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May 3, 2001


The opinion of the court was delivered by: McMAHON, District Judge.


John Fuller is charged in five counts of a six count indictment (S1 99 CR 1187) with various violations of the federal firearms laws. In substance, the indictment charges that from in or about August 1996 through in or about March 1999, John Fuller and other co-conspirators traveled to South Carolina, induced various individuals to purchase firearms for them, transported the firearms to the Southern District of New York, and sold them. Defendant is charged in a separate one-count indictment (00 CR 1104) with bail jumping.

Defendant's has filed a motion requesting dismissal of the indictment on the grounds that the Government's indictment of Mr. Fuller is based on evidenced improperly garnered from the immunized testimony of defendant to the Westchester County District Attorney's Office. The Government contends that no such evidence was presented to the grand jury. Defendant asks in the alternative that the Court suppress the introduction of all statements made by Mr. Fuller pursuant to his cooperation agreement with the District Attorney's Office. Defendant requests that the Court hold full hearings on the "Kastigar and other issues raised." Defendant further requests dismissal of count five on the grounds that it violates defendant's rights against double jeopardy under the Fifth Amendment and due process under the Fifth and Fourteenth Amendments. Finally, defendant asks that he be provided with additional discovery.

Statement of Facts

On December 5, 1997, Mr Fuller pled guilty to criminal possession of a weapon in the Third Degree in Westchester County Court. Fuller was scheduled to be sentenced on February 20, 1998. However, on the date for sentence defendant was instead arrested for Grand Larceny by a Westchester County District Attorney's Office investigator. That complaint alleged that defendant obtained unauthorized funds through the use of an altered check and a forged check.

Paragraph 4 of the Agreement sets forth the consequences of any violation of the agreement by Fuller. It provides as follows:

4. If John Fuller violates the agreement in any respect, as determined by the District Attorney and the Court:

(a) The District Attorney will request that sentence be imposed upon John Fuller's plea of guilty. The District Attorney may request that the sentence be the maximum sentence authorized by law, which is 5 to 15 years in state prison. The District Attorney will request, if necessary, that the sentence be imposed in John Fuller's absence. John fuller understands that the Court has the authority to impose any lawful sentence.
(b) The District Attorney may prosecute John Fuller for any crime he has committed, as authorized by law, not limited by paragraph 3(b) above.
(c) As to any prosecution brought by the District Attorney pursuant to this paragraph, John Fuller waives any claim that any statement or testimony he has made or given in the course of this cooperation with the District Attorney is inadmissible against him or that any property that the District Attorney has obtained from John Fuller is inadmissible against him. A hearing before a judge shall determine whether John Fuller has materially violated the terms of this agreement and only after such determination is finally rendered can law enforcement and or the District Attorney's office act thereon.
(d) Fuller waives any claim that any prosecution pending against him on the date of this agreement is barred either on ground of speedy trial, speedy arraignment. Adjournments taken on any pending prosecution are at defendant's request.

(Id., ¶ 4). The Italicized sentence was added to subparagraph (c) in handwriting and was initialed by the assistant district attorney and by Fuller's attorney.

The agreement begins with one disclaimer:

This memorandum of agreement constitutes the entire understanding between John Fuller and the District Attorney. There are no promises, agreements or conditions, express or implied, other than those set forth in this document. (Id., ¶ 1)

and ends with another:

This agreement is limited to the Westchester County District Attorney's Office and cannot bind other government agencies. (Id., ¶ 5)

Fuller was represented by counsel at the time he signed the agreement.

Defendant was arrested by federal agents on July 29, 1999 at the Westchester County Courthouse, after appearing there as a witness in a criminal trial, and charged in a criminal complaint with Federal weapons charges. The Magistrate released defendant on bail and imposed various release conditions, including home detention with electronic monitoring. Defendant was charged in an indictment filed on November 24, 1999, and in a superceding indictment filed December 29, 1999, with substantially the same crimes charged in the initial criminal complaint. The current indictment (S1 99 CR 1187) (CM) charges defendant with: (1) Conspiracy to Commit Firearms Offenses; (2) Unlicensed Dealing in Firearms; (3) ...

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