Date: Sep 26, 2026

Self-Incrimination Prevails Over Compulsory Process, and Inevitable Discovery Extends to Cell-Phone Evidence

Case: United States v. Gary Howard

Court: United States Court of Appeals for the Seventh Circuit

Date: September 25, 2026

Disposition: Convictions and sentence affirmed.

Introduction

United States v. Gary Howard arose from the collapse of a corrupt relationship between Gary Howard, a paid confidential informant for Homeland Security Investigations (“HSI”), and his handler, former Special Agent Anthony Sabaini. Although Howard assisted federal narcotics investigations, he also engaged in unauthorized drug activity. He was eventually targeted in two DEA sting operations involving cocaine transactions in 2017 and 2018.

A jury convicted Howard of conspiring and attempting to possess cocaine with intent to distribute in connection with the 2018 operation, and of conspiring to distribute cocaine in connection with the 2017 transaction. It acquitted him of the substantive 2017 distribution charge. He received a within-Guidelines sentence of 156 months’ imprisonment.

The appeal principally concerned three questions:

Whether Sabaini’s Fifth Amendment privilege justified quashing Howard’s subpoena, despite Howard’s Sixth Amendment right to present a public authority defense;
Whether evidence obtained through warrantless searches of Howard’s home and cell phone was admissible under the inevitable discovery doctrine; and
Whether the evidence was sufficient to support Howard’s convictions.

The Seventh Circuit answered each question in the government’s favor. It also rejected or found waived Howard’s claims of vindictive prosecution, improper joinder, entitlement to a mistrial, and substantive sentencing unreasonableness.

Summary of the Opinion

The court held that Sabaini had reasonable cause to fear self-incrimination if compelled to testify. His criminal appeal remained pending, his testimony could expose prior perjury, and recorded conversations created a possible witness-tampering risk. The Fifth Amendment therefore outweighed Howard’s compulsory-process right, and the district court did not abuse its discretion by quashing the subpoena.

The ruling did not eliminate Howard’s public authority defense. Howard testified that Sabaini had directed him to investigate the prospective cocaine supplier, the jury received the applicable public authority instruction, and the government introduced extensive evidence showing that the transaction had not been authorized. Moreover, Sabaini had already testified twice that he did not authorize the relevant drug deal.

The court also upheld admission of evidence from Howard’s home and cell phone. Agents had probable cause to search both, had discussed obtaining warrants with a prosecutor, and credibly testified that they would have sought warrants absent Howard’s purported consent. The evidence therefore would inevitably have been discovered lawfully.

Finally, the evidence supported all three convictions. Howard’s demand to inspect the drugs before completing the purchase created a conditional agreement, not merely a condition precedent to forming an agreement. His buyer-seller argument was waived on appeal because his opening brief failed to confront the district court’s reasons for rejecting it.

Analysis

1. Compulsory Process, Self-Incrimination, and the Public Authority Defense

The competing constitutional rights

The Sixth Amendment gives a criminal defendant compulsory process to obtain favorable witnesses. The Fifth Amendment, however, protects a witness from being compelled to provide potentially incriminating testimony. Under United States v. Newton, 76 F.4th 662 (7th Cir. 2023), the witness’s privilege generally prevails when the two rights conflict.

Citing Ohio v. Reiner, 532 U.S. 17 (2001), the court explained that a witness need show only “reasonable cause to apprehend danger” from answering. Under United States v. Newton, the standard is unmet only when the witness could not possibly incriminate himself. The order quashing the subpoena was reviewed for abuse of discretion under United States v. Hamdan, 910 F.3d 351 (7th Cir. 2018).

Why Sabaini could invoke the Fifth Amendment

The court identified three independent risks:

Sabaini’s appeal was pending. Relying on United States v. Kennedy, 372 F.3d 686 (4th Cir. 2004), the court held that the privilege continues while a conviction is on appeal because the conviction could be reversed and the testimony later used at a retrial.
Truthful testimony could expose earlier perjury. United States v. Allmon, 594 F.3d 981 (8th Cir. 2010), distinguishes an impermissible fear of committing present perjury from a legitimate fear that truthful testimony will reveal perjury committed in an earlier proceeding.
Cross-examination could expose witness tampering. The government intended to use jail calls suggesting a proposed exchange: Howard would support a lower sentence for Sabaini, and Sabaini would testify for Howard. United States v. Eads, 729 F.3d 769 (7th Cir. 2013), demonstrated that recorded jail calls can sustain a witness-tampering conviction, while United States v. Chapman, 765 F.3d 720 (7th Cir. 2014), confirmed that the privilege protects against incrimination during cross-examination.

