BAR OURNAL J FEATURE

States Attorney’s office for the Eastern District of New York provides: [T]he Office may use any statements made by Proffer Agreements Client: (A) to obtain leads to other evidence, which evidence may be used by the Office in any stage of a criminal prosecution (including What Is Your Client Waiving but not limited to detention hearing, trial or sentencing), civil or administrative proceeding, (B) as substantive evidence to and Is It Worth the Risk? cross-examine Client, should Client testify, and (C) as substantive evidence to rebut, directly or indirectly, any evidence offered or elicited, By John McCaffrey & Jon Oebker or factual assertions made, by or on behalf of Client at any stage of a criminal prosecution (including but not limited to detention hearing, our client is the target of a federal a plea of guilty later withdrawn” is inadmissible trial or sentencing).(Emphasis added.) investigation. He is offered the against the defendant. It is well-settled that the In practice, the particular language of these opportunity to speak with prosecutors protections afforded under these rules can be agreements determines what triggering events Yand investigators so that they have “his side” waived in proffer agreements, thus opening the open the door to the admission of a client’s of the story before determining whether door for a client’s statements to be used against proffer statements at trial. For example, in charges will be pursued. You may ask yourself, him at trial. United States v. Mezzanatto, 513 United States v. Gonzalez, 309 F.3d 882 (5th “What do I have to lose?” Well, the answer is U.S. 196 (1995). Cir. 2002) the agreement provided: “[n]o a great deal. By agreeing to have your client Most proffer agreements allow the statements that either you or Mr. Gonzalez interviewed, also referred to as a proffer, you government to make indirect or “derivative” make during these discussions can be used as could give the government new leads, severely use of information revealed in a proffer evidence against him in any civil or criminal limit the ability to defend your client at trial, session. Thus, the government will be free to proceedings except the Government may and waive the attorney-client privilege in pursue further investigative leads based on use such statements for the purpose of cross- subsequent civil litigation. disclosures made during a proffer session. In examination, impeachment and rebuttal should Proffer sessions are meetings between addition to derivative use, standard proffer your client testify at any proceeding contrary to prosecutors and individuals who are the agreements allow the government to use a this proffer.” Id. at 884 (emphasis added). There, focus of an ongoing investigation. They are client’s statements to impeach him if he testifies the waiver provision of the proffer agreement commonplace in criminal investigations. “inconsistently” at trial. What constitutes an was not triggered because the defendant did While a proffer session carries the potential to inconsistency and who decides is where it gets not testify. Id. at 886. reduce or resolve a client’s criminal exposure, interesting. A standard term in the agreement In contrast, the agreement in United States it also presents a great deal of risk. Before used by the United States Attorney’s Office for v. Barrow, 400 F.3d 109 (2d Cir. 2005) broadly participating in a proffer, prosecutors will the Northern District of Ohio which contains permitted the government to use the proffer typically require you and your client to sign a the following provision: statements “to rebut any evidence offered or proffer agreement. These agreements can vary [I]n the event that your client is a witness in elicited, or factual assertions made, by or on in the terms governing the arrangement. In any judicial proceeding, including but not behalf of [defendant] at any stage of a criminal analyzing whether to proffer a client, defense limited to testimony before the grand jury prosecution.” In Barrow, the defense counsel’s counsel must be acutely aware of the rights or a trial, and offers testimony materially opening statement and questions during waived in a particular agreement and the different from any statement made or other cross-examination opened the door to the negative consequences these agreements may information provided during the proffer, the introduction of the defendant’s incriminating have on a client if the case proceeds to trial. To government attorneys may cross-examine proffer statements. Barrow noted that the proffer or not to proffer — that is the question! [him or her] with, and introduce rebuttal mere fact of pleading not guilty or challenging While these agreements are commonly evidence concerning, any statements made or a witness’s perception or recollection of an referred to as “proffer agreements,” a more apt other information provided during the proffer. event would be insufficient to trigger the description would be to characterize them as Some proffer agreements effectively gut a waiver provision of the agreement. However, “waiver agreements” as they typically exact a client’s ability to mount a defense at trial. In the court held that a cross-examination waiver of the protections provided by Fed. R. some jurisdictions, prosecutors have used “accusing a witness of fabricating an event” or Crim. P. 11 and Fed. R. Evid. 410. Together these agreements to admit proffer statements not an opening statement suggesting that an event rules provide that “evidence of any statement only to rebut inconsistent trial testimony, did not occur would open the door to the made in the course of plea discussions with an but also to rebut essentially any evidence or admission of the proffer statements against attorney for the prosecuting authority which do argument offered by the defense at trial. For the defendant — during the government’s not result in a plea of guilty or which result in example, a proffer agreement from the United case-in-chief. Id. at 118 – 119.

