To Proffer Or Not to Proffer? That Is the Question

G THE B IN EN V C R H E

awyers familiar with white collar or inadmissibility of a plea, a plea discus- criminal investigations know well the sion, and any related statement is governed dangers of engaging in client “prof- by Federal Rule of Evidence 410.” Rule 410 fers.” A client proffer occurs when a prohibits the admission into evidence of client is interviewed directly by the “any statement made in the course of plea Lprosecutor during the course of the inves- discussions with an attorney for the pros- tigation, even as the prosecutor is trying ecuting authority which do not result in a to build a case, perhaps against that very plea of guilty or which result in a plea of client. From the defense lawyer’s perspec- guilty later withdrawn.” tive, such sessions are fraught with peril; By And The underlying purpose of Rule 410 is a statement by the client made innocently, Richard M. Yvonne M. the same as the initial purpose behind but inaccurately, may provide the spark Strassberg Cristovici the proffer agreement—to promote plea that sets the investigation on fire. None- negotiations and facilitate the investigative theless, counsel are often confronted with evidence or arguments offered or elicited process by permitting defendants to talk the practical reality of clients who want by the defense, even on cross examination openly to prosecutors without sacrificing to speak to the government, perhaps to of government witnesses, and, in the South- their ability to defend themselves at trial be cooperative or to avoid regulatory or ern District, to rebut arguments or issues if no disposition is reached. But although employment sanctions, and who want to raised sua sponte by the court.1 And, in Rule 410 and the proffer agreement may understand the proffer process. United States v. Barrow, the Second Circuit have sprung from the same well, the various Typically, a proffer takes place pursuant held that the scope of such rebuttal testi- waiver clauses added to proffer agreements to a proffer agreement, which is colloquially mony includes not only proffer statements by the government have limited the protec- known as a “Queen for a Day” agreement. that directly contradict factual assertions tion offered by the proffer process far more As the name suggests, the agreement was than that offered by the Rules. originally designed to provide protection to The protection offered by the Rules, the client witness to encourage the client to Today, a typical proffer agreement however, is limited to the circumstances come forward and be candid with the gov- where the Rules apply. And here, the case ernment, even though the government was may well offer less protection to a law suggests a causal connection must exist investigating and might seek to prosecute client than an interview undertaken between the statements and an attempt the client in the future. Although initially to negotiate a plea to a particular charge. most proffer agreements limited the ability without any agreement at all. As noted by one court, “even where there of the government to use the statements has been a plea bargain, the lack of a causal by the client in any case brought against advanced by the defense, but any evidence connection between the bargain and the her, over time, the protections afforded by that fairly counters and casts doubt on the confession precludes exclusion of the con- the proffer agreement have been largely truthfulness of such assertions, whether fession.”3 In other words, establishing the eviscerated. they are made directly or implicitly.2 “causal connection”—that the client made In both the Eastern and Southern districts As a result, today, a typical proffer agree- the statement during a plea discussion— of New York, the language in standard prof- ment may well offer less protection to a becomes critical to obtaining the protection fer agreements has been expanded greatly client than an interview undertaken without of Rules 11(f) and 410. While one might to permit the government to use proffer any agreement at all. This peculiar result think that any time a client under investiga- statements against the client in many occurs because the typical proffer agree- tion agrees to speak with the prosecutor ways, including to rebut any inconsistent ment now requires the client to waive her in the hopes of obtaining leniency she is rights under Rule 11 of the Federal Rules implicitly engaging in plea negotiations, the of Criminal Procedure and Rule 410 of the limited