What If My Proffer Is Inconsistent With My Trial Testimony??

An inconsistency does not end your defense, nor does it conclusively establish your guilt. If you choose to defend yourself at trial, you are entitled to assert a defense based on the available evidence. If the government attempts to introduce evidence of a proffer statement that is inconsistent with your trial defense, it is up to you to defend against that evidence. While an inconsistent prior statement can potentially be used as evidence of guilt, this depends on a judge’s legal determination and the strength of other evidence.

The extent of the protections afforded to proffer statements is determined by the language of the proffer agreement. Proffer agreements are drafted by federal prosecutors and are subject to judicial review. Different federal jurisdictions interpret this language in different ways.

The government cannot unilaterally decide when it is entitled to use proffer statements as evidence at trial. If the government believes an inconsistency triggers a waiver of confidentiality, it must demonstrate to the court that the waiver language is applicable. The court then compares the waiver language against the defendant’s specific assertion made during trial. Factors considered by courts include the scope of the waiver, the nature of the assertion, and the circumstances surrounding the alleged inconsistency.

The trial judge then decides whether the waiver was triggered and whether the evidentiary requirements have been satisfied. The judge makes a legal determination based on the evidence at hand. Ultimately, judges must determine the applicability of waiver language and its implications under applicable law.

As far as we know, no study has measured how often proffer statements conflict with later trial testimony. While inconsistencies are possible, they appear to be relatively uncommon, provided you avoid them by choosing a defense strategy that is consistent with any proffer statements you may have made.

How does a judge decide whether my proffer waiver was triggered?

Whether a proffer waiver is enforceable depends on the scope of the waiver. Some proffer agreements contain very broad waivers that ostensibly permit the government to use proffer statements at trial. Some agreements contain very narrow waivers, and some agreements contain no waivers at all.

In the Supreme Court case United States v. Mezzanatto, 513 U.S. 196 (1995), the Court looked at a waiver that applied specifically to impeachment. The Mezzanatto defendant had agreed that his proffer statements could be used to impeach any contradictory testimony he might give at trial. The Supreme Court upheld this waiver, with Justice Clarence Thomas writing:

Although the United States District Court rejected a motion by the Defendant to exclude the government’s evidence on appeal, it did not determine whether an enforcement of the immunity agreement under the condition cited in the waiver agreement violated the Defendant’s Sixth Amendment rights against self-incrimination in criminal cases. To the extent that Mezzanatto waived his rights with knowledge and voluntariness, the provision requiring the Defendant to testify in open court if the Defendant chose to testify at trial is not enforced unless the Defendant made a knowingly and voluntarily waiver.

A key limitation of the Mezzanatto holding is that it did not address whether other forms of proffer statement waivers are similarly enforceable, such as waivers applicable in the case-in-chief. In recent years, federal judges have consistently upheld more generally written proffer waivers as enforceable. For example, in United States v. Velez, 354 F.3d 190 (2d Cir. 2004), the judge wrote:

Based on the language of the agreement, these proffer statements would be admissible as evidence to rebut the defendant’s testimony and arguments at trial.

A similar finding in the case of United States v. Krilich, 159 F.3d 1020 (7th Cir. 1998), similarly stated:

With respect to the defendant’s right against self-incrimination, the proffer agreement also provides that the proffer statements may be used for the purpose of impeachment. The agreement states that the defendant waived any applicable immunity in the event the defendant testified to facts in contradiction of his proffer statements. With the consent of counsel and the defendant, the defendant testified on his own behalf. During his testimony, he made an assertion that was contradictory to his proffer statement in regard to his alleged involvement in the Drug Conspiracy, and it does not appear that the government may make use of his statement if he denies guilt. Therefore, the government is entitled to use a certified copy of the defendant’s proffer statements.

The scope of a defendant’s proffer agreement and any potential waiver can also become an issue in response to defense arguments or questions asked during cross-examination. In the Velez case, the judge stated:

The Court finds that Defendant’s right against self-incrimination is not violated because Defendant made a knowing and voluntary waiver in the proffer agreement and chose to use his proffer statements at trial, as well as testify in open court to facts that differ from the substance of those made at the proffer meeting.

