Proffer Letter Pitfalls

United States v. Bryant | 13-1578

May 2014

Any defense attorney who advises a client to enter into a cooperation deal with the government needs to read United States v. Bryant. It is a good reminder that the protections offered in exchange for candid testimony are rarely as firm as one might believe.

Bryant was a high-ranking gang member who worked out a cooperation agreement with federal authorities to reduce his expected sentence in his own federal criminal case. Bryant agreed to provide information about his fellow gang members’ involvement in the drug trade and the Feds agreed to not use his statements against him. While cooperating with the feds, the State of Illinois wanted to talk with Bryant about a triple-drug-related-murder. Bryant worked out a separate cooperation agreement with the State of Illinois. As part of the state agreement, Bryant agreed to provide a recorded statement about the murders if the State agreed to not use them against him.

To make a long story short, after Bryant confessed to his involvement in the murders, the State gave the recorded statements to the federal government, who then prosecuted Bryant for the murders. Bryant argued that this course of events violated his cooperation agreements, and the Constitution. The Seventh Circuit disagreed, applying basic principles of contract interpretation. The statements about the murders were made to the State, not the Feds, so the Feds were free to use them. Meanwhile, the State agreement was not violated, because the State did not use his statements, the Feds did (and the Feds were not agents of the State).

Additionally, the Seventh Circuit rejected Bryant’s “silver platter doctrine” argument. This doctrine, in essence, is that the federal government cannot use evidence served to it on a “silver platter” by the State when the State knows the evidence was “illegally” obtained under State law but not under federal law. The Court distinguished Bryant’s facts as follows: The State did not get Bryant’s statements illegally, and to the extent it was “illegal” to encourage the Feds to prosecute him, that occurred after the State had already shared the statements with the Feds.

One takeaway for sure: do not serve up your own client on a “silver platter” by failing to pay attention to the details of any cooperation deal you recommend.