JOHN GLEESON, District Judge.
When a defendant in a federal criminal case "proffers" in the hope of getting a cooperation agreement but fails to obtain such an agreement and later pleads (or is found) guilty, does the sentencing judge learn about the incriminating information he disclosed at the proffer and consider it when imposing the sentence?
This case places the importance of that question in the starkest possible relief. If the answer is no, Luis Rivera gets sentenced as a fairly run-of-the-mill heroin trafficker with an advisory Guidelines
The stakes being what they are, the answer to the question ought to be clear. But in this district, it is anything but. That uncertainty means that even if the ultimate answer is no, that is, the proffer statements are not conveyed to the sentencing judge, some defendants are discouraged from even trying to cooperate, which could impair the interests of law enforcement. And if the ultimate answer is yes, the uncertainty results in potentially dramatic sentencing consequences without adequate notice to the affected defendants. Thus, clarity is needed so both sides can engage in rational cost-benefit evaluations before such proffers occur and also in the interest of basic fairness.
As discussed below, the answer to the question in this district requires consideration of three things: (1) the existing legal framework, that is, how the law treats proffer statements in the absence of any agreement; (2) how the government's reservation of rights in the standard "proffer agreement" alters that framework by allowing the government to overtly rely on the proffer statements in specified situations; and (3) a "district policy" regarding proffer statements that formalizes the government's belief, which is poorly expressed in an opaque clause in the proffer agreement, that it must at least notify the sentencing judge of the proffer statements in every single case, even cases in which it has agreed not to overtly rely on them.
First, I conclude that the relevant legal authorities provide that when a defendant makes incriminating statements in a proffer in the absence of any proffer agreement, those statements must not be disclosed to the sentencing judge in the event no cooperation agreement is reached. Reasonable people can disagree over the wisdom of such a rule, and the commentary in the Guidelines Manual that establishes it is needlessly difficult to locate, but the rule has a sound basis in logic and policy. In any event, it is the clear mandate of the applicable law, and I reject the government's argument to the contrary.
Second, the proffer agreement alters that terrain by empowering the government to overtly rely on the proffer statements at sentencing in four situations: (1) when factual assertions made by the defendant at sentencing contradict the proffer statements; (2) when the defendant seeks so-called "safety valve" relief; (3) when the defendant seeks a downward departure under the Guidelines; and (4) when the defendant seeks a downward adjustment based on an unsuccessful effort to cooperate. Because of poor lawyering by Rivera's counsel, this authority was triggered in this case. But the lawyer was removed, his errors were corrected, and the government has withdrawn its claim that it may overtly rely on Rivera's proffer statements at sentencing.
The most challenging part of this case is the third listed consideration: the combination of a district policy and an oddly-worded provision in the standard proffer agreement that is directly related to that policy. The policy, which was promulgated by the Probation Department, in consultation with the United States Attorney's Office, is entitled "The Treatment of Proffer-Protected Statements."
The corresponding provision in the standard proffer agreement reads as follows: "The Office will, to the extent it believes it is required by law, notify the Probation Department and the Court in connection with sentencing of any statements made by [the defendant during the proffer]. If such notification is made, the Office also will notify the Probation Department and the Court of the Office's agreement not to offer in evidence any such statements at sentencing."
The combination of this provision and the related district policy has established a second track to sentencing judges for proffer statements. Whereas when the first track is employed the prosecutor overtly relies on the statements, they are included in the presentence report, and they are considered in computing the Guidelines range, the second track is a silent "notification" track. When it is employed, which occurs in every case where the first track is not, the statements are neither included in the presentence report nor considered in determining the Guidelines range; the government never mentions them orally or in writing at the sentencing; and the sentencing judge can consider them or not when fashioning the sentence.
Though it appears to have been promulgated in the best of faith, I conclude that the district policy, which is not disclosed to proffering defendants before they incriminate themselves in proffer sessions, produced a violation of Rivera's rights in this case, and indeed it violates the defendant's rights in every case in which it is invoked.
As for relief, I did the best I could to fashion the sentence I would have imposed had I never been exposed to those proffer statements through either track. Through new counsel, Rivera agreed to that course, as opposed to a reassignment of the case for sentencing by another judge who would be untainted by the improper disclosure of information. As a result, on June 19, 2015, I sentenced Rivera principally to a 102-month term of imprisonment.
