Opinion
No. 02 Cr. 1059(LTS)
October 29, 2003
MEMORANDUM OPINION AND ORDER
Juan Avendano ("Defendant" or "Avendano") moves for an order suppressing statements that he made in connection with two proffer sessions or, in the alternative, striking paragraph 3(c) of the proffer agreement that he executed and delivered to the Government before making the statements (the "Proffer Agreement"), on the grounds that the Proffer Agreement is constitutionally infirm and that Avendano was unable under the circumstances to make a knowing and voluntary waiver of his rights in connection with the proffer sessions. Avendano also moves for an order requiring the Government to provide a bill of particulars disclosing the identity of a certain unnamed alleged co-conspirator, to facilitate pre-trial factual investigation by the defense with respect to that individual. The Court heard evidence in connection with the suppression motion on September 11, 2003. The parties submitted pre-and post-hearing briefs. The Government also made an ex parte submission, which has been filed under seal, in connection with the motion for a bill of particulars.
The Court has considered thoroughly all submissions and live testimony pertinent to Defendant's motions. For the following reasons, Defendant's motion to suppress statements he made in connection with the proffer sessions or, in the alternative, strike paragraph 3(c) of the Proffer Agreement, is denied, and Defendant's motion for an order requiring the Government to provide a bill of particulars is granted.
BACKGROUND
On May 10, 2002, Defendant Avendano was arrested in connection with his alleged involvement in a drug transaction with a cooperating witness and an undercover law enforcement officer. He has since been indicted and is currently awaiting trial on charges of conspiracy to distribute narcotics in violation of 21 U.S.C.A. § 846 (West 1999).
Subsequent to his arrest, Avendano participated in two proffer sessions with the Government. The sessions took place on May 23, 2002, and June 24, 2002, respectively. Avendano, a native Spanish speaker, signed a Proffer Agreement during the first session, and initialed the same agreement during the second session.
The Proffer Agreement provides, in pertinent part, that:
(2) In any prosecution brought against the Client [(Avendano)] by this Office, except as provided below the Government will not offer in evidence on its case-in-chief, or in connection with any sentencing proceeding for the purpose of determining the appropriate sentence, any statements made by the Client at the meeting, except in a prosecution for false statements, obstruction of justice or perjury with respect to any acts committed or statements made during or after the meeting or testimony given after the meeting.
(3) Notwithstanding item (2) above: (a) the Government may use information derived directly or indirectly from the meeting for the purpose of obtaining leads to other evidence, which evidence may be used in any prosecution of Client by the Government; (b) in any prosecution brought against Client, the Government may use statements made by Client at the meeting and all evidence obtained directly or indirectly therefrom for the purpose of cross-examination should Client testify; and (c) the Government may also use statements made by Client at the meeting to rebut any evidence or arguments offered by or on behalf of Client (including arguments made or issues raised sua sponte by the District Court) at any stage of the criminal prosecution (including bail, all phases of trial, and sentencing) in any prosecution brought against Client. . . .
(9) Client and Attorney acknowledge that they have fully discussed and understand every paragraph and clause in this Agreement and the consequences avendanosupp.wpd Version 10/29 03 thereof.
Proffer Agreement at 1-2(emphasis added).
According to the Government, Avendano's then-counsel, Jerome Diamond, Esq., who has since withdrawn and been replaced by court-appointed counsel, was provided with a copy of the Proffer Agreement before the start of the first session. (Barofsky Aff. ¶ 4.) The Government asserts that Diamond, assisted by a Spanish interpreter, then met with Avendano outside the presence of the prosecutor assigned to the case, Assistant United States Attorney Neil Barofsky, "presumably to review the proffer agreement." (Id) The Government also asserts that, during that preliminary meeting between Avendano and his counsel, the Proffer Agreement was translated orally into Spanish for Avendano by a Government-supplied interpreter. (Government's Brief in Opposition to Defendant's Motion to Suppress Proffer Statements at 2; Hearing Tr. at 10-12.) A handwritten notation was made on the Proffer Agreement itself, indicating that it was translated into Spanish. (Proffer Agreement at 2.)
