United States v. Rivera

UNITED STATES OF AMERICA, v. LUIS RIVERA, Defendant.

12-CR-700 (JG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

June 24, 2015

FOR PUBLICATION

STATEMENT OF REASONS

JOHN GLEESON, United States District Judge:

PRELIMINARY STATEMENT

When a defendant in a federal criminal case "proffers" in the hope of getting a cooperation agreement but fails to obtain such an agreement and later pleads (or is found) guilty, does the sentencing judge learn about the incriminating information he disclosed at the proffer and consider it when imposing the sentence?

This case places the importance of that question in the starkest possible relief. If the answer is no, Luis Rivera gets sentenced as a fairly run-of-the-mill heroin trafficker with an advisory Guidelines¹ range of 108-135 months and a five-year mandatory minimum. If the answer is yes, he gets sentenced as the murdering, kidnapping, justice-obstructing drug kingpin he admitted he is during his proffer sessions with the government.

The stakes being what they are, the answer to the question ought to be clear. But in this district, it is anything but. That uncertainty means that even if the ultimate answer is no, that is, the proffer statements are not conveyed to the sentencing judge, some defendants are discouraged from even trying to cooperate, which could impair the interests of law enforcement. And if the ultimate answer is yes, the uncertainty results in potentially dramatic sentencingconsequences without adequate notice to the affected defendants. Thus, clarity is needed so both sides can engage in rational cost-benefit evaluations before such proffers occur and also in the interest of basic fairness.

As discussed below, the answer to the question in this district requires consideration of three things: (1) the existing legal framework, that is, how the law treats proffer statements in the absence of any agreement; (2) how the government's reservation of rights in the standard "proffer agreement" alters that framework by allowing the government to overtly rely on the proffer statements in specified situations; and (3) a "district policy" regarding proffer statements that formalizes the government's belief, which is poorly expressed in an opaque clause in the proffer agreement, that it must at least notify the sentencing judge of the proffer statements in every single case, even cases in which it has agreed not to overtly rely on them.

First, I conclude that the relevant legal authorities provide that when a defendant makes incriminating statements in a proffer in the absence of any proffer agreement, those statements must not be disclosed to the sentencing judge in the event no cooperation agreement is reached. Reasonable people can disagree over the wisdom of such a rule, and the commentary in the Guidelines Manual that establishes it is needlessly difficult to locate, but the rule has a sound basis in logic and policy. In any event, it is the clear mandate of the applicable law, and I reject the government's argument to the contrary.

Second, the proffer agreement alters that terrain by empowering the government to overtly rely on the proffer statements at sentencing in four situations: (1) when factual assertions made by the defendant at sentencing contradict the proffer statements; (2) when the defendant seeks so-called "safety valve" relief; (3) when the defendant seeks a downward departure under the Guidelines; and (4) when the defendant seeks a downward adjustment basedon an unsuccessful effort to cooperate. Because of poor lawyering by Rivera's counsel, this authority was triggered in this case. But the lawyer was removed, his errors were corrected, and the government has withdrawn its claim that it may overtly rely on Rivera's proffer statements at sentencing.

The most challenging part of this case is the third listed consideration: the combination of a district policy and an oddly-worded provision in the standard proffer agreement that is directly related to that policy. The policy, which was promulgated by the Probation Department, in consultation with the United States Attorney's Office, is entitled "The Treatment of Proffer-Protected Statements."² It ensures that statements made by defendants during cooperation proffers that do not result in cooperation agreements are brought to the attention of the sentencing judge even when the government is prohibited by the proffer agreement from overtly relying on them. When the policy is invoked, as it was in this case, the government notifies the Court of the proffer statements without relying on them. The notification is done off the record, in a hard-copy memorandum delivered to chambers in a sealed envelope by the Probation Department. The memorandum informs the judge of the incriminating statements made during the proffer and even provides an alternate Guidelines range calculation that includes that incriminating information. According to the policy, upon receiving the memorandum, the sentencing judge "can review or ignore it as [he or she] sees fit."³

