Case: 17-10010 Date Filed: 07/03/2019 Page: 1 of 23
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-10010 ________________________
D.C. Docket No. 1:12-cr-20276-FAM
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HENRY LEE BRYANT and OCTAVIUS MCLENDON,
Defendants - Appellants.
________________________
Appeals from the United States District Court for the Southern District of Florida ________________________
(July 3, 2019)
Before JORDAN, GRANT, and BALDOCK, ∗ Circuit Judges.
∗Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by designation. Case: 17-10010 Date Filed: 07/03/2019 Page: 2 of 23
BALDOCK, Circuit Judge:
In October 2012, a jury convicted Defendants Henry Bryant and Octavius
McLendon each of multiple drug charges and a gun charge. After trial, the
Government disclosed to Defendants that an undercover FBI agent who
investigated Defendants and testified against them at trial was under investigation
himself for obstructing an unrelated murder investigation and maintaining an
improper relationship with a former FBI confidential source. Based on this new
information, Defendants filed motions for a new trial. After an evidentiary
hearing, a magistrate judge issued a thorough Report and Recommendation
(R & R) recommending that Defendants’ motions be denied. The district court
adopted the R & R in Defendants’ cases and denied the motions. Defendants
timely appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
In 2012, the FBI received a tip that a Miami Beach fire inspector was
extorting the owner of Club Dolce, a nightclub in Miami Beach. The FBI began
investigating this matter, with FBI Agent Matthew Fowler as the lead agent, and
began running part of its operation out of Club Dolce with the owner’s permission.
An FBI undercover coordinator determined FBI Agent Dante Jackson “fit the
persona of a nightclub manager” and referred him to Agent Fowler for the case.
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Agent Jackson became the primary undercover agent, posing as Club Dolce
manager “Kevin Johnson.”
Agent Fowler testified that during the code compliance investigation, “there
was always this underlying theme that . . . there’s all this other corruption going on
. . . .” Doc. 257, at 106–07. In light of the potential for additional corruption, as
the code compliance case was winding down, Agent Fowler and another case agent
began brainstorming different ideas on how “to weed out . . . corruption in Miami
Beach.” Id. at 106. Agent Fowler testified that at this point the investigation
turned into a “drug investigation.” Id. at 104.
In this drug investigation, Agent Fowler remained the lead case agent,
meaning it was his job to “start[] the initial investigation[,] . . . come up with a
plan, go over specific targets, [and] work the investigation to get to a prosecution.”
Id. at 87. Agent Jackson remained in his undercover role as Club Dolce manager
Kevin Johnson. Another undercover officer, FBI Task Force Officer KayTee
Tyson III, joined the investigation. Tyson posed as Kevin Johnson’s drug-
trafficking friend “Tony Woods” or “T” from the Northeast who needed people to
transport drugs in the Miami area and needed police cover for the transport.
Although only Agent Jackson and Officer Tyson participated in undercover roles,
numerous other FBI agents assisted in this investigation.
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In his undercover capacity, Agent Jackson presented the drug-trafficking
plan to Defendant Bryant, a Miami Beach fire inspector whom Agent Jackson met
a couple months earlier in the code compliance investigation. Agent Jackson
explicitly told Defendant Bryant they initially needed to transport “ten keys” of
“cocaine.” Government Exhibit 53 at Tab C, Transcript of 12/9/11 Meeting at 20.
Defendant Bryant agreed and recruited others, including Defendant Octavius
McLendon and Miami-Dade police officer Daniel Mack, to participate.
Eventually, two transports occurred on December 21, 2011, and January 14, 2012.