Rivera was arrested on October 11, 2012 and indicted on November 8, 2012. His relevant conduct
The Federal Defenders of New York were assigned to represent Rivera.
Rivera decided to meet with the government in hopes of obtaining a cooperation agreement. Successful cooperation with the government results in a "substantial assistance" motion by the prosecutor. Such motions perform double-duty; they allow a judge to sentence below any applicable mandatory minimum sentence,
A defendant who wants to cooperate must first agree to an interview with the prosecutor called a proffer. Prosecutors insist on proffers so they can make informed decisions about whether to offer cooperation agreements to defendants. Among other things, the proffer allows the prosecutor to assess (1) the defendant's version of the crime under investigation; (2) how that version stacks up against the other available evidence; and (3) the defendant's ability to be a useful witness at trial.
Rivera and his appointed counsel from the Federal Defenders of New York met with the government three times to proffer. The dates were October 16, October 25, and November 19, 2012.
Thus, in the absence of an agreement providing otherwise, the foregoing provisions would have prohibited the use of Rivera's proffer statements at his sentencing on the drug trafficking charge he has pled guilty to. The sole exception relevant here is the rule of completeness set forth in Rule 410(b)(1); if Rivera himself misleadingly relied on one or more proffer statements, others could be used by the government to correct the misimpression.
The government has the right to alter by contract the otherwise-applicable rules that prohibit the use of such statements.
As for the waiver, the agreements Rivera signed provide as follows:
As mentioned above, the government's right to condition a defendant's proffer on such a waiver is clear.
But the proffer agreement doesn't leave defendants with no protection against the use of the incriminating statements they make in their efforts to obtain a cooperation agreement. Rather, in place of the broad protection it requires the defendant to waive, it installs the following:
Thus, the government promises in paragraph two not to offer the proffer statements at the sentencing, but that promise is qualified in five ways. Four of the qualifications authorize the government to overtly rely on the statements in specified circumstances: (1) to rebut factual assertions made during the sentencing phase; (2) if he seeks "safety valve" relief, that is, the two-level Guidelines adjustment set forth in U.S.S.G. § 2D1.1(b)(16)
The fifth qualification of the government's promise not to disclose Rivera's proffer statements at his sentencing does not authorize the government to overtly rely on the statements. Rather, it allows the government to "notify the Probation Department and the Court in connection with sentencing" of the proffer statements "to the extent it believes it is required by law" to do so.
Though it is not discernable from the text of the proffer agreement, the government acknowledges that proffering defendants' statements are provided to the sentencing judge in every single case in the district. As discussed further below, if the statements do not fall within qualifications one through four above, then, by definition, they fall within qualification five.
Before he proffered, Rivera's relevant conduct consisted of being involved in the distribution of a total of almost six kilograms of heroin over several months in 2012. According to the information available to the government, he had neither an aggravating nor a mitigating role in that conduct. However, during his three proffer sessions, Rivera informed the prosecutor that he had in fact trafficked over a period of several years in a far greater quantity of drugs — about 31 kilograms of heroin and 456 kilograms of cocaine — and that he occupied a leadership role in the business. Rivera also revealed that he had paid a subordinate $10,000 to falsely assume sole responsibility for two kilograms of cocaine after he and Rivera were stopped and arrested. As a result of the bribe, the charges against Rivera were dropped.
Most importantly, Rivera further proffered that he had engaged in violent criminal activity. Specifically, he called an associate and told him that a courier the associate had hired, who they expected had stolen 20 kilograms of heroin, had to pay for the stolen drugs or be killed. The associate then paid another man $1,000 to kill the courier. Rivera also described other acts of violence he had committed to further his drug trafficking business. These included the kidnapping of another drug dealer's mother, and the kidnapping and torture of that drug dealer himself, as well as other beatings and robberies.
The government ultimately decided not to offer Rivera a cooperation agreement. The prosecutor said that the fact Rivera had been involved in a murder and other violence played a role in that decision.
After the three proffer sessions concluded without a cooperation agreement having been reached, Attorney Andres Aranda was retained by the defendant's wife. He first appeared on Rivera's behalf on April 3, 2013. Rivera pled guilty to the only charge against him on January 6, 2014. The plea was pursuant to a standard, written non-cooperation agreement.
