Admissibility of Redacted Proffer Statement Violates Confrontation Clause But Constitutes Harmless Error

In United States v. Hardwick et al, (3d Cir. October 3, 2008), the Court of Appeals held that the admission into evidence of a redacted proffer statement, after the close of the Government’s case-in-chief, violated defendants’ constitutional rights under the Confrontation Clause; however, use of the proffer statement was harmless error. Furthermore, the Government conceded that the sentences for three of the four defendants should be reduced to only one § 924(c) conviction each.

During the course of the investigation Defendant Murray entered into a proffer agreement with the Government. Under this agreement, Murray agreed to cooperate with the investigators by answering questions truthfully and completely, and the Government agreed not to use these statements against him at trial in its case-in-chief. The proffer agreement provided for an exception if the Government needed "to rebut any evidence or arguments offered on [Murray’s] behalf." During two proffer sessions, Murray admitted to planning and participating in the slaying of two individuals. After the close of its case-in-chief, the Government moved in limine to introduce Murray’s proffer statements. Although Murray did not testify at trial, the Government argued that he breached the proffer agreement by attempting to elicit contradictory evidence, that he had a lesser role in those killings, through cross-examination. The terms of the waiver allowed the Government to use Murray’s proffer statements not only to cross-examine him, but also "to rebut any evidence or arguments offered on [his] behalf." The District Court granted the Government’s motion in limine finding that the cross-examinations conducted by Murray’s counsel contradicted the proffer statements and thus triggered the waiver. In order to address Confrontation Clause concerns raised by the other three defendants, the District Court ordered that all references to Murray’s co-defendants be redacted and replaced with neutral references such as "others" or "another person." The District Court also instructed the jury that it could consider the proffer statements only to assess Murray’s guilt and not the guilt of the other defendants.

The Court of Appeals first opined that the waiver clause in Murray’s proffer agreement was enforceable. The Court then determined that Murray triggered the waiver through his cross-examinations. Thirdly, the Court reasoned that the Government was not required to contemporaneously object to the cross-examinations, as the Government was exercising it contractual right under the proffer agreement and not lodging an objection to Murray’s line of cross-examination. Finally, the Court found that the other three defendants’ rights under the Confrontation Clause of the Sixth Amendment were violated because of the nature of the redaction of the proffer statements. The Court wrote that "the nature of the linkage between the redacted statement and the other evidence in the record is vitally important in determining whether a defendant’s Confrontation Clause right has been violated. Even redacted statements will present Confrontation Clause problems unless the redactions are so thorough that the statement must be linked to other evidence before it can incriminate the co-defendant." Assessing the "kind" of inference and not the "simple fact of inference" led the Court to conclude that the admission of Murray’s proffer statements violated the Confrontation Clause rights of Murray’s co-defendants." Nonetheless, the Court concluded that the evidence in this case was more than sufficient to support the jury’s verdict, even without the proffer statements, so the error was harmless beyond a reasonable doubt.

Furthermore, the Government agreed that the multiple consecutive sentence imposed on three of the four defendants under § 924(c) should be remanded with instructions to vacate all but one § 924(c) conviction each, in compliance with a Justice Department policy memorandum requiring a separate predicate offense for each § 924(c) charge.