Both times, Agent Jackson loaded bricks of sham cocaine into a duffel bag in the
office of Club Dolce in Defendants’ presence; Defendants took and transported the
bag to the agreed upon location; a marked police car followed closely behind
Defendants’ car during the transport; and Defendants returned to the office to get
paid. Neither Bryant nor McLendon carried a gun during the transports, although
there was evidence Mack, who was the police escort during at least one of the
transports, carried his gun during the transport.1
Defendant Bryant, Defendant McLendon, and Mack were arrested and
charged with conspiracy to possess with intent to distribute cocaine (Count 1);
attempt to possess with intent to distribute cocaine on December 21, 2011 (Count
1 The parties are aware of the facts surrounding the transports of sham cocaine and the evidence presented at trial. We will refer to this evidence only as it becomes relevant below. For a full rendition of the evidence presented at trial, see Doc. 291, at 11–29. 4 Case: 17-10010 Date Filed: 07/03/2019 Page: 5 of 23
2); attempt to possess with intent to distribute cocaine on January 14, 2012 (Count
3); and possession of a firearm in furtherance of drug trafficking (Count 4). After
a four-day jury trial in October 2012, the jury convicted Defendants on all four
counts and convicted Mack on Counts 1, 3, and 4. Defendant Bryant, Defendant
McLendon, and Mack received total terms of imprisonment of 264 months, 248
months, and 180 months, respectively. All three appealed their convictions,
arguing among other things the evidence was insufficient on all counts. The
Eleventh Circuit affirmed. United States v. Mack, 572 F. App’x 910 (11th Cir.
2014) (unpublished).
* * *
As it turns out, the investigative team aiming “to weed out . . . corruption”
included an agent with his own integrity issues: Agent Jackson. Unbeknownst to
the rest of the team and the FBI, Agent Jackson maintained an improper
relationship with a former FBI confidential source and ex-Russian mobster, Mani
Chulpayev. In March 2014, after Defendants’ direct appeal was briefed but before
the Eleventh Circuit ruled on it, the Government notified Defendants’ attorneys
that Agent Jackson was under investigation for allegations arising out of his
relationship with Chulpayev. After the appeal concluded, Defendants sought
additional information about the Jackson investigation. In July 2015, the
Government responded that the Department of Justice Office of the Inspector
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General (“OIG”) received a complaint in March 2013, “which alleged that Jackson
obstructed an ongoing murder investigation.” Doc. 182-2, at 1. The OIG also
received allegations “that Jackson had unauthorized contacts with a closed
confidential source, accepted gifts from the closed source, and engaged in other
potential criminal and administrative violations involving the closed source.” Id.
Agent Jackson was under investigation for these allegations but, at that point,
“there [had] been no findings of misconduct or other impropriety.” Id. at 2.
Armed with this information, all Defendants filed a motion for a new trial
pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and Fed. R. Crim. P. 33. The
magistrate judge held an evidentiary hearing, and during this hearing, OIG
investigator Susan Howell testified to the following facts about Chulpayev and
Agent Jackson’s misconduct. Mani Chulpayev was “involved in a bunch of
crimes” in the late 1990s in New York. Doc. 257, at 170. The FBI arrested him
for these crimes around 1998, after which Chulpayev began cooperating with the
government and became a registered FBI source. He moved to Atlanta and
assisted the FBI there, until he was arrested for vehicle-related crimes. When he
was released from prison, he expressed to an FBI agent that he wanted to cooperate
with the government again. In January 2010, Chulpayev became a registered FBI
source once again, and Agent Jackson became Chulpayev’s FBI “handler.” In
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February 2011, however, Chulpayev stopped being a registered FBI source
because he was leaving the Atlanta area.
Agent Dante Jackson’s Chulpayev-related misconduct, which occurred after
Chulpayev was no longer a registered source, falls into two categories: (1)
receiving improper gifts from Chulpayev and (2) improperly intervening on
Chulpayev’s behalf. At the evidentiary hearing, the Government did not contest
that Agent Jackson received multiple items of value not related to his performance
of undercover FBI work, including Miami Heat tickets on four occasions, a room
at the Fontainebleau Hilton Hotel, use of an Audi A8 for three days, and a $3500
payment to Agent Jackson’s credit card covering the majority of a $4256.12 charge
from Bamboo Nightclub. Additionally, the Government did not contest that
Chulpayev provided Agent Jackson with work-related items of value, including
Heat tickets on one occasion and the use of luxury vehicles on twelve occasions.
Howell testified that, as a result of his connections, Chulpayev also provided Agent
Jackson with discounts on shoes, jewelry, and lunches at an Italian restaurant. On
another occasion, Chulpayev provided Agent Jackson with $1500 cash as a part of
an investigation, and Chulpayev was eventually reimbursed. These actions
violated FBI policy.