D. The Probation Department's Dual Submissions to the Court on April 9, 2014
The Probation Department provided two separate documents related to Rivera's sentencing to the Court and counsel. Both were dated April 9, 2014. One was the Presentence Investigation Report, referred to here as the "presentence report." The other was a sealed memorandum from the probation officer setting forth Rivera's incriminating proffer statements, and it included an alternate calculation of the applicable Guidelines range.
A presentence report is the centerpiece of the official record of a sentencing. Required by Rule 32 of the Federal Rules of Criminal Procedure, it sets forth wide-ranging information about the offense, the defendant's criminal history, and the personal history and characteristics of the defendant. Since all of that information may properly be considered by the sentencing judge in fashioning an appropriate sentence,
The significance of the presentence report does not end at the sentencing. Rather, the final version of the report accompanies the defendant into the Bureau of Prisons if he is sentenced to prison, where it plays an important role in the defendant's designation to a correctional facility and in his eligibility for certain programs.
The "Offense Conduct" portion of Rivera's presentence report described only his participation in a total of just under six kilograms of heroin on four occasions in 2012. The report stated that Rivera's advisory Guidelines range was 108-135 months.
The reason Rivera's proffer statements were unmentioned in the presentence report was he had done nothing to trigger the government's right under the proffer agreement to overtly rely on those statements. Specifically, he hadn't made any statements that contradicted his proffer statements and he had not moved for safety valve relief, a downward departure, or a downward variance based on unsuccessful cooperation. Thus, he was still protected by the government's promise not to offer his proffer statements at sentencing.
In the government's view, however, its promise not to overtly rely on Rivera's proffer statements in its communications with the Court did not preclude it from notifying me of the proffer statements through the Probation Department. That accounted for the second of the two April 9, 2014 submissions from the Probation Department.
On the same day that he completed and disseminated the presentence report, the probation officer provided to my chambers, in a sealed envelope, a memorandum detailing the incriminating statements made by Rivera during his proffer sessions. Copies were also sent to counsel. The memorandum stated that it was submitted to me "[p]ursuant to the district policy regarding proffer statements." The government has attached a copy of that policy to its December 1, 2014 letter brief. Under the seal of the Probation Department, the single-page policy, set forth in an August 13, 2013 memorandum from a Deputy Chief Probation Officer to all the judges of our court, reads in full as follows:
As mentioned, the April 9, 2014 sealed memorandum to me stated that "the Government provided proffer statements" to the probation officer pursuant to that policy. In three single-spaced pages, it then set forth in detail the additional drug trafficking, obstruction of justice, and crimes of violence, including murder, kidnapping, and torture, that Rivera had admitted to during his proffers. That was followed by an alternate Guidelines range computation, one that held Rivera accountable for that conduct. Those admissions raised his base offense level and resulted in upward adjustments for the use of a firearm, the use of violence, occupying a leadership role, and obstructing justice. The resulting offense level was literally off the chart, and the advisory Guidelines range was thus life in prison, although the memorandum further noted that I was constrained by a statutory maximum sentence of 40 years' imprisonment.
Unlike the presentence report, the sealed submission setting forth Rivera's proffer statements triggered no procedural rights. The policy pursuant to which the memorandum was created and forwarded to me creates a track for sentencing information that runs parallel to the track occupied by the presentence report, but it affords Rivera no opportunity to challenge the government's version of his proffer statements. If such objections had been made, the policy does not require the sentencing judge to rule on them. Finally, the policy allows sentencing judges to "review or ignore" the proffer statements "as they see fit," but it says nothing about telling the defendant which of those dramatically different courses the judge has chosen. Thus, a defendant who wishes to object to (or explain, or provide mitigating facts with respect to) the government's version of the incriminating proffer statements must consider the risk that the objection itself would result in informing the sentencing judge for the first time that the statements were made.
Though the April 9, 2014 memorandum was forwarded to my chambers pursuant to the above-mentioned policy, it escaped my attention at the time. I have no doubt the fault is mine, but I also note that one problem with a second, off-the-record track for sentencing information is an increased risk that such information can fall through the cracks. In any event, I did not learn of the memorandum or of Rivera's proffer statements until July 9, two days before he was scheduled to be sentenced.
