G THE B IN EN V C R H E S

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VOLUME 230—NO.27 THURSDAY, AUGUST 7, 2003 OUTSIDE COUNSEL

BY ALAN VINEGRAD Proffer, Plea and Cooperation Agreements in the Second Circuit

he Department of Justice over- Northern and Western districts provide sees 93 U.S. Attorney’s offices that proffer statements will not be used in throughout the country and any criminal proceeding, the Eastern and beyond. Thousands of criminal Southern agreements are narrower, T promising only that such statements will prosecutors in these offices are responsible for enforcing a uniform set of criminal not be introduced in the government’s statutes, sentencing guidelines and case-in-chief or at sentencing. Thus, Department of Justice internal policies. proffer statements in those districts may Among the basic documents that are be offered at detention hearings and criminal prosecutors’ tools of the trade are suppression hearings as well as grand proffer, plea and cooperation agreements. jury proceedings. These documents govern the relationship Death Penalty Proffer. The Eastern between law enforcement and many of the District’s proffer agreement has a provision subjects, targets and defendants whom defendant) to make statements to the that assures a witness or defendant that DOJ investigates and prosecutes. government without fear that those proffer statements will not be considered Any belief that these agreements are as statements will be used directly against the by the U.S. Attorney’s Office in deciding uniform as the laws and policies underly- witness in a later prosecution. While years whether to recommend to the attorney ing them, however, has been dispelled, at general that the death penalty be sought. least in the U.S. Court of Appeals for the ------The value of this salutary provision, Second Circuit. A new report of the Any belief that these however, is at best uncertain, particularly Federal Bar Council reveals that, among agreements are as uniform in light of the attorney general’s recent the six districts that comprise the Second as the laws and policies decision to reject the Eastern District’s Circuit, there are substantial differences underlying them has been recommendation not to seek the death between many of the “form” agreements dispelled, at least in penalty against a would-be cooperating utilized by the U.S. Attorney’s offices in the U.S. Court of Appeals for defendant and to order that office to seek those districts.1 his execution instead.4 Indeed, nothing in the Second Circuit.x the agreement explicitly prevents the Following is a summary of some of the ------most significant differences that have been attorney general from considering proffer identified by the council among the form statements, notwithstanding the office’s agreements used in New York state. ago this agreement was as simple as its promise not to consider them in making its purpose suggests — and still is in some recommendation. 2 Proffer Agreements jurisdictions — over time it has expanded Government’s Use of Statements. All greatly in scope and complexity, so much four districts allow the government to use The basic function of the proffer so that little is left of its protections for the leads derived from proffer statements, agreement is to allow a witness (or witness with potential criminal exposure.3 and to impeach the witness with the Nevertheless, significant differences statements should the witness later testify. Alan Vinegrad, a partner at Covington & remain among the proffer agreements used The Southern and Eastern districts’ Burling, was U.S. attorney for the Eastern in New York. For example: agreements go further, however, and also District of New York. Extent of Protection. While the authorize the government to use proffer NEW YORK LAW JOURNAL THURSDAY, AUGUST 7, 2003 statements in rebuttal. What is more, proffers included. What the agreement motion only if the grounds for it are set the agreements permit rebuttal not only does provide, however, is that the govern- forth in the agreement. The Northern of evidence offered by the witness, but ment will not offer proffer statements into District provides no similar assurance with also of “factual assertions” (Eastern) evidence during the sentencing proceed- respect to upward departures. and even “arguments” (Southern) of ing, thus assuring that these statements On the other hand, the Southern defense counsel. will not be relied upon by the court in District agreement is unique in requiring These far-reaching rebuttal provisions computing the defendant’s sentence. a defendant to forego the opportunity have provoked considerable judicial Reciprocity. The Western and to move for — or even suggest, to the scrutiny, with reported decisions of at least Southern districts’ agreements provide sentencing court or the Probation four district judges criticizing, or at least that proffer statements may be disclosed to Department — a downward departure. (In questioning the enforceability of, the another law enforcement agency or the Western District, a defendant may provisions.5 In one of these cases, United prosecutor’s office only if the receiving seek such a departure, but only on grounds States v. Duffy, Judge Nina Gershon went agency agrees to abide by the terms of the set forth in the agreement.) so far as to hold the provision uncon- proffer