case law addressing this issue does Federal Rules of Evidence. To the extent not take such a broad view. Richard M. Strassberg and Yvonne M. Cristovici are an interview with the government is part Plea Discussions partners in Goodwin Procter’s litigation department. Mr. of a plea negotiation, the Rules may offer Strassberg is chair, and Ms. Cristovici is a member, of the substantially more protection to a client As a preliminary matter, for a client’s firm’s white collar crime and government investigations than a proffer agreement. statements to the government to be made practice. Kristen A. Kearney, an associate at the firm, Rule 11(f) of the Federal Rules of Criminal “in the course of plea discussions,” the indi- assisted in the preparation of the article. Procedure provides that the “admissibility vidual must be facing actual or imminent tuesday, june 9, 2009

criminal charges;4 where the prosecution of the objective circumstances.” obtained through the use or exploitation is not even contemplating charges, there is Notably, under this analysis, the failure of the statements.’”17 nothing to negotiate. The Second Circuit has of a client to make known his intent to plea Finally, the terms of any plea agreement made clear that the single most important is fatal to a finding he was engaged in plea can limit the protections provided by the factor in determining if such statements are negotiations, because a “silent hope, if Rules. In short, once the parties reach a protected under the Rules is whether the uncommunicated, gives the officer or pros- final agreement, the terms of the agreement individual has “express[ed] the hope that a ecutor no chance to reject a confession he supersede the Rules and control for any concession to reduce the punishment will did not seek.” However, once a prosecutor subsequent proceeding.18 5 come to pass.” Simply offering to cooper- is on notice that the client intends to try Conclusion ate without requesting anything in return to negotiate a plea, the prosecutor must is insufficient to qualify a conversation as affirmatively reject the possibility of a plea The inquiry into what constitutes “plea plea bargaining.6 Someone seeking the pro- agreement to remove the discussion from discussions” covered by Rules 11(f) and tections of the Rules is therefore required the cover of Rules 11(f) and 410.15 410 is highly fact-specific. Attorneys who to “at least…make manifest his intention Other Limits choose to rely on the Rules instead of a to seek a plea bargain before he takes the proffer agreement when taking clients in to route of self-incrimination.”7 Because, under Rules 11(f) and 410, the speak with the government can maximize Accordingly, although not strictly neces- government cannot use an individual’s the chances that a court will conclude the sary for a finding that a client’s discussions statements to impeach her or to rebut any Rules apply by, for example, clearly stat- with the government constitute plea nego- arguments offered on her behalf at trial, ing to the prosecuting attorney early in tiations, a court may examine whether the including those issues raised sua sponte by the negotiation process the client’s intent parties discussed potential terms of a plea the court, the Rules offer broader protec- to engage in discussions with the goal of in making this determination.8 Although tion than today’s standard proffer agree- reaching a plea deal, and making sure any the Second Circuit has recognized that ment. But the Rules do have certain limits, written material presented to the prosecu- preliminary discussions—i.e., discussions in addition to applying solely to statements tors are labeled clearly as related to such that do not reference specific terms of a made to the prosecution in the course of discussions. plea agreement—may be entitled to pro- plea discussions. For example, Rule 410 tection under the Rules,9 other circuits itself sets forth two exceptions to the inad- ••••••••••••••••••••••••••••• require specific discussion of the plea. And missibility of such statements. First, evi- 1. See, e.g., United States v. Barrow, 400 F.3d 109 (2d an individual’s mere efforts to convince dence of plea discussions is admissible “in Cir. 2005); United States v. Velez, 354 F.3d 190 (2d Cir. 2004). a prosecutor that she is not guilty of any any proceeding wherein another statement 2. 400 F.3d at 120-121. crime and should not be charged are gen- made in the course of the same plea or plea 3. United States v. Levy, 578 F.2d 896, 902 (2d Cir. erally not protected by the Rules.10 discussions has been introduced and the 1978). 