On May 26, 2014, Aranda submitted a letter in advance of Rivera's sentencing. It included a request for safety valve relief from the five-year mandatory minimum sentence. Despite his awareness of Rivera's proffer statements, Aranda asserted that Rivera was eligible for safety valve relief because, inter alia, he "had never been in trouble before and had no previous involvement with the criminal justice system."
The request for safety valve relief was stillborn, and counsel should have known as much. The terms of the proffer agreement explicitly authorized the government to rely on Rivera's proffer statements if he sought safety valve relief, and those statements flatly disqualified Rivera from such relief for at least five independent reasons. Specifically, his offense involved (1) the use of a firearm; (2) the use of violence; (3) the death of a courier; (4) serious bodily injury to a rival drug dealer; and (5) Rivera's leadership role.
The denial of the request for safety valve relief was the least of the problems created by Aranda's frivolous motion. The motion itself, as well as the misleading statements in the sentencing submission,
The government submitted two letters on July 9, 2014, in advance of Rivera's scheduled July 11 sentencing, one of which was sealed.
The parties appeared for sentencing on July 11, 2014. In the two days since receiving the government's July 9 letters, I had located a copy of the probation officer's April 9, 2014 memorandum setting forth Rivera's proffer statements. However, I was still unaware of the district policy regarding proffer statements, and the transcript reflects my belief that, but for the misguided application for safety valve relief, the proffer statements would never have come to my attention. Thus, I was concerned that Rivera might have received ineffective assistance of counsel. In response to my stated understanding, the prosecutor, alluding to the district policy, informed me for the first time of the nuanced (and in my view incorrect) approach to proffer statements that the government continues to advance. Specifically, the prosecutor said that Rivera's sentencing submission merely triggered the provisions in the proffer agreement that authorized the government to overtly rely on the proffer statements; the government had previously been allowed to notify me of the statements, and I had been permitted to rely on them at sentencing all along:
Rivera might enter into a cooperation agreement. If he did, that would moot the issue I had raised, as cooperation agreements provide that the defendant's sentence satisfies his criminal liability for all crimes disclosed to the government prior to the execution of the agreement. Indeed, if Rivera had obtained a cooperation agreement, there is little doubt that the government would have required him to plead guilty to the murder and other crimes of violence he had admitted to in his proffers. In any event, since the sentence imposed after a cooperation agreement would extinguish Rivera's criminal exposure for the crimes of violence, it would obviously be necessary for me to be aware of those activities. Accordingly, at the parties' request, I adjourned the sentence for three months to give Rivera another chance to obtain a cooperation agreement. I instructed the parties that if a cooperation agreement was not reached, they were to let me know by September 26, 2014 what their positions were with regard to whether I should consider Rivera's proffer statements at his sentencing.
Rivera had one more proffer, on September 11, 2014, but he neither made any more statements to the government about his past criminal activity nor reached a cooperation agreement.
In other words, the joint submission sought to return Rivera to the position he had been in before his retained counsel triggered the government's right under the proffer agreement to rely on the proffer statements. However, the parties agreed that even in that circumstance, I was permitted to know about and rely at sentencing upon the incriminating statements made during the proffer sessions: "[I]t is the policy of the United States Attorney's Office to provide the sentencing court, through the Probation Department, with a summary of relevant statements made by the defendant during proffer meetings . . ."
At the next court appearance on October 28, 2014, I explained to Rivera and Aranda that I wanted counsel who was not afflicted by the specter of having rendered ineffective assistance of counsel to represent him for sentencing. I therefore reappointed the Federal Defenders of New York to represent him and asked the parties to brief anew the question of whether I ought to consider Rivera's proffer statements in determining an appropriate sentence for him.
The government's December 1, 2014 submission contains three main arguments in support of its view that I may properly consider Rivera's proffer statements at sentencing. First, it contends that, as a general matter and even in the absence of any proffer agreement or cooperation agreement, federal law requires that I be informed of the proffer statements in sentencing Rivera, and indeed any promise to keep that information from me would be unenforceable because it would be contrary to public policy. The authority cited for the first of those propositions was 18 U.S.C. § 3661; for the second, it was principally United States v. Williamsburg Check Cashing Corp., 905 F.2d 25 (2d Cir. 1990), and United States v. Fagge, 101 F.3d 232 (2d Cir. 1996). The government's letter asserts that the district policy regarding proffer-protected statements is consistent with these authorities.
