Perhaps it is felt especially acutely by defense attorneys who formerly were employed by the Justice Department, but few experiences disappoint as sharply as those in which federal prosecutors behave unfairly or unjustly. The government, in this author’s opinion, should not only be held to the highest standard of behavior, but should relish that charge in its role as the proverbial striker of hard blows, but fair ones, to paraphrase Justice Sutherland’s famous construction.

Among other concrete demonstrations of their obligations to do justice, prosecutors should never try to squeeze unfair advantage out of proffer agreements. The last point is the takeaway from the recent case of United States v. Perry, 2011 WL 1900388 (8th Cir., May 20, 2011).

The position taken by the government in construing its proffer agreement with Perry could only be the result, one hopes, of a rogue or unsupervised AUSA, who lost sight of his or her higher responsibility. The standard proffer agreements in the U.S. Attorney’s Office in Des Moines, Iowa apparently prohibited use in the government’s case-in-chief of proffered statements, but also provided that if the witness either testified or otherwise presented a position in any legal proceeding which materially varied from his proffer, then the government could make impeachment or rebuttal use of the proffer. A general provision, which paralleled 18 U.S.C. § 3661, authorized full disclosure to the sentencing court of all proffered information, but there was no provision which addressed the specific use, or prohibition on use, of proffered information at sentencing,. (In the District of New Jersey, the current form of proffer agreement not only prohibits case-in-chief use, but generally disallows use “for purposes of sentencing.” The inclusion of that provision would have avoided all mischief in Perry, but proffer agreements vary widely among offices).

Prior to his drug trial, Perry agreed to proffer to the government in the hopes of cooperating against a co-conspirator. Under the auspices of the standard office agreement, he volunteered information supporting an earlier starting date to the conspiracy than was charged, and a greater quantity of drugs than was set forth in his indictment. Perry eventually went to trial and lost. The prosecutor sought to punish him at sentencing by arguing (contrary to the Presentence Report, in fact) and convincing the judge that a too-old sentence should be used to increase Perry’s criminal history score despite the limitations period allowing consideration only of sentences imposed within 10 years of the commencement of the current offense, because of the earlier start date to the conspiracy which Perry had supplied in his proffer. The prosecutor also persuaded the court that the base offense level should be increased to account for the extra quantity of drugs he admitted trafficking.

The Eighth Circuit was having none of it, and vacated the enhanced 130-month sentence which resulted from the sentencing court’s adoption of the prosecutor’s arguments. Under § 1B1.8 of the Sentencing Guidelines, a commitment by the government to a defendant who has agreed to cooperate not to use any of his proffered statements has the effect of preventing those statements from being used by the court in determining the sentencing range, unless otherwise provided in the agreement. The prosecution in Perry contended that the absence of any broad “no use at sentencing” provision rendered § 1B1.8 inapplicable altogether. But the Court of Appeals held that even a limited agreement by the prosecution not to make case-in-chief use of proffered statements triggered the presumptive prohibition of § 1B1.8 (citing cases from the 6th and 10th circuits similarly relying on limited prohibitory language to bring a proffer agreement under § 1B1.8).

The only remaining question was whether this proffer agreement otherwise carved out an exception which allowed sentencing use of the proffer. The appeals court rejected the claim that the provision allowing disclosure of all information to the sentencing court created an exception for sentencing use, saying that the government’s right to provide information was not the same as the court’s right to use that information. Then, the government argued that the bar against case-in-chief use implied by omission a right to use proffered statements for all other purposes, including sentencing; the appeals court rejected that argument too, pointing to the specific limitation on impeachment/rebuttal use as evidence of a carefully articulated and limited grant of proffer uses to the government. Finally, the government argued that since Perry had sat down for a proffer only to see if the government would potentially accept his cooperation, he had not yet formally agreed to cooperate, as required by § 1B1.8. This unworthy argument was rejected, appropriately by footnote, since the proffer’s requirement that Perry provide complete and truthful information concerning criminal activity adequately demonstrated his agreement to cooperate.