Federal Evidence Review

Proffer waiver provision was enforceable against the defendant signing proffer agreement; admission of redacted proffer agreement violated the Bruton rights of the co-defendants, but error was harmless beyond a reasonable doubt based on the overwhelming evidence of guilt, in United States v. Hardwick, _ F.3d _ (3rd Cir. Oct. 3, 2008) (Nos. 06-5151, 06-2571, 06-2541, 06-3061)

FRE 410 generally bars the introduction of pleas, plea discussions, and related statements under certain circumstances. Can a defendant waive this rule? For example, it is common for a proffer agreement to specify the circumstances in which proffer statements may be used at trial. A few circuits have held that proffer agreements containing waiver terms are enforceable. The Third Circuit was the latest to hold that proffer waiver provisions may be enforced. In doing so, the circuit canvassed a host of issues that may arise when the government seeks to admit proffer statements under a waiver provision.

In Hardwick, four defendants were prosecuted for conspiring to distribute and possess narcotics, and committing firearm violations. Before trial, defendant Murray entered into a proffer agreement, which provided that his proffer statements would not be used against him during the government’s case-in-chief. However, the agreement contained a waiver provision that his proffer statements could be introduced by the government “to rebut any evidence or arguments offered on [Murray’s] behalf.” After the proffer agreement was signed, defendant Murray “admitted to planning and participating in the slaying of two individuals, Hiram ‘Chubby’ Rosa and Kenneth ‘Smoochie’ Allen.” Hardwick, _ F.3d at _.

Defendant Murray proceeded to trial, and did not testify. At the end of the government’s case-in-chief, the government claimed that the proffer waiver provision had been triggered since defendant Murray admitting evidence that he served a lesser role in the killings during cross examination of government witnesses. The trial court agreed and ordered that references to the co-defendants should be redacted in the proffer statements to avoid Confrontation Clause issues. After the defendants were convicted, they each claimed error by the admission of the redacted proffer statements.

The Third Circuit first considered whether the proffer waiver provision was enforceable. The circuit noted that the Supreme Court had recognized that the protection under FRE 410 could be waived as long as there is no “affirmative indication that the agreement [to waive] was entered into unknowingly or involuntarily.” United States v. Mezzanatto, 513 U.S. 196, 210 (1995). In Mezzanatto, the Court enforced a proffer waiver provision permitting the proffer statements to be used for impeachment purposes. In Hardwick, the circuit noted that “five justices expressed doubt as to whether a waiver could be used to admit the defendant’s statement in the Government’s case-in-chief.” Hardwick, _ F.3d at _ (citations omitted). The circuit was “persuaded by the reasoning of these courts,” including the Second, Seventh, Ninth and D.C. Circuits: United States v. Velez, 354 F.3d 190, 194-95 (2d Cir. 2004); United States v. Rebbe, 314 F.3d 402, 407 (9th Cir. 2002); United States v. Krilich, 159 F.3d 1020, 1024-25 (7th Cir. 1998) (enforcing proffer waiver should the defendant “testify contrary to the substance of the proffer or otherwise present a position inconsistent with the proffer”; inconsistent position taken through cross-examination of government witnesses), cert. denied, 528 U.S. 810 (1999); United States v. Burch, 156 F.3d 1315, 1321-22 (D.C. Cir. 1998) (“we can discern no reason not to uphold the trial judge's ruling in this case that a defendant can waive his rights under Rules 11(e)(6) and 410 to the extent of allowing statements made in the plea proceeding itself and in a subsequent debriefing to be used as part of the prosecution's case-in-chief”; proffer statements admitted in case in chief).

The circuit also concluded the waiver had been triggered under the terms of the proffer agreement. The defendant triggered the waiver provision through the cross-examination of government witnesses by suggesting others “were responsible for the murders of Rosa and Allen, contrary to the statements Murray made under the proffer agreement.” Hardwick, _ F.3d at _.

The circuit disagreed with the defendant that the government waived the issue on appeal by waiting seven days before objecting to the defense cross-examination. As the circuit noted, “Murray’s argument conflates the right to object to the introduction of evidence with the right to enforce a contract. The Government was not lodging an objection to Murray’s line of cross-examination; rather, it was exercising its contractual right under the proffer agreement. The proffer agreement did not preclude Murray from introducing evidence or making arguments contrary to the proffer agreement, nor did it provide the Government with a right to object when Murray did so. Instead, it provided the Government with the right to use the proffer statements to rebut any arguments offered on Murray’s behalf.” Hardwick, _ F.3d at _.

While the proffer waiver provision was enforceable and had been triggered against defendant Murray, a separate question was raised on whether the Confrontation Clause rights under Bruton of the three co-defendants were violated by the admission of the redacted proffer agreement. See Bruton v. United States, 391 U.S. 123, 135-37 (1968) (admission of a co-defendant’s confession implicating the defendant is reversible error where the codefendant did not testify and the co-defendant and defendant are jointly tried). On this point, the circuit noted,

“Although this trial involved multiple co-defendants, only two -- not including Murray -- were charged with killing Rosa. Redacted references to ‘others in the van’ referred directly to their existence, and the unavoidable inference was that they were the ones who ‘exited [the] vehicle and started firing their weapons at Rosa.’ The redacted version of the text explicitly excluded Perez and Murray, the only other passengers, from the ‘others’ who left the van. Because Murray exercised his right not to testify at trial, Hardwick and Resto were unable to confront him and challenge his testimony.”

Hardwick, _ F.3d at _. Nonetheless, the Bruton error was harmless beyond a reasonable doubt. The evidence was overwhelming, including the testimony of several witnesses detailing the role of the co-defendants in the murders, and a ballistics expert who matched the shell cases at two murder scenes with witness testimony about the type of firearm used.

The Hardwick case provides a useful roadmap on the issues that may be considered where a proffer agreement is introduced:

1. Are the terms of the waiver provision enforceable?
2. Are the waiver terms triggered?
3. In a case involving multiple defendants, are Confrontation Clause issues raised, and, if so, appropriately dealt with?

Under this roadmap, there remains an issue on the scope of waiver provisions. It is clear that at least five circuits will enforce waiver provisions in proffer agreements. However, the facts and terms of the proffer agreements in these cases are generally broader than those considered by the Supreme Court in Mezzanatto, which were limited to using the proffer statements for impeachment purposes. At some point, the Court may be called upon to revisit the issue and focus on the scope and limits of proffer waiver provisions.