When a businessperson becomes the target or subject of a criminal investigation, a critical consideration for defense counsel is whether to meet with the prosecutor in a proffer session, where the person, with counsel’s assistance, offers a candid and complete narrative of the events in question. The goal of the proffer session is to convince the prosecutor that the proffering witness is not culpable and should not be charged, or where the proffering witness has some culpability, that the witness has valuable knowledge that could strengthen the government’s case against a higher-priority target. The individual hopes the proffer session will lead to a non-prosecution agreement or a favorable plea agreement.

A proffer session is governed by a proffer agreement executed by the prosecutor, defense attorney and the proffering witness. To encourage the witness’s candor, proffer agreements specify that statements made in the proffer session cannot be used as evidence against the witness at trial. However, most proffer agreements—including those used in the Southern District of New York—provide that a statement made in a proffer session may be used to rebut evidence or arguments offered on the defendant’s behalf at any stage of the criminal proceeding.

For years, the “rebuttal evidence” clause in proffer agreements left defendants in considerable peril. Prosecutors could argue that defense counsel “opened the door” to the introduction of inculpatory proffer statements into evidence. In United States v. Rosemond, No. 15-940-cr (Nov. 1, 2016), the United States Court of Appeals for the Second Circuit provided guidelines on defense strategies that serve to “open the door,” and those that do not.

In Rosemond, the Second Circuit held that merely challenging a government witness’s credibility, first-hand knowledge, or recollection of events does not open the door to introduction of inculpatory statements from a proffer session. Rosemond involved a violent feud between owners and musicians of rival record labels that ended in a murder. During a proffer session, Rosemond acknowledged that he knew that his actions that and those of his associates would lead to a death. At trial, the court restricted defense counsel from advancing the argument that the killing was not intentional, and that the government offered no evidence that the defendant intended death. The court warned that advancing such an argument would open the door to introduction of the proffer statements, in which the defendant admitted that he knew the victim would die.

The Second Circuit disagreed. It held that the Rosemond had a Sixth Amendment right to cast doubt on the government’s proof of his intent to kill, by highlighting that the defendant never used the words “kill” or “murder” in the presence of government witnesses. The Second Circuit reasoned that there must be “evidence offered or elicited, or ‘factual assertion’ made, by or on behalf of the defendant that would trigger the Rule 410 waiver.” The point was merely attacking the government’s evidence—rather than eliciting affirmative evidence—does not open the door to introduction of proffer-session statements.

While Rosemond involved a crime of violence, its holding provides helpful guidance applicable in prosecutions of financial crimes. In particular, the Second Circuit provided a list of activities that do not open the door to introduction of statements from a proffer session. The list includes, among other items (1) pleading not guilty; (2) arguing generally that the government has not met its burden of proof; (3) arguing specifically that the government has failed to prove particular elements of the charged crime and (4) cross-examining a witness in a manner to suggest that he was lying or mistaken or was not reporting an event accurately; and (5) cross-examining about discrepancies between his testimony and his earlier written report.

In sum, defense counsel—at least in the Second Circuit—are now on notice that attacking the government’s proof aggressively will not open the door to introduce damaging admissions made in earlier proffer sessions. On the other hand, defendants who affirmatively introduce evidence contradicted by proffer statements are at great risk that the proffer will be admissible as rebuttal evidence. While the decision to participate in a proffer session remains difficult and case-specific, defense counsel may now advise clients with more certainty as to the limitations on how a proffer can be used, and how it will affect future trial strategy.