These risks readily satisfied the low “reasonable cause” threshold. The district court therefore acted within its discretion in conducting an ex parte, in-camera inquiry and quashing the subpoena.

The defense remained available

Under Norweathers v. United States, 133 F.4th 770 (7th Cir. 2025), the public authority defense applies when a defendant knowingly undertakes otherwise illegal conduct because a government official actually authorized it and the defendant reasonably relied on that authorization. Apparent authority is insufficient.

Howard was not prevented from asserting the defense. He testified about Sabaini’s alleged instructions, presented evidence concerning his informant status, and received the Seventh Circuit’s pattern instruction. The jury nevertheless found that he had not proved the defense by a preponderance of the evidence.

The objective evidence strongly supported that finding. HSI supervisors knew nothing about the operation; the supposed investigation was absent from Howard’s informant file; Sabaini was out of town; and there were no calls between Howard and Sabaini during the preceding week. Howard’s written informant agreement also required prior approval and direct contact before and after any authorized illegal activity.

Sabaini’s absence did not make the trial fundamentally unfair because he had previously denied authorizing either deal. His anticipated testimony therefore was unlikely to assist Howard and could not establish the indispensable element of actual authorization.

2. Inevitable Discovery of Evidence from the Home and Cell Phone

Governing doctrine

The exclusionary rule, recognized in Mapp v. Ohio, 367 U.S. 643 (1961), ordinarily prevents the government from using evidence obtained through an unconstitutional search. Nix v. Williams, 467 U.S. 431 (1984), establishes an exception when the evidence would inevitably have been discovered through lawful means.

Under United States v. Pelletier, 700 F.3d 1109 (7th Cir. 2012), the government had to prove by a preponderance of the evidence that:

Agents had or would have obtained an independent legal basis for the searches; and
They could and would have pursued and obtained warrants.

United States v. Watson, 171 F.4th 1012 (7th Cir. 2026), supplied the mixed standard of review: legal conclusions receive de novo review, while factual findings receive clear-error review.

Probable cause for the residence

Surveillance showed Howard leaving the meeting location after discussing the cocaine purchase, entering the garage of his residence, and returning with a backpack containing approximately $133,000. He also stated that he could retrieve an additional $140,000. These facts created probable cause to believe that further evidence or proceeds of drug trafficking would be found in the home.

United States v. Dixon, 137 F.4th 592 (7th Cir. 2025), and Bufkin v. Collins, 604 U.S. 369 (2025), supported de novo review of probable cause where the historical facts were undisputed. Heien v. North Carolina, 574 U.S. 54 (2014), and Kentucky v. King, 563 U.S. 452 (2011), reinforced that probable cause is an objective, legally grounded inquiry.

Probable cause for the cell phone

Agents knew that Howard and co-defendant Fowobi George had coordinated the transaction electronically. A lawful search of George’s phone revealed calls, texts, and WhatsApp messages with Howard, and the confidential informant’s recording captured a WhatsApp ringtone when Howard contacted George. That evidence supplied probable cause to believe Howard’s phone contained communications concerning the offense.

Agents would have obtained warrants

Agent Brandon Rodekohr testified that he had consulted a federal prosecutor before, during, and after the operation about applying for warrants and would have done so absent Howard’s purported consent. The district court credited that testimony.

United States v. Pelletier and United States v. Marrocco, 578 F.3d 627 (7th Cir. 2009), permit inevitable discovery where officers had probable cause and had begun the routine, established steps leading to a warrant. United States v. Maxwell, 143 F.4th 844 (7th Cir. 2025), required deference to the district court’s credibility determination.

Why Riley v. California did not require exclusion

Howard argued that Riley v. California, 573 U.S. 373 (2014), created a categorical warrant requirement for searches of cell-phone data. The court rejected this argument because Riley v. California addressed the search-incident-to-arrest exception to the warrant requirement. It did not eliminate the inevitable discovery exception to the exclusionary rule.

The distinction is critical. Inevitable discovery does not make the warrantless search lawful. It assumes the search was unlawful but declines to suppress evidence that would have been obtained through an independent, lawful warrant process. Because agents could and would have secured a warrant, admitting the phone evidence did not undermine Riley v. California.

3. Vindictive Prosecution

Howard claimed that the government retaliated for his partially successful suppression motion by adding charges based on the 2017 transaction. Under United States v. Baldwin, 68 F.4th 1070 (7th Cir. 2023), a defendant must present objective evidence that the prosecution was motivated by animus, self-vindication, or another retaliatory purpose.