In addition to receiving gifts from Chulpayev, Agent Jackson also attempted
to intervene on Chulpayev’s behalf with regard to his serious legal issues—both of
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which relate to Chulpayev’s luxury vehicle “business.” Agent Jackson’s first
intervention on Chulpayev’s behalf concerns an agreement Chulpayev entered into
with Amanda Smith. Smith acted as a straw purchaser for Chulpayev and bought
luxury vehicles. Smith then allowed Chulpayev to lease the cars, and Chulpayev
would pay Smith the monthly car payment plus an extra fee for Smith. Chulpayev
eventually stopped paying Smith, prompting Smith to hire an attorney. Agent
Jackson contacted Smith’s attorney. At some point, Smith’s attorney told Agent
Jackson he knew Chulpayev was an FBI source, he knew Chulpayev was involved
with vehicle fraud, and he would report Chulpayev and Agent Jackson. According
to Smith’s attorney, Agent Jackson then told him, “If you do that, I’ll have you
arrested for extorting a federal agent.” These actions, of course, violated FBI
policy.
Jackson intervened a second time on Chulpayev’s behalf regarding a far
more egregious legal issue, which began at Chulpayev’s birthday party on June 2,
2012, in Miami. 2 One of Chulpayev’s drug-trafficking friends, Decensae White,
attended the party. White told Chulpayev that Melvin Vernell III, an Atlanta-based
rapper also known as “Lil’ Phat,” stole marijuana from White. At some point,
White asked Chulpayev if Vernell was in one of Chulpayev’s cars. As an investor
2 Howell testified to the following information based on Sandy Springs Police Department’s interviews of Chulpayev.
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in Chulpayev’s business, White knew Chulpayev’s cars had GPS trackers in them.
Chulpayev told White that Vernell was in his car and gave White either the
coordinates to where Vernell was located or the login information to access the
car’s location. On June 7, as Vernell waited in a hospital parking garage while his
girlfriend had her baby, Vernell was murdered in a car he was leasing from
Chulpayev. Chulpayev later testified that when he gave the information to White,
he did not think White would kill Vernell.
The next day, Chulpayev called Sandy Springs Police Department to give
them information about White’s potential involvement in the murder, but the
officer did not call Chulpayev back or was not interested. Chulpayev then called
Agent Jackson and told him that he thought White and White’s associate Gary
Bradford were involved in Vernell’s murder. Agent Jackson instructed Vernell to
not talk to anyone about the murder. On June 11, Agent Jackson called the Sandy
Springs Police Department and told Detective J.T. Williams that his “source” told
him that White and Bradford might be involved in the murder. Detective Williams
wanted to interview the source, but Agent Jackson told Detective Williams that he
was very protective of his source. Agent Jackson also told Detective Williams
narcotics were involved and that it could become a federal case. 3
3 White and Bradford were under FBI investigation at this point for drug trafficking. Jackson served as the case agent on this investigation, and Officer Tyson was undercover for this investigation. 9 Case: 17-10010 Date Filed: 07/03/2019 Page: 10 of 23
At some point, Agent Jackson indicated to Detective Williams that
Chulpayev gave White the coordinates to the hospital where Vernell was
murdered. Detective Williams asserted that would make Chulpayev a co-
conspirator in the murder. Upon hearing this, Agent Jackson attempted to recover
by saying actually Chulpayev gave White the coordinates to where Vernell was
staying. In October 2012, Agent Jackson provided Chulpayev to Detective
Williams for an interview. This interview eventually led to Chulpayev’s arrest for
his involvement in the murder.4 In January 2013, Agent Jackson called Detective
Williams to confess that Chulpayev was no longer a registered FBI source and that
he had not been one for a while. Detective Williams reported this disclosure up his
chain of command, and the Sandy Springs Police Department eventually notified
the FBI. At the time of the evidentiary hearing, the OIG’s investigation was still
ongoing, but Jackson was no longer actively working for the FBI.
After the evidentiary hearing and further briefing on the foregoing
information about Jackson’s misconduct, the magistrate judge issued a thorough
4 After spending two years in jail, Chulpayev won a motion to suppress certain statements he made regarding Vernell’s murder. State v. Chulpayev, 770 S.E.2d 808 (Ga. 2015). He then pleaded guilty to a lesser charge and was released. 10 Case: 17-10010 Date Filed: 07/03/2019 Page: 11 of 23
R & R addressing Defendants’ Brady claims and Rule 33 motions. For the Brady
claim, Defendants had the burden to show:
(1) the government possessed favorable evidence to the defendant[s]; (2) the defendant[s] [did] not possess the evidence and could not obtain the evidence with any reasonable diligence; (3) the prosecution suppressed the favorable evidence; and (4) had the evidence been disclosed to the defendant[s], there is a reasonable probability that the outcome would have been different.
