The United States Court of Appeal for the Second Circuit views contractual waivers with great care. Even in the context of plea agreements, which include the safeguard of judicially supervised allocutions, the Second Circuit scrutinizes waivers closely and construes them narrowly, especially when they implicate essential rights.
Defendant Brian Duffy and his attorney went to the United States Attorney's Office in hopes of negotiating a cooperation agreement. Ordinarily, the government will not agree to enter into a cooperation agreement until a defendant makes a factual proffer and describes the type of assistance he might be able to provide. Before beginning a proffer session, the government required Duffy and his lawyer to execute what is referred to by the government as its standard proffer agreement. The government acknowledged that it uses this standard proffer agreement during every proffer session with all defendants, and that it is not negotiable. Duffy signed the agreement and then proceeded to give the government a detailed factual proffer, which in essence, was an admission. Based on the information volunteered, Duffy's counsel asked the government to enter into a cooperation agreement with his client and to permit Duffy to plead guilty to a misdemeanor. The government did not agree, and Duffy proceeded to trial. Thereafter, Duffy has moved to strike paragraph 2(c) of the proffer agreement on the grounds of being ambiguous or, in the alternative, unconscionable. Duffy alleged that the offending paragraph operated effectively as a waiver of trial. The government argued that there was no waiver and that Duffy would only trigger the waiver if he or his counsel asserted or elicited any statement that contradicted the proffer.
Was paragraph 2(c) of the proffer agreement entered into by the defendant and the government ambiguous or unconscionable, and should thus be struck out?
The district court approved Duffy’s motion to strike out paragraph 2(c) of the proffer agreement. According to the court, the paragraph operated as a waiver to Duffy's right to make a defense and his right to counsel. This would impact the interests of both the plea bargain process and federal criminal trials. The court averred that allowing the paragraph to remain would have required the court to preview each of defense counsel's in advance, and even then there was no way for defendant's counsel to be certain of the consequences of a particular line of examination. According to the court, that would have been impractical.