© 2013 Cleveland Metropolitan Bar Association. Reprinted with permission. A proffer agreement may also severely meeting during the proffer session. Vella Medicaid fraud investigation acted as a waiver restrict the evidence to be introduced at trial. held the failure to mention the meeting at of the attorney-client privilege in a subsequent The defendant in United States v. Roberts, the proffer and the subsequent reliance on civil lawsuit. Following this precedent, the 660 F.3d 149 (2d Cir. 2011) was accused of the meeting at trial opened the door to the court in Mainstay High Yield Corporate Bond smuggling cocaine while working at JFK government’s introduction of the failure Fund v. Heartland Industrial Partners, L.P., 263 Airport. During the proffer, the defendant to mention the meeting during the proffer F.R.D. 478, at fn. 4 (E.D. Mich. 2009) noted that admitted his involvement in the drug statement. Because the defendant voluntarily statements given during proffer sessions were conspiracy. The proffer agreement allowed the agreed to speak to the government during discoverable in a subsequent civil case. government to use any statements made during the proffer, any omissions from the proffer The decision whether to proffer a client is the proffer session “as substantive evidence statements enjoyed no Fifth Amendment one of the most difficult choices facing any to ‘rebut, directly or indirectly, any evidence protection. Id. at *4. defense counsel. Depending on the proffer offered or elicited, or factual assertions made, The restrictions resulting from a proffer agreement, the ramifications of an unsuccessful by or on behalf of [Roberts] at any stage of a agreement can continue to sentencing. In proffer could be devastating to the trial of the criminal prosecution.’” This waiver provision United States v. Ozmon, 713 F.3d 474 (8th Cir. matter. Thus, when faced with the decision to was triggered when defense counsel simply 2013), the government was allowed to admit proffer or not to proffer, defense counsel and offered two exhibits in an effort to prove that defendant’s proffer statements at sentencing. the client need to thoroughly evaluate whether the defendant was not at JFK Airport on the The agreement in that case prohibited the the proffer is worth the price. Make certain you date in question. government from using “any self-incriminating read carefully the agreement presented to you A proffer agreement may also waive your information provided by [Ozmon]” at the and your client. client’s Fifth Amendment right to remain proffer interview unless Ozmon “denie[d] the silent. In United States v. Vella, 414 Fed. Appx. same or present[ed] evidence to the contrary 400, 2011 WL 652752 (3rd Cir. 2011), defense at any hearing subsequent to the signing of [the John McCaffrey is a former FBI counsel’s cross-examination of a government cooperation agreement].” Id. at 476 (emphasis Special Agent and Prosecutor. He is witness opened the door to omissions from added). Ultimately, defense counsel triggered a Partner at Tucker Ellis LLP where the defendant’s proffer statement. There, the admission of defendant’s proffer statements his practice focuses on white collar the defendant was accused of being a part when his formal objections to the defendant’s criminal defense and business of a bid-rigging scheme involving grants presentence report were inconsistent with the litigation. He is a Fellow of the American College from the Department of Housing and Urban proffer statements. Id. of Trial Lawyers. He can be reached at john. Development. In his proffer, the defendant And, by participating in the proffer session, [email protected]. was asked to disclose any contacts with you and your client may be waiving the another target of the investigation. In protection of the attorney-client privilege response, the defendant failed to mention a in subsequent litigation. In In re Columbia/ Jon Oebker is a former Cuyahoga meeting that occurred at a Home Depot. At HCA Healthcare Corporation Billing Practices County Prosecutor and Assistant trial, when defense counsel mentioned the Litigation, 293 F.3d 289 (6th Cir. 2002), the Attorney General for the State of Home Depot meeting in opening statement Sixth Circuit rejected the concept of “selective Ohio. He is Counsel at Tucker Ellis and cross-examination of a government waiver” and held that the disclosure of where he also practices in the areas of witness, the government sought to introduce privileged information to the Department of white collar criminal defense and business litigation. the defendant’s failure to mention the Justice in an effort to settle a Medicare and He can be reached at [email protected].

© 2013 Cleveland Metropolitan Bar Association. Reprinted with permission.