United States v. Bressi

1

UNITED STATES OF AMERICA, v. ANTHONY D. BRESSI, Defendant.

No. 4:19-CR-00207

United States District Court, M.D. Pennsylvania

October 25, 2024

MEMORANDUM OPINION

Matthew W. Brann Chief United States District Judge

I. BACKGROUND

In preparation for Defendant Anthony Bressi's upcoming trial, he and the Government submitted proposed jury instructions. In his proposal, Bressi requested a special verdict form asking the jury to determine whether he had cooperated with the Government during its investigation pursuant to an agreement not to prosecute him (the “immunity agreement”).^[1] The Government responded with a Motion in Limine seeking to prevent Bressi from putting the immunity question to the jury, and arguing that the issue had already been decided pursuant to a prior motion.^[2]

The Court agrees with the Government that it has already rejected Bressi's arguments regarding an alleged immunity agreement as factually unsupported.^[3]Nevertheless, out of an abundance of caution, the Court set a hearing to consider:

(1) whether the question of immunity is for the jury or the Court; and (2) the evidence regarding the existence of an immunity agreement.^[4] Having considered the parties' arguments and evidence, the Court now reaffirms its conclusion that Bressi has not carried his burden to prove the existence of an immunity agreement and grants the Government's Motion in Limine.

II. DISCUSSION

The law is abundantly clear, both in this Circuit and every other, that “[w]hether the government has violated a plea, or by analogy, a cooperation agreement, is a question of law . . . [and] [w]hether any such agreement exists is also a question of law with the underlying facts found by the District Court ....”^[5]“[I]mmunity agreements are appropriate fodder for the court because . . . such agreements ‘are in the nature of contracts, their scope and effects are strongly influenced by contract law principles,' and the defendant's rights under these agreements ‘are determined by the terms and conditions of the bargain as found by the court.'”^[6] Moreover, because immunity from prosecution “involves the right of the government to prosecute [the defendant] rather than [the defendant's] guilt or innocence, . . . th[e] issue [may] be resolved by the district court.”^[7] Bressi's sole case to the contrary deals with the distinct situation of an immunity agreement offered as evidence of innocence, rather than immunity from guilt.^[8] Therefore, the Court will consider the evidence for and against the existence of an immunity agreement.

The Court determines the existence and terms of an immunity agreement by reference to contract principles.^[9] Accordingly, for an agreement to exist, the defendant and the Government must mutually assent to its essential terms.^[10] The Government may only be bound by promises made by those to whom it has conferred such authority.^[11] As the proponent of the existence and breach of an immunity agreement, Bressi bears the burden of proving both by a preponderance of the evidence.^[12] Bressi briefly argues that the Government should have the burden of proving that an immunity agreement did not exist, but “[w]here [a defense] ‘excuse[s] conduct that would otherwise be punishable,' but ‘does not controvert any of the elements of the offense itself,'” like immunity, “the Government has no constitutional duty to overcome the defense beyond a reasonable doubt.”^[13] Bressi asserts that he is immune from prosecution: he must prove it.

A. Testimony

1. Bressi

Bressi provides the following evidence of the existence of an immunity agreement. When law enforcement executed a search warrant at his business (“SHIVA”) on June 8, 2019, Bressi spoke with two officers: FBI Special Agent Timothy O'Malley and Pennsylvania State Trooper Ryan Kelley.^[14] According to Bressi, when he realized that the Government suspected him of criminal activity, he ceased discussion and demanded complete immunity from prosecution.^[15] His demand was informed by his prior conviction and lengthy criminal sentence for a federal narcotics offense, which he maintains was wrongful and resulted from the actual offenders making complete immunity deals in return for falsely testifying against him.^[16] He also requested that his employees be granted immunity from prosecution, and that his girlfriend, a Chinese national, be permitted to repatriate.^[17]

