United States District Court, C.D. Illinois, Urbana Division
[Copyrighted Material Omitted]
Eugene L. Miller, Office of U.S. Attorney, Urbana, IL, for Plaintiff.
Jon Gray Noll, Daniel Alan Noll, Noll Law Office, Springfield, IL, for Defendant.
MICHAEL P. McCUSKEY, District Judge.
This case is before the court on Defendant's Consolidated Pretrial Motions. Defendant has filed three motions: 1) Motion to Dismiss Indictment; 2) Motion for Kastigar hearing; 3) Motion to Suppress Statements. This court has carefully reviewed the briefs and exhibits submitted.
Following this review, Defendant's three motions are DENIED.
The Government has alleged violations of 18 U.S.C. §§ 924(j)(1), 924(c), 1111, and 2. Pursuant to 18 U.S.C. § 3231, the district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.
On April 4, 2007, in Case No. 07-CR-20043, a federal grand jury returned a four-count indictment against Defendant, alleging (1) conspiracy to distribute cocaine and crack cocaine from October 2003 through March of 2007; (2) possession of 500 grams or more of cocaine with the intent to distribute it on July 12, 2004; (3) possession of a firearm in furtherance of a drug trafficking crime on October 17, 2003, July 12, 2004, and July 25, 2005; and (4) possession of a firearm by a felon. Based on his prior felony drug convictions and the amount of cocaine involved, Bryant faced a sentence of mandatory life imprisonment on Count 1 of the indictment, plus a consecutive five years on Count 3 of the indictment.
Defendant was arrested and detained. Two days before jury selection was to begin, Defendant signed an agreement with the Government wherein he pled guilty and agreed to cooperate. In his plea agreement, executed on March 24, 2009, and which incorporated the cooperation agreement, he admitted to facts providing culpability for possession of cocaine with intent to distribute and conspiracy to distribute cocaine, covering events occurring between 2003 and 2007. In return, the Government granted him, among other things, use immunity conditioned on his continuing cooperation. The terms of the informal immunity agreement relevant to the cooperation read, in pertinent part:
1. The United States agrees that no statement made or information provided pursuant to this agreement may be directly introduced as evidence against your client in any criminal case, including sentencing, excepting (1) a prosecution for making a false statement or perjury, and (2) use as impeachment or rebuttal evidence should he subsequently testify or take a factual position contrary to the information he provides. The United States will be free to make indirect, or derivative, use of his statements. This agreement means only that the fact he made certain incriminating statements pursuant to this agreement may not itself be introduced as evidence against him. The United States will also remain free to discharge its duty to the court by informing the court of any information he provides. The court will be notified that such information was obtained pursuant to this grant of use immunity.
2. In return, your client agrees that he will provide complete and truthful information to law enforcement officials regarding his criminal conduct and everything he knows or has reason to believe about the criminal conduct of others. He also agrees to produce any and all documents and physical evidence of any kind in his possession or under his control that relates to the information he provides.
3. He agrees to provide complete and truthful testimony to any grand jury, trial jury, or judge in any proceeding in which he may be called to testify by the United States.
4. Your client further acknowledges and agrees that he understands that the United States' grant of use immunity herein is conditioned, in part, upon his complete compliance with paragraphs 2 and 3. Should he knowingly make any materially false statement or omission in
providing information or testimony under this agreement, the United States will be entitled to use his statements and evidence he provides, directly and indirectly, to institute and support a criminal prosecution for any offense, as well as a prosecution for giving false statements and perjury.
13. Any violation of any part of this agreement by your client will void this agreement in its entirety and will release the United States from any obligation under this agreement.
(# 16, Exh. 1) (emphasis in original). As will become clear, the federal agreement critically included, in paragraph 3, a requirement to testify. As part of his cooperation, Defendant provided information and later testimony during the trial of one of his associates, Keric Franklin, for drug trafficking activities, in August 2009.
Separate from and unrelated to the incidents listed in the April 4, 2007 indictment, on March 25, 2007 Danville law enforcement responded to a call and found three deceased individuals: Rodney Pepper, Madisen Leverenz, and Tabreyan McCullough. Subsequent autopsies determined that the cause of death for Pepper was a gunshot wound to the chest and the cause of death for both Leverenz and McCullough were gunshot wounds to the head. Investigators began to suspect Defendant's involvement in this case. On January 14, 2010, Defendant entered into a separate and independent agreement with the Vermilion County State's Attorney, wherein the state offered use immunity in exchange for a taped statement regarding the triple homicide. That agreement read, in pertinent part, as follows:
WHEREAS, Fredell  Bryant has agreed to give a complete and truthful taped statement regarding the 2007 Danville triple homicide investigation, and,
WHEREAS, Fredell Bryant acknowledges that this Agreement is not a grant of immunity by the Vermilion County State's Attorney and, in return for the mutual covenants and agreements herein contained, it is further agreed as follows:
1. anything said by Fredell Bryant during the statement cannot and will not be used directly against Fredell Bryant in any criminal prosecution;
2. anything said by Fredell Bryant during the statement cannot and will not be used by a prosecuting authority to bring a criminal prosecution against Fredell Bryant excepting a prosecution for making a false statement or perjury; however, a criminal prosecution may be brought based on independently obtained evidence;
3. anything said by Fredell Bryant during the statement cannot be used by any prosecuting authority in aggravation at a sentencing hearing;
4. this Agreement is conditioned on Fredell Bryant giving a complete and truthful statement regarding his and anyone else's ...