• Agreement for "Direct Use Immunity" Did Not Preclude Federal Prosecutors from Sharing Defendant's Incriminating Proffer Statements with Foreign (or State) Authorities
  • June 25, 2009 | Authors: Helen Harris; Meredith L. French
  • Law Firms: Day Pitney LLP - Boston Office; Day Pitney LLP - Stamford Office; Day Pitney LLP - Boston Office
  • The Ninth Circuit Court of Appeals has affirmed that a criminal defendant’s agreement with federal prosecutors not to use against him any statements made by him during proffer sessions did not bar the U.S. Attorney’s Office from sharing his incriminating statements with authorities in France who then used the statements against him in French criminal proceedings. Where the terms of the defendant’s agreement with the government were clear and unambiguous, it was irrelevant that the defendant expected that the government would not facilitate his proffer being used by prosecutors in another jurisdiction.

    The defendant, Aaron McKnight, had been charged in the Central District of California with federal drug charges alleging his importation of Ecstasy from France into the United States. McKnight agreed to cooperate with the government’s ongoing investigation in exchange for “direct use immunity” prohibiting the use of any statements he made in a prosecution against him by the U.S. Attorney. The agreement McKnight and the U.S. Attorney’s Office (“USAO”) signed required that he answer questions “truthfully and completely” in exchange for the government’s promise not to offer any statements made by McKnight in its case-in-chief or in any sentencing hearing in either the pending case against McKnight or “in any other prosecution that may be brought against [McKnight] by this Office.” During the ensuing interviews, McKnight made incriminating statements.

    McKnight’s efforts at cooperation were apparently unsatisfactory to the government, since McKnight eventually went to trial, resulting in a hung jury. Thereafter, the grand jury returned a superseding indictment, pursuant to which McKnight pled guilty to seven counts and was sentenced to 100 months in prison.

    At sentencing, McKnight was taken into custody pursuant to a provisional arrest warrant issued at the request of the French government under its extradition treaty with the U.S. While his case had been pending in the U.S., McKnight had been tried and convicted in absentia in a French court of crimes related to his Ecstasy trafficking. The evidence used against him had included a report summarizing the content of his incriminating proffer statements. Over McKnight’s opposition, a magistrate judge issued an extradition order. McKnight then filed a habeas petition challenging the legality of that order, which the district court denied. On appeal, McKnight argued that the USAO had breached its immunity agreement by sharing his incriminating admissions with the French authorities.

    The Ninth Circuit affirmed the denial of McKnight’s habeas petition, ruling that “[t]he unambiguous words of the agreement are the end of the story.” McKnight acknowledged that his immunity agreement with the government did not explicitly extend to other jurisdictions, but argued that the implied duty of good faith and fair dealing supplemented the agreement and therefore incorporated his reasonable expectation that the USAO would not facilitate the use of his proffer by another jurisdiction. Assuming any such implied duty applied, the Ninth Circuit observed that it was limited to assuring compliance with the express terms of the contractual agreement. In words that are equally applicable to white-collar defendants who might contemplate cooperating with state or federal prosecutors in a matter which could be prosecuted in multiple jurisdictions, the Ninth Circuit cautioned as follows:

    Future government witnesses are on notice that, if they wish to prevent federal prosecutors from sharing incriminating statements with other sovereigns (including, for example, the State governments), they must reduce that expectation to writing. Conversely, prosecutors should not be surprised when such protection is sought by cooperating witnesses, or when, if such protection is refused, witnesses decline the agreement.

    The full text of the Ninth Circuit’s decision can be found at McKnight v. Torres, Docket No. 08-55459, 2009 U.S. App. LEXIS 8236 (9th Cir. April 20, 2009).