United States District Court, D. Montana, Billings Division
REDACTED ORDER 
P. Watters United States District Judge
case comes before the Court on Defendant/Movant
Anderson's motion to vacate, set aside, or correct the
sentence under 28 U.S.C. § 2255. Reviewing the
parties' submissions and the record has taken an
extraordinary amount of time. The underlying facts of the
case involved a string of controlled drug buys, a search of
Anderson's home, and multiple traffic stops, all of which
resulted in seizure of methamphetamine, cocaine, ecstasy, or
marijuana, sometimes in saleable quantities. With the
exception of three counts, every count against Anderson
depended, at least in part, on the testimony of cooperating
United States withheld crucial information about benefits it
gave a dozen of those witnesses. Neither Anderson nor his
counsel could discover what the United States did for its
witnesses, because the information was either filed with the
Court under seal or not filed at all. The jury did not know
the real reasons these witnesses might be biased, might
exaggerate, claim to know things they did not know, or just
detailed procedural history of the criminal case and
proceedings under 28 U.S.C. § 2255 is available in the
record. See, e.g., Order (Doc. 469) at 1-5; Order
(Doc. 390) at 1-4; see also Am. Opinion and Order
Anderson was indicted with four co-defendants: Teal Rounds,
Shantae Harris, Kaydee Goff, and Nathaniel Davis. Rounds and
Harris pled guilty more than a month before Anderson's
trial. Goff s case was severed to be tried later. Anderson
and Davis were scheduled to be tried together, but Davis pled
guilty on the morning of trial. See Minutes (Doc.
222). Neither Anderson nor Davis testified.
jury found Anderson guilty on all counts. The mandatory
minimum sentence was 120 months. Superseding Indictment (Doc.
71) at 8. Anderson was sentenced to serve a total term of 480
months in prison, to be followed by a 12-year term of
supervised release. See Minutes (Doc. 318); Judgment
(Doc. 319) at 3-4.
Failure to Disclose
portion of the Order identifies the information that was not
disclosed and considers how disclosing it could have altered
reasonable jurors' view of the affected witnesses'
The Obligation to Disclose Information Favorable to the
by the prosecution of evidence favorable to an accused ...
violates due process where the evidence is material either to
guilt or to punishment." Brady v. Maryland, 373
U.S. 83, 87 (1963). The prosecution must disclose to defense
counsel evidence in its possession or control if the evidence
is favorable to the defense.
Giglio v. United States, 405 U.S. 150 (1972), the
Supreme Court considered whether Brady also requires
disclosure of impeachment evidence. The question arose when,
sometime after trial, the defendant's trial counsel
"discovered new evidence indicating that the Government
had failed to disclose an alleged promise made to its key
witness that he would not be prosecuted if he testified for
the Government." Id. at 150-51. The Supreme
Court held that the United States' failure to disclose
its promise violated the defendant's constitutional right
to due process. See Id. at 153-55.
importance of cross-examination... is to reveal a
witness' state of mind and, more particularly, the extent
of the witness' incentive to testify to the
government's satisfaction." United States v.
Larson, 495 F.3d 1094, 1110 (9th Cir. 2007) (en banc)
(Graber, J., concurring in part and specially concurring) (a
District of Montana case). Counsel for the defendant must be
allowed not only to ask "whether the witness
was biased but also to make a record from which to argue
why the witness might have been biased."
Id. at 1102 (majority op.) (internal quotation marks
and brackets omitted) (quoting Davis v. Alaska, 415
U.S. 308, 318 (1974)). Counsel cannot make that record, and
the jury cannot fairly and accurately evaluate the evidence,
when the United States fails to disclose relevant impeachment
information within its possession.
cooperating witnesses testified at Anderson's trial. The
United States failed to disclose impeachment information
about 12 of them: W08, W10, W13, W11, W05,  W14, W15, W06, W24, W28,
W03, and W07. See U.S. Brief (Doc. 498) at 13-21.
addition, a thirteenth witness, W02, misstated the nature of
a promise made to him in his plea agreement. Seykora did not
correct the record. These witnesses are referred to
collectively as "the Giglio witnesses."
The Undisclosed Motions
of the Giglio witnesses-W08, W10, W13, W11, W14,
W15, W06, and W07-pled guilty to federal crimes before
Anderson's trial. W11 's plea agreement did not
address motions under U.S.S.G. § 5K1.1 or Fed. R. Crim.
