In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2694

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RICHARD REED,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.
No. 99-CR-30065--Richard Mills, Judge.

ARGUED MARCH 2, 2001--DECIDED November 30, 2001



  Before CUDAHY, EASTERBROOK, and ROVNER,
Circuit Judges.

  ROVNER, Circuit Judge. A jury found
Richard Reed guilty of the manufacture of
methamphetamine and the district court
sentenced him to 168 months in prison. At
the trial, the court allowed into
evidence incriminatory statements that
Reed made to Illinois State Police
Officer Carl Carpenter during pre-trial
interrogation. Although the government
had agreed to provide Reed with
conditional immunity as to the direct use
of his statements, the court found that
Reed had breached the agreement by lying.
Reed appeals his conviction, contending
that the district court clearly erred in
concluding that Reed materially breached
the immunity agreement and that the
admission of his statements was
prejudicial. We conclude that the
district court committed no clear error
in holding that Reed materially breached
the agreement. The admission of Reed’s
statements to Officer Carpenter was
therefore proper, and we affirm Reed’s
conviction.

I.

  Richard Reed lived in Pana, Illinois,
where he manufactured methamphetamine in
his home. On May 18, 1999, law
enforcement agents searched his residence
and confiscated several items needed for
the production of this drug, including:
filters, large numbers of pseudoephedrine
tablets (a precursor to methamphetamine),
a rubber hose with a brass fitting that
had been in contact with another
precursor chemical, and glass objects
that contained liquid methamphetamine.
During a post-search interview, Reed
admitted to being involved in the
manufacture and distribution of
methamphetamine and identified several of
the objects that had been seized.
Approximately eleven weeks after the
search, a grand jury returned a one-count
indictment against Reed charging him with
manufacturing methamphetamine in
violation of 21 U.S.C. sec.sec. 841(a)(1)
and 841(b)(1)(B). Shortly thereafter,
Reed was arrested on the federal charge
while he was in state custody at the
Macon County Jail in Decatur.

  While in custody and after conferring
with his attorney, Reed entered into a
conditional direct use immunity agreement
with the government. This agreement
prohibited the government from using any
of Reed’s statements as direct evidence
against him so long as he provided the
authorities with "complete and truthful
information." The agreement provided,
inter alia:

1. The government agrees that no statement
made or information provided pursuant to
this agreement may be used directly as
evidence against you in any criminal case
. . . .

2. In return, you agree that you will
provide complete and truthful information
to law enforcement officials regarding
your criminal conduct and everything you
know or have reason to believe about the
criminal conduct of others. . . .

* * *
4. You further acknowledge and agree that
the government’s grant of use immunity
herein is entirely conditioned upon your
complete compliance with paragraph[ ] 2 .
. . . Should you knowingly make any
materially false statement or omission in
providing information under this
agreement, the government will be
entitled to use your statements and
evidence you provide, directly and
indirectly, to institute and support a
criminal prosecution for any offense . .
. .

5. [Y]ou must neither conceal [n]or
minimize your own actions or involvement
in any offense, nor conceal, minimize,
fabricate, or exaggerate anyone else’s
actions or involvement in any offense.
You must be completely truthful about the
facts whatever those may be.

* * *

11. Any material breach of any provision
of this agreement by you will void this
agreement in its entirety and will
release the government from any
obligation under this agreement.

R.30, Ex. A at 1-2 (emphasis in
original).

  After Reed entered into the agreement,
he was interviewed by Officer Carpenter.
During the interview, Reed made a number
of statements inculpating himself in the
manufacture of methamphetamine. However,
Reed also stated, among other things,
that he had not manufactured
methamphetamine in three months, that he
had not been staying at the residence of
George Diggs in Decatur, Illinois, and
that he did not have any knowledge of nor
was involved in any way with the
manufacture of methamphetamine at Diggs’
home. Officer Carpenter knew the latter
statements were false based on prior
interviews with other potential
witnesses.

  During Reed’s appearance at a pre-trial
hearing, the Assistant United States
Attorney ("AUSA") advised Reed and his
attorney that because Reed had violated
the immuni-ty agreement by providing
false information to Officer Carpenter,
the government planned to use Reed’s
statements against him at trial. The AUSA
repeated his statements at another
hearing a few weeks later. Neither Reed
nor his counsel made any attempt to
contact the AUSA regarding this issue.
Similarly, the government did not
initiate further discussion with Reed or
his attorney regarding this issue. In
November of 1999, the district court
granted Reed’s motion to replace his
counsel. The AUSA subsequently notified
Reed’s new attorney that Reed had
violated the immunity agreement and that
the government planned on using Reed’s
statements against him in court.

  On December 29, 1999, Reed filed a
motion in limine to exclude from trial
the inculpatory statements he had made to
Officer Carpenter. Reed never claimed not
to have lied to Officer Carpenter, but
rather argued that the government was
"reneging on the cooperation agreement
simply because the Defendant ha[d]
refused to plead guilty and [wa]s putting
the Government through the burden of
preparing for trial." R. 30 at 2. In
response to this motion, the government
elaborated on Reed’s falsehoods and
further noted that Reed had failed to
make any good-faith effort to rectify his
relationship with the government and
satisfy the conditions of the immunity
agreement. R. 85 at 93-94.

