## Facts

- José Velez, a convicted felon, was indicted in the Southern District of New York for possessing a firearm shipped or transported in interstate commerce, in violation of 18 U.S.C. § 922(g)(1).
- The charge arose from an August 18, 2001 encounter in which officers testified they saw Velez remove a gun from his waistband, heard metal strike pavement, and recovered a firearm from the spot where he had been standing.
- Velez attended a first proffer session on January 14, 2002 with counsel and denied possessing the firearm; the government did not accept his account.
- At Velez’s request, a second proffer session occurred on May 9, 2002 with new counsel; before speaking, Velez signed a written proffer agreement.
- The agreement included a waiver permitting the government to use Velez’s proffer statements to rebut any evidence or arguments offered by or for Velez at any stage of the prosecution if inconsistent with the proffer.
- During the second proffer, Velez made partial admissions concerning ownership and possession of the firearm.
- At trial, Velez limited his defense to avoid triggering rebuttal use of the proffer statements; he was convicted.
- Velez sought appointment of new counsel, claiming counsel’s participation in the second proffer created a conflict; the district court denied substitution.

## Issues

1. Whether the proffer agreement’s waiver allowing rebuttal use of Velez’s proffer statements against defense evidence or argument was valid and enforceable.
2. Whether the district court abused its discretion by denying Velez’s request for substitute counsel based on counsel’s participation in the proffer session.

## Decision

- The Second Circuit affirmed the conviction and sentence.
- The court held the proffer waiver was valid and enforceable and could be applied according to its terms if the defense offered inconsistent evidence or argument.
- The court held the district court did not abuse its discretion in refusing to appoint substitute counsel because the record did not show good cause, such as an actual conflict of interest or a complete breakdown in communication.

## Legal Principles

- A defendant may knowingly and voluntarily waive, in a written proffer agreement, protections limiting the government’s use of proffer statements, permitting rebuttal use if the defense presents inconsistent evidence or argument.
- Rebuttal-use waivers do not violate the Fifth or Sixth Amendments merely because they affect defense strategy, where the statements remain inadmissible in the government’s case-in-chief and become usable only to counter inconsistency.
- Proffer agreements are construed and enforced under ordinary contract principles absent defects in assent, illegality, or material ambiguity.
- Substitution of counsel in a criminal case requires good cause, such as an actual conflict of interest, irreconcilable conflict, or complete breakdown in attorney-client communication; dissatisfaction with prior strategy is insufficient.

## Conclusion

The Second Circuit upheld enforcement of a proffer agreement waiver authorizing rebuttal use of a defendant’s proffer admissions and affirmed the denial of substitute counsel because the defendant failed to show good cause requiring replacement.


United States v. Velez, 354 F.3d 190 (2d Cir. 2004)