United States of America v. Corey Lynn Flying Bye, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 22-2742
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United States of America
Plaintiff - Appellee
v.
Corey Lynn Flying Bye, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Northern
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Submitted: March 16, 2023
Filed: June 2, 2023
[Unpublished]
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Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges.
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PER CURIAM.
Corey Lynn Flying Bye, Jr. pled guilty to one count of conspiracy to distribute
a controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B),
pursuant to a plea agreement. Among other benefits, the agreement contained the
government’s promise that “there w[ould] be no further federal criminal
prosecution” for distribution or possession with intent to distribute a controlled

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substance. At sentencing, per the district court’s1 request, the government elicited
testimony from a witness connecting Flying Bye to a drug-related death during the
time he was involved in the conspiracy. Flying Bye objected, arguing that this
testimony violated the plea agreement. The district court overruled his objection and
sentenced Flying Bye to 125 months’ imprisonment. Flying Bye appeals, arguing
only that the government breached the plea agreement. Having jurisdiction under
28 U.S.C. § 1291, we affirm.
I.
In early January 2021, federal law enforcement officers received information
that Flying Bye was distributing methamphetamine on the Standing Rock Indian
Reservation and was a person of interest in the drug-related death of Justin Yellow
Earrings. On January 7, 2021, officers arrested and questioned Flying Bye. He
admitted to distributing methamphetamine. On the same day, officers also
interviewed S.U.A., who informed them that, prior to his death, Yellow Earrings had
told her that he bought methamphetamine from Flying Bye.
Subsequently, a federal grand jury returned an indictment charging Flying
Bye with conspiracy to distribute a controlled substance. Following negotiations,
Flying Bye entered into a plea agreement with the government whereby he agreed
to plead guilty to the indictment in exchange for, among other benefits, the
government’s promise that “there w[ould] be no further federal criminal
prosecution” for distribution or possession with intent to distribute a controlled
substance “between January 1, 2020, and January 7, 2021.” The parties also “agreed
that no additional promises, agreements, or conditions have been entered into other
than those set forth in this agreement, and this agreement supersedes any earlier or
other understanding or agreement.”
1 The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

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Months later, the United States Probation Office released the first draft of its
Presentence Investigation Report (PSR) which discussed Flying Bye as a person of
interest in Yellow Earrings’s drug-related death. The parties’ attorneys met to
discuss the PSR, and the government stated that it would not seek to link Flying Bye
to the death. Shortly thereafter, Flying Bye filed a formal objection to the paragraphs
of the draft PSR discussing his possible involvement in the death. The Probation
Office then distributed the final PSR, acknowledging Flying Bye’s objections but
maintaining the PSR as written.
Just days later, the district court issued a memorandum to the parties stating:
I am very disturbed by the fact that [Flying Bye] is a person of
interest in a drug distribution death. His lawyer has objected (although
there is apparently no question that he is a “person of interest[,]” apart
from the question of whether he is guilty of something). I want to hear
from a witness, namely [S.U.A.], as to what she knows about the
distribution and death. I will expect the government to make her
available.
R. Doc. 31. This memorandum “caused a flurry of activity” among the parties, and
the government ultimately decided to abide by the district court’s request.
At Flying Bye’s sentencing hearing, the government called S.U.A. as a
witness. Flying Bye objected, arguing that the government eliciting testimony from
S.U.A. violated the plea agreement. The district court overruled his objection, and
the government proceeded. In argument following S.U.A.’s testimony, the
government stated to the district court, “I do not think I could have proved beyond a
reasonable doubt that the meth that Mr. Flying Bye had was what caused the death
of Mr. Yellow Earrings. . . . [T]hat is why it wasn’t charged.”
Ultimately, the district court did not take Yellow Earrings’s death into account
in fashioning Flying Bye’s sentence. Following an extensive analysis, the district
court imposed a final sentence of 125 months’ imprisonment. Flying Bye now
appeals, arguing that “the government breached the plea agreement by eliciting

