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U.S. v. DUFFY

March 13, 2001

UNITED STATES OF AMERICA
v.
BRIAN DUFFY, DEFENDANT.



The opinion of the court was delivered by: Gershon, District Judge.

OPINION AND ORDER

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 proceeding, admissible
 
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 trial.

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. ...


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