Jim Dey: Danville murder case stuck on issue of contract law

The successful prosecution of a big-time drug dealer who admitted committing a 2007 triple murder in Danville hangs on a legal interpretation of an immunity agreement.

Federal prosecutors say that Freddell Bryant can be prosecuted because he violated an immunity agreement in which he was promised he would not be prosecuted if he cooperated with investigators and told the truth.

The defense acknowledges that Bryant stopped cooperating but did so only after his contractual obligation to do so had expired.

If Bryant's position prevails, it means prosecutors will not be able to use Bryant's extended confession to the killings as evidence when the case goes to trial.

U.S. Judge Michael McCuskey is scheduled to rule on the issue Nov. 16 at the federal courthouse in Urbana. Depending on what McCuskey decides, it's likely the dispute over what an immunity agreement means and when it expires will go to the federal appeals court in Chicago and, because of the unusual combination of facts and law at issue, perhaps to the U.S. Supreme Court.

If McCuskey rules against the government, federal prosecutors can immediately appeal his decision. If he rules against Bryant, an appeal could come only if the trial against Bryant ends in a conviction.

Federal prosecutors indicted Bryant, who is serving a 25-year sentence for dealing cocaine, in mid-2011 for his role in the March 25, 2007, execution-style shootings of 30-year-old Rodney Pepper, 19-year-old Madisen Leverenz and 21-year-old Tebreyana McCullough in an East Main Street apartment in Danville.

Police found Pepper's body in the street. He had crashed through an apartment window in an effort to escape but was mortally wounded by shots Bryant admitted firing. After the Pepper shooting, Bryant and two companions whom he identified as David Moore and Jerome Harris shot the two women.

The shooting was the result of a cocaine rip-off. Leverenz and Pepper reportedly engineered the theft of 2 kilograms of cocaine that Bryant had stored at McCullough's residence. When the cocaine turned up missing, McCullough told Bryant that the only person who knew she had it was Leverenz. That prompted Bryant, his two companions and McCullough to go to the Main Street residence where Leverenz and Pepper were staying.

Once there, they pistol-whipped Pepper, prompting his escape attempt. After Pepper was shot, the two women were killed to eliminate the witnesses.

Bryant was charged shortly after the fatal shooting in connection with a Chicago-to-Danville cocaine distribution conspiracy, and he faced a life sentence. It was then that his lawyer offered to trade Bryant's cooperation and admissions to a wide variety of criminal activities, including the murders, for a reduced sentence.

Bryant, who knew he faced prosecution if he violated his immunity agreement, provided substantial cooperation to federal investigators and ultimately was rewarded with a reduced 25-year sentence.

Bryant also reached a separate immunity agreement with the office of Vermilion County State's Attorney Randy Brinegar. The state agreement, however, did not require Pepper to testify in court and did not include any penalties, including state prosecution for the crimes he admitted committing, for violating the agreement.

Bryant is being held in the Macon County Jail while the federal charges against him are resolved.

The second of the three alleged shooters, Jerome Harris, is being held in the Vermilion County Jail. Charged in the triple murder, Harris also faces unrelated drug charges. He's scheduled to go to trial in early December on the drug charges.

The third alleged shooter, David Moore, was charged in the triple murder, but those charges later were dropped for evidentiary reasons.

According to the defense, Bryant's legal obligation to cooperate under the immunity agreement ended after his April 29, 2010, sentencing hearing. Defense lawyer John Gray Noll said the federal government had finished with his client, only to change their minds when Bryant refused to testify in the state's murder case.

That's when, according to Noll, the feds improperly sought Bryant's testimony before a federal grand jury, and he declined to provide further assistance.

The legal question is when or if an agreement to cooperate expires. Citing contract law, Noll argues that Bryant's duty to cooperate expired once his case in federal court was over.

"At the time of sentencing, it is unequivocal that the government believed the defendant's cooperation had been concluded," Noll wrote in a legal brief submitted to the court.

At the sentencing hearing, Assistant U.S. Attorney Eugene Miller said that further dealings with Bryant were "not anticipated." So does "not anticipated" mean Bryant had fully complied and the contractual agreement with him was fulfilled? Or does "not anticipated" mean that the government did not need any further assistance from Bryant but reserved the right to seek it if it should be necessary?

"It was simply not anticipated because (Bryant) had done all that was expected of him. ...Over the last 10 years, it has been the government's policy to conclude all cooperation by a defendant prior to sentencing," Noll argued.

Prosecutor Miller offered a different perspective, arguing that Bryant wants to have his cake and eat it, too.

"If the agreement was terminated, then both sides would be released from any further obligations under the cooperation agreement, and the United States would be free to use the defendant's statements against him, regardless of whether he breached the agreement. What the defendant actually argues is that, while the United States remains bound by the agreement in perpetuity, the defendant's obligations under the agreement ceased at the time he was sentenced. The defendant cites no language in the agreement itself that would support such a one-sided proposition," Miller argued.

The case is unique not just because of the multiple suspects and victims in the shooting but also because of dueling state and federal investigations, prosecutions and immunity agreements.

Essentially, the defense is arguing the federal government chose to indict Bryant on federal murder charges as punishment for Bryant's refusal to testify in state court against his two claimed accomplices. Defense lawyer Noll contends that because Bryant negotiated and fulfilled the terms of two separate and unrelated immunity agreements, he cannot be prosecuted by the federal government as punishment for refusing to cooperate with the state government.

Prosecutor Miller, however, said federal investigators were properly exercising their prerogatives when they called Bryant to testify and that "it is hard to imagine a more material breach than refusing to testify when called by the United States."

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or at 351-5369.

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