In United States v. Oluwanisola, 605 F.3d 124 (2d Cir. 2010), the defendant, Olawale Lateef Oluwanisola, was convicted by a jury of conspiring to import heroin into the United States, conspiring to possess with intent to distribute heroin, and possessing heroin with intent to distribute. Following his arraignment, Oluwanisola participated in two proffer sessions in the hopes of obtaining a cooperation agreement. The written proffer agreement executed by Oluwanisola and the U.S. Attorney’s Office contained a limited waiver of Oluwanisola’s rights under Rule 410, allowing the government to “use any statements made by [Oluwanisola] … as substantive evidence to rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by or on behalf of [Oluwanisola] at any stage of a criminal prosecution.” During the ensuing proffer sessions, Oluwanisola admitted that he knew that the envelopes he had when he was apprehended contained heroin, that he was part of a heroin smuggling operation, and that he received envelopes containing heroin in excess of one kilogram. After the government refused to offer Oluwanisola a cooperation agreement, the case proceeded to trial.
During the pre-trial proceedings, the district judge ruled that defense counsel could “generally tell the jury about the burden of proof and the necessity of the government proving all elements of the crime” during his opening statement, but he could not reference specific elements of the crime and argue that the evidence was insufficient to establish those elements without triggering the proffer agreement’s waiver provision. At trial, the district court ruled that defense counsel could not ask questions on cross-examination that challenged the credibility of the witnesses without opening the door to admission of Oluwanisola’s proffer statements because such questions would be tantamount to factual assertions contradicting the facts admitted during the proffer sessions.
On appeal, the Second Circuit held with respect to the district court’s first ruling that defense counsel should have been permitted during his opening statement to reference certain elements of the crime and argue that the government could not sustain its burden of proof as to those elements. Drawing a distinction as the district judge did between “generally telling the jury about the burden of proof and the necessity of the government proving all elements of the crime” (no waiver), and arguing that the government’s proof was not sufficient to satisfy specific elements of the crime (waiver), meant that “even if the government failed to introduce any evidence on a certain element, defense counsel would not be permitted to draw the jury’s attention to the lack of evidence in his opening statement without triggering the waiver provision in the proffer agreement.” Id. at 132. Such a result, the Second Circuit concluded, “would leave the defendant, for all practical purposes, defenseless.” Id. With regard to the district court’s second ruling, the Court held that cross-examination questions simply challenging the credibility of a witness, “without a factual assertion contradicting facts admitted in the proffer statement,” likewise would not trigger the waiver provision. Id. at 133. The Court reasoned, inter alia, that “there is no principled way of distinguishing between a question that challenges a witness’s perception of an event and a question that accuses the witness of fabricating an event. In both cases, it is entirely possible that the event nevertheless occurred despite the inaccurate testimony.”
In sum, the Second Circuit concluded, the district court’s rulings on the scope of the waiver provision, both with respect to defense counsel’s opening statement and during cross examination, violated Oluwinasola’s Sixth Amendment right to the effective assistance of counsel. Moreover, because the rulings severely limited his ability to mount an effective defense, they were not harmless error. Oluwaniasola’s sentence was vacated accordingly, and the matter remanded for further proceedings consistent with the Court’s decision.