United States v. Stein, 846 F.3d 1135, 1145–46 (11th Cir. 2017). The R & R stated
Defendants satisfied their burdens on the first three Brady elements. As to the
fourth materiality element, the R & R stated neither Defendant Bryant nor
Defendant McLendon satisfied their burden. The R & R engaged in a similar
analysis as to Defendant Bryant’s and Defendant McLendon’s Rule 33 claims.
The R & R stated Mack, however, satisfied his burden and was entitled to a new
trial on all counts for which he was convicted. Lastly, the R & R stated that even
though Defendant Bryant and Defendant McLendon were convicted of the § 924(c)
charge on an aiding and abetting theory and Mack was entitled to a new trial on the
§ 924(c) as the principal, the court should deny Defendant Bryant’s and Defendant
McLendon’s motions for a new trial on their § 924(c) charges.
On December 16, 2016, the district court adopted the R & R in Defendant
Bryant’s and Defendant McLendon’s cases. The district court, however, deferred
ruling and required further oral argument in Mack’s case. On April 21, 2017, the
Government and Mack entered into a Joint Resolution Agreement, whereby 11 Case: 17-10010 Date Filed: 07/03/2019 Page: 12 of 23
Mack’s § 924(c) conviction would stand but the Government would dismiss the
other counts against Mack. In a written order, the district court accepted this
agreement and explicitly stated it was not adopting the magistrate judge’s R & R.
II.
Defendants Bryant and McLendon appeal the district court’s order adopting
the magistrate judge’s R & R, arguing the district court erred in two ways. First,
Defendants argue that because the magistrate judge recommended that Mack be
granted a new trial on the § 924(c) charge, Defendants are entitled to a new trial on
that charge as well. Mack was charged as the principal of the § 924(c) charge,
while Defendants were charged on an aiding and abetting theory. Defendants
argue “the alleged ‘principal’ has been granted a new trial and so also should the
alleged ‘aiders.’” Op. Br. at 38. Fatal to this claim, however, is the fact that Mack
was not granted a new trial on the § 924(c) charge. The Government and Mack
agreed that Mack’s § 924(c) conviction would stand, and the district court entered
an order to this effect. Although the district court adopted the R & R in
Defendants’ cases, the district court never adopted the R & R in Mack’s case.
Instead, the district court’s order accepting the Joint Resolution Agreement
explicitly states it was not adopting the R & R in Mack’s case. This first argument,
therefore, fails.
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Second, Defendants argue the district court erred in determining the
withheld evidence—information about Agent Jackson’s improper relationship with
Chulpayev—was not material under Brady. We review this determination de novo.
United States v. Scheer, 168 F.3d 445, 452 (11th Cir. 1999). “The evidence is
material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.”
United States v. Bagley, 473 U.S. 667, 682 (1985). “A reasonable probability does
not mean that the defendant ‘would more likely than not have received a different
verdict with the evidence,’ only that the likelihood of a different result is great
enough to ‘undermine[ ] confidence in the outcome of the trial.’” Smith v. Cain,
565 U.S. 73, 75 (2012) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
Notably, the materiality test under Brady is not a sufficiency of the evidence test.
Kyles, 514 U.S. at 434–35.
At the outset, we note Agent Jackson’s conduct—while egregious—was not
related to the instant case. Although this fact is not in itself dispositive, it is highly
relevant and worth emphasizing. No facts regarding Agent Jackson’s misconduct
overlap with the facts leading to Defendants’ prosecutions. Both Officer Tyson
and OIG Investigator Howell testified Chulpayev was not involved in this case.
Agent Fowler, the one in charge of the drug investigation, had not even heard of
Chulpayev prior to OIG’s investigation of Jackson. The information, therefore,
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would not have been admitted as substantive evidence at Defendants’ trial. The
timing of Agent Jackson’s conduct, however, is relevant to how its disclosure
might have affected the proceedings. While Agent Jackson did not receive a
majority of the gifts from Chulpayev until after the trial in this case, a few gifts
were received before and during trial. Specifically, Agent Jackson received Heat
tickets on one occasion and used Chulpayev’s luxury vehicles on six occasions
prior to Defendants’ trial, and Jackson used Chulpayev’s 6 series BMW during
Defendants’ trial in which Agent Jackson testified. Agent Jackson’s interventions
on behalf of Chulpayev, which possibly could severely undermine his credibility,
occurred after the investigation but before trial. Therefore, had this information
been disclosed to Defendants, they could have potentially used the information to
impeach Agent Jackson.
