When a Proffer Agreement Backfires: Real Case Examples.

In the context of a proffer agreement, when can a proffer statement be used as evidence of guilt?

A proffer statement can become evidence of guilt through impeachment. It can also become evidence through the theories of rebuttal, breach, or the exception for when a proffer statement is a false statement.

A proffer agreement can also backfire if you think that proffer protection is the same as immunity from prosecution. This is not the case. In many federal cases, the government only provides proffer protection rather than immunity from prosecution. Even in cases where a proffer agreement is used to help secure a plea bargain, the agreement itself is usually not enough to secure any form of immunity.

Another common misunderstanding is thinking that a proffer letter is equivalent to a plea bargain with pre-negotiated sentencing terms. Again, this is not the case. A proffer letter has no guarantee of a plea bargain or any specific sentencing benefits. Receiving a proffer letter just tells you that the prosecutor has an interest in your conduct or it involves you in the ongoing investigation. It does not mean that the prosecutor is willing to grant you immunity.

A third common misunderstanding is the idea that “snitching” and proffer are terms for the same thing. This is not correct either. In its own right, a proffer does not involve snitching. The nature of what is disclosed during the proffer session determines whether it can be characterized as snitching. Providing prosecutors with information about other participants in the alleged crime usually constitute cooperation. On the other hand, a proffer may focus solely on the speaker’s own conduct or may address potential defenses.

When a proffer session is voluntary in nature, the participants involved may stop the session at any point. This means they can simply stand up and leave.

Can Proffer Statements Be Used as Evidence Against You?

Federal Rule of Evidence 410 provides protections for making voluntary disclosures during plea negotiations. According to this rule, statements and other conduct made during plea discussions are generally inadmissible in a trial of the accused to prove guilt.

Under Rule 410, for statements and other conduct to be protected, they must fit within the general rule described. According to Rule 410, statements and other conduct qualify for protection when they are:

• Made during plea discussions with a prosecuting attorney. This means that statements made to law enforcement personnel who are not prosecuting attorneys do not qualify for protection.
• “Volunteered.” This means that statements made as a result of a “promise to avoid criminal prosecution” are not included.

Federal Rule of Criminal Procedure 11 also incorporates the same substantive protections offered by Rule 410. Historically, Rule 11’s reference to “Rule 11(e)(6)” in federal criminal plea negotiations, which incorporated Rule 410, has been an outdated designation since the effective date of the Federal Rules of Criminal Procedure 2002 amendments. This is because the 2002 amendments substantially restructured the rules.

While Rule 410 provides substantial protections during plea negotiations, many of the protections it provides are subject to being waived by valid agreements that provide for the waiver of Rule 410 rights. Contractual proffer protection agreements may cover more statements than Rule 410 would independently exclude.

However, there is no blanket protection for any derivative evidence produced as a result of voluntary disclosures during proffer sessions. For example, while a defendant’s admission of guilt may be inadmissible, it cannot preclude the admissibility of evidence discovered as a result of voluntary disclosures made during proffer negotiations.

If, during a proffer session, a defendant discloses the name of a co-conspirator or the location of where evidence incriminating a co-conspirator is hidden, this information can lead to a search warrant. Once the evidence is obtained under a valid search warrant, the evidence can be used in a trial against the co-conspirator. Here, the defendant’s voluntary disclosure does not afford immunity to a co-conspirator. Similarly, the voluntary disclosure may result in the issuance of subpoenas that reveal other evidence which is not subject to protection under Rule 410.

This logic applies similarly for account information, documents, and other similar items. The voluntary disclosure does not independently preclude the use of such information. Instead, the voluntary disclosure may instead potentially facilitate prosecutors’ use of other types of evidence. In all cases, the disclosures made by the proffer defendant do not themselves provide immunity to others. Even when the information revealed has nothing to do with the defendant’s own culpability, the disclosure of such information can still lead to the criminal prosecution of co-participants.

What Happened in Real Cases Where Proffer Waivers Backfired?

In the Supreme Court case Mezzanatto, 513 U.S. 196 (1995), the Court held that, where a defendant knows and voluntarily accepts the consequences, he may waive his right to suppress statements and conduct during a plea negotiation so as to be impeached by any inconsistent statement at trial. The Supreme Court’s holding specifically addressed the defendant’s testimony, and the proffer agreement of a defendant who is to be charged with criminal culpability is not generally construed as providing immunity.

In Mezzanatto, the defendant provided a proffer statement to the government during negotiation. During that proffer session, Mezzanatto admitted to knowledgeable involvement in a drug-dealing conspiracy. The defendant later denied that he participated in the conspiracy at all. This denial during his trial testimony opened the door to the use of the proffer statement as impeachment.

