honorable An drew 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

___________ No. 97-2491/2868

___________ 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. *

___________ Submitted: February 12, 1998 Filed: May 7, 1998

___________ Before McMILLIAN and LOKEN, Circuit Judges, and BOGUE, District Judge. 1

___________ BOGUE, Senior District Judge

OnFebruary 20, 1997 a jury convicted the defendant, Kim Lee Sykes, on one cou nt of distribution of "crack" cocaine and one count of conspiracy to distribute 5 0 grams or more of "crack" cocaine. 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(B)(iii), 846, andThe Honorable Michael J. Melloy, United States District Judge for the Northern 2 District of Iowa, Eastern Division. -2- 841 (b)(1)(A). Sykes appeals the di strict court's denial of his various pretrial motions 2 to suppress. The Government cross-appeals the district court's refu sal to impose a twolevel upward adjustment to the base offense level for obstruct ion of justice. We affirm.
I. In September 1989, Sykes was the t arget of a controlled buy of "crack" cocaine conducted by agents of the Federal Drug Task Force in Waterloo, Iowa. Afte r cons ulting with his attorney, Sykes signed a plea agreement with the federa l prosecutors and agreed to cooperate with agents of the task force. The plea agreement provide d that Sykes would plead guilty to a two count information charging him with possession, distr

ibution, and conspiracy to possess and distribute "crack" cocaine. In return, the Government granted Sykes a "limite d-use" immunity, agreeing that no other cri minal charges would be filed against Sykes based upon the information then in the Gov ernment's possession or later provided by Sykes pursuant to his agreement t o cooperate. Over the course of approximately one month following the signing of the plea agreement, Sykes was debriefed three times regarding his involvement i n controll ed 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 wa s 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 fo r app roximately five years. In May 1995, as he re-entered the United States fro m Canada, Sy kes was arrested on a federal warrant issued three months after he left the country. T hereafter, he was indicted on charges stemming from the controlled bu y conducted in 1989.-3-

Prior to trial in this case Sykes filed a four-part motion se eking to suppress, inter alia , statements m ade by Sykes during his debriefings with the Government pursuant to the ple a agreement. In his motion Sykes alleged that despite the written ple a agreement between him and the Government, his attorney, Thompson, and the United Stat es Attorney amended the agreement orally by agreeing that any informatio n provided by S ykes pursuant to the agreement would not be used against him in an y manner. In other words, Sykes argued his statements were entitled to “full-use ” immu nity 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, th e district court found that Thompson made no agreements with the Government othe r than the ori ginal plea agreement signed by Sykes, and that even if he had, under th e plea agreement Sykes was entitled to no immunity whatsoever be cause he breached the terms of his agreement to cooperate by absconding from the country for fiv e years. The distri ctcourt denied the motion. Sykes filed a motion for reconsideration and fo r furthe r findings relative to his suppression motion. Sykes also filed a motion t o suppress the statem ents based on violations of his Sixth Amendment right to effective assista nce of counsel, claiming Thompson’s representations that he indeed had ful l im munity fell below the standard of reasonableness. The district court held a second motion hearing and thereafter denied Sykes’ motion, finding that Thompson did no t advise Sykes concerning the existenc e of any immunity beyond the written agreement, and that Sykes never relied upon any such representations by Thompson. II. On appeal Syke s argues that his statements made during his debriefings should have been suppressed because they were rendered involuntary by the fact that th e Gov ernment

reneged on its promise to grant full immunity for Sykes' cooperation

. Alternatively, Sykes argues if n o such agreement existed at the time he was debriefed, then he w as denied effective assistance of counsel because his attorney advised hi m that he in fact had full immunity, and he relied on that advice to his detriment.-4-

Before we can sustain either of Sykes' positions we must find, contrary to th e district court's findings, eith er the existence of an oral agreement for full immunity, or, th at Thompson advised Sykes of a full immunity agreement despite that none existed and S ykes relied on the erroneous advice in giving the inculpatory statements at th e de briefings. We review the facts supporting the district court's denial of a motion t o suppre ss for clear error, and we review de novo the legal conclusions that are base d 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 Thompso n believed the written plea agreement signed by Sykes was somewhat "fluid." There was oral and written evidence presented that Thom pson 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 Un ited States Attorney who prepared the plea agreement testified that if such a n agreement h ad been reached, it would have been memorialized in a writing signed by the parties. The district court, w ho had an opportunity to observe the demeanor of the witne sses, 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 i n fin ding that no oral agreement for full immunity existed, and that Thompson did no t co mmunicateany belief in the existence of such agreement to Sykes. We therefor e conclude that Sykes' motions to suppress were properly denied.
III.
The Go vernment cross-appeals the district court's denial of an upwar d adjustment for obstruction of justi ce under U.S.S.G. § 3C1.1. Although the parties do-5-

not con test the district court's factual findings relative to Sykes' departure from th e count ry, they disagree as to whether such conduct amounts to obstruction of justice

. Our review of this legal interpretation of a guideline is de novo

. U nited 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 abs ence 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.