P. 35(b), which generally authorize a court to reduce a
sentence, on a prosecutor's motion, to reward the
defendant for providing substantial assistance to law
enforcement. The other seven plea agreements stated that
motions under § 5K1.1 "and/or" Rule 35 might
be filed. The United States did not promise any witness it
would file such a motion. All of these plea agreements were
disclosed to Anderson.
jury knew that all eight of these witnesses had been
convicted of felonies and agreed to testify. Two witnesses,
W10 and W13, were specifically asked about sentence
reductions. Consistent with their plea agreements, they said
they "hoped" for reduced sentences. No. witness
claimed to have been promised anything, and no one claimed to
expect anything. See 2 Trial Tr. (Doc. 337) at
283:15-284:1 (W13), 341:18-342:3 (W11); 3 Trial Tr. (Doc.
338) at 385:24-386:13 (W10), 485:4-15 (W07), 491:6-14 (W15),
572:14-24 (W14), 573:19-574:3 (W06); 4 Trial Tr. (Doc. 339)
at 612:25-613:3, 615:18-616:12 (W08).
jury knew other witnesses, too, had been charged with state
or federal crimes-for example, W20 and W16. Still other
witnesses, including W26 and W25, incriminated themselves in
drug trafficking without saying they had been charged with
anything. (W26 was not charged, at least not in this Court,
but W25 was facing federal trial.) The jury knew some
witnesses received "immunity," meaning, so far as
the jury knew, that the prosecution could not use the
witness's testimony against the witness. The scope of
that protection was not explained. Cf., e.g., United
States v. Dudden, 65 F.3d 1461, 1467-68 (9th Cir. 1995)
(explaining that derivative use immunity applies unless the
United States expressly says otherwise). The jury did not
know what role a prosecutor plays in obtaining a reduced
sentence or in filing charges. Compare, e.g.,
Larson, 495 F.3d at 1109-10; United States v.
Schoneberg, 396 F.3d 1036, 1041-42 (9th Cir. 2005).
the jurors at Anderson's trial probably inferred that all
witnesses who had been or could be charged with federal
crimes were hoping to curry favor or reap some benefit from
testifying at Anderson's trial. How this might happen and
what favors or benefits were available, they did not know.
is nothing particularly new" about cooperating witnesses
'"singing for their supper.'"
Larson, 495 F.3d at 1113 (Hawkins, J., dissenting).
But W08, W10, W13, W11, W14, W15, W06, and W07 had already
sampled the delights of the prosecutor's table. Before
Anderson's trial, each received a reduced sentence under
U.S.S.G. § 5K1.1 based on their debriefing with agents
or testimony to the grand jury against Anderson or others.
All eight undisclosed § 5K motions were filed by
Assistant United States Attorney James E. Seykora. Seykora
personally appeared at each witness's sentencing hearing
and spoke with the presiding judge about the extent of the
witness's cooperation as well as the reduction the
witness ought to receive. Seykora prosecuted Anderson and
questioned each of these same witnesses before the jury that
decided Anderson's fate.
of Seykora, each witness had already obtained the following
Before § 5K1.1 Motion
advisory guideline range
84 to 105 months
60 months 18 U.S.C. § 924(c)
48 months 60 months § 924(c)
advisory range 37 to 46 months
120-month mandatory minimum 60 months § 924(c)
90 months 60 months § 924(c)
262 to 327 months
60 months § 924(c)
190 months 60 months § 924(c)
advisory range 120-month mandatory minimum to 135
advisory range 151 to 188 months
120-month mandatory minimum
240-month mandatory minimum
Anderson nor the jury knew the difference Seykora made in the
prison terms of these eight witnesses. Anderson did not learn
of the § 5K1.1 motions until almost seven years after
his trial. See Order (Doc. 451).