Second, the government contends that the standard proffer agreement authorizes the disclosure of the proffer statements to the Court (and my reliance on them in imposing sentence). This is true, the government argues, even though Rivera had withdrawn the submission that had triggered the government's right to rely on those statements and the government had expressly withdrawn its own overt reliance on them.
Finally, as for the role the incriminating proffer statements should play in the sentencing decision, the government contended that "the Court may review or consider such information as it believes appropriate, if at all."
For his part, Rivera, once again represented by conflict-free counsel, contended that that the proffer statements should never have been brought to my attention, and that I must not rely on them in imposing sentence.
As indicated above, I conclude that the relevant authorities establish a general rule prohibiting the dissemination to the sentencing judge of proffer statements when there is no proffer agreement and no cooperation agreement is reached, except when the defendant himself relies in a misleading fashion on one or more of the statements. Statements made during cooperation proffers are "made during plea discussions with" a prosecutor within the meaning of Fed. R. Evid. 410(a)(4). In order to foster plea discussions, Rule 11(f) of the Criminal Rules and Rule 410 of the Rules of Evidence combine to prohibit the use of those statements at a trial. For the same reason, the Commission imported that prohibition into the sentencing phase of a case. Specifically, in commentary that has the force of law,
The only plausible reading of that directive is that it prohibits the government from notifying the sentencing judge of the substance of a defendant's proffer statements. Rule 410 specifically denominates the use of proffer statements at trial as a "prohibited use" and identifies only one relevant "exception" where the defendant has used one or more of the statements in a misleading fashion.
The policy argument in favor of such a rule is clear. Federal prosecutors depend heavily on cooperating witnesses to obtain convictions. In Fiscal Year 2013, 22 percent of sentenced defendants in this district received substantial assistance motions.
This case makes it easy to see why a promise to withhold the proffer statements from the sentencing judge might be necessary to induce a defendant to proffer. Had Rivera been told up front that everything he would say during the proffer sessions would be shared with his sentencing judge even if he did not receive a cooperation agreement and a substantial assistance motion, he would certainly have hesitated to proffer at all, or may have proffered but not disclosed his violent criminal past. Neither of those outcomes would serve the important law enforcement interest in fostering cooperation.
There are obvious downsides to a rule that deprives a sentencing judge of important, relevant information about the defendant, and I have expressed them both in this case and elsewhere.
Still, several factors mitigate that cost. First, if a defendant's proffer statements reveal criminal activity for which he ought to prosecuted and punished, the government is free to use those statements to commence an investigation and prosecution. Unlike the sentence I would have imposed on Rivera had he cooperated, the sentence I imposed did not satisfy his criminal liability for the violent crimes he disclosed while proffering. And the protection afforded by Rule 410 has never included the derivative use of proffer statements. Thus, the government is free, for example, to track down the person who, at Rivera's instruction, paid $1,000 to have a courier killed, and to build that murder case against Rivera.
In addition, much of the potential unseemliness in having a sentencing judge remain partly in the dark can be ameliorated by agreement, and indeed the government has demonstrated that ability here. It would be perverse indeed if I were to sentence Rivera based on his former counsel's passionate assertions that he is a "first offender" and "the public does need any protection from him,"
Accordingly, I conclude that the law is clear: when a would-be cooperating defendant proffers in the absence of any proffer agreement and no cooperation agreement results, the relevant rules and Guidelines provisions require that the proffer statements be withheld from the sentencing judge. The rule is firmly grounded in the policy of encouraging plea discussions generally, and cooperation bargaining specifically.
The fulcrum of the government's contrary argument is 18 U.S.C. § 3661, which states that "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." As the Commission observed in the very first Guidelines Manual, the recodification of § 3661 in 1984 made "it clear that Congress intended that no limitation would be placed on the information that a court may consider in imposing an appropriate sentence under the future guideline sentencing system. A court is not precluded from considering information that the guidelines do not take into account."
