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Law School Case Brief

United States v. Velez - 354 F.3d 190 (2d Cir. 2004)


A defendant remains free to present evidence inconsistent with his proffer statements, with the fair consequence that, if he does, the Government is then permitted to present the defendant's own words in rebuttal. With this avenue open to him, a defendant who has consented to a waiver provision has not forfeited his constitutional right to present a defense, to the effective assistance of his counsel, or to a fair trial. Where a proffer agreement is entered into knowingly and voluntarily, a provision in which defendant waives his exclusionary privilege under Fed. R. Evid. 410 by permitting the Government to introduce defendant's proffer statements to rebut contrary evidence or arguments presented by the defense, whether or not defendant testifies, is enforceable. 


Three police officers saw defendant Jose Velez pull a gun from his waistband, heard the sound of metal hitting pavement, and recovered a gun from the ground where defendant had been standing. He was later charged with a violation of possession of a firearm transported in interstate commerce. Defendant participated in a proffer session before trial in federal district court. During the session, defendant admitted that he owned the gun. Thereafter, he chose to proceed to trial. After his conviction, defendant sought review contending that: (1) the district court erred in implicitly finding enforceable a provision of a proffer agreement permitting use of his proffer statements in certain circumstances at trial, and; (2) the district court erred in declining to replace trial counsel after counsel participated in a proffer session in which defendant made partial admissions of guilt.


Was the conviction proper?




In affirming, the appellate court determined that the waiver provision in the proffer agreement was enforceable. Defendant waived his exclusionary privilege under Fed. R. Evid. 410 in the proffer agreement to the extent that contradictory evidence was presented at trial. The court noted that invalidating such waiver provisions would have interfered with the plea bargaining process. Defendant entered into the agreement knowingly and voluntarily. Moreover, the court denied defendant's ineffective assistance of counsel claim. The district court did not err by failing hold a hearing to determine if a conflict of interest existed after the proffer session. There was no reason to believe that a conflict arose from the session.

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