               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                                                                     [DO NOT PUBLISH]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.
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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.
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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.
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       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.
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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
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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.”
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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.
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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.
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      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




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disclosed is not great enough to undermine our confidence in the jury’s verdict.

Accordingly, we AFFIRM.




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