## Facts

- Bryan Ross was charged in a seven-count federal indictment arising from a fraud scheme involving motor vehicles and counterfeit bank checks, including conspiracy and uttering counterfeit securities.
- After an arrest on a bank-fraud complaint on July 3, 2003, Ross was appointed counsel from the Federal Defender Office.
- On or about July 8, 2003, Ross and his counsel met with federal law-enforcement agents (including a Secret Service agent) to discuss Ross’s information about the alleged fraud.
- The government represented that the purpose of the meeting was to find out whether Ross had information that would make starting plea discussions productive.
- The Assistant United States Attorney assigned to the matter, Blondell Morey, authorized the meeting and participated in arranging the proffer process, but she was not present at the interview (the parties disputed her attendance; defense counsel’s recollection was that she did not attend).
- Ross was not in custody during the meeting and made inculpatory statements.
- Around the time of the meeting, the prosecutor sent a written proffer (Kastigar-style) letter describing the interview as a “proffer” and stating that the government would not use statements from the proffer in its case-in-chief, while reserving the right to use them for cross-examination or rebuttal and to make derivative use of leads.
- The letter also stated that these terms modified and expressly waived protections under Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11.
- Before trial, Ross filed a motion in limine seeking to exclude statements the government attributed to him on two occasions, including the proffer-session statements, arguing they were protected plea-discussion statements under Rule 410 and/or covered by the proffer letter.

## Issues

1. Whether Ross’s statements to federal agents during an AUSA-authorized proffer meeting were made “during plea discussions with an attorney for the prosecuting authority” and were therefore protected by Federal Rule of Evidence 410 even though the AUSA was not physically present.
2. Whether the written proffer (Kastigar-style) letter constituted an enforceable agreement that waived Rule 410/Rule 11 protections, and, if so, what uses of Ross’s statements the government could make under the letter’s terms.
3. Whether the government could use Ross’s other challenged statements at trial, and to what extent any Rule 410 protection or waiver applied to them.

## Decision

- The court granted in part and denied in part Ross’s motion in limine.
- The court rejected the government’s position that Rule 410 could not apply simply because the assigned AUSA was not in the room; the court treated the prosecutor’s authorization and role in setting up the proffer process as sufficient involvement for Rule 410 analysis.
- The court treated the proffer/Kastigar letter as controlling the permitted uses of Ross’s proffer statements and enforced its limits.
- Consistent with the letter, the court barred the government from introducing the proffer statements in its case-in-chief, while allowing the limited uses the letter specifically reserved (such as impeachment/cross-examination and rebuttal, and derivative investigative use).
- The court separately addressed the other challenged statements and ruled on admissibility in a tailored way, resulting in a partial grant and partial denial.

## Legal Principles

- Federal Rule of Evidence 410 generally prohibits admitting, against a defendant, statements made during plea discussions with an attorney for the prosecuting authority when the discussions do not result in a guilty plea (or the plea is later withdrawn).
- For Rule 410 purposes, a prosecutor’s participation in authorizing and structuring plea-related communications can matter more than the prosecutor’s physical presence at the interview.
- Courts look to the context and purpose of the meeting to decide whether an interview is part of plea discussions rather than a purely investigative interrogation.
- A written proffer agreement can operate as a waiver or modification of Rule 410 and Rule 11 protections if its terms are clear and the waiver is knowing and voluntary.
- A proffer agreement is interpreted according to its expressed terms; the government may not use the defendant’s statements in ways the agreement does not allow (for example, using them in the case-in-chief when the letter bars that use).

## Conclusion

United States v. Ross held that a defendant’s statements made in an AUSA-authorized proffer session could fall within Rule 410’s plea-discussion protection even if the prosecutor did not attend the interview, and that a Kastigar-style proffer letter could validly limit and waive those protections only to the extent the letter’s plain terms allowed—permitting impeachment/rebuttal and derivative use, but not case-in-chief admission.


United States v. Ross, 588 F. Supp. 2d 777 (2008)