Originally published May 14, 2009
Keywords US Ninth Circuit, federal immunity agreements, McKnight v. Torres, immunity agreement, proffer agreement
Federal immunity agreements may not bar federal prosecutors from sharing incriminating statements with foreign criminal prosecutors, in the absence of an express prohibition in the agreement, according to a recent decision from the US Court of Appeals for the Ninth Circuit, McKnight v. Torres, No. 08-55459 (9th Cir. Apr. 20, 2009).
In defending federal criminal cases involving a potential for state or foreign proceedings, counsel should negotiate express terms that limit the further use, distribution and sharing of the proffered information.
The Agreement, Proffer and Prosecution in the US
The petitioner in McKnight v. Torres, Aaron McKnight, was
indicted on federal charges of importing illegal drugs from France
into the United States. McKnight executed a written agreement with
the US Attorney's Office for the Central District of California
in which he agreed to answer questions in return for use immunity.
Specifically, the immunity agreement provided that any statements
made by McKnight could not be used against him in the pending case
or in any other prosecution brought by that US Attorney's
Office. The agreement contained no limitation on the use of the
statement by, or the transmission of the statement to, other
governments.
On the basis of the immunity agreement, McKnight made
incriminating statements to US prosecutors during a proffer
session. Although the case went to trial — a trial in
which the government did not use McKnight's statements
— the jury did not reach a verdict. After the government
obtained a superseding indictment, McKnight pleaded guilty and was
sentenced.
Sharing the Proffer with the French Government
At the same time the prosecution progressed in the United States, a
French investigating magistrate issued an international arrest
warrant for McKnight. US prosecutors had provided McKnight's
proffer statements to the French government, and McKnight's
statements were included in the evidentiary materials used by
French authorities to obtain the warrant.
Using these proffer statements in a trial conducted in
absentia, the French government convicted McKnight of drug
trafficking and sought extradition pursuant to the Extradition
Treaty between the United States and France. The US Attorney's
Office obtained a provisional extradition arrest warrant and, on
the same day he was sentenced pursuant to his plea agreement,
McKnight was arrested to be extradited to France.
McKnight unsuccessfully challenged the extradition complaint filed
by the US Attorney's Office on behalf of France. McKnight then
filed a habeas petition pursuant to 28 U.S.C. § 2241, seeking
to stop the extradition on the basis that the US government
breached the immunity agreement by sharing his incriminating
statements with the French government.
McKnight conceded that the language of his immunity agreement did
not expressly prohibit sharing the proffered statement with foreign
governments and that its terms were limited to the pending case and
any other prosecution by the US Attorney. He argued, however, that
pursuant to the implied duty of good faith and fair dealing, he had
a reasonable expectation that the US Attorney would not share
information from his proffer with foreign jurisdictions.
The Ninth Circuit's Opinion and Its Implications
In a brief opinion, the Ninth Circuit summarily rejected
McKnight's claims, interpreting the proffer agreement as a
contract, and held that the "unambiguous words of the
agreement are the end of the story." The court found that the
clear language of the contract offered McKnight protection only
from prosecutions by the US Attorney, and that "the US
Attorney's disclosure therefore did not violate the
agreement."
The Ninth Circuit articulated the import of its ruling in
McKnight to anyone considering whether to cooperate with
the government in cases that could extend to other jurisdictions.
Indeed, the Court announced:
Thus, the McKnight decision warns witnesses in federal cases (and their attorneys) to act with care in negotiating the terms of immunity and proffer agreements. Any cooperating witness potentially at risk of prosecution by a foreign government, or by a state government, should ensure that the agreement with federal prosecutors expressly prohibits the sharing of information with any other governmental entity.
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