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UNITED STATES v. BROTHERS

February 26, 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 motions (filed December 15, 1992; Docket Entry No. 173, and December 21, 1992; Docket Entry No. 189, respectively) of Thomas Brothers and Russell Brothers to disqualify Wendy Goggin and Harold McDonough as attorneys for the government in this case; the memoranda (filed December 15, 1992; Docket Entry No. 174, and December 21, 1992; Docket Entry No. 190, respectively) in support of the motions; the government's responses (filed January 20, 1993; Docket Entry Nos. 225 and 226, respectively) to the motions; and the transcript (filed February 17, 1993; Docket Entry Nos. 246-50) of the hearing on the motions 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 motions, for the reasons stated below, the Court denies the motions to disqualify the attorneys for the government in this case.

 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 incarcerated, Russell Brothers was served with a federal criminal complaint *fn1" filed in the Northern District of Florida, which charged him 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, Russell 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 Russell Brothers was willing to cooperate with the government and forfeit certain assets. Mr. Johnson and Mr. McGee reached an agreement whereby Russell Brothers would cooperate with, and forfeit assets to, the Northern District of Florida, and in return Russell 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 his cooperation. *fn2"

 Mr. McGee contacted the Middle District of Tennessee as a result of his promise to contact other law enforcement agencies to inform them of Russell 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 Russell Brothers' cooperation with the Northern District of Florida during the course of their own negotiations with him.

 As a result of these telephone conversations, and contacts by Mr. Johnson, Mr. McDonough and Ms. Goggin decided to take Russell 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 Russell Brothers and Mr. Johnson on November 21, 1991. Under these ground rules, Russell 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 Russell Brothers in the Middle District of Tennessee. To the contrary, it specifically provided that "the United States . . . would consider the proffer in determining the appropriate disposition of this case."

 On November 21, 1991, the first day of the proffer, Mr. McDonough and Ms. Goggin met briefly with Russell Brothers. Also present at that meeting were Mr. Johnson, IRS agent James Bolton, and DEA agent Carl Lilley. This meeting was primarily an introductory meeting, with the attorneys and agents asking background questions and establishing the groundwork for the following day's meeting. The attorneys and agents did not believe Russell Brothers' answers to some of their questions during this first meeting.

 In addition to those present at the first meeting, those present on November 22, 1991, included IRS agent Burnie Avrit, Davidson County police detective Ruel Camacho, and DEA agent Richard Dunn. During the course of this meeting, Russell Brothers made numerous statements of fact which could be interpreted as incriminating Thomas Brothers of the crimes for which he has been indicted. For example, he stated that Thomas Brothers set up West End Management, that the $ 10,000 earnest money for the farm in Williamson County (which came from Thomas Brothers' escrow account) was originally from Russell Brothers, and that Russell Brothers had arranged at least one cocaine delivery at the farm (where Thomas Brothers was living at the time) . However, Russell Brothers steadfastly denied that Thomas Brothers had any knowledge either of the true source of his money or that he was involved in smuggling cocaine.

 Russell Brothers argues that he was told during the course of the proffer that if he told the truth, everything would be alright. In essence, Russell Brothers claims he was told that if he told the truth he would not be prosecuted in the Middle District of Tennessee, that he told the truth, but that he is being prosecuted because the truth is not what the government really wanted to hear. According to Russell Brothers, the "truth" the government wanted to hear was that Thomas Brothers knew of his drug trafficking and that the money was thereby tainted.

 The government agrees that they did not believe Russell Brothers' answers during the proffer. However, the government asserts that they did not threaten or in any way promise Russell Brothers that he would not be prosecuted if he implicated Thomas Brothers. The government states that it admonished Russell Brothers to tell the truth in accordance with the terms set out in the proffer letter. The agents and attorneys from the Middle District of Tennessee present at the proffer, however, did not believe his responses to their questions. They decided, therefore, to present an indictment before the federal grand jury. *fn3"

 Both motions to disqualify are based on the November 21 and 22, 1991, proffer. The defendants argue that Mr. McDonough and Ms. Goggin are participants in, and witnesses to, alleged promises of immunity made to Russell Brothers if he would implicate Thomas Brothers. Therefore, the attorneys should be disqualified from representing the United States at trial because they may be called as witnesses or, even if not called as witnesses, they will be cloaked with "witness verity" in the eyes of the jury. The government responds that the defendants have failed to ...


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