witnesses certainly knew what they owed to Seykora and how
important it was to satisfy him. All eight were eligible for
another sentence reduction under Rule 35 if Seykora approved
of their performance at Anderson's trial. In a jury's
assessment of a witness's "incentive to testify to
the government's satisfaction," "the most
important piece of the puzzle is the anticipated
benefit that [the witness] expected to receive if his
assistance satisfied the prosecutor," that is,
"what the witness hoped to gain and, realistically,
could expect to gain." Larson, 495 F.3d at 1110
(Graber, J., concurring) (emphasis in original). At
Anderson's trial, these eight witnesses did again what
they had done before. They could realistically expect to gain
another reduction similar to the one they had already
each of these eight witnesses testified, "there were two
trials going on at the same time." "The verdict in
[the witness's] trial... would be a Rule 35 motion"
and "would be delivered by the United States
Attorney's Office." Schoneberg, 396 F.3d at
1041-42. Not only did the witnesses know what was likely to
be on the supper menu if they sang for it, but the §
5K1.1 motions also told each witness what tune Seykora wanted
to hear. They already knew what Seykora believed to be the
jury knew nothing of Seykora's influence over these
witnesses or what the witnesses knew about Seykora.
W13's Phone Calls
regard to Wl3, the United States failed to disclose more than
its § 5K1.1 motion. More than two years before
Anderson's trial, a drug task force officer wrote a
report describing a series of recorded jail phone calls
between W13 and his girlfriend. In one profanity-laced call
on May 10, 2006, the couple discussed whether W13 could get
his charges dropped by cooperating with authorities. W13
said, "[T]hey just want to go up the ladder you know,
they just want to get people higher and higher."
"If I give them all they want maybe they would just
fucking drop the charges, the fucking federal charges."
The girlfriend suggested W13 "[f]ucking take down that
fucking black guy, you know who I'm talking about."
W13 responded, "I now [sic] but fucking Nate, I
don't know rucking shit about him or anything really, I
don't know how to, I don't know." See
Gov't Ex. 6 (Doc. 461-6) at 3-4 (under seal).
Anderson's trial, when Anderson's counsel asked W13,
"[D]id you ever deal with Nate Davis?" W13
responded, "I don't even know who he is. I've
never met him in my life." 2 Trial Tr. (Doc. 337) at
jury heard a lot about Nate Davis's activities. Anderson,
like Davis, is African-American. Yet in the phone call, when
W13's girlfriend referred to "that black guy,"
W13 assumed she was talking about Davis. In all nine recorded
calls, Anderson's name never came up-not
"Anderson," not "Fritz," not
"Pete," not "Prophecy." Just
"Nate." See Gov't Ex. 6 (Doc. 461-6)
(describing nine calls); Final Pretrial Conf. Tr. (Doc. 335)
at 3:13-16 (Anderson's nicknames).
the second cooperating witness to testify (the first did not
recognize methamphetamine when she saw it) and the first
whose testimony seriously incriminated himself and Anderson.
He claimed that, between 2004 and the end of June 2006,
Anderson fronted him more methamphetamine and cocaine than
any other trial witness claimed to receive. See,
e.g., 2 Trial Tr. (Doc. 337) at 255:20-257:2,
258:7-259:12, 268:4-269:11, 271:16-22. If the jury believed
him, W13's testimony alone proved all the elements of all
but the marijuana counts of the indictment. Recapping his
relationship with Anderson, W13 said, "I've dealt a
lot of drugs with a lot of people, so what I'm saying is
a lot of it is accurate, but I can't remember the exact
amounts. But I've dealt a lot with Fritz, and the meth,
the meth, I've sold over 40 pounds; the cocaine is right
at about 10 pounds; and ecstasy is about a hundred
pills." Id. at 271:23-272:2.
reasonable juror would likely be far more skeptical of
W13's claim he "dealt a lot with Fritz" in
light of the phone call. See Fed. R. Evid. 613(b).
Tuesday, June 10, 2008, an FBI memo addressed to then-United
States Attorney William Mercer stated that the cases of
several individuals should be closed because they "were
prosecuted locally and\or have cooperated in the
investigation with the understanding that they would not be
charged in [sic] they agreed to testify in federal
Gov't Ex. 12 (Doc. 461-12) at 1; see also U.S.
Resp. to Order (Doc. 461) at 19 n. 19. Four witnesses who
testified against Anderson the previous week were on the
list: W05, W24, W28, and W03. When they testified at
Anderson's trial, they knew their testimony was earning
their exemption from federal prosecution. The jury did not.
testified that, over an 18-month period, she sold a pound and
a quarter of methamphetamine, five pounds of marijuana, and
about 100 ecstasy tablets for Anderson, used about four
ounces of cocaine she received from him, and occasionally
paid down her drug debt by giving Anderson guns she had
received in exchange for drugs. See 3 Trial Tr. at
408:13-419:8. Her testimony was directly relevant to all but
the conspiracy counts of the indictment. No. one mentioned
anything about her motives or interest in testifying.
testified that he once bought three ounces of methamphetamine
from Anderson through his cousin, W03, and bought
"teeners" and a quarter-ounce on other occasions.
