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The 2nd U.S. Circuit Court of Appeals has made clearer the limits on a defendant’s ability to bar from trial admissions made in plea bargaining sessions. The 2nd Circuit upheld the introduction into evidence of a defendant’s statement at a proffer session where his lawyer offered contradictory evidence at trial, but the defendant himself did not testify. The decision in United States v. Velez, 02-1766, is the latest rejection by the court of a defendant’s challenge to his purported waiver of the protections offered by Federal Rule of Evidence 410, which bars the introduction of statements made by defendants during proffer sessions, including plea negotiations. Agreements signed by the parties at proffer sessions in the Southern District include a standard provision that the defendant’s admissions during the session may not be used against him at trial, unless the defendant waives the guarantee by contradicting his proffer statements through evidence, arguments or testimony. Frequent challenges by defendants to government claims of waiver focus on a purported imbalance in bargaining power between the two sides, and whether the defendants had made an unknowing and involuntary waiver. Other challenges have focused simply on the scope of the waivers and whether the actions of the defense at trial “opened the door” to the introduction of proffer-session statements. In this case, Jose Velez was charged with being a convicted felon in possession of a firearm. Accompanied by his attorney, he met with a Southern District prosecutor and claimed he did not possess a gun that police officers claimed he had dropped to the ground. But at a second proffer session, Velez recanted his story and admitted that he had in fact possessed the weapon found by the officers. Before his recantation, Velez signed a waiver provision that said the government may use his proffer statement “to rebut any evidence or arguments” offered by the defendant “at any stage of the criminal prosecution.” Before trial, Southern District Judge Richard Conway Casey ruled that if the defense introduced certain defense witness testimony, it would open the door for the government to use Velez’s statement at the second proffer session. Faced with that ruling, the defense opted not to introduce the testimony. Velez was convicted and sentenced to 10 years in prison. On appeal, he claimed that Judge Casey’s decision violated his constitutional right to mount a defense, and that the judge wrongly refused him new counsel because his current lawyer was compromised by his presence at the proffer session. Velez went to the 2nd Circuit citing United States v. Duffy, 133 F.Supp. 2d (E.D.N.Y. 2001), where Judge Nina Gershon found that a waiver provision had prevented defense counsel “from making any sort of meaningful defense.” “After signing the standard proffer agreement, the terms of which are dictated by the government, the only thing that a defendant is guaranteed is the chance to convince the prosecutor to enter a deal,” Judge Gershon said. “At the same time, the defendant bears all of the risk.” In Velez’s case, 2nd Circuit Judge Jose A. Cabranes wrote: “We do not lightly dismiss the observation in Duffy that the Government holds significant bargaining power in arranging proffer sessions and securing a waiver provision as a prerequisite for a defendant’s participation.” However, Cabranes said, the U.S. Supreme Court stated in United States v. Mezzanatto, 513 U.S. 196 (1995) that “the mere potential for abuse of prosecutorial bargaining power is an insufficient basis for foreclosing negotiation altogether.” “Indeed, to the extent there is a disparity between the parties’ bargaining positions, it is likely attributable to the Government’s evidence of the defendant’s guilt,” Cabranes said. “We thus reject the argument that defendant, relying on Duffy, makes in this case — that the asserted disparity of power between the Government and a defendant in proffers renders waiver provisions in proffer agreements unenforceable.” The defendant, he said, may still offer inconsistent evidence, but the government’s right to contradict that evidence with proffer statements does not mean Velez has “forfeited his constitutional right to present a defense, to the effective assistance of counsel, or to a fair trial.” Chief Judge John M. Walker Jr. and Judge Pierre Leval joined in the opinion. Robert L. Moore of Hempstead represented Velez on the appeal. Assistant U.S. Attorneys Victor L. Hou and Adam B. Siegel represented the government.

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