D.Mass.: Consent obtained during proffer session violated proffer agreement; suppressed

Defendant’s consent to search of his computers during his 8th of 15 proffers led to his being charged, and it violated the proffer agreement. Then a search warrant was issued for the computers to defendant’s bankruptcy trustee. United States v. Scott, 2014 U.S. Dist. LEXIS 51245 (D. Mass. April 14, 2014):

Proffer agreements, like plea bargains, are construed under contract-law principles and, as in the case of an ordinary contract, the language of the agreement defines the rights and obligations of the parties. United States v. Melvin, 730 F.3d 29, 37 (1st Cir. 2013). Where that language is subject to conflicting interpretations, it is the intent of the parties in forming the agreement that controls. Affiliated FM Ins. Co. v. Constitution Reinsurance Corp., 416 Mass. 839, 845 (1994). There is, however, a significant caveat – “[u]nlike the normal commercial contract, it is due process that requires that the government adhere to the terms of any immunity agreement it makes.” Id. at 39, quoting United States v. Pelletier, 898 F.2d 297, 302 (2d Cir. 1990) (internal quotations and alterations omitted). As a result, a court’s regard for a defendant’s bargained-for protections is “glossed with a concern that the defendant’s consent to appear at a proffer session should not become a lever that can be used to uproot his right to fundamental fairness under the Due Process Clause.” Id. Moreover, given its overwhelming bargaining advantage, any ambiguity in the agreement is construed against the government. Id. at 37. Put simply, when executing its obligations under a proffer agreement, “the government must turn square corners ….” Id. at 38, quoting Ferrara v. United States, 456 F.3d 278, 280 (1st Cir. 2006).

In this case, the prosecution far from squaring the corners, lopped them off at their edges. The May 15, 2009 meeting at which the government imaged Scott’s computers was the eighth of eighteen serial proffer sessions in which Scott participated. The government does not dispute that it never explained to Scott’s attorney, nor did it warn Scott before he signed it, that the consent-to-search form was intended to operate as a waiver or modification of the proffer agreement. It strains credulity to believe that the government’s position that the proffer agreement was amended by the consent-to-search form is anything but a creative after-the-fact invention. Nor would it be reasonable to suppose that Scott, who at the time did not have counsel present, would have understood that he was giving up the protections of the government’s immunity offer. This is doubly so when considered in the light of Scott’s (and his lawyer’s) participation in ten subsequent proffer sessions. As Scott’s new counsel concisely puts it, “[n]othing in the proffer agreement suggests that [ ] Scott’s bargained-for safeguards would stand or fall depending on the manner in which he provided information to the government, much less that they could be utterly lost if he signed the wrong form.” Def.’s Br. at 8.