Occasionally in criminal cases, particularly federal criminal cases, the client finds that it is necessary to sit down for a proffer session with law enforcement officers and prosecutors in which the defendant discloses facts that would support some or all of the charges against him. While there is usually a "proffer agreement" stating something to the effect that the disclosures in the proffer session can't be used directly against the defendant, there is also usually a provision that the government may produce evidence of the defendant's statements at the proffer session if the defendant would go to trial and, according to a recent Sixth Circuit decision in United States v. Shannon, do just about anything other than confess from the get-go.
Shannon was charged in a Medicare fraud conspiracy. Before eventually going to trial Shannon his lawyer in tow participated in a proffer session. They were presented with what is commonly referred to as a Kastigar letter that had these two paragraphs:
(2) Except as otherwise specified in this letter, no statement made by you or your client during this proffer discussion will be offered against your client in the government's case-in-chief in any criminal prosecution of your client for the matters currently under investigation.
(3) If your client is prosecuted, the government may use your client's statements in cross-examining your client, and to rebut any evidence offered by your client that is inconsistent with the statements made during this discussion. This is to ensure your client does not abuse the opportunity for this proffer discussion by making false or misleading statements, either at the proffer discussion or at trial.
Shannon made several statements in the proffer session inculpating himself in the health care fraud conspiracy.
For whatever reason, the plea negotiations fell apart. At trial, an Akhtar, a cooperating defendant, testified that Shannon recruited patients for his pain clinic and regarding some details of Shannon's recruiting tactics including payoffs. Shannon's defense lawyer, apparently under the misapprehension that he was supposed to actually function like a defense lawyer instead of an enabler for whatever the prosecutor wanted to do, cross-examined Akhtar on the point that he had no first-hand knowledge of whether Shannon had made payments. This the district court found to go "too far" and the government was permitted to introduce Shannon's proffered statements.
The Sixth Circuit affirmed, and its analysis should tell any federal criminal defense lawyer and defendant that a decision to attend a proffer session is also a decision to plead guilty and not go to trial. Here's what the Sixth Circuit explained:
- cross-examining a witness is presenting evidence
- presenting a position, which should be read as announcing ready, for trial is presenting evidence
- making any argument is presenting evidence or a position, which should be read as stating in opening statement that the government will not be able to prove its case beyond a reasonable doubt
The Sixth Circuit's decision and analysis further strengthens the already way too strong hand of federal prosecutors. It treats the proffer agreement by traditional contract law principles, one of which is (one that goes unmentioned) that the parties to a contract have a duty of good faith and fair dealing toward each other. One wonders if the government lived up to that before the plea negotiations went south.
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