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testimony from [S.U.A.] at sentencing regarding the drug-related death mentioned
in the PSR when the government had previously agreed that it would not seek to link
Mr. Flying Bye to the death.” Appellant Br. 7.
II.
“When a guilty plea is induced by an agreement, the government must abide
by its terms.” United States v. Beston, 43 F.4th 867, 873 (8th Cir. 2022) (citation
omitted). And “[w]e review de novo questions regarding the interpretation and
enforcement of a plea agreement.” United States v. Collins, 25 F.4th 1097, 1100
(8th Cir. 2022). “‘We generally interpret the meaning of the terms in the agreement
according to basic principles of contract law.’ This involves ‘discern[ing] the intent
of the parties as expressed in the plain language of the agreement when viewed as a
whole.’” United States v. Thomas, 58 F.4th 964, 971 (8th Cir. 2023) (alteration in
original) (citations omitted). We take a “holistic view of the [g]overnment’s plea-
related conduct,” mindful of the constitutional concerns implicated by plea
agreements. Beston, 43 F.4th at 874 (alteration in original). While many errors
which are alleged to have occurred at sentencing are reviewed for harmless error,
see, e.g., United States v. Marin, 31 F.4th 1049, 1056-57 (8th Cir. 2022), such review
is unavailable when the government breaches a plea agreement, United States v.
Yah, 500 F.3d 698, 704 (8th Cir. 2007).
Here, the government promised that, in exchange for Flying Bye’s guilty plea,
“there w[ould] be no further federal criminal prosecution” for distribution or
possession with intent to distribute a controlled substance. The government argues
that this phrase means “that the government would not institute a separate
prosecution against Flying Bye for the distribution of a controlled substance in
exchange for his guilty plea to the conspiracy offense.” Appellee Br. 7. Flying Bye,
on the other hand, reads the provision to mean “that there would be no attempt to
link [Yellow Earrings’s] death to Mr. Flying Bye.” Appellant Br. 10. We are more
persuaded by the government’s reading.

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The term “prosecution” is not expressly defined in the agreement, “so we look
to its ordinary, natural meaning.” Thomas, 58 F.4th at 971. “Prosecution” means
“[a] criminal proceeding in which an accused person is tried.” Prosecution, Black’s
Law Dictionary (11th ed. 2019). When combined with the modifier “further,” the
agreement unambiguously refers to an additional prosecution beyond the one in
which Flying Bye agreed to plead guilty. Thus, the government’s eliciting testimony
from S.U.A. at sentencing—a necessary component of Flying Bye’s prosecution for
the crime he pled guilty to—did not constitute a “further federal criminal
prosecution.” Indeed, S.U.A.’s testimony about Yellow Earrings’s death merely
constituted relevant conduct underlying Flying Bye’s prosecution for conspiracy to
distribute controlled substances. We also note that, while having no impact on our
interpretation of the plea agreement, the district court—not the government—was
the driver of this testimony. Thus, we hold that the government did not breach the
plea agreement by eliciting S.U.A.’s testimony at sentencing.
III.
For the foregoing reasons, we affirm the judgment of the district court.
ERICKSON, Circuit Judge, concurring.
I agree with the majority’s analysis of the plain language of the “no further
prosecution” provision in the plea agreement. I write separately to note that defense
counsel asserted, which the government did not dispute, that this provision was
added to the plea agreement to avoid the scenario that played out at sentencing—
that is, consideration of whether Flying Bye distributed drugs that resulted in Yellow
Earrings’s death. I have concerns about whether the prosecutor’s actions in eliciting
the testimony contravened the parties’ pre-plea agreement bargain to not attempt to
link Flying Bye to the overdose death. But, because the plea agreement did not
contain a provision that reduced to writing this particular aspect of the plea
negotiations, I cannot say under these circumstances that the government failed to
fulfill the court’s expectation that prosecutors act with “meticulous fidelity to the

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plea agreement” that was signed in this case. See United States v. Brown, 5 F.4th
913, 916 (8th Cir. 2021) (endorsing the presentence investigation report’s higher
than the parties’ agreed to calculation, which essentially invited the district court to
go on a fishing expedition for additional supporting facts, “was hardly the
meticulous fidelity to the plea agreement we require”); United States v. E.V., 500
F.3d 747, 751 (8th Cir. 2007) (explaining the government’s breach of a promise that
induced a guilty plea violates due process and threatens “the honor of the
government, public confidence in the fair administration of justice, and the effective
administration of justice in a federal scheme of government”).
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