2nd Circuit: Proffer Aside, Rap Czar Rosemond Still Gets A Defense
November 3, 2016 (Fault Lines) — This case started with a hypermacho feud between rappers, promoters, and hangers-on. In one corner was the label “Czar Entertainment.” In the other was the rival label “Violator Records,” and its rap group “G-Unit.”
The situation came to a head when a teenager was roughed up by three G-Unit “associates,” because he was seen outside Violator Records’ offices wearing a Czar sweatshirt. That teenager was the son of James J. Rosemond, who owned the Czar label. Rosemond went nuts, and according to at least one cooperator, Rosemond embarked on a 3-way blitzkrieg attack against his rivals: ʺthrough the law, through music and through streets.ʺ That cooperator eventually testified that Rosemond successfully conspired and paid to have a G-Unit associate clipped.
But it turns out that Rosemond was a man of diversified trades, and before being indicted for murder-for-hire, he was arrested on narcotics charges in a separate NY district. Rosemond then decided to sit down with the government with the hopes of cutting a deal for the drug case, and in doing so, signed a “proffer agreement.” That agreement included language that would let the government use anything he said in that meeting:
ʺas substantive evidence to rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by or on behalf of [Rosemond] at any stage of a criminal prosecution.” (Emphasis on the “a.”)
This is government speak for: (i) if Rosemond decided to go to trial and he took the stand in either the drug or murder case, and his testimony differed from what he said during negotiations, the FBI agent’s notes his words can be used to impeach him. And, more ominously, (ii) it allowed the use of his proffer statements against him in any part of any defense at trial, including limitations on what his lawyers can say during opening statement and ask during cross-examinations. So while Rosemond’s words couldn’t be used against him, that right is waived if he testifies inconsistently or presents evidence or argument that runs afoul of the government’s evidence.
When Rosemond was indicted for murder and decided to fight back in trial, his statements during the drug case proffer came back to bite him in the butt. Usually, under Rule 410 of the Federal Rules of Evidence, what is said during plea negotiations is inadmissible at trial, unless it is waived under the conditions of the proffer agreement. From the decision of the U.S. Court of Appeals for the 2nd Circuit:
During one such proffer session, ʺRosemond was asked if he understood that, as a result of the actions he took with others in September 2009, Lowell Fletcher would be killed.ʺ App. 204. The notes taken during the proffer session state that Rosemond ʺresponded affirmativelyʺ and ʺknew [Fletcher] was going to be dead.ʺ
And boom, the judge did not allow Rosemond’s attorney to argue that “the Government has failed to prove that the object of the conspiracy and the intent of Rosemond was to murder Lowell Fletcher,” because such argument contradicted Rosemond’s statement that he knew Fletcher was going to die. The defense was thus limited to attacking the cooperating witnesses’ motive to lie. The first trial ended up in a mistrial, but the second one resulted in a conviction and a life sentence más cancer.
While all the circumstances of Rosemond’s negotiations are unknown, this shows how bad things can get when someone decides to sit down while trying to cut a deal and it all goes sour. Most don’t realize that when you sit down with the government, you’re bound to answer all their questions, from A to Z, and to I.D. your cousin and provide answers about your best friend’s dealings. And if you’re caught they think you’re lying, not only is the meeting over, but you’ve exposed yourself to being indicted for making a false statement to the government.
It’s obvious the FBI agents had that question about Fletcher’s murder prepared when they sat down with Rosemond for that drug case. Sometimes the best policy is to STFU and stay home. Rosemond’s proffer agreement, like most, said that the government could not use his statements against him in his case in chief, but with a broad exception that the government was later able to exploit to the max. Also, regardless of his prosecutor’s psychological makeup, that Assistant U.S. Attorney (or his colleague from another division) might have gotten some extra motivation to go after Rosemond following his admission of playing a major role in Fletcher’s demise.
But in vacating his conviction and ordering his retrial, the Court of Appeals focused on how the government improperly limited the scope of Rosemond’s defense at trial, and that the error was not harmless:
Rosemond should have been permitted to argue, without triggering the proffer waiver, that the Government failed to prove that he intended to murder Fletcher. See Barrow, 400 F.3d at 119 (defense counsel may ʺchallenge the sufficiency of government proof on elements such as . . . intentʺ without triggering the proffer waiver).
There is a material difference between the statement ʺthe Governmentʹs evidence fails to establish that Rosemond intended that Fletcher be murdered, as opposed to shot or injured,ʺ and asserting as fact that ʺthe object of the conspiracy was to non‐fatally assault Fletcherʺ; only the latter is a factual assertion that would trigger the waiver. Defense counsel never attempted to affirmatively argue or prove that Rosemond conspired to commit only a nonfatal shooting.
Defense counsel did not accuse McCleod of actually conspiring with Rosemond to commit a non‐fatal shooting, or make factual assertions to that effect. To the extent the questions might also have carried the implication that Rosemond did not actually intend to have Fletcher murdered, they were no more inconsistent with the proffer waiver than entering a plea of not guilty or challenging the sufficiency of the evidence.
That’s quite the cautionary tale involving proffer agreements. Now Rosemond must wait and see if he will be retried for the murder of Fletcher, even though he is already serving life for his drug conviction. If he knows the feds, he should bet on it.