See 3 Trial Tr. at 527:10-528:19. Anderson's
counsel tried to show that W24 agreed to testify so that
state authorities would release him and he would not have to
go through withdrawal in jail. See Id. at
529:5-530:21. On redirect, Seykora implied that W24 did not
benefit from his testimony, because he "didn't have
[his] charges reduced for possession of Fritz Anderson's
dope" and "pled guilty to a felony" in
"state court." See Id. at 528:11-13,
530:25-531:3. The jury did not know that W24's testimony
was his ticket out of federal prosecution by
testified that she saw a handgun laying on Anderson's
pants on a bed in a motel room in California; that she did
not see him with a gun any other time; that she had
previously told agents that Anderson brought marijuana,
ecstasy, methamphetamine, and cocaine to Montana from
California; and that Anderson gave her about eight ounces of
methamphetamine, some of which she distributed to W24. See 4
Trial Tr. (Doc. 339) at 674:5-682:21. Thus, the jury heard
from two witnesses who corroborated each other-W24 and
W03-but did not hear that both of them avoided federal
prosecution by testifying.
testimony likely made a significant impression on the jury.
She took the stand, gave her name, identified Anderson, and
then said, "I'm not testifying today." 3 Trial
Tr. at 451:21-452:17. The jury was excused. When Judge Cebull brought
the jury back in, he instructed them not to consider
W28's refusal to testify as evidence against Anderson.
See Id. at 461:19-462:2. The United States then
called W28's stepfather, W31, to tell the jury that a
letter from Anderson arrived at his home for W28. He opened
it, read it, and called law enforcement.
"Adam"took custody of the letter. See 3
Trial Tr. at 464:16-467:9. Judge Cebull did not admit the
letter into evidence, so the jury did not know what it said.
They knew it prompted W31 to call the cops.
United States called W28 again the following day. She told
the jury Anderson dealt marijuana, ecstasy, methamphetamine,
and cocaine. She was "sure he did" have a handgun
on his person but she never saw one. She knew he made two or
six trips to California to get drugs and said W05 and W16
sold drugs for him. She agreed she previously said she saw
about 200 ounces of methamphetamine and "more than ten,
less than 1, 000" ecstasy tablets in her home when
Anderson was living with her and previously said Anderson
carried a gun for protection when he had cash and drugs. W28
also showed the jury Anderson's name tattooed on her arm.
His was not the only name tattooed on her body. See
4 Trial Tr. (Doc. 339) at 624:22-643:20.
tried to show W28's testimony-aptly described by Judge
Cebull as "wishy-washy," 4 Trial Tr. (Doc. 339) at
701:9-702:6-indicated that she did not have the personal
knowledge to support what she had previously said to the
grand jury, did not remember what she had said or what she
was thinking when she said it, and was trying to answer
Seykora's questions without admitting perjury. See,
e.g., 4 Trial Tr. (Doc. 339) at 633:13-634:21,
Anderson could not suggest a reason why W28, after refusing
to testify one day, testified the next. Neither he nor the jury
knew she and the United States "understood" she
would not be prosecuted if she testified.
W02's Testimony and "Immunity"
United States had no duty to explain to the jury what
"immunity" meant. It did, however, have a duty to
correct false testimony. See, e.g., Alcorta v.
Texas, 3555 U.S. 28, 31-32 (1957) (per curiam);
Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005)
gave the jury an incorrect interpretation of the scope of his
Q. And you're testifying under a grant of immunity?
Q. And they've agreed not to charge you?
A. In the conspiracy, yes. Well, I received a use of immunity
[sic] letter that said they couldn't use the
interview that I did with them against me.
