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UNITED STATES v. BROTHERS

February 24, 1993

UNITED STATES OF AMERICA
v.
RUSSELL WHITE BROTHERS, JR., G. THOMAS NEBEL, and THOMAS WHITE BROTHERS



The opinion of the court was delivered by: THOMAS A. HIGGINS

 The Court has before it the defendant Russell Brothers' motion (filed December 21, 1992; Docket Entry No. 191) to dismiss the indictment based on the government's breach of an immunity agreement and alternatively, based on the use of evidence tainted by Russell Brothers' immunity; the memorandum (filed December 21, 1992; Docket Entry No. 192) in support of the motion; the government's memorandum (filed January 20, 1993; Docket Entry No. 223) in opposition to the motion; and the transcript (filed February 17, 1993; Docket Entry Nos. 246-50) of the hearing on the motion held February 1-4, 6, 1993.

 After a careful review of all the pleadings and exhibits in the record, as well as the transcript of the hearing on the motion, for the reasons stated below, the Court denies Mr. Brothers' motion to dismiss the indictment based on the government's breach of immunity and use of evidence tainted by his immunity.

 I.

 On October 24, 1988, Russell Brothers was convicted in a Florida state court on drug trafficking, conspiracy and RICO charges arising out of his importation of cocaine into the United States. He was fined one million dollars and sentenced to sixty years in prison.

 While Mr. Brothers was incarcerated, he was served with a federal criminal complaint *fn1" issued by the Northern District of Florida, which charged Mr. Brothers with conspiracy to import and distribute cocaine in the United States in violation of 21 U.S.C. ยงยง 963 and 846. After he was served with the criminal complaint, Mr. Brothers retained attorney Stephen K. Johnson to represent him.

 Mr. Johnson contacted David L. McGee, the First Assistant United States Attorney in the Northern District of Florida, and told him that Mr. Brothers was willing to cooperate with the government and forfeit certain assets. Mr. Johnson and Mr. McGee reached an agreement whereby Mr. Brothers would cooperate with, and forfeit assets to, the Northern District of Florida, and in return Mr. Brothers would not be indicted in the Northern District of Florida and Mr. McGee would notify the appropriate authorities (including the Florida Statewide Prosecutor, the District of Montana and the Middle District of Tennessee) of Mr. Brothers' cooperation. *fn2" Both Mr. Johnson and Mr. McGee testified that Mr. McGee granted Mr. Brothers immunity from prosecution only in the Northern District of Florida, and that he did not purport to bind any other districts. Mr. Johnson testified that he made the terms of the agreement clear to Mr. Brothers.

 During the August 28, 1991, proffer, Mr. Brothers voiced concern over whether he would be prosecuted in Nashville. Agent Wolfe told Mr. Brothers that law enforcement officials in Tennessee, including state and federal agencies, were not interested in prosecuting him at that time. This was consistent with the belief expressed by Mr. Johnson that there were potential problems in Tennessee, but no active interest in indicting Mr. Brothers.

 Mr. McGee contacted the Middle District of Tennessee as a result of his promise to contact other law enforcement agencies to inform them of Mr. Brothers' cooperation with the Northern District of Florida. He had several telephone conversations with Assistant United States Attorneys Harold McDonough and Wendy Goggin from the Middle District of Tennessee. The purposes of the telephone conversations were to coordinate the investigations of the two districts and to ask Mr. McDonough and Ms. Goggin to consider Mr. Brothers' cooperation with the Northern District of Florida during the course of their own negotiations with Mr. Brothers.

 As a result of these telephone conversations, and contacts by Mr. Johnson, Mr. McDonough and Ms. Goggin decided to take Mr. Brothers' proffer, which they did on November 21 and 22, 1991. The ground rules for the proffer were set out in a letter from Mr. McDonough and Ms. Goggin to Mr. Johnson, dated November 19, 1991. The letter was signed by Mr. Brothers and Mr. Johnson on November 21, 1991. Under these ground rules, Mr. Brothers was to provide "truthful and complete" information, which information could not be used against him (except for impeachment), and the Middle District of Tennessee could make full derivative use of his statements. The letter did not contain any promises with regard to the disposition of the case against Mr. Brothers in the Middle District of Tennessee.

 The agents and attorneys from the Middle District of Tennessee present at the proffer did not believe Mr. Brothers' responses to their questions. They decided, therefore, to present an indictment before the federal grand jury. Although Mr. Johnson and Mr. Brothers were aware of the decision by the Middle District of Tennessee to pursue an indictment, Mr. Johnson informed Mr. McGee that Mr. Brothers would continue to cooperate with the Northern District of Florida in their criminal action against Allan Ross.

 Allan Ross was tried in federal court in the Northern District of Florida in April and May, 1992. On March 11, 1992, Mr. Johnson, Mr. Brothers and Mr. McGee entered into a written cooperation agreement which formalized the terms of their previous oral agreement. The cooperation agreement specifically states that it is entered into between Mr. Brothers, Mr. Johnson and the United States Attorney's Office for the Northern District of Florida. The "agreement specifically excludes and does not bind any other state or federal agency, including other United States Attorney's Offices, from asserting any civil, criminal or administrative claim it may have against Russell Brothers." It also states that:

 
e. The United States Attorney's Office agrees that at the request of Russell Brothers it will notify any relevant agency including federal law enforcement authorities in Montana and Tennessee and the Office of Statewide Prosecution in Florida of the nature, extent and importance of Mr. Brothers cooperation with the Northern District of Florida. The United States Attorney's Office, however, cannot control the actions of those named agencies and can in no way guarantee the action of other agencies.

 CONCLUSION

 
f. There are no other agreements between the United States Attorney, Northern District of Florida, and Russell Brothers, and Russell Brothers enters into this agreement ...

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