The opinion of the court was delivered by: Jack B. Weinstein, United States District Judge.
Defendant Frank Maynard allegedly engaged in a general broad-based
scheme, and one incident, to defraud insurance companies by engaging in
staged auto accidents followed by inappropriate litigation, medical and
[A]s substantive evidence to rebut any evidence
offered or elicited, or factual assertions made, by or
on behalf of [the defendant] at any stage of a
criminal prosecution (including but not limited to
detention hearing, trial or sentencing)
The defendant claims that if the paragraph is enforced he will
effectively be precluded from cross-examining government witnesses,
including co-conspirators, and from making arguments that test the
probative force of the government's case. Because the defendant knowingly
and voluntarily waived his rights under the proffer agreement, his motion
In support of his motion, the defendant cites United States v. Duffy,
133 F. Supp.2d 213 (E.D.N.Y. 2001) (Gershon, J.). In Duffy, the Court
struck down paragraph 2 of a virtually identical proffer agreement. The
only other reported decision in this circuit that considers the issue
rejects Duffy. See United States v. Gomez, 210 F. Supp.2d 465 (S.D.N.Y.
2002) (Chin, J.) (explicitly disagreeing with Duffy and holding that
"where a proffer agreement is entered into knowingly and voluntarily and
its terms are clear and unambiguous, it is enforceable, at least to the
extent that the Government may use the defendant's proffer statements to
rebut evidence or arguments offered on his behalf at trial, even where he
does not testify."). Judge Garaufis also recently rejected Duffy in a
ruling from the bench. United States v. Calvin Johnson, 02 CR 259
(E.D.N.Y.) (NGG). See also United States v. Krilich, 159 F.3d 1020,
1024-26 (7th Cir. 1998), cert. denied, 528 U.S. 810, 120 S.Ct. 42, 145
L.Ed.2d 38 (1999); United States v. Burch, 156 F.3d 1315, 1320-22 (D.C.
Cir. 1998), cert. denied, 526 U.S. 1011, 119 S.Ct. 1155, 143 L.Ed.2d 220
(1999); cf. United States v. Mezzanatto, 513 U.S. 196, 115 S. Ct 797,
1302, L.Ed2d 697 (1995) (agreement to waive protection of Fed.R.Evid. 410
and Fed.R.Crim.P. 11(e)(6) is valid absent evidence that defendant
entered into it unknowingly or involuntarily).
There is much to commend the Duffy opinion. See Richard B. Fabel and
James J. Benjamin, "Are `Queens for a Day' Pacts Courtesans, N.Y.L.J.,
June 13, 2001, at 3 ("Duffy reveals a collision of fundamental values
relating to truth-finding and procedural fairness"). In Duffy, Judge
Gershon held that the proffer agreement deprived the defendant of his
Sixth Amendment right to a "meaningful defense" and the effective
assistance of counsel at trial. See id. at 216. During a proffer
session, the defendant in Duffy admitted that he was part of a charged
conspiracy and gave specific information regarding his role. See id. at
215. Judge Gershon concluded that the possibility that these statements
could be admitted at trial effectively precluded the defendant from
offering an "affirmative theory of factual innocence" and that, as a
practical matter, all the defendant's counsel could do at trial was argue
that there was a reasonable doubt. See id. at 216. Because the
defendant's options in Duffy had been narrowed so dramatically, Judge
Gershon held that the agreement constituted an impermissible waiver of
the Sixth Amendment rights.
In the instant case, the defendant apparently did not fully admit to
the broader conspiracy charge in the indictment, but instead admitted to
the events relating to a single allegedly staged accident. Unlike Duffy,
then, the defendant is not in a completely untenable position because his
protestations of innocence will not open the door to damaging statements
relating to the most serious charge against him.
Defense counsel may argue that the government has not proved its case
even as to elements of the crime admitted by defendant in the proffer
session. He may attack the credibility of government witnesses and the
government's other evidence as not believable or not leading to an
inference of guilt beyond a reasonable doubt. The court remains available
to provide counsel with some advance warnings of potential dangers,
pitfalls, and traps, balancing truth finding with a fair opportunity to
defend. "Statements are inconsistent only if the truth of one
[necessarily] implies the falsity of the other." Krilich, 159 F.3d at
1025-26. Still, defense counsel will be inhibited and placed him in a
difficult position when attempting to avoid a misstep that will bring
down on his client's head evidence of a devastating admission.
In the final analysis the defendant has voluntarily made the bed he has
to lie in. Unless he can show that the government did not act in good
faith, eliciting the proffer admissions without intending to work out a
mutually advantageous plea deal; or that defendant lied in making his
admissions because of some improper inducement or coercion by the
government, he is stuck with his proffer agreement. There is no showing
of overreaching or abuse by the government in this case.
It is always open to the defendant to contend that his admission was
wrong and that the truth is to the contrary, as shown by his own
testimony at the trial or other evidence. There is no hint that this is
or will be the defendant's position.
The motion to suppress statements defendant made at the proffer
sessions is denied.