While this result is common in cases where defendants provide evidence of their own culpability, later appellate cases have gone further, applying Mezzanatto to cases where the defendants’ proffer statements provided evidence of their innocence or that was irrelevant. However, the proffer agreements in these cases have also waivered protection. If you are considering engaging in a proffer session, then you should assume that the prosecutors have every intention of having the government use the information that you disclose if you’s end up in trial.

In the case of United States v. Velez, 354 F.3d 190, the defendant voluntarily disclosed incriminating information during a proffer session. However, the defendant’s proffer agreement included a clause specifying that a proffer statement may be used by the prosecution for the purpose of rebuttal, not for the purpose of introducing evidence in the government’s case-in-chief.

The defendant had initially denied possession of a firearm during his first proffer session. However, in the second proffer session, Jose Velez explicitly admitted to owning a firearm. Jose Velez asserted that he was lying during the first session and that he actually owned and possessed a firearm in a commercial space he rented. Velez had already been indicted on the firearm charge months before either proffer session took place.

At trial, the defendant deliberately refrained from introducing the testimony that would have triggered the waiver, and the government therefore never offered Velez’s proffer statement as rebuttal evidence. The jury returned a conviction. This resulted in Jose Velez receiving 120 months in federal prison.

In another case, Robert Krilich’s proffer agreement also contained the waiver allowing the use of the information he provided as rebuttal evidence. The proffer agreement contained information indicating bribery through a staged golf contest with falsified entries and fraudulent winnings.

Krilich claimed during the proffer that the bribery schemes were limited in scope. However, during the trial, the defendant tried to introduce evidence demonstrating that he had not received any benefits from the conduct. The lawyer for the government was then able to introduce information from Robert Krilich’s proffer statement to impeach the claim, and that led to Krilich’s conviction.

Does Every Defense Argument Trigger a Proffer Rebuttal Waiver?

In Krilich, 159 F.3d 1020, the defendant argued that introducing his proffer statements at trial as rebuttal evidence violated his proffer agreement, because the contradictory position had been presented through cross-examination of a government witness rather than through his own testimony.

The government argued that once the defense makes a claim in the course of a trial, it must trigger the government’s right to use a proffer statement as rebuttal evidence. The court rejected this argument.

This argument has been rejected in other cases as well. In Rosemond, 841 F.3d 95, an appellate court distinguished a challenge to the sufficiency of the evidence from an assertion of a contrary factual claim. As a result, the court noted that, while a factual contradiction could trigger a proffer rebuttal waiver, making arguments pertaining to the burden of proof does not, necessarily, trigger a proffer rebuttal waiver.

Similarly, United States v. Oluwanisola, 605 F.3d 124 (2d Cir. 2010) noted that, questioning the credibility of a witness at trial does not, on its own, trigger a proffer rebuttal waiver. However, if the credibility of a witness is challenged on the grounds that the witness’s testimony is factually inaccurate, then the proffer agreement, which may contain statements and conduct that contradict the witness’s testimony at trial, can potentially trigger a proffer rebuttal waiver.

In Barrow, however, the appellate court held that, when defense counsel eliciting testimony from a defendant that contradicts his voluntary proffer disclosures constitutes “introducing” the testimony for the government’s rebuttal purposes.

As these cases show, the enforcement of proffer rebuttal waivers is still a circuit-specific issue. Federal circuit courts have yet to settle on the specific conduct that triggers a proffer rebuttal waiver. Furthermore, this remains an area of substantial controversy among practitioners.

The case of Rosemond highlights that the type of defense argument that triggers the proffer rebuttal waiver is the factual contradiction that triggers the use of the proffer agreement, rather than the label of the argument itself.

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

Can Proffer Statements Raise Your Federal Sentence?

In federal cases, the United States Sentencing Guidelines (U.S.S.G.) govern sentencing decisions unless the sentencing judge determines that a downward or upward departure is warranted. For a defendant in a federal criminal case who has voluntary provided a proffer statement, several issues may have the potential to raise that defendant’s federal sentence.

One of these issues involves a specific exception under the U.S.S.G., which can be used for sentencing guidance purposes in the case that the defendant has pleaded guilty. Under U.S.S.G. §1B1.8, a defendant’s self-incriminating information is excluded from sentencing if a prosecution team has agreed not to use that information to determine the defendant’s sentence.

This, however, requires a non-use agreement that covers the specific information the defendant disclosed. If the defendant did not secure the prosecution’s agreement, or if the agreement was not sufficient, then the defendant’s information contained in a proffer statement may still potentially be used for sentencing guidance purposes.