Avendano contends, however, that his former attorney did not adequately explain the ground rules that would apply to the proffer sessions, or the ramifications of the provisions contained within the Proffer Agreement, prior to the start of either of the proffer sessions. (Avendano Decl. at ¶¶ 4-5). According to Avendano, Diamond failed to explain that the Proffer Agreement permits the Government to use information disclosed at the sessions "to obtain leads" about his case, that it allows the Government to use statements made at the sessions to impeach his trial testimony or rebut any argument made on his behalf at any stage of the proceedings (including in opening and closing statements and via cross-examination), and that it includes a waiver of his right to object pursuant to Rule 11(e)(6) of the Federal Rules of Criminal Procedure and Rule 410 of the Federal Rules of Evidence to the introduction of "any statements made during, or leads derived from, the proffer sessions." (Id. at ¶ 5.) Avendano also asserts that his attorney informed him that the sessions were a chance for him to talk to the Government without having to worry that his statements could be used against him. (Id. at ¶ 7.) Avendano also contends that he does not recall the Proffer Agreement being translated into Spanish before or during either of the proffer sessions. (Id at ¶¶ 8-9.) It is undisputed that Avendano was never provided with a written Spanish version of the Proffer Agreement.
Avendano did not testify at the evidentiary hearing.
Barofsky testified at the hearing that, at the commencement of the first proffer session, he reviewed the terms of the Proffer Agreement with Defendant and explained, using illustrative examples, the potential ramifications of the various provisions, including paragraph 3. (Hearing Tr. 14-21; 49-50.) Barofsky also testified that, upon finishing his explanation, he asked Defendant and his counsel whether either desired a further opportunity to confer privately, and both answered no. (Id. at 20-21.) The parties then executed the Proffer Agreement, after which Avendano made a series of statements to the Government. (Id. at 21; Barofsky Aff. at ¶ 3; Kivlehan Aff. at ¶ 2.)
DISCUSSION
I. Motion to Suppress Statements or Strike Paragraph 3(c) of the Proffer Agreement A. Constitutional Challenge to the Proffer Agreement
Avendano asserts that the Proffer Agreement at issue in this case, which is a version of the standard agreement that is used in one form or another in virtually every proffer session conducted by the United States Attorney's Office for the Southern District of New York, is constitutionally infirm and therefore should not be enforced. Defendant relies on United States v. Duffy, 133 F. Supp.2d 213 (E.D.N.Y. 2001), a decision in which the court struck down a provision of a proffer agreement that was substantially similar to paragraph 3(c) of the Proffer Agreement at issue in this case, on the ground that the provision effectively prevented the defendant from exercising his "Sixth Amendment rights to make a defense and to have effective assistance of counsel in making that defense." Id at 216. According to the Duffy court, the paragraph "prevents [defense counsel] from making any sort of meaningful defense" because "[p]ractically speaking, all that [defendant's] counsel can do is argue reasonable doubt. . . . However, any affirmative theory of factual innocence, including, for example, any argument that there was no conspiracy or that [defendant] had no part in it, would permit the government to offer [defendant's] proffer." Id (emphasis in original.) In addition, the Duffy court noted that the Second Circuit "views contractual waivers with great care" and emphasized the great disparity in bargaining power that exists between defendants and the Government. According to the court, the paragraph at issue "exploits this power imbalance" because the terms of the proffer agreement are dictated by the Government and, once a defendant signs the agreement, "the only thing that is guaranteed is the chance to convince the prosecutor to enter a deal." Id. at 217. The defendant bears all the risk because the Government is under no obligation to strike a deal with the defendant and therefore "loses nothing by declining." Id at 217-218.
The Court finds the analysis in Duffy unpersuasive and concludes that there is no absolute constitutional barrier to the sort of rights waiver embodied in the provisions of the Proffer Agreement used in this case, including paragraph 3(c). The Court concurs in the analysis provided and conclusion reached by Judge Chin of this Court in United States v. Gomez, 210 F. Supp.2d 465 (S.D.N.Y. 2002). The Gomez court held upheld a proffer agreement containing a provision substantially similar to paragraph 3(c) of the Proffer Agreement, holding that "where a proffer agreement is entered knowingly and voluntarily and its terms are clear and unambiguous, it is enforceable, at least to the extent that the Government may use the defendant's proffer statements to rebut evidence or arguments offered on his behalf at trial, even where he does not testify." Id. at 474-75.
