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Univ. of South Carolina School of Law

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Thursday, October 21, 2010

Proper Proffer?: Third Circuit Finds No Problem With Proffer Statement Waiving Defendant's Right To Kastigar Hearing

In Kastigar v. United States, 406 U.S. 441 (1972), the Supreme Court held that the Fifth Amendment does not require a grant of transactional immunity before a witness' testimony can be compelled; instead, a grant of use and derivative use testimony is coextensive with the privilege against self-incrimination. Conversely, the Court held that a mere grant of use immunity alone is not coextensive with the privilege. Thus, if the government decides to prosecute a witness who testified under an immunity agreement, the court will hold a Kastigar hearing to determine whether the prosecution is properly based upon independent evidence or whether it is improperly based upon evidence derived from the witness' testimony. 

Meanwhile, Federal Rule of Evidence 410(4) indicates that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

So, can the prosecutor force the defendant and his attorney to sign the following statement to get to the plea bargaining table?:

[T]he government may make derivative use of, and may pursue investigative leads suggested by, statements made or information provided by you or your client. That is:

[a] your client waves any right to challenge such derivative use and agrees that such use is proper; and

[b] your client agrees that Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410 do not govern such derivative use.

This provision eliminates the necessity of a Kastigar hearing at which the government would have to prove that its evidence at trial or other legal proceeding is untainted by statements made or information provided during the “off-the-record” proffer.

According to the recent opinion of the Third Circuit in United States v. Merz, 2010 WL 3965856 (3rd Cir. 2010), the answer is "yes."

In Merz, Robert Merz was convicted of advertising, possessing, receiving, and transporting child pornography. Some of the evidence used to convict him was derived from statements that Merz made during plea discussions. Thos plea discussions were preceded by the defendant and his attorney signing the proffer statement listed above

After he was convicted, Merz appealed, claiming, inter alia, that "even though the Government's proffer letter reserved the right to make derivative use of his proffer statement, the Government's lack of good faith required the evidence derived from his proffer session be excluded." In rejecting this argument, the Third Circuit found that

Other Circuits have held that, because proffer agreements are interpreted in light of contract law principles, a provision allowing for derivative use is valid so long as the proffer letter clearly reserves the right to use derivative information....Like these courts, we decline to find that prosecutors violated a duty of good faith, if one applied, by adhering to the terms of the proffer letter. As the Government did not violate the terms of the agreement with Merz, there is no basis to exclude the evidence.

I guess I see the Third Circuit's point, but I think that the court missed Merz's point. I'm guessing that his point was that the government acted in bad faith by getting him to sign the proffer statement and make certain incriminatory statements while it had no intention of offering him a plea bargain. I'm not sure whether such bad faith by the government should be enough to have a proffer statement deemed invalid, but I think that the court should at least have explored this issue.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/10/derivative-proffer-us-v-merzslip-copy-2010-wl-3965856ca3-pa2010.html

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