Second Circuit Clarifies Scope Of Proffer Agreement Waivers

November 29, 2016

Securing a cooperation agreement after proffering to the government can lead to enormous benefits for those who successfully navigate the process. However, the negative consequences of a failed proffer are profound. Assessing the risks of whether to proffer and enter into a proffer agreement is an important part of federal criminal practice. In an important recent decision, in United States v. James J. Rosemond, 15-0940-cr (Nov. 1, 2016) the U.S. Court of Appeals for the Second Circuit elaborated in detail on exactly when certain defense tactics will (and will not) open the door to the introduction of the otherwise-protected proffer statements. The Court held that the district court in Rosemond applied the waiver provision in defendant’s proffer agreement too broadly, thereby incorrectly precluding defense counsel from making sufficiency arguments. 

In a subsidiary holding, the Court discussed whether defense counsel’s failure to renew his objection at a second criminal trial (after his first ended in a mistrial) waived his client’s right to be heard on appeal. The Court held that, under the specific circumstances, a second objection would have been futile and, therefore, that the constitutional error was subject to harmless error review.

The Rosemond decision has relevance both to white-collar criminal defense practitioners and to those who practice in the gang-related context in which Rosemond arose. For additional information on this case and the relevance to practitioners, check out the New York Law Journal article published on this decision on November 29, 2016.