The Gomez court reasoned that a proffer agreement is a contract that should be enforced according to contract law principles, and that fairness dictates that an agreement with clear and unambiguous terms that it is entered into knowingly and voluntarily should be enforced. Id. at 475. The court pointed out that securing an opportunity to convince the Government to enter into a cooperation agreement could yield very significant benefits for a defendant in the form of a substantial downward departure from the sentencing guidelines and/or a sentence below the otherwise applicable statutory mandatory minimum. In return for this opportunity, the defendant agrees to be truthful. As noted in Gomez, "[f]airness requires that [a defendant] be held to that agreement." Otherwise, the defendant will have less incentive to be truthful. Id As Judge Chin noted, it is "because the Government has substantial evidence to prove the defendant's guilt" that the disparity in bargaining power referred to in Duffy exists. Such a disparity should not be the basis for finding the agreement unenforceable, Id. at 475-76.
Furthermore, defense counsel can still present a meaningful defense without opening the door to the admission of the proffer statements because the Proffer Agreement does not preclude the defense from challenging the credibility of the Government's witnesses or the weight and sufficiency of the Government's evidence. Gomez, 210 F. Supp.2d at 476; United States v. Xiang, No. S102CR271(RCC), 2003 WL 21180400, at *2 (S.D.N.Y. May 20, 2003). It is also worth noting that a defendant may still take a position inconsistent with the statements made in the proffer session even though the Proffer Agreement is found to be enforceable. As the Gomez court explained, the only consequence of taking such a position is that the Government would be permitted to use defendant's own words to rebut that position. Such a result is fair since "it is difficult to conceive of a good faith basis for an argument by counsel that contradicts her client's own statements made when the client had great incentive to tell the truth."Gomez, 210 F. Supp.2d at 476.
For all of the foregoing reasons, the Court concludes that there is no constitutional barrier to the rights waiver embodied in the Proffer Agreement at issue in this case.
B. Construction of Paragraph 3(c) of the Proffer Agreement; Knowing and Voluntary Waiver
A proffer agreement like the one at issue in this case is enforceable as long as the terms of the agreement are clear and unambiguous and the defendant entered into the agreement knowingly and voluntarily.Gomez, 210 F. Supp.2d at 474. The Court will evaluate each of these issues in turn.
Ambiguity of the Terms Contained in the Proffer Agreement Although agreements between the Government and a criminal defendant are interpreted according to the dictates of contract law, such agreements are "`unique contracts in which special due process concerns for fairness and the adequacy of procedural safeguards obtain." United States v. Chaparro, 181 F. Supp.2d 323, 330 (S.D.N.Y. 2002) (quotingUnited States v. Ready, 82 F.3d 551, 558 (2d Cir. 1996)). As a result, "courts must `resolve any ambiguities in the agreement against the government.'" Chaparro. 181 F. Supp. at 330 (quotingUnited States v. Rogers, 101 F.3d 247, 253 (2d Cir. 1996)).
In this case, however, the Court finds that the terms of the Proffer Agreement, including those contained within paragraph 3(c), are clear and unambiguous. The language of paragraph 3(c) makes it clear that the waiver embodied in the Agreement is broader than a mere waiver of Defendant's right to object to the Government's use of proffer-derived information to cross-examine Defendant should he elect to testify. See Gomez, 210 F. Supp.2d at 476 (finding substantially similar provision unambiguous); Xiang. 2003 WL 21180400, at * 2 (same).
The Court finds unpersuasive Avendano's contentions that the Proffer Agreement is ambiguous because it does not specifically refer to cross-examination or to opening and closing statements, and because it begins with language indicating that Avendano's statements will not be used against him in certain ways, rather than with an explanation of how Avendano's statements can be used against him. The Proffer Agreement provides that the Government may use Avendano's statements "to rebut any evidence or arguments offered by or on behalf of Client . . . at any stage of the criminal prosecution (including bail, all phases of trial, and sentencing) in any prosecution brought against Client." (Proffer Agreement at 1) (emphasis added). Evidence and arguments advanced during cross-examination, opening statements and closing statements are clearly included within the scope of this language, which is in no way consistent with the constrained interpretation of the Agreement advanced by Defendant. Paragraphs 2 and 3, when read together in the order in which they appear in the Proffer Agreement, clearly and unambiguously inform Defendant of the ways the statements can and cannot be used against him. Paragraph 2 contains a provision cautioning Defendant that the language contained within that paragraph is qualified by the other paragraphs in the Agreement, and paragraph 3 refers directly back to paragraph 2, describing the ways in which Avendano's statements could be used against him despite the limited assurances outlined in paragraph 2.
