Rosemond: A Criminal Defendant's Rights at Trial After a Proffer

On November 1, 2016, in United States v. Rosemond, the Second Circuit Federal Court of Appeals found that the Southern District Court of New York violated the Sixth Amendment by improperly requiring a defendant to limit his defense in a murder trial.

Overview of United States vs. Rosemond

James Rosemond, the former owner of Czar Entertainment, was charged with murder for hire, conspiracy to commit murder, and other crimes related to the death of Lowell Fletcher, a member of the rap group G-Unit. G-Unit worked with Violator Records, one of Czar Entertainment’s competitors. The two companies had been engaged in a long and violent feud.

Prior to Fletcher’s murder, Rosemond had been arrested on drug-related charges. As part of an attempt to negotiate a plea bargain, Rosemond participated in proffer sessions with the Government. As a condition of the proffer agreement, the Government agreed not to use Rosemond's statements against him, except to rebut factual assertions Rosemond made in later proceedings. During one of the sessions, Rosemond was asked if he knew that his associates’ actions would lead to Fletcher's death. Rosemond answered that he knew Fletcher would die.

At trial, defense counsel asked one of Rosemond’s associates, who participated in the plot to kill Fletcher, whether he and Rosemond ever discussed murdering Fletcher. The Government claimed that this line of questioning contradicted Rosemond's proffer by implying that Rosemond did not intend to have Fletcher murdered, and triggered a waiver of the proffer agreement. the Government sought to introduce Rosemond’s proffer statements. The trial court agreed, and prohibited Rosemond from arguing that he merely intended to shoot or assault Fletcher, as opposed to kill him.

Rosemond was convicted, and appealed.

On appeal, the court noted that under Rule 410 of the Federal Rules of Evidence “a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea” is "not admissible against the defendant who made the plea or participated in the plea discussions.” However, the Government may introduce statements made during plea negotiations when a defendant's testimony is inconsistent with those statements, or when the defense makes arguments or presents evidence that contradicts those statements.

The Sixth Circuit Court of Appeals analyzed Rosemond's statements and his attorney's questions on cross-examination, and ruled in favor of Rosemond, clarifying that defense counsel can attempt to cast doubt on a witness's credibility, but cannot factually contradict the statements made in the proffer.

What is a proffer agreement in a federal criminal case?

A proffer agreement is a written contract between a federal prosecutor and a criminal defendant or someone under criminal investigation. The person accused agrees to provide the government with helpful information, with the understanding that the statements made will not be used against the accused person in later criminal proceedings. However, almost all proffer agreements allow the government to use proffer statements against a defendant if the accused person testifies inconsistently with the proffer statements.

What are the risks of a proffer, and why would a defendant agree to one?

A proffer is a risky proposition. Usually, a proffer is made with the informal understanding that the government will grant the defendant immunity, or offer a plea bargain. However, that informal understanding is rarely, if ever, reflected in the agreement signed by the defendant and his attorney. Therefore, it is critical that the defendant's attorney and the prosecutor have worked out a basic understanding of what the defendant is likely to proffer, and what the anticipated plea agreement will be. If any of this is not clear, the proffer session should not occur. If plea negotiations fall apart, the proffer will almost always harm the defendant if he or she is indicted.

Given the risks, why would a defendant agree to a proffer? Because in many federal cases, the prosecutor will not offer immunity or a plea bargain without one.

What should someone under federal criminal investigation know before entering into a proffer agreement?

First, understand that a proffer statement is not recorded. Rather, a government agent takes notes. This means that at trial, if the statements of the accused don't match what the government agent wrote down, the proffer statements of the accused may come into evidence. Unfortunately, people hear things differently. The government agent may believe they heard one thing, while the defense attorney and the defendant think something else was said. If plea negotiations go sour and the defendant goes to trial, when the report doesn't match the defendant's testimony, the proffer can work against the accused.

Second, if any part of the accused's defense is found to be inconsistent with the proffer, the entire proffer will be introduced.

Third, understand that, like in Rosemond, an attorney may be forced to limit her defense to avoid the proffer coming into evidence.

After Rosemond, what CAN a defendant argue at trial after a proffer?

Rosemond helps clarify what a criminal defense attorney can argue at trial, even with a proffer agreement in place. Specifically, Rosemond helps distinguish between challenging the sufficiency of the Government's evidence against the accused, versus asserting facts inconsistent with the proffer. Following Rosemond, defense assertions that do not trigger the waiver provision in a proffer agreement include:

• entering a plea of not guilty
• arguing that the Government has not met its burden of proof
• arguing that the Government failed to meet certain elements of a crime, such as intent, knowledge, or identity
• suggesting that a witness was mistaken, lying, or did not remember or report an event accurately
• cross-examining a police officer about discrepancies between her testimony and her earlier written report
• arguing that the Government failed to present corroborating evidence

Proffer agreements are risky propositions, but may be your best chance at immunity or a plea bargain if you are under investigation or facing federal criminal charges. If you have a proffer agreement in place, Rosemond clarifies and expands what a defense lawyer can argue without triggering the waiver provision.

If you are facing federal charges and need an experienced, aggressive federal criminal defense attorney, contact me at the Law Offices of Hope Lefeber for a free initial consultation. I have been defending people accused of crimes throughout New York City for more than 30 years and have a reputation for achieving the best results.