Another issue, which also has the potential to raise a defendant’s federal sentence, is under U.S.S.G. §1B1.3. This section provides that the court may consider a defendant’s “relevant conduct,” which is not limited to information related to the conduct that led to the defendant’s criminal conviction. Proffer statements are potentially subject to use as “relevant conduct” if the government can prove that the defendant’s voluntary disclosure fits a relevant conduct category. This could lead to sentence increases in a variety of scenarios, including a sentencing judge calculating a relevant conduct finding based on statements that a defendant made during negotiations.

While there are no guarantees of avoiding sentencing increases in cases where proffer agreements are used to resolve matters, at a minimum, the information the defendant disclosed will generally not be admissible at sentencing in a federal criminal case when protected under U.S.S.G. §1B1.8.

Another important issue is whether the plea agreement includes any prosecutorial sentencing recommendations. If you negotiate a plea deal that includes a prosecutorial sentencing recommendation, it is important to remember that the recommendation has no binding effect on the sentencing judge.

Under U.S.S.G. §1B1.8, a proffer statement may also result in sentencing consequences in certain circumstances. For example, under U.S.S.G. §1B1.8, the following circumstances will not trigger protections for a defendant’s proffer statements:

• the information provided by the defendant during a proffer session was within the government’s knowledge before the voluntary disclosures;
• the defendant’s proffer statement was provided after the defendant breached the agreement to provide assistance in return for the prosecution’s promise of non-use; and
• the proffer statement is used by the sentencing judge when determining a §5K1.1 departure.

These are three examples of the various exceptions that may render a proffer statement subject to use in a sentencing hearing.

What If You Were Pressured Into Signing a Proffer Agreement?

To waive your rights in a proffer agreement, you must enter the waiver knowingly and voluntarily. While this concept is clear on its face, defendants in federal criminal cases have argued that various types of pressure exerted by prosecutors or law enforcement personnel amounts to legal duress.

In general, coercion amounts to legal duress when it “overbears [the defendant’s] free choice and forces him to sign the confession.” At the same time, ordinary efforts to pressure a defendant to plead guilty or make a plea deal generally does not establish legal duress and instead is characterized as part of the bargaining process in the context of plea negotiations and litigation.

In determining whether the circumstances surrounding a defendant’s acceptance of a proffer agreement constitute legal duress, federal courts focus on a number of factors. If a proffer waiver is not knowing and voluntary, the defendant is then not bound by the voluntary disclosure waiver, but may have additional constitutional defenses against prosecution.

If you are facing sentencing or jail after having been convicted, but the government’s trial team improperly used a statement from you during a proffer session in order to establish guilt, then you may be able to secure relief through a writ of habeas corpus. In this case, the appropriate remedy is often a Writ of Suppression. Suppression may seek to preclude the use of the protected statements from being introduced as evidence at trial.

Similarly, if you negotiated a plea agreement that included a valid proffer agreement, but the government later breached the agreement, then you will have grounds for a Writ of Suppression as well. While a Writ of Suppression is more common in pre-trial litigation, it will also be available in other proceedings when necessary.

If a sentencing judge relies on the protected information from a proffer statement against a defendant’s plea agreement or protections under U.S.S.G. §1B1.8, you may be entitled to the remedy of a new sentencing hearing. In federal criminal cases, this is achieved through a petition for resentencing. A petition for resentencing seeks to enforce the defendant’s non-use rights under the pertinent plea agreement or under U.S.S.G. §1B1.8 and to remove the self-incriminating information.

Was My Lawyer Ineffective Because My Proffer Did Not Help?

In cases where criminal defendants seek to challenge their criminal convictions and seek resentencing or a new trial on the grounds that their lawyers were ineffective, the standard applied is that from Strickland, v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must show that his counsel’s representation fell below an objective standard of reasonableness and caused the defendant “prejudice.”

The latter, or “prejudice,” means that, “but for counsel’s uninformed decision, there is a reasonable probability that, in the absence of counsel’s error, the result of the proceeding would have been different.” If a proffer is ineffective, this does not per se result in prejudice to the defendant.

If you are facing a criminal sentence in federal court, you have a right to consult with experienced counsel to determine whether you have grounds for a post-conviction motion based on ineffective assistance of counsel. However, the fact that you proffer did not lead to a plea deal or additional charges is not evidence of ineffective assistance of counsel on its own.

As the American Bar Association (ABA) has noted in its handbook on the representation of indigent defendants, there is no evidence supporting a claim that a proffer is a reliable way of obtaining leniency or avoidance of charges from the federal government. There is no published nationwide database that tracks the incidence of plea deals and sentence reductions resulting from the voluntary disclosure of information by the defendants, and instead, the ABA refers to unverified anecdotes as illustrative examples of the perceived benefits. However, these anecdotes do not establish aggregate proffer success or failure rates.

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.