The Court therefore finds that the Proffer Agreement is clear and unambiguous on its face.
Whether Avendano Made a Knowing and Voluntary Waiver
Avendano contends that, even if the terms of the Proffer Agreement are unambiguous, his waiver of legal rights in connection with the Agreement was not knowing and voluntary. Based on the credible testimonial and documentary evidence that has been proffered, however, the Court finds that Avendano's waiver was both knowing and voluntary.
First, the defense claims that Avendano is not capable of making an intelligent and voluntary waiver because of his alleged intellectual and psychological limitations. The Court finds the evidence upon which Avendano relies insufficient to establish such incapability. The defense points principally to the reports of two psychological evaluations conducted at the Court's direction following Avendano's arrest to determine Avendano's competency to stand trial. The results of the two examinations were largely consistent. Although the two doctors who examined Avendano differed in their respective characterizations of Avendano's overall intelligence level (one determined that Avendano's overall intellectual functioning appeared above average, while the other estimated his overall level of intelligence to be in the low average range of intellectual functioning), the doctors agreed that their respective examinations revealed no evidence that Avendano was suffering from a mental disorder. Both doctors opined that Avendano exhibited a rational understanding of the charges against him and, that despite being prone to believing that his attorney does not have his best interests in mind, Defendant is capable of consulting with and otherwise assisting his attorney with his defense. Both doctors concluded that Avendano is competent to stand trial. The standard for evaluating whether a defendant is competent to stand trial is the same as the standard to be used in assessing whether a defendant is competent to waive constitutional rights. Godinez v. Moran, 509 U.S. 389 (1993). The results of the two psychological evaluations thus suggest that Avendano is competent to make a knowing and voluntary waiver of his constitutional rights.
Furthermore, the specifics of the findings detailed in both reports do not support Defendant's contention that those reports provide grounds for a conclusion that Defendant was incapable of making a knowing and voluntary waiver of his rights. To the contrary, Dr. Nilsa Rivera, who met with Avendano on three separate occasions and last examined him on April 22, 2003, specifically informed the Court that Avendano has the capacity, among other things, to "waive constitutional rights." (Avendano Competency Evaluation dated April 22, 2003.) Both reports indicate that Avendano is capable of making strategic choices and observe that Avendano has demonstrated an ability to make such choices in the context of this case. The foregoing conclusions regarding Avendano's capacity to make strategic decisions are generally consistent with the Court's own observations of Avendano's conduct in the course of the proceedings. The Court, thus, concludes that neither psychological report has identified any grounds to support Avendano's contention that he is incompetent to make the kind of rights waiver at issue in this case.
In that the evidence indicates that Avendano is and was capable of making a knowing and voluntary waiver, the Court turns to the question of whether he did in fact make such a waiver by executing and delivering the Proffer Agreement. The defense asserts that Avendano could not have made such a waiver because the Agreement, which is in English, was not translated into Spanish for Avendano. Avendano asserts in this connection that he does not recall the Agreement being translated for him. (Avendano Decl. ¶¶ 1, 8-9.) It is undisputed that no written Spanish translation of the document was ever provided to Avendano. (Hearing Tr. at 35.)