Defendants take it a step further and argue that, not only could this
information have been used as impeachment evidence, but it “could reasonably be
taken to put the whole case in such a different light as to undermine confidence in
the verdict.” Op. Br. at 39 (citing Arnold v. McNeil, 622 F. Supp. 2d 1294, 1316
(M.D. Fla. 2009), aff’d and adopted sub nom. Arnold v. Sec’y, Dep’t of Corr., 595
F.3d 1324 (11th Cir. 2010)). Defendants also argue the disclosure “would have
caused the government to refrain from calling Jackson as a witness altogether.”
Op. Br. at 50. The disclosure would have perhaps prevented Jackson from
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testifying, but even so, we do not agree that the disclosure would have “put the
whole case in such a different light as to undermine confidence in the verdict.” In
Arnold, the district court held a jury verdict was unworthy of confidence when an
investigator, who was the only person able to confidently identify the defendant,
engaged in egregious misconduct around the same time he was testifying against
the defendant at trial. 622 F. Supp. 2d at 1316–18. The critical distinction
between Arnold and the instant case is that here, Agent Jackson was not the sole
source of vital information at trial. Almost every interaction Agent Jackson
testified about at trial was also recorded. In other words, in sharp contrast to the
investigator in Arnold, there is very little for which the jury had to take Jackson’s
word because they heard the recordings themselves. The relevant exception is the
initial meeting Agent Jackson had with Defendant Bryant about the drug-
transporting plan, in which Agent Jackson testified that the recording device failed.
This initial meeting will be discussed more below.
A.
Keeping in mind that the alleged Brady material—Agent Jackson’s
misconduct—was unrelated to this case and most of Agent Jackson’s trial
testimony was corroborated by recordings, we first consider the effect the
disclosure of Agent Jackson’s misconduct would have on Defendant Bryant’s drug
convictions. Defendant Bryant barely makes any argument that there is a
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reasonable likelihood of a different result, perhaps because of the overwhelming
evidence against him. To state just one example of the evidence against Defendant
Bryant, the jury heard a recording of Agent Jackson telling Defendant Bryant
“what’s gonna be moving” is “ten kilos.” Government Exhibit 53 at Tab C,
Transcript of 12/9/11 Meeting at 7–8. They also heard Agent Jackson tell
Defendant Bryant they were “dealing with ten keys,” which Agent Jackson stated
was “not a incre-, incredible amount of cocaine.” Id. at 20 (emphasis added).
Defendant Bryant’s response was “Okay” and “I understand, I understand.” Id.
Defendant Bryant ended up transporting “nine” on December 21, 2011, and then
another ten wrapped in similar packaging on January 14, 2012. These facts were
evident from, not only the recordings, but also Officer Tyson’s testimony. To the
extent Agent Jackson’s trial testimony corroborated this evidence, it was
cumulative. The likelihood of a different result, had Agent Jackson’s misconduct
been disclosed, is not nearly great enough to undermine our confidence in the jury
verdict regarding Defendant Bryant’s drug convictions.
B.
We now turn to the effect such disclosure would have had upon Defendant
McLendon’s drug convictions. At trial, McLendon argued he did not have the
requisite intent for the drug-trafficking crimes because he thought they were
transporting money rather than cocaine. Even though there was no evidence that
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the word “cocaine” was used in McLendon’s presence, the jury did not accept this
defense and found McLendon guilty. Now, McLendon essentially argues that
without Agent Jackson’s testimony, there is a reasonable probability the jury
would have believed his defense that he thought he was transporting money.
Specifically, McLendon argues “Jackson’s repeated opinions that McLendon was
talking about drugs was the damaging part of the evidence for the jury.” Op. Br. at
45.
