New York Federal Criminal Practice Blog
August 5, 2008

EDNY Judge Rules Defendant's Proffer Statements Inadmissible at Trial

“Queen for a day” (proffer) agreements – bare your soul to prosecutors in exchange for some limited protections – usually benefit the government more than the defendant.  For one thing, in these agreements, the defendant gives up any additional protections he may be entitled to under Fed.R.Evid. 410, which precludes admission at trial of ”statements made in the course of plea discussions with a [prosecutor].”
Not that defendants get much choice about whether to sign the agreement.  Most prosecutors will not agree to listen to a proffer without one.  But what if a proffer does in fact proceed without any proffer agreement: does the defendant automatically get the benefit of Rule 410?  Or should the defense lawyer do something more to invoke the rule’s protections?  That is the interesting question presented but not answered in United States v. Galestro, 06-CR-285 (ARR), 2008 WL 2783360 (E.D.N.Y. July 15, 2008), where the defendant, in his lawyer’s presence, spoke without a proffer agreement to prosecutors several days prior to the unveiling of an indictment charging him with death-eligible murder. 

The Scope of Fed.R.Evid 410

The Second Circuit has held that statements made by a defendant to prosecutors are not “plea discussions” under Rule 410, unless the defendant, “in some way, express[es] the hope that a concession to reduce the punishment will come to pass.”  United States v. Levy, 578 F.2d 896, 901 (2d Cir.1978).  The Levy Court expressly left open the question of whether statements made in a less formal “de facto process of plea bargaining” can be “plea discussions” for purposes of Rule 410 protections. 

In Galestro, the defense proposed that Levy’s void be filled with a two-tier analysis that focuses on whether at the time of the discussion, the defendant showed a subjective expectation to negotiate a plea, and whether that expectation was reasonable under the circumstances.  The government, argued alternatively, that there are no “plea discussions” if the meeting was at the defendant’s behest, he “sought to avoid indictment altogether rather than to plead,” and no plea deal was offered or ever made. 

Invoking Rule 410 Protection

In the end, the Galestro court did not have to decide the issue, because here, it was undisputed that Galestro’s attorney announced at the beginning of the proffer meeting that he considered it to be “in furtherance of settlement negotiations, pursuant to Fed.R.Evid. 410 and Fed.R.Crim.P. 11,” and the prosecutors present said nothing in response.  As the court concluded: “permitting the government to frustrate a defendant’s reasonable, explicit understanding of the nature of a discussion by simply remaining silent would not only be inconsistent with the rationale in Levy, but would undermine the very rationale of Rule 410 – to ‘promote plea negotiations by permitting defendants to talk with prosecutors without sacrificing their ability to defend themselves if no disposition agreement is reached’” (citation omitted).


Here, Galestro's lawyer's prescient statement at the beginning of the proffer meeting saved the day.  Without it, the government might have prevailed on the argument that this wasn’t a plea negotiation at all - it was a (misleading) innocence proffer, in which the defendant wasn't seeking to reduce his punishment, he was seeking to eliminate it.  Which begs another interesting question: whether innocence proffers are exempt from Rule 410 protection, since their goal is not a plea bargain but a dismissal. 

Innocence proffers, however, as the Second Circuit has pointed out elsewhere, are often preludes to plea negotiations.  In other words, they are part of the de facto process of plea bargaining, which runs the gamut of mindsets from denial to acceptance.  It makes no sense, and surely undermines the rationale of Rule 410, to carve out of the plea bargaining process (also known as the coming-to-terms process)  any discussions where the defendant professes innocence.  Moreover, the government, with its oft-described “awesome advantages in bargaining power,” knows full well how to obtain a waiver of Rule 410 protections prior to an innocence proffer, and it should not be rewarded for its failure to do so.

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