That's all. If-
A. If they wanted to, they could still charge me with the
2 Trial Tr. at 336:10-18 (emphases added).
correct that "they could still charge me." But in
his plea agreement, the United States promised not to use
against him any information he provided in debriefing or in
testimony. See Plea Agreement (Doc. 22) at 10 ¶
15(a), (b), United States v. W02, No. CR
xx-xx-BLG-JDS (D. Mont, xxxx, 20xx). Whether W02 understood
this or not was not relevant to the United States' duty
to correct the record. See Hayes, 399 F.3d at
980-81. Saying that the United States could not use his
interview against him but he could still be prosecuted
implied that he was taking a risk and "just doing the
right thing" by testifying at trial. In fact, he
incurred no risk by testifying at trial. His testimony was
protected as much as his interview. Seykora did not correct
W02's false testimony. Cf. Order (Doc. 746) at
5-11, United States v. Garcia, No. CR 04-87-BLG-RFC
(D. Mont. Sept. 30, 2011).
than that, W02's plea agreement conferred derivative use
See United States v. Plummer, 941 F.2d 799, 803,
804-06 (9th Cir. 1991). The United States could not use
W02's words as evidence, nor could it use those words
"to uncover other incriminating evidence, focus the
investigation, decide to initiate prosecution, interpret
other evidence, or otherwise plan trial strategy."
United States v. Dudden, 65 F.3d 1461, 1467 (9th
Cir. 1995). The reach of derivative use immunity gives a
witness incentive to say as much as possible. A witness
willing to lie can use such immunity to please the
prosecutor, who is making his own decision about the
witness's credibility. See Schoneberg, 396 F.3d
at 1041-42 (explaining witness testifies to trial jury and
also in "mini-trial" with prosecutor as jury). A
witness can also use his immunity to protect himself, in the
event he is charged, by interposing a burden of proof the
prosecutor must meet in a Kastigar hearing. See
Dudden, 65 F.3d at 1468-69 (a Seykora case); see
also Kastigar v. United States, 406 U.S. 441, 459-61
to correct W02's testimony was a relatively minor error
in the scheme of the trial, but W02 was not the only witness
whose immunity was unclear. So far as the Court is aware,
some witnesses, including W26, W22, and W12, see, e.g.,
2 Trial Tr. at 305:11-306:20, 308:11-309:2; 3 Trial Tr.
at 498:12-499:19, 552:3-4, gave self-incriminating testimony
with no immunity of any kind. Witnesses of this sort are
likely to appear more forthright and credible. W17, W09, W20,
and Wl 8 appeared to be on the same footing, because their
immunity did not come up as an issue. But their plea
agreements, like W02's, conferred derivative use
that said, an immunity agreement holding a witness harmless
for what he says to an agent or a jury is not the same thing
as rewarding a witness for what he says to an agent
or jury. Non-prosecution agreements, which provide
transactional immunity, see, e.g., United States v.
Brown, 979 F.2d 1380, 1381 (9th Cir. 1992) (per curiam),
and sentence reductions are the two highest-value benefits a
prosecutor can deliver to a witness. The United States
provided benefits of that value to 12 witnesses and failed to
disclose all of them.
Test for Materiality
United States argues that the undisclosed Giglio
information was immaterial. It asserts that, even if the
testimony of the Giglio witnesses is excised from
the record, the evidence against Anderson remains
"overwhelming." See U.S. Brief (Doc.498)
analysis is wrong. See Strickler v. Greene, 527 U.S.
263, 289-90 (1999). The United States' approach assumes
the non-Giglio witnesses were all credible and
describes only those portions of their testimony that favored
the United States. See U.S. Brief (Doc. 498) at
6-13. This approach would be appropriate if the question was
whether the United States presented sufficient evidence to
support conviction. See Jackson v. Virginia, 443
U.S. 307, 324 (1979). But the Jackson test defers to
the jury's decision of the case. See Id. at 326.
Here, the question is whether the prosecutor interfered with
the jury's ability to assess the witnesses'
credibility. There is no justification for deferring to the
jury's verdict if the jury was deprived of important
information that might have led it to a different verdict.
the Supreme Court explains, "materiality... is not a
sufficiency of evidence test." Kyles v.
Whitley,514 U.S. 419, 434 (1995) (explaining United
States v. Bagley,473 U.S. 667 (1985)). "One does
not show a Brady violation by demonstrating that
some of the inculpatory evidence should have been excluded,
but by showing that the favorable evidence could reasonably
be taken to put the whole case in such a different light as
to undermine confidence in the verdict." Kyles,
514 U.S. at 435. The analysis ...