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Precautions Defense Counsel Should Consider In Making Attorney Proffers
For good reason, ordinarily courts are reluctant to admit statements of counsel as evidence in a criminal trial. Rulings in two recent high-profile local cases defy the common wisdom. In U.S. v. Menendez, No. 23-cr-490 (S.D.N.Y.), the prosecution of New Jersey Sen. Bob Menendez and others on bribery and related charges, the court admitted a PowerPoint presentation Menendez's counsel made to prosecutors prior to indictment as part of an attorney proffer. The government offered the presentation in support of obstruction charges included in a subsequent indictment against the senator. Not surprisingly, the government's aggressive step has gotten the attention of the defense bar. Although the government has indicated that it expects such uses of attorney proffers to be rare, as discussed below, its action is troubling and not unique. The government's step suggests precautions that defense counsel should consider in making attorney proffers.
In U.S. v. Coburn & Schwartz, No. 19-cr-120 (D.N.J.), a District of New Jersey prosecution of former senior executives of Cognizant Technology Solutions Corporation (Cognizant) on Foreign Corrupt Practices Act (FCPA) charges based on the alleged bribery of Indian government officials, the court upheld a defense subpoena seeking trial testimony from the prominent law firm that conducted an internal investigation in the matter. The ruling confirms the well-recognized risk that presenting information regarding an internal investigation to prosecutors waives any privilege regarding what was presented. The ruling also illustrates how a narrowly tailored demand for testimony about what an internal investigation failed to find can be a potentially valuable tool for defense counsel.
U.S. v. Robert Menendez
On Sept. 11, 2023, in the late stages of an investigation conducted by the U.S. Attorney's Office for the Southern District of New York (SDNY), Menendez's then-attorney, Abbe Lowell, met with senior SDNY prosecutors and made a PowerPoint presentation outlining his client's theory of the facts. The presentation included the express statement that two categories of payments, a payoff of Menendez's then-girlfriend Nadine's mortgage, and payments on her behalf for a Mercedes, were "unknown to [the] Senator" until after the government's investigation began. The presentation also included statements characterizing the payments as loans, which Menendez repaid after learning about them, again, after the investigation began.
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