With respect to the issues raised in the defendant’s motion to suppress, the Court does not find that the defendant’s statement in response to the attorney’s question that he volunteered information in his proffer agreement, constitutes impeachment of the defendant’s testimony in open court.

The defendant’s Fifth Amendment right against self-incrimination is not violated by allowing the proffer statements to be used as evidence at trial, since the defendant has waived his right to assert his Fifth Amendment right to remain silent and chose to introduce his testimony, as well as testify in open court to facts that differ from the substance of those made at the proffer meeting.

Under Rule 104(a) of the Federal Rules of Evidence, a judge will decide any preliminary question regarding the admissibility of evidence. Rule 104(a) states:

The court decides any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

Rule 104(a) does not define who decides the issue of whether a proffer statement can be used as evidence in a criminal case. However, based on the rule’s clear language, it appears that judges will decide any dispute between the defense and the government regarding proffer statement admissibility. A motion in limine could potentially resolve a dispute regarding the scope of a proffer waiver prior to the defendant’s opening statement.

The Velez case also examined the defendant’s challenge to the admissibility of his proffer statement under the Sixth Amendment. The Velez court stated,

The Court finds that the defendant waived his right against self-incrimination in signing his proffer agreement.

The Velez court’s conclusion that the proffer statement was admissible because it was obtained with the defendant’s knowing and voluntary waiver remains the same, and it is clear that the Sixth Amendment claim should be denied.

Can prosecutors use my proffer as proof of guilt or only impeachment?

Federal Rule of Evidence 801(d)(1)(A) provides that “prior statements by the declarant that are inconsistent with the declarant’s testimony may be admitted as substantive evidence only if the prior statement was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” Since proffer statements are not sworn, they generally cannot be used for substantive purposes. However, federal prosecutors can seek to use proffer statements for impeachment under Rule 613, stating that a “prior inconsistent statement” can be used to “undermine the witness’s credibility.” Rule 613(a) permits a proffer statement to be introduced into evidence by way of questions asked to the defendant on the stand. Rule 613(b) allows extrinsic evidence of the proffer statement to be introduced after the defendant has been questioned under Rule 613(a). Rule 613(b) also requires the judge to afford the defendant “an adequate opportunity to explain or deny” the statement before introducing it.

A court can only admit a proffer statement as substantive evidence if it complies with Rule 801; otherwise, a proffer statement may be used as impeachment evidence under Rule 613 if the conditions for doing so are met. However, even if the conditions for admitting proffer statements as impeachment evidence are met, federal prosecutors may still face hurdles in obtaining permission from the judge to use your proffer statement.

Rule 403 provides that a court may exclude relevant evidence if its probative value is substantially outweighed by a danger of “unfair prejudice.” Thus, even if it is admissible as impeachment evidence, the judge has the discretion to exclude the statement if its probative value does not justify the risk of “unfair prejudice.” It may also be admissible subject to a limiting instruction, stating that the jury may use the statement to assess the credibility of the testimony, but they cannot use it to find the defendant guilty of a crime. Federal Rule of Evidence 105 provides a limiting instruction that may restrict evidence that is admissible for one purpose, but not another.

Judges will make this determination at trial, but the issue can also be raised on appeal. The pertinent case of Darden v. Wainwright, 477 U.S. 168, 181 (1986) addresses whether a prosecutorial argument during the trial constituted an error that required an appellate court to grant a new trial. The Darden test asks whether, given the circumstances of the trial, the improper argument “rendered the trial fundamentally unfair.”

Additionally, Batson v. Kentucky, 476 U.S. 79 (1986) also prohibits federal prosecutors from using race as a basis for peremptory challenges during jury selection.

Does Rule 410 or immunity protect what I said in a proffer?

Federal Rule of Evidence 410(a) states that “a guilty plea that was later withdrawn” or “a nolo contendere plea” is inadmissible in a criminal or civil case. It also protects: “(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.” Because Rule 410 protects the defendant only as to statements made during plea discussions with an attorney for the prosecuting authority, prosecutors may attempt to argue that a proffer discussion does not qualify as a plea discussion under the Federal Rules of Evidence. This may allow prosecutors to admit your proffer statement, if they can show that the proffer does not qualify as a plea discussion under the Federal Rules of Evidence.