  At trial, the court held an evidentiary
hearing outside of the jury’s presence to
determine whether Reed had, in fact,
breached the immunity agreement. Officer
Carpenter testified to the details of his
interview with Reed. Carpenter explained
that prior to his interview with Reed, he
had interviewed a potential witness,
Annette Rafeeny, in anticipation of
obtaining a search warrant for the Diggs
residence in Decatur. During this
interview, he obtained evidence of Reed’s
involvement and activities with Diggs.
Carpenter went on to describe the search
of the Diggs residence and the various
items seized from the methamphetamine lab
in the home. Carpenter used the
information he had gathered in the
Rafeeny interview and the Diggs search as
a litmus test for truth-telling during
his interview with Reed. Specifically,
Carpenter posed questions to Reed to
which he already knew the correct answers
in order to determine whether Reed was
being honest. Carpenter explained that he
did not know what Reed’s response to the
questions would be before he asked them,
but once answered, he knew that Reed was
lying about his involvement in the
manufacture of methamphetamine at the
Diggs residence. Carpenter also testified
that the purpose of Reed’s
immunityagreement was to further the
investigation, but that Reed had provided
no information that aided the
government’s inquiry. R. 85 at 63-95.

  Reed argued that his false statements
did not amount to a material breach of
the use immunity agreement. He reasoned
that because Carpenter knew he was lying,
none of his lies had caused the
government to waste resources chasing
down false leads or had otherwise
hampered the government’s investigation.
Indeed, in Reed’s view, it was
inappropriate for the government to seek
release from the immunity agreement based
on lies that he told in response to
questions designed solely to test his
veracity rather than to elicit
substantive information in pursuit of the
government’s investigation.

  Alternatively, Reed contended that even
if his lies did constitute a breach of
the immunity agreement, the government
nonetheless should not be permitted to
use his inculpatory statements at trial.
Because the prosecution had abundant
other evidence of his guilt, Reed argued,
the statements he had made pursuant to
the immunity agreement were cumulative,
and the government had no genuine need to
use them. "I think you could rule that my
client violated the cooperation agreement
and you probably will be . . . upheld on
appeal," Reed’s counsel conceded. R. 85
at 99. "But, I just don’t see where all
this is necessary." Id.

  Judge Mills concluded that Reed had
breached the immunity agreement and that,
consequently, the government was free to
use Reed’s statements against him.
"There’s no question that [Reed] violated
his cooperation agreement with the
government," the judge found. R. 85 at
102. The terms of that agreement were
straightforward, and proof that Reed had
given false information was sufficient to
establish a breach of Reed’s duty of
candor. See id. "[I]t’s clear, it’s clear
that he’s lied." Id. Judge Mills also
acknowledged that the government might be
able to make its case against Reed
without eliciting the statements that
Reed had made to Carpenter, but the judge
did not find that possibility a
sufficient basis on which to exclude the
statements. "Now [the prosecutor] may
agree with you that it’s cumulative or
that he can get in everything else and he
doesn’t really need this," the judge
observed. Id. at 101. "But we can’t
second-guess him. This is his decision to
make as to how he wants to present the
case . . . before the jury." Id. at 101-
02.
  Officer Carpenter subsequently took the
witness stand before the jury. The
government established that Carpenter had
interviewed Reed at the Macon County jail
and that Reed had made a number of
statements acknowledging his
participation in the manufacture of
methamphetamine.

  At the conclusion of a two-day trial,
the jury convicted Reed.

II.

  Reed contends that the district court
erred in finding that he committed a
material breach of the use
immunityagreement. We review the factual
determination that Reed failed to comply
with his obligations under the immunity
agreement for clear error. See United
States v. Meyer, 157 F.3d 1067, 1078 (7th
Cir. 1998). "We will reverse only if,
after a comprehensive review of the
evidence, we are left with ’the definite
and firm conviction that a mistake has
been made.’" Id., quoting United States
v. Duguay, 93 F.3d 346, 349 (7th Cir.
1996). There is no dispute that Reed lied
to Officer Carpenter. He argues only that
his lies were immaterial because
Carpenter knew that he was lying and
therefore his lies did not affect the
government’s investigation.

A.

  A proffer agreement, such as the one at
issue here, is considered to be a
contract. Therefore, it must be enforced
according to its terms. United States v.
Lopez, 222 F.3d 428, 434 (7th Cir. 2000),
cert. denied, 121 S. Ct. 1601 (2001). Ac
cording to the exact terms of the
agreement, Reed was to provide the
government with "complete and truthful
information . . . regarding [his]
criminal conduct and everything [he]
kn[e]w . . . about the criminal conduct
of others." R. 30, Ex. A at 1 para. 2
(emphasis in original). Reed was
instructed to "be completely truthful
about the facts whatever those may be."
Id. at 2 para. 5 (emphasis added).
Finally, Reed was warned in the agreement
that "[a]ny material breach of any
provision . . . w[ould] void th[e]
agreement in its entirety and w[ould]
release the government from any
obligation under th[e] agreement." Id.
para. 11.