The Court finds, based on the detailed testimony proffered by the Government at the September 11, 2003, hearing as to the details of the proffer sessions and its customary practices with respect to the provision and use of interpreters, and the documentary evidence of the use of interpretation services in this case, that the Proffer Agreement was translated into Spanish for Defendant at the initial proffer session, before Defendant executed the Agreement and before he made any statements. The Court further finds that the disputed provisions of the Agreement were explained to Avendano by the Government in plain language, with the aid of the interpreter, prior to execution of the Agreement. The Proffer Agreement, which was executed by Avendano's then-counsel as well as by Avendano, includes the representation that both Avendano and his counsel understood and assented to the provisions of the Agreement. (See Hearing Tr. at 11, 14-21, 49-50; see also Proffer Agreement at 2.) In light of this evidence, Avendano's bare, un-cross-examined assertion that he does not recall that the Agreement was translated for him is not at all persuasive on the issues of whether a translation did in fact occur or of his comprehension of the Agreement. Avendano further asserts in his declaration that his attorney provided a faulty explanation of the significance of the Proffer Agreement, leading Avendano to understand that the proffer sessions were a chance to speak to the Government "without having to worry that [his] statements could be used against [him]." Avendano's declaration, which was the sole piece of testimonial evidence proffered by the defense in connection with the motion, also asserts that the retained attorney who represented Defendant at the proffer sessions never explained to him key details of the Proffer Agreement, including that the Government was allowed to use information obtained during the proffer sessions to obtain leads regarding his case, that the Government was allowed to use his statements to impeach his trial testimony and rebut any arguments made on his behalf at any stage of the proceedings, and that he was waiving his right to object to the use of any statements made during, or leads derived from, the proffer sessions. The attorney neither testified at the hearing nor submitted any affidavit attesting to his understanding of the provisions of the Proffer Agreement or commenting upon Avendano's account of the advice given. CF.United States v. Lauersen, No. 98CR1134(WHP), 2000 WL 1693538, at *2-3 (S.D.N.Y. Nov. 13, 2000) (attorney who represented defendant at proffer session provided detailed affidavit indicating he did not understand that the proffer agreement worked in the way the Government contended, and that his advice to defendant was colored by this misapprehension). Indeed, as noted above, the executed Proffer Agreement itself includes a signed acknowledgment by the attorney and by Avendano himself that they had "fully discussed and understand every paragraph and clause in this Agreement and the consequences thereof." (Proffer Agreement at 2.)
The record reflects that Avendano and his attorney were afforded time to consult, with the aid of the interpreter, regarding the content of the proposed agreement. AUSA Barofsky thereafter provided a detailed and accurate explanation, in layman's terms, of the content and operation of the provisions of the Proffer Agreement, including paragraph 3 thereof. (Hearing Tr. 14-21; 49-50.) Specifically, Barofsky testified that he explained, using an illustrative example couched in layman's terms, that statements made by Avendano during the proffer sessions could be used to rebut any inconsistent statements he might later make while testifying. (Id. at 16.) Barofsky also testified that, upon completing his explanation on that point, he asked whether Avendano understood the explanation, and Avendano responded affirmatively. (Id.) Barofsky then testified that he proceeded to explain to Avendano, again using an illustrative example, that, if Avendano's attorney were to argue any point at any stage of the proceeding that is inconsistent with statements made by Avendano during the proffer sessions, the Government could then use Avendano's proffer statements against him in rebuttal. (Id. at 17.) Once again, Barofsky asked Avendano whether he understood this, and Avendano replied affirmatively. (Id.) Barofsky further testified that he explained to Avendano that the Government can obtain leads from Avendano's statements made during the proffer sessions. (Id. at 18.) Again, according to Barofsky, at the conclusion of the explanation Avendano acknowledged that he understood this point. (Id.) The Court finds that the language used by the Government in explaining the provisions of the Proffer Agreement to Avendano was sufficient and appropriate for a layman in Avendano's position to understand the meaning and potential consequences of the Proffer Agreement.
The Court finds that the testimony at the hearing and the record, taken as a whole, are sufficient to establish that Avendano's waivers as set forth in the Proffer Agreement were both knowing and voluntary. Defendant understood the agreement sufficiently to give his knowing and voluntary assent to its terms, and he specifically acknowledged his understanding of and assent to the material provisions of the agreement, in writing and orally, in the course of the initial proffer session. Avendano's account of his understanding of the statements made by his lawyer as well as his professed lack of understanding of key provisions of the Agreement are not credible in light of the Government's testimony regarding the detailed explanation of the meaning and potential ramifications of the Agreement's provisions that it provided before Avendano made his statements, as well as Avendano's conduct during the course of this case. Avendano has clearly exhibited an ability to make calculated, strategic decisions. He has also demonstrated a fundamental distrust of the Government such that he has shown a tendency to make careful decisions regarding whether and to what extent he will cooperate in proceedings relating to this prosecution.
