## Facts

- Federal prosecutors investigated alleged fraudulent insurance billing connected to Dr. Niels Lauersen’s medical practice.
- Magda Binion, an office employee implicated in the conduct, participated in a pre-indictment proffer session with the government while represented by counsel.
- At the start of the proffer session, Binion signed the government’s standard proffer agreement; defense counsel did not receive the agreement in advance.
- The agreement stated the government would not use Binion’s statements in its case-in-chief, but could use them to obtain investigative leads, to impeach Binion if she testified inconsistently, and “as substantive evidence” to rebut any evidence or arguments offered by or on behalf of Binion at any stage of the prosecution.
- During the proffer, Binion made inculpatory statements admitting involvement in wrongdoing related to billing practices.
- After Binion was indicted with Lauersen, she moved in limine to prevent the government from using her proffer statements beyond traditional impeachment (seeking to bar the agreement’s broad “rebuttal” provision).

## Issues

1. Whether a proffer agreement may validly waive the protections of Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6) to permit the government to use proffer statements as substantive evidence to rebut defense evidence or arguments.
2. Whether the agreement’s “rebut any evidence or arguments” clause was enforceable where it was presented without advance review and was not adequately explained to the defendant, calling into question a knowing and voluntary waiver.
3. What limits, if any, fairness and contract principles impose on boilerplate, non-negotiated proffer agreements drafted by prosecutors.

## Decision

- The court granted the motion in part and denied it in part.
- The court enforced the agreement to the extent it permitted:
  - derivative use of the proffer statements to obtain investigative leads; and
  - impeachment use if Binion testified inconsistently at trial.
- The court declined to enforce the agreement’s broad rebuttal provision as written and barred the government from introducing Binion’s proffer statements as substantive evidence merely to counter defense counsel’s opening statement, cross-examination, or summation.

## Legal Principles

- Defendants may waive Rule 410 and Rule 11(e)(6) protections in plea/proffer agreements, but the waiver must be knowing and voluntary.
- A proffer clause allowing substantive admission of a defendant’s statements to rebut “any” defense evidence or assertions may be so expansive that it effectively deters ordinary defense advocacy and raises basic fairness concerns.
- Boilerplate proffer agreements presented on a take-it-or-leave-it basis are subject to limiting principles drawn from contract law and due process where enforcement would be unfair or would render the waiver effectively uninformed.
- Permissible uses commonly include derivative investigative use and impeachment of the defendant’s inconsistent testimony; broader substantive use requires careful scrutiny.

## Conclusion

The court upheld the proffer agreement’s core provisions permitting derivative investigative use and impeachment, but refused to enforce a sweeping rebuttal clause that would have allowed the government to admit the defendant’s proffer admissions as substantive evidence in response to routine defense arguments at trial.


United States v. Lauersen, No. 00 Cr. 296 (WHP), 2000 WL 1693538 (S.D.N.Y. Nov. 13, 2000)