The opinion of the court was delivered by: CAROL E. HECKMAN
Defendant Mia Ayers has moved to dismiss the indictment against her on the ground that the Government has breached its agreement, entered prior to the indictment, not to use information which she provided to the Government against her in any criminal proceeding. For the reasons set forth below, it is recommended that Defendant's motion be denied.
As set forth in the affidavit of Assistant United States Attorney William J. Hochul (attached to Item 80), on June 3, 1992, Defendant responded to a federal grand jury subpoena by appearing with her attorney, Franklin Pratcher, Esq., at Mr. Hochul's office on the fifth floor of the United States Courthouse in Buffalo. There, she met with AUSA Hochul and FBI Special Agents Andrew J. Goralski and Henrique R. Sumyk. In the presence of her attorney, Mr. Hochul advised Defendant that she was a "target" of the grand jury investigation, and offered her the opportunity to provide information to the Government in exchange for a promise that such information would not be used against her in any criminal proceeding. Mr. Hochul also told Ms. Ayers that such information could be used against her derivatively -- that is, investigated by the FBI as a "lead" in the case. Mr. Hochul asserts that he further informed Ms. Ayers that even if she spoke to the Government she would still be required to plead to some federal criminal charge.
After consultation with her attorney, Defendant agreed to provide information to the Government under the terms discussed. Further conversations immediately took place between Defendant, Mr. Hochul and the FBI Agents, in the presence of Defendant's attorney. At the conclusion of those conversations, Defendant agreed to return at a later time for complete debriefing.
Following this initial meeting, Attorney Pratcher informed AUSA Hochul that Assistant Federal Public Defender Michael Battle had been enlisted for Ms. Ayers' joint defense representation due to Mr. Battle's extensive experience in federal criminal litigation. Mr. Hochul thereafter discussed with Mr. Battle the terms of the agreement reached with Defendant, and memorialized his understanding of the agreement in a letter to Defendant, in care of Mr. Battle, dated June 11, 1992 (Item 80, Exh. A). In that letter, Mr. Hochul stated:
In consideration for your providing to Agents truthful information about all criminal matters of which you may have knowledge, the Government agrees that the information you provide will not be used against you in any criminal proceeding. If you should provide false or misleading information, the Government reserves the right to utilize the information provided for any purpose. It is further understood that the Government may make derivative use of the information.
On June 18, 1992, Defendant returned for debriefing at Mr. Hochul's office, again accompanied by Mr. Pratcher. Mr. Hochul informed Defendant and her attorney that Mr. Battle was at his temporary office in the United States Courthouse, and was available for consultation during the debriefing process. Mr. Hochul also again informed Defendant that she would be expected to plead guilty to a federal criminal offense even if she cooperated with the Government. Defendant was then debriefed by Mr. Hochul and Agents Goralski and Sumyk.
On July 8, 1992, the grand jury handed up the indictment in this case, naming Ms. Ayers as one of the 26 defendants. Ms. Ayers is specifically named only in Count III, which alleges conspiracy by all 26 codefendants to violate 21 U.S.C. §§ 841 (a)(1) and 846.
On July 31, 1992, the Court granted Mr. Battle's request to withdraw as Defendant's attorney, and assigned Kevin W. Spitler, Esq. as Defendant's attorney pursuant to the Criminal Justice Act.
Defendant now moves to dismiss the indictment, claiming that the Government breached its agreement not to use the information she provided against her in any criminal proceeding. Defendant argues, through counsel, that she understood the agreement to require the Government to exonerate her from prosecution in return for her statements pertaining to the investigation, and that the decision to name her in the indictment amounts to a bad faith breach of that agreement requiring dismissal of the indictment against her.
The Court notes that this motion was originally filed on October 21, 1992, but was held in abeyance pending the outcome of plea negotiations with the Government. Those negotiations have not resulted in a plea agreement. The parties appeared before the Court on January 20, 1993 for oral argument, at which time Mr. Spitler submitted the affidavit of Mr. Battle in further support of Defendant's motion to dismiss.