Are Proffer Agreements a Good Deal or Bad Deal?

When defendant’s role in a crime seems undeniable and indefensible, a jury’s finding of guilt can seem inevitable.  Therefore, a good criminal defense attorney must do everything reasonable to address sentencing, including cooperation with the prosecution.

A proffer agreement is one option.  In a typical proffer agreement, defendant will offer a series of answers, a declaration and or an interview session with the prosecution and perhaps even the handling detective(s) in hopes of mitigating defendant’s punishment, avoiding testimony in trial and perhaps helping the investigation of other pending cases. 

However, a proffer agreement must be approached with caution and the client must understand clearly that dishonesty or even any inconsistency in testimony can wipe away the agreement and expose defendant to greater exposure, even increasing punishment, as the following summary exemplifies.

In early May 2001, thirteen-year-old Jacqueline P. ran away from home.  About six weeks later, she encountered Jorge Palacios.  As the Second Appellate District Court explained, “[I]t was an encounter that would change – and end – her life” (2021 DJDAR 7838).

Palacios belonged to the Francis clique of the MS-13 street gang and was selling drugs at the intersection of Eighth Street and Magnolia in the MacArthur Park neighborhood of downtown Los Angeles. 

Palacios labeled Jacqueline a “chavala,” which means trespasser from another gang’s “hood.”  It was a gang’s obligation to punish any chavala who sets foot in its territory.  Palacios then, with his girlfriend, pulled her hair, pulled her to the ground, and kicked her.  Two other MS-13 members from the Park View clique, Sandoval and Grimaldi joined in the beating.  Palacios then told Sandoval and Grimaldi they should take Jacqueline somewhere else, have sex with her and then “get rid of her.”

Moments later, MS-13 gang member Rogelio Contreras pulled up in a white car.  Palacios asked Contreras if he could supply a ride to “do a job.”  Contreras agreed. 

Contreras then took Jacqueline to Elysian Park.  It was now after sundown.  Grimaldi and Sandoval took Jacqueline to a secluded hillside, where Grimaldi and Sandoval had sex with Jacqueline.  Sandoval then pulled out a gun and gave it to Grimaldi, who shot Jacqueline twice in the head, killing her.  They abandoned Jacqueline’s naked body in the park. 

Months later, a grand jury returned an indictment, charging Palacios, Grimaldi, Sandoval and Contreras with murder (Penal Code § 187(a)) and kidnapping to commit the crimes of rape and of committing a lewd or lascivious act on a child (Penal Code § 208(b)(1)).  The grand jury additionally alleged that both the murder and the kidnapping were committed “for the benefit of, at the direction of, and in association with a criminal street gang” (Penal Code § 186.22(b)(1)(C)) and that Sandoval and Grimaldi had personally discharged a firearm causing death (Penal Code § 12022.53(d)).  The case was filed in state court, in the Clara Shortridge Foltz courthouse.

Palacios and his attorney met with a federal prosecutor, two FBI agents and one LAPD detective under a written proffer agreement signed by the federal prosecutor, defendant and his attorney.  In the agreement, Palacios agreed to be completely truthful and answer all questions completely.

The proffer meeting lasted four days, over which time Palacios offered numerous inconsistent statements and demonstrably false statements.  He denied ever having seen Jacqueline, for example and said he did not recognize certain photographs of her.  He then changed his story, but said he only saw her riding in a car with Contreras, Grimaldi and Sandoval.

The U.S. attorney notified the state court prosecutor about the lies and inconsistent statements, so the state court prosecutor filed a pretrial motion in limine asking the judge, Larry P. Fidler, to allow the DA to introduce Palacios’ interview transcript at trial because Palacios had violated the terms of the agreement.  The judge granted the motion.

The jury convicted Palacios of all charges and Judge Fidler sentenced him to two life terms plus 50 years in state prison. 

Palacios appealed the ruling on the motion in limine, arguing that the state court prosecutor could not introduce Palacios’ statement because the state court prosecutor was not a party to the agreement.

The Second Appellate District rejected this argument, as well as Palacios' unbelievable argument that the statements were involuntary because he only entered into the agreement because he was facing prosecution.

We offer this summary to show the tremendous risks involved in a proffer agreement, but emphasize that if defendant is truthful and abides by the terms of the agreement, the agreement can be wise choice.

The citation for the Second Appellate District Court ruling discussed above is People v. Jorge Palacios (2d App. Dist., 2021) 67 Cal. App. 5th 184, 281 Cal. Rptr. 3d 867.

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