Beware the risks of proffer agreements

Relying heavily on principles of contract law, the 2nd District Court of Appeal in People v. Palacios, 2021 DJDAR 7838 (July, 29, 2021), held that the trial court had properly admitted statements made by a criminal defendant pursuant to a proffer agreement with the prosecution because the defendant failed to meet his burden of establishing that his statements were truthful. The Palacios opinion will serve as a stark warning to defense counsel to advise their clients about the risks, and not just the potential benefits, of agreeing to proffer with the government.

The facts of the case are inflammatory and disturbing. In the late afternoon of June 27, 2001, the defendant encountered a 13-year-old girl who had run away from home. Palacios, who was a member of the MS-13 street gang, labelled the victim a "chavala," or trespasser in gang territory. Palacios and his girlfriend threw the victim to the ground and began kicking her. Other members of the gang joined Palacios at the scene shortly thereafter. Palacios instructed several other members to take the victim somewhere, have sex with her, and "get rid of her." The details of the victim's subsequent rape and murder by handgun are set out in much more detail by the Court of Appeal.

As relevant here, Palacios was charged with murder, and kidnapping to commit rape and to commit a lewd act upon a child. Prior to trial, Palacios engaged in a multi-day proffer session with the United States attorney's office. Present at the session were a federal prosecutor, two FBI agents, and at least one LAPD detective, as well as defendant's counsel. In a written and signed proffer agreement, which is standard in federal practice, Palacios promised to truthfully and completely answer all questions. In return, the government promised not to introduce in its case in chief any statements made by Palacios.

The agreement contained two provisions which limited the government's promise not to use the statements. First, the government could use the statements to impeach Palacios should he testify at trial or in a prosecution for false statements or perjury. Second, the government could use Palacios' statements for any purpose if it concluded that Palacios was not completely truthful and candid, provided it gave Palacios notice of its intent to do so.

Over the course of four days, Palacios made numerous inconsistent statements regarding how he met the victim and what his involvement, if any, was in the crime. Prosecutors sought, and obtained, a pretrial ruling on a motion in limine allowing them to introduce the inconsistent statements notwithstanding the proffer agreement. The trial court reasoned that because Palacios had violated the agreement by lying, the government was not bound by the provisions prohibiting their use of the statements. Palacios was convicted and sentenced to multiple life sentences.

On appeal, he raised numerous issues including the introduction of the proffer session statements. The Court of Appeal held that Palacios could not obtain specific performance of the government's promise not to use his statements because he failed to perform a condition precedent required of him; namely, that he answer all questions truthfully and candidly. The Court of Appeal credited the trial court's finding that Palacios had lied in the proffer. In fact, it held that his statements during the various days of the session were completely irreconcilable with one another and inconsistent on their face.

In response, Palacios argued that the prosecution lacked standing to prevent him from invoking the proffer agreement. Because they must allege a breach, Palacios reasoned, they must have had to have been parties to or intended beneficiaries of the agreement. The Court of Appeal rejected both premises. First, it held that Palacios, being the party seeking specific performance, had the burden of showing he complied with all conditions precedent. The prosecutors were not seeking any remedy under the agreement, but rather simply putting Palacios on notice that they intended to use the statements.

Second, even if standing were required, the prosecution had it by virtue of a "side agreement" between defense counsel, the federal prosecutor, and the LAPD detective present at the proffer that everyone present would be bound by the agreement. By extension, the prosecutors were also bound by the agreement, and therefore had standing to challenge Palacios' reliance on it.

Palacios raised four other challenges to the trial court's admission of the proffer statements, including that only the United States attorney's office should have been allowed to use the statements against him in his view and that his statements were involuntary because he had only provided them premised on believing he was immune to being prosecuted based on his statements. Each challenge was rejected with brief discussion by the Court of Appeal.

Palacios serves as a warning to defendants and defense counsel considering a proffer session with the government. Proffering can have a tremendous positive impact on a client's case where there is already substantial evidence of guilt and earning sentencing consideration through cooperation may be the only realistic strategy for improving the outcome. However, dishonesty or even inconsistency may later form the basis for the prosecuting agency, including one from another jurisdiction, successfully persuading a court that the proffer agreement's promises of non-use are unenforceable because of the defendant's failure to live up to his side of the bargain.