Proffer Gone Wrong . . .

In federal criminal practice a “proffer” (also known as a “proffer letter” or “proffer agreement”) is a written agreement between a prosecutor and someone suspected of committing federal crimes. Defense attorneys use proffers to negotiate plea bargains or immunity for their clients, but they can be tricky.

As this article explains, the proffer lets the suspect “tell the government about [his] knowledge of crimes, with the supposed assurance that [his] words will not be used against [him]” in any subsequent prosecution.

This post is about a case in which a suspect’s proffer didn’t work out as he had hoped. The case is U.S. v. Merz, 2009 WL 1183771 (U.S. District Court for the Eastern District of Pennsylvania), and I’ll summarize the facts that lead up to the proffer.

In 2006, FBI Agent Luders accessed the “Ranchi” website, which was located in Japan “displayed child pornography.” U.S. v. Merz, supra. He downloaded child pornography from the Ranchi site and then uploaded “two files . . . accompanied by text describing the purported contents of the files.” U.S. v. Merz, supra. Neither file contained child pornography. Luders’ computer monitored the files and recorded the IP addresses of those who tried to download them. On October 25, 2006, someone used IP address 68.80.255.70 to try to download the files; Luders traced the IP address to Paul Merz, at an address in Philadelphia. Another FBI agent used that information to get a warrant to search the Merz residence; FBI agents executed the warrant on February 27, 2007. U.S. v. Merz, supra. When the agents arrived at the residence, Paul Merz’s son, Robert, told them “`it’s me you want to arrest’”. U.S. v. Merz, supra. Robert also told the agents his father was “`not involved’” in his (Robert’s) activities. U.S. v. Merz, supra. The agents seized a computer and 106 DVDs from Robert’s bedroom. U.S. v. Merz, supra.

And that brings us to the proffer. On March 14, Merz engaged in a proffer session with the

Government [which] took place pursuant to a proffer letter, executed by Assistant United States Attorney Denise Wolf, Merz, and Merz's then-counsel, David Kozlow.

Regarding use of information gained during the . . . session . . . , the proffer letter states:

First, no statements made by . . . [Merz], or other information provided by . . . [him] during the `off-the-record proffer, will be used directly against [him] 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 [Merz]. That is . . . [he] waives any right to challenge such derivative use and agrees that such use is proper. . . ;

At the proffer session, Merz gave the Government his password to access an Internet message board known as My Kingdom, and signed a separate consent form in which he allowed the Government to use his online identity when interacting with individuals who frequented the My Kingdom site. The Government used Merz's online identity in its investigation in this case. . . .

The grand jury returned an indictment on April 12, 2007, charging Merz with receipt and possession of child pornography.

On August 1, 2007, Merz . . . withdrew his permission for the Government's use of his online identity, and the Government ceased using Merz's identity.

On October 25, 2007, the grand jury returned a Superseding Indictment . . . which added another count -- advertising child pornography. The Government used evidence derived from Merz's March 14, 2007 proffer session to show he committed this offense.

U.S. v. Merz, supra. I wrote about the use of a “consent to assume online presence” in a post I did about a year and a half ago. As I explained, consent is an exception to the 4^th Amendment’s requirement that police obtain a warrant before searching a place and/or seizing a thing.

As I speculated there, the consent to assume online presence seems to act a little like a traditional consent to search and seize, but with a few differences. I’ll refer you to that post for the 4^th Amendment issues these consents seem to raise. This post is about the consequences of Merz’s executing such a consent.

After the grand jury returned the superseding indictment, Merz moved to suppress (i) the statements he made during the March 14 proffer session and (ii) the derivative evidence the government obtained from his consent to assume online presence. Since the proffer said no statements Merz made during the proffer session would be used “directly against [him] in any criminal case”, the judge granted Merz’s motion to suppress the statements. U.S. v. Merz, supra.

