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April 21, 2014

Promised Immunity Under Proffer Agreement Requires Suppression of Evidence

In a recent opinion, a judge at the United States District Court, District of Massachusetts ruled that the evidence obtained by the government pursuant to the defendant's agreement to provide it in exchange for immunity may not be offered against the defendant, despite the government's arguments that the defendant waived his immunity under the proffer agreement and that its use of the evidence constituted a permissible "derivative use" under the agreement.

In United States v. Scott, the defendant learned that he was the target of a federal investigation into alleged mortgage lending fraud in February 2009. The defendant entered into a proffer agreement with the U.S. Attorney's Office, drafted by the government, which provided him certain immunities. Specifically, the proffer agreement provided that "no statements made or other information" provided by the defendant would be used directly against him (with certain exceptions not relevant), but the government would be permitted to "make derivative use of, or may pursue any investigative leads suggested by, any statements made or other information" provided by the defendant.

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