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Proffer Agreements in Federal Court

Posted by Dmitry Gorin | Dec 24, 2021 | 0 Comments

Review Of The Case People v. Palacios (Appellate Case No. B299687)

Relying on principles of contract law, the Court of Appeals in the case of People v. Palacios determined the trial court properly admitted statements made by a criminal defendant under a proffer agreement with the prosecutor because the defendant failed to meet his burden of establishing his statements were truthful. 

This opinion will serve as a warning to criminal defense counsel to advise their clients about the possible risks, and not just the benefits, of making a proffer agreement with the government.

Proffer Agreements in Federal Court

In certain federal criminal cases, it is often in the defendant's best interest to cooperate.

For instance, the prosecutor's evidence against them is so strong it can't be reasonably challenged, such as in a situation where undercover federal law enforcement agents recorded the unlawful conduct.

A proffer agreement is a written contract between a federal prosecutor and the defendant or someone under a criminal investigation.

Put simply, the defendant will agree to give the prosecutor helpful information. In exchange, their statements won't be used against them later in a criminal proceeding.

Our Los Angeles criminal defense lawyers will review this case further below.

Details of the Palacios Case

The facts of the case below are inflammatory and disturbing. On June 27, 2001, the defendant contacted a 13-year-old girl who had run away from home. 

Palacios, a member of the MS-13 street gang, labeled the victim a “chavala,” meaning she was a trespasser in gang territory.  Therefore, Palacios and his girlfriend threw the victim to the ground and kicked her. Soon after, other gang members joined in to continue the assault.

He then told several other members to take the victim somewhere, have sex with her, and then to “get rid of her.” The specific details of the victim's rape and murder by handgun are laid out in more detail by the Court of Appeals.

Ultimately, Palacios was charged with murder, kidnapping to commit rape, and lewd acts upon a child. 

Before trial, he engaged in a proffer session with the United States Attorney's Office, where a federal prosecutor, two FBI agents, an LAPD detective, and his defense lawyer were present.

He promised to truthfully answer all their questions in a signed proffer agreement, which is standard in federal practice.  In exchange, the government agreed not to introduce any statements made by Palacios. 

However, the proffer agreement had two provisions that limited the government's promise not to use the statements:

  • First, the government could use statements to impeach Palacios if he decided to testify at trial or in prosecuting him for false statements or perjury;
  • Second, the government could use his statements for any purpose they determined he was not entirely truthful and candid, provided it gave him notice of their intent to do so.

During the next four days, Palacios made several inconsistent statements about how he met the victim and his specific involvement, if any, in committing the severe felony crimes against her.

The Government sought and obtained a pretrial ruling on a motion in limine that allowed them to introduce the inconsistent statements based on the proffer agreement. 

The trial court determined that since he had violated the agreement by lying, the government could not be bound by the provisions prohibiting their use of the statements. Palacios was convicted and sentenced to multiple life sentences in prison.

Court of Appeals Review

On appeal, he challenged several issues, including introducing the proffer session statements. 

The Court of Appeals determined that Palacios could not obtain specific performance of the government's promise not to use his statements due to the fact he failed to perform a required condition, specifically, that he had to answer all the questions truthfully and candidly. 

The court noted and credited the trial court's ruling that he lied in the proffer session. They determined that his statements over the many days of the session were utterly irreconcilable with one another and inconsistent on their face.

Rejection of Defendant's Arguments

In reply, Palacios argued that the People lacked standing to prevent him from invoking the proffer agreement.

 Court of Appeals in California

Due to the fact they must allege a breach, he reasoned, they must have been parties to or intended beneficiaries of the agreement.  In response, the Court of Appeals rejected both premises.

First, it determined that the defendant, who was seeking specific performance, had the burden of proving he complied with all conditions precedent.

The People were not seeking remedy under the agreement. Instead, they were simply putting Palacios on notice they had the intent to use the statements;

Second, even if standing was required, the People had obtained it by virtue of a “side agreement” between defense counsel, federal prosecutor, and the LAPD detective who was present at the proffer where everyone agreed.

In other words, the People were also bound by the agreement, meaning they had the standing to challenge Palacios' reliance on it.

Other Challenges to the Proffer Statements

Palacios decided to raise four other challenges to the trial court's admission of the proffer statements that included that only the United States Attorney's Office should have been allowed to use the arguments against him.

In his opinion, his statements were involuntary because he had only provided them premised on believing he would be immune to being prosecuted based on his words. Each of his challenges was also rejected with a brief discussion by the Court of Appeals.

Federal Criminal Defense Lawyers

The Palacios case should serve as a warning to defendants and their defense counsel who consider a proffer session with the government. 

Proffering could significantly positively impact a client's case in a situation where strong evidence of guilt already exists.

Earning sentencing consideration by cooperating might be the only realistic strategy for improving the outcome. 

However, lying, dishonesty, or even inconsistent statements might later form the basis for the prosecuting agency, including other jurisdictions, to successfully persuade a court that the proffer agreement's promises of non-use are unenforceable because the defendant fails to keep his side of the contract. 

Eisner Gorin LLP is a top-ranked criminal defense law firm in Los Angeles County, California. You can reach our office by calling (310) 328-3776.

About the Author

Dmitry Gorin

Find me on Google+ Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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