G THE B IN EN V C R H E S A N 8 8 D 8 B 1 AR SINCE WWW. NYLJ.COM VOLUME 256—NO. 103 TUESDAY, NOVEMBER 29, 2016 Outside Counsel Expert Analysis Second Circuit Clarifies Scope Of Proffer Agreement Waivers lthough securing a coopera- both to white-collar criminal defense tion agreement after proffer- practitioners and to those who prac- ing to the government can tice in the gang-related context in which lead to enormous benefits for Rosemond arose. those who successfully navi- By And Proffer Agreements Agate the process, the negative conse- Harry Helen P. quences of a failed proffer are profound. Sandick O’Reilly The standard proffer agreements in Assessing the risks of whether to proffer the Southern and Eastern Districts of and enter into a proffer agreement is an Mezzanatto, 513 U.S. 196 (1995) that New York typically protect the defen- important part of federal criminal prac- the protections afforded under Rule dant from the government’s use of tice. These written agreements between 410 can be waived in proffer agree- factual assertions made during plea federal prosecutors and a subject of a ments, thereby opening the door for agreements. This is necessary because criminal investigation set the ground the factual assertions made in the proffer rules for the future use by the govern- are inevitably inculpatory: The point of ment of a defendant’s statements made The Second Circuit clarified a proffer is for a defendant to admit his during a proffer session. how and when certain defense participation in the crime and to explain The agreements typically involve a tactics at trial can open the who else was involved in committing the partial waiver of the protections pro- door to the introduction of the crime. The defendant’s goal in a prof- vided by Fed. R. Crim. P. 11 and Fed. otherwise-protected proffer fer is to persuade the government that R. Evid. 410 which together provide statements. he can be an effective witness for the that evidence of any “statement made government at trial, by admitting guilt during the course of plea discussions a defendant’s statements to be used and providing substantial assistance to with an attorney for the prosecuting against him if plea negotiations fail. the government. However, the proffer authority” is inadmissible against the In an important recent decision, in agreements normally include a clause defendant. Fed. R. Evid. 410(a)(4); United States v. James J. Rosemond, whereby the defendant agrees that his Fed. R. Crim. P. 11(f). However, the 15-0940-cr (Nov. 1, 2016) the U.S. Court of proffer statements may be used by the Supreme Court held in United States v. Appeals for the Second Circuit clarified government to rebut evidence or argu- how and when certain defense tactics at ments offered by or on his behalf at any HARRY SANDICK is a partner at Patterson Belknap trial can open the door to the introduc- stage of the criminal prosecution. Webb & Tyler and a former assistant U.S. attorney for the Southern District of New York. HELEN P. O’REILLY tion of the otherwise-protected proffer When a trial defense is inconsistent is an associate with Patterson Belknap. statements. Rosemond has relevance with statements made in the proffer, TUESDAY, NOVEMBER 29, 2016 the defense can risk waiving that defense counsel in the precarious posi- government’s key witness about whether agreement not to disclose the factual tion of assessing whether certain lines the defendant had used the words “mur- statements made in the proffer. As a of cross-examination or argument may der” and “kill” during their meetings. result, the risk of triggering the waiver lead to the admission of damaging prof- The government objected, arguing that provision has long imposed severe fer statements. The stakes are very high: this line of cross-examination and any limits on cross-examination strategies If any part of a defense is deemed to be summation relying on it was designed to and arguments that counsel can safely inconsistent with a proffer, it is possible suggest that the defendant wanted the employ without risking the admission that the entire proffer may be admitted victim assaulted or kidnaped, not killed, of a proffer statement. as evidence against the defendant. and therefore contradicted statements Since Mezzanatto, courts have made in the proffer admitting intent to Rosemond Case addressed on a case-by-case basis kill.2 Slip Op. at 17-18. The district court when the door is opened to admitting In Rosemond, the Second Circuit ruled in favor of the government and proffer statements. The Second Circuit held that the district court had applied held that the door would be opened if has demonstrated a broad willingness the waiver provision so broadly as to defense counsel argued or implied that to enforce proffer agreement waivers infringe on the right to counsel. The the government failed to prove that the in a wide variety of circumstances. See, case involved allegations of a con- defendant had intended to murder—as e.g., United States v. Barrow, 400 F.3d spiracy to commit murder-for-hire of opposed to merely shoot—the victim. 