The government mines from § 3661's general rule that sentencing judges are not restricted in considering the information before them in imposing sentence a statutory directive that all information relevant to a defendant's sentencing must be provided to the sentencing judge. This mandatory disclosure rule, the government further argues, admits of no exceptions, and requires the government to provide incriminating proffer statements to the sentencing judges in all circumstances, including Rivera's.
The government's claim that it feels bound by statute to provide all relevant sentencing information to the sentencing judge in every case cannot be squared with what actually happens every day in federal courtrooms. Throughout the almost 30-year history of Guidelines sentencing, prosecutors have influenced Guidelines range computations to suit their purposes by withholding facts from probation officers and judges.
Against this extensive backdrop of withholding (and sometimes even misrepresenting) facts, the government's current insistence that it feels required by statute to tell judges all facts relevant to all sentences is difficult to take seriously.
As for the merits of the government's reliance on § 3661, on its face the time-honored general rule that judges can consider all information properly before them in determining sentence cannot be read to mandate that all relevant information must be provided to the court. The Commission certainly doesn't see it that way, as it reiterates the terms of § 3661 in § 1B1.4 of the Guidelines, but, as discussed above, in the commentary to § 1B1.8, it directs the withholding of proffer statements where no cooperation agreement is reached. The government apparently doesn't see it that way either, as the United States Attorney's Manual expressly forbids the disclosure of a defendant's immunized testimony to the sentencing judge without the defendant's permission.
In sum, I reject the government's claim. In my view, § 3661 is not a disclosure mandate at all, let alone one that admits of no exceptions. Moreover, as the above discussion suggests, there are multiple sound policy reasons why information that has a significant bearing on a defendant's actual culpability may properly be withheld from a sentencing judge. Fostering the cooperation of defendants in criminal investigations is one of them. The government was not required by law to disclose Rivera's proffer statements to me, directly in its sentencing submission or indirectly through the Probation Department. To the contrary, in the absence of an enforceable agreement providing otherwise, it was prohibited by law from doing so. Accordingly, to the extent the district policy regarding proffer-protected statements is followed where there is neither a proffer agreement nor a cooperation agreement, I conclude that it violates the defendant's rights in every case.
As discussed above, one of the possible justifications for my consideration of Rivera's proffer statements at his sentencing fell by the wayside. Specifically, the ill-advised application by prior counsel for safety valve relief indisputably triggered the government's right under the proffer agreement to overtly rely on the proffer statements at sentencing. The filing of the safety valve motion clearly amounted to ineffective assistance of counsel, however, and the government has never contended otherwise. Accordingly, the government no longer relies on that justification. On consent, the motion was withdrawn, as was the government's reliance on it as a basis for my awareness and consideration of the proffer statements.
As explained in the preceding section, the belief that disclosure was required by law was wrong; the opposite was true. However, the government is free to argue that under the terms of proffer agreement, its belief regarding the applicable law was enough to trigger its right under the agreement to disseminate the proffer statements, even if, as it has turned out, that belief was incorrect. Indeed, in the closely related context of cooperation agreements, a prosecutor can withhold a substantial assistance motion based on an incorrect and even unreasonable belief that such assistance was not provided, as long as the belief is honestly held.
The government's only remaining argument based on the proffer agreement centers on the provision stating that "the Office will, to the extent it believes it is required by law, notify the Probation Department and the Court in connection with sentencing of any statements made by [Rivera] at the Meeting."
Second, contracts in the criminal setting are special. As a result, they are construed strictly against the government, and ambiguities in them are resolved against the government.
The government claims that to the extent the proffer agreement includes a promise to withhold Rivera's proffer statements from the Court, such a promise is unenforceable because it is contrary to public policy as expressed by the Second Circuit. One wonders both why the government executed such an agreement with Rivera if it actually believes it was contrary to public policy to do so, and why it continues to execute substantially identical agreements with proffering defendants to this day. In any event, the argument has been advanced, and it relies on superficially supportive language in Second Circuit cases.
The short answer to that argument is that the cases are easily distinguishable. For example, United States v. Williamsburg Check Cashing Corp. holds only that a prosecutor's promise not to make a recommendation about a sentence cannot prohibit the prosecutor, through the case agents, from providing factual information about the defendant to the Probation Department. The court held that the government "may still provide the Probation Department with any factual material relevant to sentencing," even when the government agreed it would not make a sentencing recommendation.
