Breach of Proffer Agreement

Listen to this article

7^th Circuit Court of Appeals

Case Name: United States of America v. Antwon Jenkins

Case No.: 14-2898

Officials: KANNE and SYKES, Circuit Judges, and ELLIS, District Judge

Focus: Breach of Proffer Agreement

Defendant‐Appellant, Antwon Jenkins, was arrested and charged with Kidnapping, 18 U.S.C. § 1201(a), and Using or Carrying a Firearm to Commit a Federal Crime of Violence, 18 U.S.C. § 924(c)(1)(A)(ii). Following his arrest, Jenkins agreed to cooperate with the Government’s investigation of these crimes and give a proffer inter‐ view. Prior to the interview, the Government and Jenkins entered into a proffer agreement, the terms of which prohibited the Government from making direct use of any statements or information Jenkins provided during the interview in its case‐in‐chief, but permitted the Government to derivatively use such information. During the interview, Jenkins told the Government where he hid the gun he used during the kid‐ napping. The Government used this information to recover the gun and then introduced both physical evidence of the gun, as well as the testimony of the agents who found the gun (collectively, the “gun evidence”), during its case‐in‐ chief. A jury convicted Jenkins on all counts and he received a sentenced of 308 months in prison—188 months for kid‐ napping and 120 months for using a firearm to commit a federal crime of violence, to run consecutively. On appeal, Jenkins argues that the Government breached the proffer agreement by directly using the information he provided during the proffer interview against him during its case‐in‐ chief.   After Jenkins filed his appeal and the parties argued the case before this panel, but before we decided the appeal, the Supreme Court issued its opinion in Johnson v. United States, ‐‐‐ U.S.  ‐‐‐‐, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), which held the residual clause of the Armed Career Criminals Act (“ACCA”), 18 U.S.C. § 924(e), to be unconstitutionally vague.

Jenkins then filed a supplemental appellate brief challenging his conviction under 18 U.S.C. § 924(c) for using a weapon during a “crime of violence,” in this case kidnapping under 18 U.S.C. 1201(a), arguing that in light of the ruling in John‐ son, kidnapping is no longer a “crime of violence” as defined under § 924(c), and therefore his conviction under § 924(c) must be overturned as a matter of law. The Government argues that the ruling in Johnson should not be extended to the Residual Clause of § 924(c), and even if it were, kidnapping would still be a crime of violence under the Force Clause, § 924(c)(3)(A), which Johnson did not implicate. Because the Residual Clause, § 924(c)(3)(B), is unconstitutionally vague and kidnapping under § 1201(a) does not have, as an element, the use, threatened use, or attempted use of physical force, we reverse Jenkins’ conviction under § 924(c). Because Jenkins’ conviction under § 924(c) is the only issue on appeal, we need not reach the original appellate issue of whether the Government breached the proffer agreement.

Reversed and remanded

Full Text

Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.