109, 117-18 (2d Cir. 2005). In Barrow, for members of a rival music management Defense counsel decided to limit its example, the defense lawyer stated in cross-examination in order to avoid his opening argument that “this is a case opening the door to the admission of The stakes are very high: If any of mistaken identity”and then asked the proffer statements. the undercover agent whether he had part of a defense is deemed to The circuit reversed and held that fabricated evidence in support of the be inconsistent with a proffer, it the district court unduly circumscribed government’s case. During the proffer, is possible that the entire proffer defense counsel’s argument and his the defendant admitted that he com- may be admitted as evidence cross-examination of government wit- mitted the crime for which he was later against the defendant. nesses. Relying on its decision in United tried. Id. at 114. The trial court allowed States v. Oluwanisola, 605 F.3d 124, 133 statements in the proffer to be admit- business in violation of 18 U.S.C. §1958, (2d Cir. 2010), the court rejected the gov- ted—which became a basis of the appeal as well as firearms, money laundering, ernment’s argument that the defense of the conviction. The Second Circuit and narcotics counts. The defendant opened the door as long as it did some- affirmed the conviction. signed a standard proffer agreement thing more than cast doubt on a witness’ The Second Circuit has commented on that prohibited the government from general credibility.3 The court held that the fact-specific nature of the relevant using statements against him except to questioning a witness about his knowl- inquiry. See United States v. Roberts, 660 rebut factual assertions made by him edge, recollection and perception of an F.3d 149, 158 (2d Cir. 2011) (holding that or on his behalf at a later proceeding. event—more than merely casting doubt the distinction between asserting facts During one such proffer session, the on witness credibility—did not amount and challenging the sufficiency of evi- defendant made statements indicating to a factual assertion contradicting the dence depends on the “‘unique insights’ that he understood the murder victim proffer statements. Slip Op. at 27. In par- a district court gains from actually seeing would be killed and not merely assaulted ticular, the court clarified that asking a and hearing these matters pursued in the or kidnapped. Slip Op. at 13. witness what he discussed with others dynamic context of a trial,” and that the Plea negotiations proved unsuccess- or perceived was not equivalent to con- court was unlikely to “second guess rea- ful, and the case went to trial. At both tradicting the defendant’s admissions sonable assessments informed by such the initial trial and on retrial, defense in his proffer. Notwithstanding having insights”).1 This judicial posture has left counsel sought to cross-examine the proffered, a defendant remains entitled TUESDAY, NOVEMBER 29, 2016 to argue that the government has failed meeting with a confidential infor- which would be the result from an to prove specific elements of the crime. mant where defense counsel had overbroad reading of the proffer agree- Id. at 39. argued mistaken identity in his open- ment. Second, it lays out more concrete Adding clarity for all concerned about ing statement; guidance for courts, prosecutors and what is permitted without opening the • Arguing that a shooting was “an defense counsel about when the door door to the admission of the proffer intended kidnapping gone wrong,” has been opened. A jurisprudence of statements, the court listed six circum- when the defendant admitted in a doubt is of no aid to a defendant and stances in which a defense jury address proffer session that the shooting was his attorney trying to decide the risks or cross-examination approach is not a “an intentional murder”; of proffer or the risks of trial. Rosemond factual assertion and therefore does not • Proffering documentary evidence provides some helpful clarity to litigants trigger the waiver provisions: that implied that a cooperating wit- making these tough decisions. • Pleading not guilty; ness was not present as alleged by the Government, where the evidence ••••••••••••••••••••••••••••• • Arguing generally that the govern- was offered not just to impugn the 1. In Roberts, the defense counsel “did not ment has not met its burden of proof; argue simply that the government would fail witness’s credibility, but to prove • Arguing specifically that the Gov- to produce sufficient evidence to carry its bur- a fact that contradicted the defen- den, that [the government’s witness] would ernment has failed to prove particu- dant’s proffer statement.