UNITED STATES v. JOSÉ VELEZ
2004 U.S. App. LEXIS 347, 354 F.3d 190, 63 Fed. R. Serv. 610 (2004)
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Rule of Law:
A provision in a proffer agreement is enforceable where a defendant knowingly and voluntarily waives their right under Federal Rule of Evidence 410 to have their proffer statements excluded, by permitting the government to use the statements to rebut any contrary evidence or arguments presented by the defense, whether or not the defendant testifies.
Facts:
- On August 18, 2001, three New York Police Department officers observed José Velez, a convicted felon, pull a gun from his waistband.
- The officers heard the sound of metal hitting the pavement and then recovered a gun from the ground where Velez had been standing.
- In an initial proffer session with the government on January 14, 2002, Velez, accompanied by counsel, asserted his innocence.
- Velez requested a second proffer session, which took place on May 9, 2002 with his new counsel.
- Before the second session, Velez signed a proffer agreement containing a waiver provision.
- The waiver stated the government could use his proffer statements to rebut any evidence or arguments offered by or on behalf of Velez at any stage of the prosecution.
- During the second proffer session, Velez recanted his earlier claim of innocence and admitted to owning and possessing the firearm in question.
Procedural Posture:
- José Velez was indicted in the U.S. District Court for the Southern District of New York for one count of being a felon in possession of a firearm.
- The District Court granted Velez's request to relieve his first attorney and appointed a second one.
- Prior to trial, Velez's defense counsel made an in limine motion seeking a ruling on the scope of the proffer agreement's waiver clause.
- The District Court ruled that if the defense introduced certain anticipated testimony, it would permit the government to introduce Velez's proffer admissions, implicitly finding the agreement enforceable.
- Velez also requested the appointment of a third defense counsel, which the District Court denied.
- After a three-day trial, a jury convicted Velez on the sole count of the indictment.
- The District Court sentenced Velez to 120 months' imprisonment.
- Velez, the appellant, appealed his conviction and sentence to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does a waiver provision in a proffer agreement, which permits the government to use a defendant's proffer statements to rebut any inconsistent evidence or arguments offered by the defense, violate the defendant's constitutional rights to mount a defense, to the effective assistance of counsel, and to a fair trial?
Opinions:
Majority - Cabranes, J.
No. A proffer agreement waiver that allows the government to use a defendant's proffer statements to rebut any inconsistent defense evidence or argument is constitutional and enforceable, provided the defendant entered into the agreement knowingly and voluntarily. The court extended the Supreme Court's reasoning in United States v. Mezzanatto, which upheld a narrower waiver covering only the defendant's own testimony. The court reasoned that such waivers are necessary to ensure candor in proffer sessions and to encourage plea bargaining, a legitimate goal of the criminal justice system. Invalidating such provisions would disincentivize prosecutors from entering into cooperation discussions. While the government may have significant bargaining power, this disparity is not a sufficient basis to render the agreements unenforceable, as it often reflects the strength of the government's evidence. A defendant is not deprived of the right to present a defense; rather, they remain free to present inconsistent evidence but must accept the fair consequence that the government can use their own prior statements in rebuttal. The court found no evidence that Velez's waiver was anything other than knowing and voluntary.
Analysis:
This decision significantly strengthens the government's position in plea negotiations by endorsing the enforceability of broad waiver provisions in proffer agreements. By extending the Supreme Court's holding in Mezzanatto to cover not just the defendant's own contradictory testimony but any argument or evidence presented by the defense, the court makes it very risky for a defendant who has made admissions in a proffer to later mount a defense at trial that contradicts those admissions. This precedent gives prosecutors a powerful tool to lock defendants into their proffer statements, effectively limiting the scope of a viable trial defense and increasing the pressure on defendants to accept a plea agreement.
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