That said, those cases indeed contain dicta suggesting that any agreement to withhold from the sentencing court information pertinent to sentencing would violate public policy.
The foregoing implies no criticism of the very able AUSA in this case. He was following a formal district policy that was the product of discussions between his office and the Probation Department. And though I believe that policy violates the protection afforded to proffering defendants by the Commission, that protection is set forth somewhat obscurely, in an application note to a guideline (§ 1B1.8) that is not applicable to Rivera's case.
Implicit in both the government's approach to this issue and in the district policy is an important misconception. The misconception is that there is a meaningful distinction between the government's overt reliance on proffer statements at sentencing on the one hand, and its mere provision of the statements to the Court for it to consider or not (as it sees fit) on the other. In the former situation, the government contends, the proffer statements go into the presentence report, the advisory Guidelines range is life, and the prosecutor can mention them at sentencing. In the latter, the argument continues, the statements are restricted to a sealed, off-the-record memorandum, the Guidelines range is computed separately and is 108-135 months, and the prosecutor will not mention the incriminating information admitted by Rivera at sentencing.
Though I address a more important concern in a moment, a central premise of the government's position is wrong. In the absence of an agreement under U.S.S.G. § 1B1.8, which does not exist here, once relevant conduct is brought to the attention of the Probation Department and the Court, that conduct must be included in the calculation of the advisory Guidelines range. I know of no provision in the Guidelines or statutes that permits me to do otherwise, and the government does not contend that one exists.
More importantly, once a judge who sentences someone in Rivera's position is made aware of the defendant's violent criminal activity and informed that it may be considered in imposing sentence, it is cold comfort to the defendant that the prosecutor will choose to remain silent about that activity at the sentencing. Rivera still faced up to 40 years in prison, and after Booker v. United States,
It is true that Rivera could hope that the judge might choose to ignore the sealed submission setting forth the proffer statements. That would make matters better for him, but from my perspective that makes the policy even worse. By providing incriminating information off the record to the sentencing judge and allowing him or her to "review or ignore it as [he or she] sees fit," the policy subjects proffering defendants to a game of chance (will the judge review it or ignore it?), and they may never even know if they won or lost the game. Did the judge refuse to sentence below the advisory range because she chose not to ignore the sealed envelope? Or did she believe the sentence imposed was warranted even if the proffer statements were ignored? The policy reintroduces the sort of opacity that sentencing reform was intended to eliminate.
Finally, the policy puts defense counsel in an untenable position at sentencing. If the case agent erred to the defendant's disadvantage in describing the proffer statements, should defense counsel provide the correct version of those statements to the court? If one or more of the crimes admitted at the proffer is mitigated by extenuating circumstances or other facts not set forth in the sealed memorandum, should counsel make the mitigation argument? If the sentencing judge is a "reviewer," the answer to those questions is easy. If she is an "ignorer," it seems equally easy in the other direction. But there's no mechanism for counsel to know which course to follow. Judges are not required to disclose whether they reviewed the proffer statements. Defense counsel could try to clarify things by asking the judge at sentencing whether she reviewed the sealed memorandum, but that runs the risk of drawing the court's attention to the incriminating material for the first time. In short, by providing damaging information about the defendant to the sentencing judge for her to consider or not as she sees fit, the policy forces the lawyers for at least some proffering defendants to advocate in the dark.
I think it is clear that the government has the power to require all defendants who wish to cooperate to agree that the sentencing judge will be informed of the defendant's proffer statements even if no cooperation agreement is reached.
As for the district policy, the discussion above obviously reflects my respectful view that it at least needs to be changed. A clearer understanding of the applicable law, combined with a clearer proffer agreement, would eliminate the need for the policy entirely. If not, I further suggest to the Probation Department that any revisions to the policy include discussions not only with the United States Attorney, but also with the appropriate representatives of the defender community.
For the foregoing reasons, I decided not to consider in any way the proffer statements made by Rivera. The 102-month sentence I imposed ignored entirely the criminal activity disclosed by Rivera in his attempt to cooperate.
So ordered.
