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 de-
fendant’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 evi-
dence 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 in-
form 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 en-
sure 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 Mi-
chael a brown package that police later discovered contained
methamphetamine. Michael left the gas station in his car, fol-
lowed by Gilbert in his truck and the police in three squad
cars. When the police saw Michael commit a minor traffic vi-
olation, 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 indict-
ment 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 con-
tended that he should be considered eligible for so-called
safety-valve relief pursuant to
18 U.S.C. § 3553(f), which au-
thorizes a district court to impose a sentence below the other-
wise statutory mandatory minimum in narrow circum-
stances. Specifically, § 3553(f) applies only to low-level de-
fendants 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 pro-
vide information to the government—and should therefore
receive relief from § 841(b)(1)(A)’s mandatory minimum ten-
year 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 ex-
tent 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. Sep-
arate 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 po-
lice’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 Febru-
ary 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 con-
duct. Perhaps owing to a clerical oversight, the plea agree-
ment itself was not entered into the district court’s docket. The
docket did include a minute entry stating that Michael en-
tered a guilty plea, but it did not specify that the plea was
pursuant to a written agreement. The government never dis-
closed 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 Gil-
bert in more criminal activity than Gilbert himself had been
willing to acknowledge. The prosecutor also elicited testi-
mony that Michael had pleaded “open”—without the benefit
of a written plea agreement. The district court sought clarifi-
cation 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 Mi-
chael’s plea agreement in February 2022.
The district court seemed to sense that something was
amiss and, during a break in the proceedings following Mi-
chael’s testimony, managed to locate the written plea agree-
ment. The district court then informed the parties of the dis-
covery. 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 re-
duced 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 direct-
examination 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 crimi-
nal 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 dis-
trict 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 enhance-
ment. The district court found that the government had not
6 No. 22-2268
met its burden of showing that Gilbert intentionally ob-
structed 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 demon-
strated a lack of respect for authority. The court later consid-
ered 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 govern-
ment’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 gov-
ernment had an “affirmative duty to disclose” the plea agree-
ment 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 vi-
olation 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) (“Pros-
ecutors 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 sover-
eignty … 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) (quot-
ing Berger v. United States,
295 U.S. 78, 88 (1935)).
But nondisclosure does not automatically entitle a defend-
ant to relief on appeal. The withheld evidence must be ma-
terial, 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 Mi-
chael’s plea agreement would have been useful impeachment
evidence, as it would have definitively shown that he was co-
operating 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 gov-
ernment 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. Re-
member 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 state-
ments 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 in-
centives to please the government”). Gilbert’s lawyer opted
not to challenge Michael’s credibility based on the infor-
mation 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 circum-
stance where “the prosecution had no case” without Mi-
chael’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 Gil-
bert’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] ob-
tained 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 expe-
rience 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 fa-
ther, were apparent when the court ruled on Gilbert’s safety-
valve eligibility. Furthermore, the district court became aware
of Michael’s plea agreement before imposing Gilbert’s sen-
tence. 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 tran-
spired 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—techni-
cally 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 at-
tempt 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 en-
hancement 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 conclu-
sions. 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 suc-
cumbing 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 hap-
pened here is to use this case as an opportunity to take steps
to underscore within its ranks that there is no excuse—cer-
tainly 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.