At one point, Federal Criminal Rule 11(e)(6) also protected “any statement” made “by the defendant or their counsel” during plea discussions. However, during the 2002 restyling of the Federal Rules of Criminal Procedure, Rule 11(e)(6) was eliminated. Criminal Rule 11(f) now cross-references Federal Evidence Rule 410.

A defendant’s immunity often is defined by the terms and conditions of his proffer agreement, and does not necessarily apply if the defendant continues to act as a cooperating witness under a plea agreement. In the landmark case of Kastigar v. United States, 406 U.S. 441 (1972), the U.S. Supreme Court addressed whether the government may compel testimony from a witness who invokes the Fifth Amendment by conferring use and derivative-use immunity. In this case, the Court noted that “leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege.” This confirms that the protections afforded to immunized statements are far broader in scope than those afforded to proffer statements.

18 U.S.C. Section 6002 prohibits the direct use of a defendant’s testimony when a grant of immunity has been compelled. It also prohibits the use of “direct or indirect use . .. that is based on the content of any given information in response to a request to testify.”

Although a defendant’s proffer agreement may prohibit the direct use of his statements, it may permit investigators and prosecutors to pursue derivative leads. Federal Rule of Criminal Procedure 35(b) allows defendants who have provided assistance after being sentenced to obtain a sentence reduction. Statutory immunity also requires a district court order, which may be obtained under 18 U.S.C. Section 6003.

Spodek Law Group, led by managing partner Todd Spodek, defends clients in federal criminal and white collar matters.

Can I get the FBI 302 report and agent notes before trial?

An FBI 302 report is an agent’s summary of an interview with a potential target, witness, or defendant in a federal investigation. An FBI 302 is an agent’s interpretation of what was said; it is not a transcript of the interview.

An FBI 302 is a qualifying written record of a defendant’s statement under Rule 16 of the Federal Rules of Criminal Procedure. While Rule 16 also applies to agents’ notes, agents’ notes are not Jencks statements if a statute is not met. The Jencks Act does not require federal prosecutors to produce witnesses’ statements until after the witnesses’ direct testimony at trial. FBI 302 reports, agents’ notes, and other forms of evidence are not Jencks statements unless they are obtained “by the party calling the witness, or by an official of the government during the course of the federal criminal prosecution.” 18 U.S.C. Section 3500(e) defines which of a witness’s statements are subject to production.

The Federal Rules of Criminal Procedure 26.2 (a) states, “After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the government or the defendant and the defendant’s attorney to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter of the witness’s testimony. that are subject to disclosure.” 18 U.S.C. Section 3500(e) defines a “statement” as any written or recorded statement “that is signed, adopted, or substantially verbatim.”

An FBI 302 report is a qualifying record as specified in Federal Criminal Rule 16, and as a result, the government is obligated to produce the report before trial if a Rule 16 request is made. Federal prosecutors can attempt to withhold the report by arguing that it is a Jencks Act statement, and that the timing of disclosure under the Jencks Act permits them to delay production. The government can also attempt to withhold the report by arguing that the report is protected by the work-product doctrine.

The rule in Brady v. Maryland, 373 U.S. 83 (1963) requires the government to disclose any material evidence that is favorable to the accused. As noted by the court in Giglio v. United States, 405 U.S. 118 (1972), this “is the case with respect to evidence which is favorable to the defendant in showing bias, motive, or credibility.” This includes information about a witness’s credibility, particularly for any government witness testifying at trial.

Should I testify if my proffer contradicts my trial defense?

If you testify, you waive your Fifth Amendment protection with respect to the proper scope of cross-examination. Federal Rule of Evidence 611(b) permits “all relevant cross-examination.” Rule 611(b) continues: “Cross-examination should be limited to the subject matter of the direct examination and matters affecting the witness’s credibility.” Since you may testify to facts that contradict your proffer statement, the government will use the inconsistency to argue that you lack credibility. If you have prior convictions, Rule 609 may permit federal prosecutors to use those convictions as evidence to further undermine your credibility.

When testifying under the conditions discussed in this article, it could also trigger a contractual proffer waiver that may be broader than what constitutes ordinary impeachment. Ultimately, the decision to testify is the defendant’s decision, which cannot be overridden by defense counsel.