In sum, the Court finds that there is no constitutional barrier to the kind of rights waiver embodied in the Proffer Agreement. In addition, the Court concludes that the terms of the Proffer Agreement, including paragraph 3(c), are clear and unambiguous and that Avendano's waiver of his rights pursuant to that Agreement was knowing and voluntary. Therefore, it is neither unfair nor violative of Defendant's constitutional rights to hold him to the consequences of his agreement with the Government. Defendant's motion to suppress Avendano's proffer statements or, in the alternative, to strike paragraph 3(c) of the Proffer Agreement is, therefore, denied. II. Avendano's Request for a Bill of Particulars
Defendant Avendano also seeks an order requiring the Government to provide him with a bill of particulars specifying the identity of one of the unnamed alleged co-conspirators referred to in the indictment. The Government has already identified one of the alleged co-conspirators, but has refused to identify the second alleged co-conspirator. Avendano claims this unnamed co-conspirator might have been the person who he contends presented him with a box of narcotics and argues that, without information from the Government as to the person's identity, the defense will not be able to conduct a factual investigation of this individual who, according to the defense, "appears to have been the most critical member of the alleged conspiracy." (Defendant's Brief In Support of Motion to Require Government to Provide a Bill of Particulars at 2.)
Judge Scheindlin observed in United States v. Nachamie, 91 F. Supp.2d 565, 572 (S.D.N. Y. 2000), that "a review of the case law in this district reveals no clear distinction among circumstances in which courts grant a request for the names of unknown unindicted co-conspirators and circumstances in which they do not." TheNachamie court, noting that the purpose of a bill of particulars is to allow a defendant to prepare for trial, avoid surprise, and interpose a plea of double jeopardy should he be prosecuted more than once for the same offense, identified six factors for consideration in connection with a determination as to whether a defendant's demand to know the identity of an unnamed co-conspirator should be granted.Id. (citing United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987)). The six factors are as follows:
(1) the number of co-conspirators; (2) the duration and breadth of the alleged conspiracy; (3) whether the Government otherwise has provided adequate notice of the particulars; (4) the volume of the pretrial disclosure; (5) the potential danger to co-conspirators and the nature of the alleged criminal conduct; and (6) the potential harm to the Government's investigation.Id. at 572. Ultimately, the decision whether to grant defendant's request for a bill of particulars "rests within the sound discretion of the district court." Id.
The Court has considered thoroughly the parties' submissions and arguments relating to Defendant's request for a bill of particulars and concludes that Defendant's request should be granted. The Court finds that, under the circumstances of this case, the defense has carried its burden of demonstrating a need for the requested information. The defense has shown that it needs the information in order to adequately operate within the constraints of the Proffer Agreement. It is unclear from the record whether Avendano actually knows the precise identity of the alleged co-conspirator in the first place. The unique issues that have arisen in this case concerning Defendant's interactions with counsel are, furthermore, grounds for legitimate concern as to whether the information, even if known to Defendant, would be available for appropriate trial preparation use by the defense. Thus, it is at best unclear whether the requested information would actually be available to the defense absent a bill of particulars.
The Court further notes that no violence has been alleged in this case, and there is nothing in the record to indicate that disclosing the requested information to Avendano would put the alleged co-conspirators in danger. See United States v. Santiago, 174 F. Supp.2d 16, 35 (S.D.N.Y. 2001) (requests to disclose the identities of unindicted co-conspirators have been granted primarily in cases in which violence has not been alleged).
Defendant's motion for an order requiring the Government to provide a bill of particulars is therefore granted. The Court having considered the Government's ex parte submission, the Government is directed to disclose the identity information to Defendant no later than thirty (30) days prior to the date on which Defendant's trial is scheduled to commence.
CONCLUSION
For the foregoing reasons, Defendant's motion to suppress statements he made in connection with the two proffer sessions or, in the alternative, to strike paragraph 3(c) of the Proffer Agreement is denied. Defendant's motion for an order requiring the Government to provide a bill of particulars is granted.IT IS SO ORDERED.