In their opening brief, Defendants point to two of such occurrences that
involve understanding McLendon’s comments. First, the jury heard a recording of
McLendon expressing that he did not want to use the SunPass lane during the
transport “[c]ause it takes pictures.” Government Exhibit 53 at Tab F, Transcript
of 12/21/11 Meeting at 9. The Government then asked Agent Jackson what he
understood that comment to mean. Agent Jackson responded, “He didn’t want any
evidence of the actual drug transaction.” Doc. 145, at 74 (emphasis added). He
also stated McLendon “didn’t want to get on the SunPass lane fearful that the
cameras on the SunPass lane would take pictures of the car with them in it with the
cocaine.” Id. Second, the jury heard a recording of McLendon stating something
about them “not using the same pattern.” Id. at 81. The Government asked Agent
Jackson what his understanding of the comment was, and Agent Jackson
responded that McLendon meant “they would change the officers out for each
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subsequent deal that we did.” 5 Id. (emphasis added). In parentheticals in their
reply brief, Defendants point to additional occurrences that involved Agent
Jackson’s understanding of McLendon’s recorded comments. Specifically,
Defendants note that “Jackson characterizes meeting with McLendon as ‘the actual
drug deal’”; “Jackson opines McLendon meant to say ‘when you’re carrying 10
kilograms of cocaine, you want the bag to be as small as possible . . .’”; and
“Jackson opines it was ‘everybody’s plan’ that the job involved cocaine.” Rep. Br.
at 13–14 (citing Doc. 145, at 72, 95, 107).
Agent Jackson’s comments at trial about McLendon’s involvement in “the
actual drug transaction” or “each subsequent deal,” however, were not nearly the
only evidence that established McLendon knew they were transporting drugs.
First, Agent Jackson explicitly told Bryant they were transporting “cocaine.”
Bryant recruited “his brother” McLendon to help with the job. McLendon argues
Agent Jackson and Bryant originally planned to transport money and apparently
5 Defendants also give the example of when the jury heard a recording of Bryant saying he had “been in this thing together” (assumedly with McLendon) since they were eight years old. Doc. 145, at 44. At trial, the Government asked Jackson what he understood by that comment. Describing this moment, Defendants now state that “Agent Jackson thereby turned ‘this thing’ into cocaine trafficking . . . .” Op. Br. at 12. Defendants must not understand that we, too, read the record, which reveals Agent Jackson did not “turn[] ‘this thing’ into cocaine trafficking.” Id. Rather, Agent Jackson testified he understood it to mean, “Just that they were partners. They’ve just been together since they were eight years old, just partners, family.” Doc. 145, at 44. When pressed further, Jackson said, “I just understood it to mean they were partners. I mean, they were just in it together.” Id. Absent from Jackson’s answers is any mention of drugs, let alone “cocaine trafficking.” 18 Case: 17-10010 Date Filed: 07/03/2019 Page: 19 of 23
Bryant did not tell McLendon of the change of plans. To support this argument,
McLendon points to one sentence of Jackson’s trial testimony, in which he
described the first meeting with Bryant where the recording device failed:
I discussed with Mr. Bryant that I had an associate in New York who was a childhood friend that was involved in drug trafficking. I was laundering his money through the nightclub, and he had proposed a deal to me to assist him with laundering some drug proceeds, and in exchange, I would be paid for that.
Doc. 145 at 14. Bryant was “fine” with this proposal. Id. Agent Jackson’s very
next statement about this first meeting, however, describes the plan:
The initial plan was to transport the drugs from a point in Miami to another destination, and he would provide police officers to assist with escorting the drugs. The whole thing I presented to him was I didn’t want the drugs being picked up by police, so we wanted police escorts to make sure the drugs made it from Point A to Point B.
Id. at 15 (emphases added).6 Unfortunately for McLendon, had Agent Jackson’s
misconduct been disclosed, Agent Jackson might not have testified at all and there
would have been no money-laundering testimony. Thus, McLendon would have
had even less of a basis for arguing he thought he was transporting money. Even if
this same testimony was elicited, however, it is unclear whether Jackson expected
Bryant to launder money. What is clear is Agent Jackson needed to “transport the
6 Defendants state that in this conversation, Jackson never “impl[ied] that he or his Club Dolce were involved in the Maryland drug trafficking.” Op. Br. at 7. This statement is only correct insofar as Jackson did not mention the state of Maryland—a fact of no consequence. The statement is otherwise incorrect, as Jackson did not only imply he was involved in drug trafficking, he stated he was involved and needed help escorting the drugs. 19 Case: 17-10010 Date Filed: 07/03/2019 Page: 20 of 23
drugs” and Bryant “would provide police officers to assist with escorting the
drugs.”7 If any doubt remained, later recorded conversations make clear they were
transporting “cocaine.” Given there was a plan to transport “cocaine” and Bryant
recruited McLendon to help execute this plan, the evidence is strong that
McLendon knew they were attempting to transport cocaine.