However, if you do not testify, prosecutors can’t treat your silence as evidence of guilt. The Supreme Court case of Griffin v. United States, 384 U.S. 308 (1965), discussed the “use of the defendant’s refusal to testify in criminal cases.” With this in mind, the Supreme Court concluded, “To do otherwise would be to punish the defendant in a way that violates the Fifth Amendment.”

What is the “80/20 Rule”?

There is no binding federal legal rule called the “80/20 Rule.” Lawyers frequently use the “80/20 Rule” in discussions to describe the principle of the Pareto Distribution, or as the Pareto Principle, based on Vilfredo Pareto’s productivity principle. The Pareto Principle posits that 80% of the results are the product of 20% of the effort applied. If you are dealing with a complex criminal case that requires meticulous handling of all evidence, the case may require disproportionately more than 20% of your time. For example, reviewing voluminous documents may just take up 80% of your time, and it does not directly produce an answer for the complex issue you face in your case. There are countless other ways the 80/20 rule can apply in criminal law. However, by no means is it a governing federal rule of law.

Can I be charged with perjury for an inconsistent proffer statement?

Yes, federal prosecutors can use an inconsistent proffer statement to establish perjury and other related charges.

There are two statutes and one rule of the Federal Rules of Criminal Procedure, which criminalize making false statements to federal investigators.

• 18 U.S.C. Section 1001 prohibits making a statement to a federal official “materially and willfully false, fictitious, or fraudulent.”
• 18 U.S.C. Section 1623 prohibits “the willful and knowing submission of any declaration or document containing any matter he knows to be false and material to the federal court’s proceedings.”
• A violation of 18 U.S.C. Section 1621 prohibits “the willful and knowing statement, made on the oath or affirmation of a witness, of an untruth, matter . .. which he does not believe to be true.” A violation of 18 U.S.C. Section 1621 can be punished by a term of five years imprisonment or a fine.

If you provide an inconsistent proffer statement and later testify to different facts at trial, the government can use this to:

• Support a perjury charge or request a sentence enhancement for obstruction of justice based on your trial testimony.
• Deny acceptance of responsibility for the underlying federal crimes.
• Deny a substantial assistance reduction for the underlying federal crimes.

The United States Sentencing Guidelines (U.S.S.G.) state, “A defendant shall receive a 2-level increase if the defendant willfully obstructed or impeded the administration of justice (i.e., obstructed justice) by committing perjury.” U.S.S.G. Guideline § 3C1.1, Note 1.0. False trial testimony can qualify for a sentening enhancement under U.S.S.G. § 3C1.1.

Similarly, a federal prosecutor could also request an obstruction sentencing enhancement under U.S.S.G. § 3C1.1. Also, if you testify falsely, you could potentially be charged with perjury under 18 U.S.C. Section 1621.

A laudanum sentence reduction may also be at risk if you provide an inconsistent proffer statement and later testify to different facts. According to U.S.S.G. Guideline § 3E1.1, the credit for acceptance of responsibility cannot be given “to a defendant who falsely denies (i) an offense to which he is or has been subject to sentencing; or (ii) a relevant conduct of a similar nature.”

If you have taken a plea deal and your plea deal includes a substantial assistance provision, an inconsistency could potentially make the prosecutors deny the substantial assistance request. In many cases, the government will make this happen before you are released pending sentencing.

Giving a proffer statement does not provide you with a plea deal nor does it provide you with a substantial assistance motion. If a defendant wants to receive credit for cooperating with the government, that would have to be negotiated with prosecutors. In the United States Sentencing Guidelines, Section 5K1.1 allows for a “substantial assistance departure” if the government files a motion that:

• It has provided substantial assistance in the investigation, prosecution, or sentencing of another person.
• Its statement to the government was made with a view of taking full responsibility.
• Its cooperation has not been satisfactory.

laudanum U.S.S.G. Guideline § 5K1.1, Comment 1. Only the government can make this request, and as with a criminal charge for perjury, an inconsistent proffer statement could jeopardize the government’s willingness to file a substantial assistance motion on behalf of a defendant.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.