Taking a case to trial after the client has “proffered” (spoken to the prosecutor) is difficult. Most proffer agreements have a clause permitting the government to introduce the defendant’s proffer statements to rebut evidence offered or elicited, or factual assertions made by, the defense. In United States v. Barrow, 400 F.3d 109 (2d Cir. 2005), the court held that such rebuttal clauses apply to all factual assertions, including those made in counsel’s arguments and cross-examination, but are not triggered by arguments that challenge the sufficiency of the evidence. Nevertheless this ruling has led many lawyers to rightly conclude that proceeding to trial is all but impossible after a defendant has proffered as this case shows.
But the Appellate Court has come to the rescue. It is not as bad as all that. Here, having found that the district court misapplied a case called Barrow at Oluwanisola’s heroin trafficking trial, the appeals court vacated the judgment and remanded the case for a new trial.
The appellate court identified several problems with the district judge’s approach. First, the judge ruled that arguing that specific elements of the crime had not been proven would trigger the rebuttal clause. The circuit noted that this was an error. Interpreting the rebuttal clause in this way “would leave the defendant, for all practical purposes, defenseless.” Here, the ruling improperly compelled defense counsel to limit his opening statements to “generalized statements” about the burden of proof, but prohibited him from arguing that the government would be unable to sustain its burden with respect to any particular elements of the offense.
The trial judge also made erroneous rulings with respect to cross-examination. First, defense counsel was not permitted to cross-examine one witness about whether he had made a written report about an event that he testified he observed. The appeals court held that this did not contradict – directly or indirectly – proffered facts. “The defendant’s admission in his proffer statement of the facts the witness testifies to having observed is not an admission that the witness observed those facts.” In addition, the trial judge based a second cross-examination ruling on a clearly erroneous fact. He prohibited counsel from cross-examining an agent about a matter that Oluwanisola mentioned in a post-arrest statement, not in his proffer.
Collectively, these rulings violated Oluwanisola’s Sixth Amendment right to counsel, and the error was not harmless. While the evidence was legally sufficient, defense counsel’s ability to challenge evidence on drug quantity and Oluwanisola’s knowledge of what was in the packages he was involved with was severely hampered. The appellate court could not “conclude with fair assurance” that the errors “did not substantially influence the jury.” United States v. Oluwanisola, No. 08-4442-cr (2d Cir. May 21, 2010
Special thanks to Federal Defenders New York, Steve Stasinger