  Reed violated his immunity agreement
when he told Officer Carpenter that he
knew nothing of and was not involved in
the manufacture of methamphetamine at the
Diggs residence in Decatur. Reed was
clearly not being "completely truthful
about the facts" in accordance with the
agreement. When Reed failed to disclose
his activities at the Diggs residence he
"conceal[ed] or minimiz[ed] [his] own ac
tions or involvement in any offense," in
direct violation of paragraph 5 of the
agreement. See Lopez at 434. Reed’s
assertion that he knew nothing about the
activities occurring at the Diggs
residence also can be interpreted as an
attempt to deflect suspicion away from
another suspect (Diggs), an attempt that
was contrary to the very purpose of the
immunity agreement as well as the express
terms of paragraph 5, which also forbade
him from "conceal[ing] [or] minimiz[ing]
. . . anyone else’s actions or
involvement in any offense."

  Moreover, after being repeatedly
notified that Reed’s lies were being
considered by the government to be a
material breach of the agreement, neither
Reed nor his attorney made any attempt to
rectify the situation and disclose the
complete truth before trial. Reed’s
falsehoods and the absence of an effort
to remedy them, indeed, his display of
utter apathy in cooperating with the
government at all, constituted an
unambiguous violation of his agreement.
See United States v. Mattison, 153 F.3d
406, 412 (7th Cir. 1998); Lopez at 434.
The violation rendered the agreement null
and void as per paragraph 11 and
destroyed any use immunity that Reed
otherwise might have enjoyed vis a vis
the statements that inculpated him.

B.

  Reed contends that his lies were
immaterial because Officer Carpenter knew
he was lying, and consequently, his lies
had no effect on the government’s
investigation. Reed relies on a Sixth
Circuit case in which the court concluded
that a defendant’s lies during
interrogation did not constitute a
"substantial material breach" of a
transactional immunity agreement. United
States v. Fitch, 964 F.2d 571, 575 (6th
Cir. 1992). Reed misinterprets Fitch,
however. The fact that his deceptions did
not derail the government’s investigation
does not render them immaterial.

  What was key to the Sixth Circuit’s
decision in Fitch was that the
defendant’s lies did not deprive the
government of the benefit of the immunity
agreement. Like Reed, Fitch provided
false information to the government after
entering into an immunity agreement; and
just as in this case, government agents
were not misled by Fitch’s lies. But so
far as the record in Fitch revealed, the
defendant’s lies amounted to nothing more
than a minimization of his own
involvement in the crime. See id. at 575.
Fitch had otherwise furthered the
government’s investigation considerably;
in fact, "Fitch supplied the government
with enough information to allow it to
secure a multi-count indictment against
numerous individuals . . . [and] assisted
the investigation in various other ways."
Id. In light of the substantial
assistance that Fitch had given the
government, the court concluded that "the
government received the benefit of its
bargain" and that the immunity agreement
should therefore be enforced. Id. Fitch,
of course, is not binding on this court;
but even as persuasive authority Fitch
does not suggest that the district court
clearly erred in finding that Reed
breached his agreement with the
government.

  Contrary to Reed’s assertions, the court
in Fitch did not rule as it did simply
because the lies that the defendant had
told turned out to be benign. The
harmlessness of his statements was but
one factor in the Sixth Circuit’s
analysis of the asserted breach. Unlike
the instant case, the government in Fitch
was able to use other information
provided by the defendant to further the
investigation. By contrast, not only did
Reed seek to minimize his own wrongdoing,
but he also attempted to avert the
government’s suspicions from Diggs.
Reed’s violation thus denied the
government the very benefit that the
agreement was intended to secure--
information that would aid in the
identification and prosecution of other
methamphetamine traffickers.
Reed’sagreement, intended to be
representative of a symbiotic
relationship between a defendant and the
government, had beenreduced to a useless
piece of paper that served only one of
its parties. Even applying the Fitch
analysis, Reed materially breached his
immunity agreement.

  Additionally, the immunity agreement in
Fitch provided no remedy for the
government in the event that the
defendant breached the agreement. 964
F.2d at 575. The court in Fitch held that
even if there had been a breach in the
agreement, the government would have been
"limited to those remedies specified in
the agreement." Id.; see also id. at 576.

  Reed’s agreement, unlike the one in
Fitch, expressly provided for its
nullification in the event of a breach.
R. 30, Ex. A at 2 para. 11. Because
Reed’s agreement specifically provided
for that remedy, upon Reed’s breach, the
government was not obligated to provide
Reed with immunity. Once the district
court determined that the agreement had
been violated, then, the government was
free to use Reed’s statements against him
at trial.

III.

  We hold that the district court did not
clearly err in finding that Reed
materially breached his immunity
agreement. That holding makes it
unnecessary for us to address Reed’s
other arguments. Reed’s conviction is
AFFIRMED.