agreement — thus explicitly While the provision does not actually stitutional, on the ground that it imper- prohibiting a theoretical end-run around prevent a judge from granting a downward missibly infringed upon the defendant’s the protections of the agreement. departure, it certainly makes it far less right to present a defense and to the Polygraph. The Western District likely that a defendant will receive one. effective assistance of counsel at trial. agreement provides for the witness’ While one district court has upheld the Witness Lying. While all four districts consent to a government-administered legality of this type of provision,6 its allow use of a witness’ proffer statements in polygraph examination. fairness is certainly subject to debate, a false statements or perjury prosecution, particularly in view of the ever-increasing the Northern and Western districts’ limitations on district judges’ ability to Plea Agreements agreements go further and, if the witness grant such a departure in the first place.7 lies, authorize use of the statements in a The basic “plea bargain” — the Of a piece with this policy is the Southern prosecution for any underlying offenses defendant pleads guilty to some charge, District’s practice, unique among the four, disclosed during the proffer. The Western the government agrees not to bring and/or of reserving the right to take a position District provides the witness with the right dismiss other charges, and the potential on where within the guideline range a to move to suppress statements in this sentencing range is defined — can be defendant should be sentenced. circumstance, with the government then found in all four districts’ plea agreements. At one time, DOJ policy provided for bearing the burden of proving the witness’ However, considerable variation exists one- to two-level downward departures for misconduct by a preponderance of the in the manner in which this bargain alien defendants who agreed to be evidence. Even so, proffers in these is effectuated. deported after serving their sentences. districts are plainly high-stakes affairs. Waiver of Rights. One trend in the However, that policy was rescinded in Safety Valve. Both the Southern and Southern and Eastern districts is for 1998.8 Currently in New York, only the Eastern districts’ agreements state that, if a plea agreements to require the defendant Western District agreement provides for defendant proffers in order to receive to waive an increasing number of this reduction. “safety valve” treatment under Sections judicially and statutorily created rights, Guideline Estimates. The Southern 2D1.1(b)(6) and 5C1.2 of the Sentencing in addition to the right to trial and and Eastern districts both provide Guidelines, the proffer statements may be related rights. Thus, the defendant is estimated guideline calculations — the used to calculate the defendant’s guideline required to waive his or her right to further former in a so-called Pimentel9 letter, the range. This exception to the no-use- discovery (including exculpatory and latter in the agreement itself. The at-sentencing promise requires a defendant impeachment material), the right to bring Northern District, on the other hand, does to weigh the benefit of the safety valve a Hyde Amendment claim with respect not, and even disclaims its ability to reduction against the risk that the to any dismissed charges, and (in the determine a defendant’s criminal history proffer will disclose information that will Eastern District) the right to a jury category in advance of the pre-sentence raise the guideline level to an equal or determination of sentencing-related investigation. greater degree. factual issues. Use of Plea Statements. The Northern Use at Sentencing. The Eastern Departure Motions. Both the Southern District agreement provides that factual District’s agreement makes clear that, and Eastern districts’ agreements provide admissions in the agreement are admissible consistent with Second Circuit case law, that the government will not move for an in any subsequent proceeding — even the government cannot withhold relevant upward departure, with the Western if the plea does not transpire or is information from the sentencing court — District agreement authorizing such a later withdrawn. NEW YORK LAW JOURNAL THURSDAY, AUGUST 7, 2003

Cooperation Agreements The Northern and Western districts’ Conclusion agreements make clear that the defen- The districts’ cooperation agreements dant’s entitlement to such a motion What emerges from the Federal Bar all provide the basic cooperation bargain: does not depend on the outcome of an Council’s examination of the New York a guilty plea and the full cooperation of investigation or prosecution. The Western districts’ proffer, plea and cooperation the defendant in the investigation and District agreement also contemplates that agreements is the fact that, despite prosecution of others in exchange for the government will recommend, in its the Department of Justice’s efforts to the prospect of a 5K1.1 downward depar- departure motion, a reduction of a specific impose uniformity in many areas of ture motion and a substantially reduced number of guideline levels. federal criminal practice, these districts sentence. Within those general parame- The Northern District alone provides retain considerable discretion to fashion ters, variation