Bressi testified that Agent O'Malley and Trooper Kelley agreed to grant all of his requests in return for his cooperation in their drug trafficking investigation.^[18]After the alleged agreement, Bressi admitted to manufacturing narcotics, and observed Agent O'Malley make a phone call, which he believed was to Assistant United States Attorney Geoffrey MacArthur for the purpose of confirming the immunity deal.^[19] Agent O'Malley returned and continued talking with Bressi, but never confirmed that AUSA MacArthur had given the deal his approval.^[20]Nevertheless, Bressi took Agent O'Malley's continued participation in the discussion to mean that the deal was set.^[21] Sometime after the parties reached the purported agreement, Bressi offered to make controlled deliveries of a counterfeit controlled substance to his alleged co-conspirators.^[22] At the end of the day, Bressi was placed under arrest and taken to prison.^[23]

In the ensuing weeks, Bressi engaged in the controlled deliveries and cooperated with the Government.^[24] He also participated in several proffer sessions with Agent O'Malley, his former defense counsel, Assistant Federal Defender Gerald Lord, and, at times, AUSA MacArthur.^[25] Bressi was indicted after the controlled buys, but says that he believed the indictment was a “ruse” to keep up his credibility on the street.^[26] After several rounds of proffer sessions, Bressi stated that the Government offered him a plea deal in return for his cooperation.^[27] He rejected it, believing that he was entitled to complete immunity from prosecution.^[28]

Bressi props up his assertions of fact by arguing that his prior experience as a criminal, including his previous arrests and time served along with the apparent immunity agreements reached by his co-conspirators in his prior case, prove that “[he] would not have voluntarily admitted to manufacturing hundreds of kilos [of scheduled narcotics]. The only logical explanation for this admission was that he believed that an immunity deal existed.”^[29]

2. Government

The Government's witnesses, Agent O'Malley and Trooper Kelley, told a different story. According to their matching testimony, when confronted with the Government's evidence of his conduct, Bressi admitted his criminality and requested an opportunity to cooperate.^[30] Agent O'Malley and Trooper Kelley were both receptive to a cooperation deal, but were clear that neither had the authority to make Bressi any promises about what he would receive in return for his cooperation.^[31] That testimony aligns with statements they made at a suppression hearing nearly two years ago, where Agent O'Malley stated that “I think what I told [Bressi] is that we, as agents, are not in any position to promise anything. I think what I did tell [Bressi] was that the only thing I could do, from an agent's perspective, is advocate for any cooperation that you provided.”^[32] In prior testimony, Trooper Kelley acknowledged that he told Bressi that the state was not planning to prosecute, but denied making any promises regarding federal nonprosecution,^[33] and in the instant hearing explained that he was merely clarifying to Bressi that the investigation was a federal one.^[34] Agent O'Malley agreed that he spoke on the phone with AUSA MacArthur after Bressi requested to cooperate, but explained that he was informing AUSA MacArthur that Bressi had admitted to his conduct and that they would be going ahead with an arrest.^[35] Agent O'Malley and Trooper Kelly maintain that neither made any promises to Bressi and that, instead, they affirmatively told him they could not promise him anything.^[36] Their stories otherwise align with Bressi's.

B. Analysis

Based on the evidence, the Court concludes that Bressi has not carried his burden of proving the existence of an immunity agreement on the facts or the law.

1. Bressi's story is not credible.

Starting with the facts, in this case with contradictory testimony and no objective evidence, the Court, having observed the witnesses, finds the Government's more credible. Agent O'Malley and Trooper Kelley-the two people who spoke extensively with Bressi at SHIVA-both testified that neither promised Bressi that he would not be prosecuted.^[37] Both stated clearly that, although they told Bressi they would do their best to advocate on his behalf if he agreed to cooperate, they had no legal authority to extend an immunity offer.^[38] And their stories of the SHIVA search aligned in all respects.^[39]

Bressi told a similar story to the Government's witnesses, but claims he was offered complete immunity (in his words, that he “walks”) in return for his promise to cooperate.^[40] The Court is not inclined to accept Bressi's ipse dixit given that he has offered fabulous testimony both in the past and in this very hearing where he stood by the position that, had he been granted pretrial release, he would have been able to prepare a $2.00-per-dose COVID-19 vaccine, “CoviNanoVax™,” within mere months of leaving incarceration.^[41] Bressi's credibility is further undercut by the fact that he did not attempt to dismiss the indictment based on immunity from prosecution for more than five years while he was in federal custody awaiting trial on these charges.^[42] And when he did assert his immunity argument, it was a minor aspect of his all-out-blitz litigation strategy raising...