United States v. Barrow, No. 03-1074 (March 2, 2005)(Sack, Raggi and Hall, Op. by Raggi). In this case, the Court upheld the district court’s conclusion that the defense had opened the door to the government’ s use of statements that the defendant made at proffer sessions, even though the proffer statements did not directly contradict counsel’s assertions at trial.
Facts: Defendant Calvin Johnson was charged with selling crack cocaine either to an informant or an undercover officer on various dates in 2001. Shortly after his arrest, he made the decision to try to cooperate, and attended three debriefings with the government during the first half of 2002. At each proffer session, he executed a proffer agreement that provided that the prosecutors could use the statements that Mr. Johnson made “as substantive evidence to rebut any evidence offered or elicited, or factual assertions made, by or on behalf of [Johnson] at any stage of a criminal prosecution (including but not limited to detention hearing, trial or sentencing).” A few weeks after his third proffer, defense counsel told the government that Mr. Johnson no longer wished to cooperate.
The case went to trial in October of 2002. In his opening statement, defense counsel asserted unequivocally that, as to the first four sales charged in the indictment, “this is a case of mistaken identity.” Counsel argued that the true seller was the brother of Mr. Johnson’s co-defendant. In addition, when cross-examining a detective about one of those sales, he accused the officer of fabricating testimony about a meeting with the informant on that particular date.
To rebut these arguments, the government sought to introduce proffer statements by Mr. Johnson to the effect that in 2001 he routinely sold crack at the address where the charged sales occurred. The district court held that these statements “fairly rebutted” counsel’s assertions, even though Mr. Johnson had not admitted selling on the precise dates charged in the indictment.
The Court’s Ruling: The Court of Appeals had no trouble affirming the district court’s ruling. It upheld, as it has many times, the proffer agreement’s waiver of the privilege that would otherwise apply under F.R.E. 410, under which statements made during plea negotiations are inadmissible.
The Court went on to conclude that defense counsel’s conduct had triggered the waiver, rejecting the argument that “only a specific or direct contradiction between [the] proffer statement and an assertion by counsel has this effect.” First, the Court examined the language of the waiver itself, noting that it was written in expansive terms, applying to “any evidence” offered by the defense. Clearly both counsel’s factual assertion in opening that someone other than the defendant had committed the crime and the assertion implied by his cross-examination that the officer had fabricated events underlying one of the charges were “within the four corners of the waiver provision.” The Court also rejected the claim that the proffer statements should not have been admitted because they did not directly contradict the factual assertions made. The Court noted that the agreement indicated that the purpose of admitting proffer statements would be “to rebut,” and that proper rebuttal “is not limited to direct contradiction.” The waiver language in this case therefore was “fairly construed to apply to any proffer statements that could fairly rebut” defense counsel’s factual assertions.
A Few Doors Still Open: This decision leaves a few openings for attorneys struggling to affirmatively defend a case where the defendant has proffered. First, the Court here relied on an exacting reading of the precise wording of the agreement. For example, in a footnote the Court distinguished the agreement here, waiving Rule 410 in broad language, from agreements in other cases where the wording was narrower. Thus, in any case where the disputed agreement is worded differently from the agreement here, there is an argument that this case should not govern. The second opening relates to the definition of “factual assertion.” The Court noted that it is easy to conclude that a “factual assertion” has been made where, as here, counsel has unequivocally named someone other than the defendant as the real perpetrator. Where, however, defense counsel’s arguments or questions “assert facts implicitly rather than directly,” there may not be a “factual assertion” that opens the door to the defendant’s proffer statements. Finally, and perhaps most importantly, the Court noted that, even if the trial judge is satisfied that a factual assertion has been made, triggering the Rule 410 waiver, that conclusion permits, but “does not mandate receipt of the proffer statements in evidence.” The district court always has “considerable discretion to exclude relevant evidence that may inject ‘unfair prejudice’ or ‘confusion’ into the jury’s resolution of the issues in dispute.” Thus, for example, the trial court might decide to “strike a question or argument” rather than admit the defendant’s proffer statements in rebuttal, or might exercise its discretion to exclude proffer statements when it concludes that the triggering event was inadvertent and brief, and counsel agrees not to pursue the matter further.