exists in the nature of the so-called 1B1.8 protection,11 thus ensuring agreements consistent with the laws, defendant’s obligations, the extent of his that a defendant’s disclosure of uncharged customs, traditions and practices in or her potential benefits, and the conse- criminal activity will not be used to particular districts. quences of a defendant’s breach. determine or upwardly depart from his The wisdom of these inconsistencies Defendant’s Obligations. Each agree- or her guideline range. The Eastern can be debated. What is clear, however, is ment defines differently the scope of what District allows for the possibility of 1B1.8 that counsel must be fully familiar with the the defendant must disclose. The Eastern protection in the event a defendant makes terms of these agreements and not assume District requires the defendant to provide a good faith effort to cooperate but is that the same “boilerplate” provisions information regarding “all criminal unable to provide the requisite substantial apply everywhere. activities” of the defendant and others; the assistance for a 5K1.1 motion. Southern and Northern districts require Finally, both the Southern and Eastern ••••••••••••••••••••••••••••••• similar disclosure but only if the govern- districts provide that, when appropriate, (1) See Federal Bar Council, Committee on Second Circuit Courts, “Proffer, Plea and Cooperation ment asks about it; and the Western the government will seek to admit the Agreements in the Second Circuit” (June 2003). The District requires such disclosure but only as defendant into the Witness Security author, together with Committee Chairman Marco Schnabl, Steven R. Peiken, Michael Kim, and the U.S. to specified offenses. The Southern Program or otherwise provide suitable Magistrate Judge Robert M. Levy, was a member of the District goes further, however, and also security measures. In addition, both subcommittee that authored the report. (2) Vermont’s proffer agreement is two paragraphs, obligates a defendant, whether asked districts’ agreements contemplate provid- totaling 11 lines of text. or not, to disclose all crimes as well as ing cooperating alien defendants with (3) See, e.g., R. Zabel & J. Benjamin, “Are ‘Queen for a Day’ Pacts Courtesans?,” NYLJ (June 13, 2001); F. all administrative, civil and criminal support in their efforts to secure immigra- Hafetz & B. Garson, “The ‘Queen for a Day’ Agreement: proceedings, investigations or prosecutions tion-related relief. A High Risk Venture,” Business Crimes Bulletin (April 2001); R. Morvillo & R. Anello, “Cooperation: The in which the defendant was a subject, Defendant’s Breach. All four districts Pitfalls and Obligations for Defense Attorneys,” NYLJ target, party or witness. provide four major consequences of a (Dec. 5, 2000). (4) W. Glaberson, “Ashcroft’s Push for Execution Voids Other procedural obligations vary as defendant’s breach: the guilty plea Plea Deal,” The New York Times (Feb. 1, 2003). well. The Eastern District agreement stands; the government can prosecute (5) United States v. Maynard, 232 F.Supp.2d 38, 39 (E.D.N.Y. 2002) (Weinstein, J.); United States v. Duffy, has a right-to-counsel waiver for the defendant for any crimes, even those 133 F.Supp.2d 213, 216 (E.D.N.Y. 2001) (Gershon, J.); debriefings — an effort to contractually disclosed by the defendant during the United States v. Lauersen, 2000 WL 1693538 at * 7-8 (S.D.N.Y. Nov. 13, 2000) (Pauley, J.); United States v. Doe, overrule the Second Circuit’s decision in course of his or her cooperation; the 1999 WL 243627 at * 9 (E.D.N.Y. Apr. 1, 1999) United States v. Ming He.10 The Western government can use statements made (Gleeson, J.). (6) United States v. Zukerman, 129 F.Supp.2d 198, 200 District agreement, in contrast, guarantees during cooperation in any such prosecu- (E.D.N.Y. 2000). the right to have counsel present at tion; and the government need not file a (7) See, e.g., the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003, debriefings. Both the Eastern and 5K1.1 motion. Pub. L. 108-21. Northern districts’ agreements prohibit In the Southern, Eastern and Northern (8) United States v. Sentamu, 212 F.3d 127, 128 (2d Cir. 2000). the defendant from disclosing his or districts, the decision whether to declare (9) United States v. Pimentel, 932 F.2d 1029, 1034 (2d her cooperation. And the Western a defendant in breach rests with the Cir. 1991). (10) 94 F.3d 782 (2d Cir. 1996). District agreement requires that the government. In contrast, the Western (11) See U.S.S.G. § 1B1.8. defendant continue to cooperate even District agreement provides that, if the after sentencing. government believes the defendant has This article is reprinted with permission from the Defendant’s Benefits. All the agree- breached the agreement, it may petition August 7, 2003 edition of the NEW YORK LAW JOURNAL. © 2003 ALM Properties, Inc. All rights ments provide for the filing of a 5K1.1 the court for an order relieving it of reserved. Further duplication without permission is motion if the defendant provides substan- its obligations and must establish the prohibited. For information, contact American tial assistance to the government and breach to the court’s satisfaction, by a Lawyer Media, Reprint Department at 800-888-8300 otherwise complies with the agreement. preponderance of the evidence. x6111. #070-08-03-0015