4. United States v. Arroyo-Angulo, 580 F.2d 1137, By this reasoning, a “plea bargain” is an statement ought in fairness be considered 1148 (2d Cir. 1978). agreement in which the defendant pleads contemporaneously with it.” Second, under 5. Levy, 578 F.2d at 901; see also Fed. R. Evid. 410 guilty to a lesser offense or to one of mul- the rule, statements a defendant makes dur- advisory committee’s note. 6. E.g., Levy, 578 F.2d at 901; United States v. Moore, tiple charges in exchange for some conces- ing plea discussions are admissible “in a 463 F. Supp. 1266, 1272 (S.D.N.Y. 1979); United States v. sion by the prosecutor. Thus, where the criminal proceeding for perjury or false Morgan, 91 F.3d 1193, 1196 (8th Cir. 1996). defendant does “not contemplate pleading statement if the statement was made by 7. Levy, 578 F.2d at 901. 8. United States v. Stern, 313 F. Supp. 2d 155, 168 guilty either to the charges for which he the defendant under oath, on the record (S.D.N.Y. 2003); see also Morgan, 91 F.3d at 1196. [is] being held or to any other charges,” his and in the presence of counsel.” 9. United States v. Serna, 799 F.2d 842, 849 (2d Cir. statements may not qualify as plea negotia- It also appears that the Rules protect 1986), abrogated in part on unrelated grounds by Unit- 11 ed States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993); United tions under the Rules. only statements made during plea negotia- States v. Fronk, 173 F.R.D. 59, 68-9 (W.D.N.Y. 1997). Further, the defendant’s goal in engaging tions, and not derivative evidence found 10. E.g., United States v. Cunningham, 723 F.2d 217, in the discussion must be for a reduced 228 (2d Cir. 1983) (in dicta); see also United States v. Kerik, 531 F. Supp. 2d 610, 619 (S.D.N.Y. 2008). punishment, and not solely for another rea- 11. United States v. Cross, 638 F.2d 1375, 1380 (5th son (for example, to avoid deportation or Although initially most proffer Cir. 1981). to obtain leniency for a third party).12 12. Arroyo-Angulo, 580 F.2d at 1148; United States v. agreements limited the ability of the Robertson, 560 F.2d 647, 651 (5th Cir. 1977). Courts in the Southern and Western 13. United States v. Mannino, 551 F. Supp. 13, 18 districts of New York have looked to the government to use the statements (S.D.N.Y. 1982); Fronk, 173 F.R.D. at 67-8; see also two-step analysis established by the Fifth United States v. Robertson, 582 F.2d 1356, 1364-68 (5th by the client in any case brought Cir. 1978). Circuit in United States v. Robertson for 14. Mannino, 551 F. Supp. at 19 (quoting Levy, 578 guidance in determining whether certain against her, over time, the protec- F.2d at 901). statements arise in the course of plea nego- 15. Id. at 19; see also United States v. Galestro, 2008 tions afforded by the proffer agree- WL 2783360, at 22 (E.D.N.Y. July 15, 2008). tiations and are thus protected under the 16. See, e.g., Fronk, 173 F.R.D. at 71; United States v. Rules.13 Although the Second Circuit has ment have been largely eviscerated. Stein, 2005 WL 1377851, at 14 (E.D. Pa. June 8, 2005); not yet adopted this specific test, the focus United States v. Cusack, 827 F.2d 696, 697-98 (11th Cir. 1987). of the test is similar to the Second Circuit’s 17. United States v. Hinton, 703 F.2d 672, 679 (2d Cir. focus; namely, whether the defendant made 1983). “manifest his intention to seek a plea bar- by the government as a result of the state- 18. United States v. Stirling, 571 F.2d 708, 731 (2d 14 Cir. 1978); United States v. Doe, 671 F. Supp. 205, 208 gain.” ments; many courts, including the Western (E.D.N.Y. 1987). Accordingly, under the first prong of District of New York, have held there is no Robertson, the courts examine “whether “fruit of the poisonous tree” theory under the accused exhibited an actual subjec- 16 Reprinted with permission from the June 9, 2009 edition of the Rules. Notably, however, the Second the NEW YORK LAW JOURNAL © 2009. Incisive Media tive expectation to negotiate a plea at the Circuit has suggested in dicta that it might US Properties, LLC. All rights reserved. Further duplication time of the discussion.” Second, the court find otherwise, stating: “‘Rule 11…[is] without permission is prohibited. For information, contact considers “whether the accused’s expec- designed to [be] applied to statements that 877-257-3382 or reprintscustomerservice@incisivemedia. tation was reasonable given the totality are to be used in evidence, or evidence com. # 070-06-09-24