Timing alone was insufficient. United States v. Jarrett, 447 F.3d 520 (7th Cir. 2006), establishes that the timing of a federal prosecution cannot by itself transform legitimate prosecutorial discretion into vindictiveness. Likewise, United States v. Thomas, 520 F.3d 729 (7th Cir. 2008), recognizes that adding a supported charge through a superseding indictment is not inherently vindictive.

Because Howard offered no evidence of malice apart from sequence and timing, the district court properly denied dismissal.

4. Severance, Mistrial, and Appellate Waiver

Howard sought to sever the 2017 counts from the 2018 counts under Rules 8 and 14. The district court found the offenses sufficiently similar and concluded that instructions could mitigate any prejudice. The Seventh Circuit did not reach the merits because Howard failed to renew his motion at the close of evidence.

United States v. Tinsley, 62 F.4th 376 (7th Cir. 2023), requires renewal at that point because only then can the trial court assess actual prejudice. Under United States v. Cardena, 842 F.3d 959 (7th Cir. 2016), renewal after the verdict is too late. United States v. Rollins, 301 F.3d 511 (7th Cir. 2002), explains that the rule prevents defendants from awaiting the verdict before deciding whether to pursue severance.

Howard’s mistrial contention failed for a similar reason. The district court directed counsel to submit any mistrial request in writing, but counsel did not do so. Under United States v. Flores, 929 F.3d 443 (7th Cir. 2019), and United States v. Hernandez, 44 F.4th 1053 (7th Cir. 2022), informed inaction may constitute waiver by acquiescence. More fundamentally, because no written motion was filed, there was no ruling for the appellate court to review.

5. Sufficiency of the Evidence

Standard of review

Under United States v. Sorensen, 134 F.4th 493 (7th Cir. 2025), evidence is viewed in the light most favorable to the government, with reasonable inferences drawn in its favor. United States v. Anderson, 988 F.3d 420 (7th Cir. 2021), and United States v. Faulkner, 885 F.3d 488 (7th Cir. 2018), characterize the defendant’s burden as nearly insurmountable: reversal is warranted only if no rational jury could find every element beyond a reasonable doubt.

Count I: Conspiracy to possess with intent to distribute

United States v. Coley, 137 F.4th 874 (7th Cir. 2025), requires proof that the defendant knowingly agreed, expressly or implicitly, with another person to distribute drugs. United States v. Morales, 145 F.4th 792 (7th Cir. 2025), recognizes that such agreements commonly must be proved through circumstantial evidence.

George testified that Howard agreed to purchase ten kilograms of cocaine for $280,000. Text messages, recordings, Howard’s presentation of approximately half the money, and the cash and trafficking materials found in his home corroborated the agreement.

Conditional agreement versus condition to agree

Howard argued that no agreement existed because he insisted on inspecting the cocaine before paying. The court distinguished:

A condition to agree: The parties will not form an agreement until a stated event occurs.
A conditional agreement: The parties have already agreed, but performance depends on a condition.

United States v. Podolsky, 798 F.2d 177 (7th Cir. 1986), upheld a conspiracy conviction where a defendant agreed to commit arson only if the building was vacant. The condition limited performance rather than preventing formation of the agreement. United States v. Barta, 776 F.3d 931 (7th Cir. 2015), similarly recognizes that a conditional criminal agreement can support conspiracy liability.

Howard had already agreed on price, quantity, and location. His demand to inspect the drugs limited whether he would complete the purchase; it did not postpone formation of the agreement.

The buyer-seller argument

Although United States v. Coley recognizes that a mere buyer-seller relationship does not establish a drug-distribution conspiracy, Howard did not adequately preserve the issue on appeal. The district court had found that Howard dealt with George as a buyer dealing with a broker, not a seller, and that Howard relied on United States v. Colon, 549 F.3d 565 (7th Cir. 2008), which had been overruled by United States v. Page, 123 F.4th 851 (7th Cir. 2024) (en banc).

Howard’s opening brief did not confront either rationale. Applying United States v. McKay, 176 F.4th 537 (7th Cir. 2026), and United States v. Flores, the court treated this omission as an intentional waiver, even though the government addressed the merits.

Count II: Attempted possession with intent to distribute

Howard arrived with $133,000 and stated that the money was enough for five kilograms, although the nominal price was $140,000. The jury could reasonably infer that he intended to negotiate a modest cash discount. His conduct—agreeing to the transaction, bringing a substantial amount of cash, and presenting it to the purported seller—was sufficient to prove attempt.