The corresponding provision in the standard proffer agreement reads as follows: "The Office will, to the extent it believes it is required by law, notify the Probation Department and the Court in connection with sentencing of any statements made by [the defendant during theproffer]. If such notification is made, the Office also will notify the Probation Department and the Court of the Office's agreement not to offer in evidence any such statements at sentencing."⁴

The combination of this provision and the related district policy has established a second track to sentencing judges for proffer statements. Whereas when the first track is employed the prosecutor overtly relies on the statements, they are included in the presentence report, and they are considered in computing the Guidelines range, the second track is a silent "notification" track. When it is employed, which occurs in every case where the first track is not, the statements are neither included in the presentence report nor considered in determining the Guidelines range; the government never mentions them orally or in writing at the sentencing; and the sentencing judge can consider them or not when fashioning the sentence.

Though it appears to have been promulgated in the best of faith, I conclude that the district policy, which is not disclosed to proffering defendants before they incriminate themselves in proffer sessions, produced a violation of Rivera's rights in this case, and indeed it violates the defendant's rights in every case in which it is invoked.

As for relief, I did the best I could to fashion the sentence I would have imposed had I never been exposed to those proffer statements through either track. Through new counsel, Rivera agreed to that course, as opposed to a reassignment of the case for sentencing by another judge who would be untainted by the improper disclosure of information. As a result, on June 19, 2015, I sentenced Rivera principally to a 102-month term of imprisonment.

BACKGROUND

A. Rivera's Offense

Rivera was arrested on October 11, 2012 and indicted on November 8, 2012. His relevant conduct⁵ involved selling a total of 5.97 kilograms of heroin to a confidential informant on four separate occasions during the period from June to October 2012. However, the indictment focused solely on the last transaction, which occurred on the date of Rivera's arrest. On that occasion, Rivera was placed in custody before transferring 978.7 grams of heroin to the informant. Thus, he was charged with a single count of possessing heroin with the intent to distribute. And since the quantity of heroin involved in the only charged transaction came in at slightly under one kilogram, the quantity that triggers the harsh ten-year mandatory minimum,⁶ Rivera was charged instead with the five-year mandatory minimum that prosecutors can invoke when drug trafficking offenses involve 100 grams or more of heroin.

The Federal Defenders of New York were assigned to represent Rivera.

B. Rivera's Attempt to Cooperate with the Government

Rivera decided to meet with the government in hopes of obtaining a cooperation agreement. Successful cooperation with the government results in a "substantial assistance" motion by the prosecutor. Such motions perform double-duty; they allow a judge to sentence below any applicable mandatory minimum sentence,⁷ and they also constitute a basis for a downward departure from the applicable Guidelines range.⁸

A defendant who wants to cooperate must first agree to an interview with the prosecutor called a proffer. Prosecutors insist on proffers so they can make informed decisions about whether to offer cooperation agreements to defendants. Among other things, the proffer allows the prosecutor to assess (1) the defendant's version of the crime under investigation; (2) how that version stacks up against the other available evidence; and (3) the defendant's ability to be a useful witness at trial.⁹ This latter assessment requires the prosecutor to learn about other criminal conduct of the defendant, including conduct wholly unrelated to the crime under investigation. There are at least two reasons why unrelated criminal conduct is significant. First, such conduct is often relevant to credibility, and thus the prosecutor needs to evaluate how effectively the would-be cooperating witness might be impeached. Second, the standard cooperation agreement in this and many other districts provides that a cooperating defendant's sentence satisfies his criminal liability for all criminal activity disclosed by the defendant before the execution of the agreement. Thus, depending on the other criminal conduct revealed during the proffer, the prosecutor may, and usually does, condition the availability of a cooperation agreement on the defendant pleading guilty to the crimes revealed during the proffer, particularly if they are more serious than the crime or crimes with which the...