Second, McLendon in fact showed up for both transports, where he watched
Agent Jackson load wrapped “bricks” of sham cocaine into a duffel bag.
McLendon clearly saw and counted the bricks. He completed the transports and
returned to the office to receive his payment. While McLendon argues that the
packaging of the sham cocaine was consistent with the packaging of money, Tyson
testified at trial that he had “never” seen money packaged the way the sham
cocaine was packaged in this case. Id. at 202–03. He explained: “When you’re
delivering money to anyone, people want to make sure that what they’re getting
there is money.” Id. at 202. In his experience—which includes eight years on the
FBI’s Safe Streets Task Force “investigat[ing] large drug trafficking
organizations,” id. at 187–88—one package like what McLendon and Bryant
transported usually represents one kilogram of cocaine or heroin. Id. at 203.
7 Agent Fowler—the case agent who came up with the plan—testified at the hearing on the motion for a new trial that the plan all along was to “move the drugs through the club” and that money laundering was never a part of the plan. Doc. 257, at 137–39. 20 Case: 17-10010 Date Filed: 07/03/2019 Page: 21 of 23
Third, during the December 21 transport before Defendants took the duffel
bag, Tyson asked Defendants, “No deviation, no taste, no test, neither one of y’all
get high right?” Government Exhibit 53 at Tab G, Transcript of 12/21/11 Meeting
at 11. Defendants were “insulted” at the comment and McLendon responded only
with “Pstt.” Id.; Doc. 145, at 196. Tyson’s comment simply would not have made
sense had Defendants thought they were transporting money, as money is not
“tasted” or “tested” even figuratively. Further, Tyson explained the meaning of
this interaction at trial. He testified that he “didn’t want a person that gets high to
transport my drugs for me, because at that point they could decide to go in, take
some more, test it for themselves to see what it was, if it was good, if it wasn’t.”
Doc. 145, at 196. In light of the evidence showing McLendon thought he was
transporting cocaine, Agent Jackson’s multiple statements at trial about McLendon
thinking he was participating in a “drug transaction” or “deal” were not crucial
enough to put the whole case in such a different light as to undermine our
confidence in McLendon’s drug convictions. Therefore, had Agent Jackson’s
misconduct been disclosed, there is not a reasonable probability that the result of
the proceeding would have been different.
C.
Lastly, we turn to the effect the disclosure of Agent Jackson’s misconduct
would have had on Defendants’ gun convictions. Although in their header
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Defendants indicate their argument is about the effect of the disclosure of Agent
Jackson’s misconduct “on all Counts,” Defendants write only one sentence in this
section about the gun charges, which refers back to section A of their brief. Op.
Br. at 38, 49–50 (“[F]or both Bryant and McLendon, because the district court
correctly found that Jackson’s testimony to find Mack’s guilty knowledge was key
to the verdict on the § 924(c) count, a new trial on the § 924(c) charge is required
is [sic] to all the defendants (as explained in section A, above).”). Section A of
their brief, however, only makes the argument that as a matter of law, it is
inconsistent for Mack to receive a new trial as the principal and McLendon and
Bryant to not receive a new trial as the aiders and abettors. We have already
addressed this argument above. See supra pp. 10–11. Not once do Defendants
make the separate argument that, had Agent Jackson’s misconduct been disclosed,
there is a reasonable probability that the result of the proceeding in regard to
Defendants’ gun convictions would have been different or engage in the fact-
specific analysis required to make this argument. We, therefore, do not address
this issue.
Agent Jackson’s unethical conduct was not worthy of an FBI agent. For the
foregoing reasons, however, his misconduct was not material because the
likelihood of a different result in Defendants’ cases had the misconduct been
22 Case: 17-10010 Date Filed: 07/03/2019 Page: 23 of 23
disclosed is not great enough to undermine our confidence in the jury’s verdict.
Accordingly, we AFFIRM.