The opinion of the court was delivered by: Diamond, J.
On October 21, 2009, a jury convicted Defendant Robert Dales of conspiracy to commit armed bank robbery, armed bank robbery, and carrying a firearm during a crime of violence. 18 U.S.C. §§ 2, 371, 924(c), 2113(d) (2008). At trial, I permitted the Government to introduce the "proffer statements" Dales had earlier made to the FBI. I write here to explain more fully the basis of that ruling.
On July 24, 2008, the grand jury charged Dales, Dante Toliver, Joseph Dunston, and William Matthews with the gunpoint robbery of a Bank of America branch in Glenside, Pennsylvania. (Doc. No. 17.) Dunston and Matthews pled guilty. The five-day trial of Dales and Toliver concluded on October 21, 2009.
The evidence showed that on January 22, 2008, Matthews urged Dales and the others to rob a bank in Glenside. Minutes after Matthews reconnoitered the bank, Dunston, Dales, and Toliver -- wearing hooded sweatshirts, ski masks, sunglasses, and gloves -- entered the bank. Dales and Dunston brandished handguns, threatening employees while Dunston snapped up money. Toliver was unarmed and made no threats. Rather, he took money from the teller's drawer and then fled with Dales and Dunston. The jury convicted Toliver of conspiracy to commit armed bank robbery, and Dales of the substantive robbery and firearms offenses as well as the conspiracy charge.
II. The Proffer Statements
The Government commonly offers defendants who seek to cooperate the opportunity to make an "off-the-record proffer." Defendants seeking to "proffer" do so pursuant to the terms of a proffer agreement or letter drafted by the Government. Although the precise wording of these agreements varies from District to District, the import is the same: (1) if the defendant elects to go to trial, the Government will not use the defendant's proffer directly against him or her; (2) the Government may make derivative and investigative use of the proffer; and (3) the Government may use the proffer to rebut any effort by the defendant that contradicts the proffer's substance, regardless of whether the contradiction manifests itself through testimony, other evidence, or the representations of counsel. See United States v. Al-Esawi, 560 F.3d 888, 892 (8th Cir. 2009); United States v. Artis, 261 Fed. Appx. 176, 178 (11th Cir. 2008); United States v. Fifer, 206 Fed. Appx. 502, 504-05 (6th Cir. 2006); United States v. Barrow, 400 F.3d 109, 113-14 (2d Cir. 2005); United States v. Rebbe, 314 F.3d 402, 404 (9th Cir. 2002); United States v. Williams, 298 F.3d 688, 691 n.1 (7th Cir. 2002).
In this District, the Government's standard proffer letter includes these provisions.
Accordingly, the proffer agreement signed by Dales and his counsel stated, inter alia, as follows:
First, no statements made by you or your client, or other information provided by you or your client during the "off-the-record" proffer, will be used directly against your client in any criminal case.
Second, the government may make derivative use of, and may pursue investigative leads suggested by, statements made or information provided by you or your client.....
Third, if your client is a witness or party at any trial or other legal proceedings and testifies or makes representations through counsel materially different from statements made or information provided during the "off-the-record" proffer, the government may cross-examine your client, introduce rebuttal evidence and make representations based on statements made or information provided during the "off-the-record" proffer. This provision helps to assure that your client does not abuse the opportunity for an "off-the-record" proffer, make materially false statements to a government agency, commit perjury or offer false evidence at trial or other legal proceedings. (Doc. No. 118 at 4-5.)
Dales and his then-counsel attended proffer sessions with the FBI on August 11 and September 5, 2008. During these sessions, Dales admitted that: (1) on January 22, 2008, he, Matthews, Dunston, and a man Dales knew as Dante drove to the Bank of America branch in Glenside; (2) Matthews entered the bank, returning a few minutes later to tell the others that the bank looked "sweet," and that the vault was open; (3) Dales, Dunston, and "Dante" then entered the bank wearing masks and gloves; (4) Dales and Dunston were armed; (5) Dales stayed near the entrance of the bank and held two bank employees at bay while Dunston and "Dante" took money from the teller counter; (6) the men then left the bank and returned to Dales' house where they divided the money; and (7) the men subsequently burned the clothes they had worn during the robbery. See Doc. No. 118 at 6-12.
At trial, new counsel represented Dales. An extremely experienced criminal defense lawyer, trial counsel was familiar with the form of proffer letter used in this District. Trial counsel understood that the letter agreement would entitle the Government to introduce Dales' proffer statements at trial if the defense contradicted the statements' substance -- whether through testimony or through counsel's statements or questions. See Trial Tr. vol. 3, 3:1--5:2, Oct. 19, 2009. ...