The derivative evidence issue arose from the fact that when FBI agents used his password to access the My Kingdom site, they discovered evidence that was used to charge him with advertising and transporting child pornography. U.S. v. Merz, supra. (The first indictment charged him with receipt and possession of child pornography; the superseding indictment added the two other charges, which were based on what the agents found on the My Kingdom site.) As the district court noted, Merz claimed the

derivative evidence should be suppressed because he understood from the proffer agreement he would have the opportunity to receive a reduced sentence as long as he provided truthful and complete information to the Government, and he contends he has provided such information. . . . Merz contends the Government's use of derivative evidence to charge him with additional counts, which expose him to a much greater prison sentence, is inconsistent with his understanding of the proffer agreement.

U.S. v. Merz, supra. He lost. The federal judge pointed out that Merz’s proffer letter said “`the government may make derivative use of, and may pursue investigative leads suggested by, statements made or information provided by . . . [Merz].’ In the letter, Merz agreed to `waive[ ] any right to challenge such derivative use and agree[d] such use is proper.’” U.S. v. Merz, supra. Having agreed to those conditions, the court said he couldn't complain about the consequences.

Merz also made another argument to try to get the evidence resulting from the agent’s use of his My Kingdom password: he moved to dismiss

Counts I and IV of the . . . Superseding Indictment, charging him with advertising and transportation of child pornography, on the ground that they are based on improper use of evidence derived from Merz's proffer session and post-proffer cooperation. Merz claims the Government gathered the evidence underlying Counts I and IV, including the discovery of a witness against him, when Merz allowed federal agents to use his My Kingdom password and assume his online identity.

U.S. v. Merz, supra. In making this argument, Merz claimed the “Government has a duty of good faith in its dealings with cooperating defendants”. U.S. v. Merz, supra. For that proposition, he cited a case that involved plea agreements and subsequent sentencing. The court noted that Merz’s argument was not based on constitutional violations but on the exercise of prosecutorial discretion, and that prosecutorial discretion is “generally non-reviewable” by courts. U.S. v. Merz, supra. The prosecution pointed out that the case Merz relied on only applied to plea agreements, not to proffer letters.

The judge noted, though, that the court in that case based its finding that a duty of good faith applied in plea negotiations on “the existence of a contractual relationship between the Government and the defendant”. U.S. v. Merz, supra. He also pointed out that the “Government appears to concede the existence of such a relationship between itself and Merz in the instant case when it argues the proffer letter should be construed according to principles of contract law.” U.S. v. Merz, supra.

Ultimately, however, the judge found he did not need to decide if a duty of good faith applies in the context of proffer letters because Merz voluntarily signed a proffer letter that “expressly authorize[d] use of derivative evidence”, such as the evidence resulting from the agents’ use of his My Kingdom password. U.S. v. Merz, supra. The judge therefore denied Merz’s motion to dismiss Counts I and IV of the Superseding Indictment. U.S. v. Merz, supra.

The judge did not rule on one final argument Merz made: In a different motion, he sought to prevent a witness from testifying at trial because of how the government found about him: “Merz argues government agents, while posing as Merz on the My Kingdom website, revealed information about Merz, particularly his name, to a third party who will testify against Merz at trial.” U.S. v. Merz, supra. Merz apparently argued that the witness should not be allowed to testify because of how the agents discovered him. The court reserved ruling on that issue until the government offered this person as a witness at Merz’s trial. U.S. v. Merz, supra.

As to that witness, the statement of facts I quoted from above said this:

On January 31, 2007, Jonathan Adams signed a consent to allow government agents to assume his online presence. Adams told government agents he jointly administered My Kingdom with Merz. Adams pled guilty to child pornography charges in the United States District Court for the District of New Jersey.

U.S. v. Merz, supra. So maybe Adams is the witness Merz wants to prevent from testifying, given how he was discovered.

I don’t know how common it is for agents (and officers) to use consents to assume someone’s online presence. I’ve found them mentioned in only a handful of reported cases, none of which address the issue I raised in my original post on the topic, i.e., whether they’re a 4^th Amendment device or something else.