Friday, May 12, 2006

Defense - Be Careful With Proffers

Proffers have long served as a helpful way for the government and defense to determine if a matter can be resolved.  But it looks like the government wants to change the rules with respect to proffers. And the ramifications of their actions may prove to be detrimental to the future of proffers by corporate employees.

In a case in the Western District of Washington (Seattle), the government has filed a trial memorandum in the case of  United States v. Alaska Brokerage International, Inc. and David Karsch that should scare anyone thinking about offering a proffer when representing an employee in a case that may involve a corporation. In this case the government states:

"Defendant Karsch voluntarily submitted to a proffer interview on November 22, 2005. If Karsch introduces evidence or makes arguments inconsistent with his proffer at any time during trial, then his proffer statements are admissible pursuant to the underlying interview agreement. The same applies to ABI, as evidence presented by ABI is intrinsically offered on Karsch’s behalf due to the nature of their relationship and the fact they are being tried together." (footnote omitted and emphasis added)

The government later argues:

"If the defendants elect to present no defense, the proffer statements would be admissible at the end of the government's case-in-chief, so long as either of the defendants have presented evidence, made arguments, and/or representations that were inconsistent with his proffer statements." (emphasis added)

Is this amazing, or is this amazing! In light of this position by the government, should a defense attorney in a corporate case allow his or her client to give a proffer?

Copy of the Brief is

Download karsch1.govt tr brief.pdf


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Tracked on May 19, 2006 3:55:08 AM


Your comment is "Is this amazing, or is this amazing!" but I don't know what it is you find amazing. Is it that this is the prosecution's position or is it that the defense attorney allowed his/her client to sign an agreement that provided "his proffer statements are admissible pursuant to the underlying interview agreement."

Posted by: L. Katz | May 13, 2006 4:01:08 AM

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