Count III: Conspiracy to distribute cocaine

Testimony and recordings showed Howard discussing cocaine preparation, dilution with baking soda, purity, and future discount pricing. This evidence supported the inference that he agreed to participate in cocaine distribution.

The acquittal on the substantive distribution count did not undermine the conspiracy conviction. The actual handoff of drugs and money was not captured clearly, allowing reasonable doubt about distribution while still permitting a finding that an agreement existed. In any event, United States v. Powell, 469 U.S. 57 (1984), and United States v. Reyes, 270 F.3d 1158 (7th Cir. 2001), establish that inconsistent verdicts do not ordinarily require acquittal or a new trial.

6. Sentencing

Howard’s 156-month sentence fell within the advisory range of 135 to 168 months. Under United States v. Vasquez-Abarca, 946 F.3d 990 (7th Cir. 2020), sentencing decisions receive abuse-of-discretion review. United States v. Cunningham, 883 F.3d 690 (7th Cir. 2018), provides a presumption of reasonableness for a within-Guidelines sentence supported by an adequate explanation under 18 U.S.C. § 3553(a).

Howard relied on United States v. Daoud, 980 F.3d 581 (7th Cir. 2020), arguing that the court gave insufficient weight to mitigating circumstances. The court distinguished that case because it involved a substantial downward variance that required a stronger justification under Gall v. United States, 552 U.S. 38 (2007). Howard’s within-range sentence received the opposite presumption, and the district court had expressly considered both aggravating and mitigating facts.

7. Relationship to United States v. Sabaini

United States v. Sabaini, 161 F.4th 1036 (7th Cir. 2025), supplied the factual context for Howard’s prosecution. It documented Sabaini’s theft of investigative funds, concealment of Howard’s criminal conduct, and corrupt cash-for-protection relationship with Howard. That history helped explain both Sabaini’s substantial risk of self-incrimination and the district court’s description of the relationship as “symbiotic” and corrupt.

Potential Impact

Pending appeals preserve the Fifth Amendment privilege. A convicted witness generally remains exposed to self-incrimination until appellate proceedings conclude, especially where retrial remains possible.
The right to present a defense does not compel immunized testimony. A defendant may lose access to a favorable witness without suffering a fundamentally unfair trial when the witness validly invokes the Fifth Amendment and the defense can otherwise be presented.
Public authority requires actual authorization. Informant status, informal understandings, or apparent approval are insufficient. Documentation, supervisory knowledge, and compliance with agency procedures will be central evidence.
Inevitable discovery can apply to digital evidence. Riley v. California does not bar the doctrine, but the government must prove probable cause and concrete steps showing that officers truly would have sought a warrant.
Conditional criminal agreements support conspiracy liability. A condition governing performance does not negate an agreement already formed.
Preservation rules remain strict. Severance motions must be renewed at the close of evidence, requested mistrial procedures must be followed, and appellate opening briefs must directly address the district court’s reasoning.

Complex Concepts Simplified

Public authority defense: A defense asserting that a government official actually authorized conduct that would otherwise be criminal. Believing that the official appeared to have authorized it is not enough.
Compulsory process: The defendant’s Sixth Amendment right to require favorable witnesses to appear and testify, subject to valid privileges such as the Fifth Amendment.
Inevitable discovery: A rule permitting evidence from an unlawful search when the government proves that lawful investigative steps would have led to the same evidence anyway.
Exclusionary rule: The doctrine that generally prevents prosecutors from using evidence obtained through unconstitutional searches or seizures.
Conditional agreement: An agreement that already exists but will be performed only if a condition occurs. It can support a conspiracy conviction even if the condition never occurs.
Condition to agree: A condition that must occur before the parties form any agreement. If it never occurs, there may be no conspiracy.
Waiver: The intentional relinquishment of a known right. Unlike mere forfeiture, waiver usually eliminates appellate review altogether.
Vindictive prosecution: Prosecution undertaken to punish a defendant for exercising a legal right. Suspicious timing alone ordinarily does not prove it.

Conclusion

United States v. Gary Howard confirms that a witness’s legitimate Fifth Amendment exposure can outweigh a defendant’s compulsory-process right, even when the witness is important to an affirmative defense. It also clarifies that Riley v. California does not prevent application of inevitable discovery to cell-phone evidence where officers had probable cause and demonstrably would have obtained a warrant.

The decision further reinforces the actual-authority requirement for informants, the sufficiency of conditional agreements for conspiracy liability, and the importance of preserving issues at trial and in the opening appellate brief. Because Howard received an opportunity to present his defense, the searches’ fruits would have been lawfully discovered, and substantial evidence supported each conviction, the Seventh Circuit affirmed the judgment in full.