The opinion of the court was delivered by: Gershon, District Judge.
This opinion sets forth the basis for my October 13, 2000 order
striking paragraph 2(C) from the proffer agreement entered into between
the defendant Brian Duffy and the government on July 13, 1999.
On July 13, 1999, Duffy and his attorney went to the United States
Attorney's Office in hopes of negotiating a cooperation agreement.*fn1
Ordinarily, the government will not agree to enter into a cooperation
agreement until a defendant makes a factual proffer and describes the
type of assistance he might be able to provide. Before beginning a
proffer session, the doubt. government required Duffy and his lawyer to
execute what is referred to by the government as its "standard proffer
agreement." The government acknowledges that it uses this standard
proffer agreement "during every proffer session with all defendants," and
that it is not negotiable. See Oct. 11, 2000 Tr. at 40.
Paragraph 1 of the government's standard proffer agreement provides
that "[i]n any prosecution brought against [Duffy] by the Office, except
a prosecution for false statements, obstruction of justice, or perjury
with respect to acts committed or statements made at or after the
meeting, the Office will not offer in evidence any statements made by
[Duffy] at the meeting (A) in its case-in-chief or (B) at sentencing."
Paragraph 2 contains several exceptions to the government's promise to
refrain from using Duffy's statements:
Notwithstanding paragraph (1) above, the Office may
use any statements made by [Duffy]: (A) to obtain
leads to other evidence, which evidence may be used by
the Office in any stage of a criminal prosecution
(including but not limited to detention hearing, trial
or sentencing), (B) as substantive evidence to
cross-examine [Duffy], should [Duffy] testify, and (C)
as substantive evidence to rebut any evidence offered
or elicited, or factual assertions made, by or on
behalf of [Duffy] at any stage of a criminal
prosecution (including but not limited to detention
hearing, trial or sentencing).
Paragraph 3 includes an agreement that the exclusionary provisions of
Fed. R.Crim.P. 11(e)(6) and Fed.R.Evid. 410 "do not apply to any
statements made by [Duffy] at the meeting."
Federal Rule of Criminal Procedure 11(e)(6) and Federal Rule of
Evidence 410 are substantively identical. Rule 410 provides:
"Except as otherwise provided in this rule, evidence
of the following is not, in any civil or criminal
against the defendant who made the plea or was a
participant in the plea discussions: . . . (4) any
statement made in the course of plea discussions with
an attorney for the prosecuting authority which do not
result in a plea of guilty. . ."
These rules are subject to two express exceptions. A statement made by a
criminal defendant in the course of plea discussions is "admissible (i)
in any proceeding wherein another statement made in the course of the
same plea or plea discussions has been introduced and the statement ought
in fairness be considered contemporaneously with it, or (ii) in a
criminal proceeding for perjury or false statement if the statement was
made by the defendant under oath, on the record and in the presence of
counsel." Fed.R.Evid. 410. Accord Fed. R.Crim. Pro. 11(e)(6).
Duffy signed the agreement and then proceeded to give the government a
detailed factual proffer. In essence, Duffy admitted the existence of the
securities fraud conspiracy that is charged in the instant indictment; he
explained how the scheme was carried out, and he described how he joined
the conspiracy and the part that he played. Based on the information
volunteered, Duffy's counsel asked the government to enter into a
cooperation agreement with his client and to permit Duffy to plead guilty
to a misdemeanor. The government did not agree, and Duffy proceeded to
Duffy has not challenged any part of the proffer agreement except for
paragraph 2(C), which he moves to strike. That is, Duffy has not
challenged that part of the agreement which allows the government to use
his statements to develop leads or to cross-examine him if he testifies.
Duffy cites as the specific grounds for his motion to strike paragraph 2
(C) that that provision is ambiguous or, in the alternative,
unconscionable. The thrust of his argument, however, is that paragraph 2
(C) operates effectively as a waiver of trial, and that he did not
knowingly and intelligently waive his right to make a defense at trial.
In response, the government argues that paragraph 2(C) does not prevent
Duffy from putting on a defense and states that he will trigger the
waiver only if he or his counsel asserts or elicits any statement that
contradicts the proffer. According to the government, this means that
Duffy's statements become admissible if his counsel were to make a
factual assertion that directly contradicts the proffer either during
opening argument or on summation or if his counsel were to ask a question
of a witness that was designed to and did, in fact, elicit a statement
that contradicts the proffer.
While insisting that paragraph 2(C) does not preclude the possibility
of a defense, the government concedes that Duffy is left with few options
lest he open the door to his proffer statements being used against him.
Duffy can argue that the government has not satisfied its burden of
proof, and he can generally attack the credibility of the government's
witnesses, for example, by challenging their ability to perceive the
relevant events or by questioning them about any criminal history they
might have. The government additionally agreed, when pressed on oral
argument, that a general statement by Duffy's attorney that his client is
innocent will not trigger paragraph 2(C).
In United States v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130
L.Ed.2d 697 (1995), the Supreme Court upheld a waiver in which a
defendant had agreed that his proffer statements could be used to impeach
his own testimony, i.e., a waiver like the one contained in paragraph 2
(B) of the government's standard proffer agreement. The Court described
Rules 410 and 11(e)(6) as creating a privilege of the defendant and held
that, "like other evidentiary privileges, this one may be waived or
varied at the defendant's request." Id. at 205, 115 S.Ct. ...