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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF PENNSYLVANIA 
UNITED STATES OF AMERICA:v.:
 No. 06-CR-319
-03:(Ronald L. Buckwalter, J.)VINCENT J. FUMO, :
FILED ELECTRONICALLY
Defendant.:RESPONSE OF DEFENDANT FUMO IN OPPOSITIONTO MOTION TO ADMIT STATEMENTS OF FORMER COUNSEL FOR DEFENDANTThe United States has filed a motion seeking leave of courtto offer as evidence "certain statements of attorney Richard A.Sprague made during the time that Sprague represented" defendantFumo. Doc. 452 (Jan. 9, 2009). This motion raises profoundquestions of public policy, while simultaneously threatening tocomplicate and prolong the ongoing trial for little or noconceivable benefit to the government’s case. For any number ofdifferent reasons, the government’s motion should be denied.The starting point must be the vague nature of the offer ofproof made in the motion. What evidence exactly does thegovernment propose to offer? The first paragraph of the motionsays that Sprague "repeatedly stated to the government on Fumo’sbehalf" a certain position with respect to the Citizens Alliancecharges, while the first two paragraphs of the "background"section assert that there are two such statements, one on anunspecified date "shortly []after" January 25, 2004, made tounspecified persons at an unspecified location, and the other onAugust 8, 2006, to "the assigned prosecutors and agents." Is-1-
 
twice what is meant by "repeatedly," or are the particularmeetings identified in the motion intended as mere examples?From the second meeting, three words are quoted. Mtn., at2. Because the government proffers nothing documentary with itsmotion, the defense assumes that there is nothing in writing tosupport even this snippet of quotation. From this we can onlyguess that the government proposes to call the case agent as awitness and ask her to recount (perhaps with the aid of undis-closed notes) her recollection (two-and-a-half to five yearslater) of just what Mr. Sprague said, and presumably what he didnot say. Or perhaps Mr. Sprague himself is the proposedwitness.1Without a detailed offer of proof, no definitiveresponse can be made to the present motion. If and when thegovernment makes a specific offer of proof, the defense may haveto respond further.A defendant’s attorney is duty-bound to advocate to theattorneys for the government the position most favorable to hisclient, in hopes of persuading them to take appropriate actionwithin their discretion, both pre- and post-indictment. Suchmeetings are generally held under express or implied "proffer"ground rules which protect the statements made from being usedagainst the defendant, at least directly. In this district,such "attorney proffers" are common. While that category ofmeeting may more often take place after indictment, it alsoincludes pre-indictment meetings of the kind involved here. It _____________________1If so, then complex issues of attorney-client privilege wouldsurely arise.-2-
 
is widely understood that statements made at an attorney profferare off the record and will not be used later against one’sclient.2An experienced defense attorney in that situationnecessarily chooses his or her words carefully, in accordancewith the governing rules and expectations.3Statements made atsuch meetings cannot later be admitted in violation of thoserules. United States v. Margiotta, 662 F.2d 131, 142-43 (2dCir. 1981). Before the statements proffered by the governmenthere could be used at trial, the surrounding expectations wouldhave to be discovered and applied.Not only would the proposed evidence violate the unwrittenrules governing attorney proffers, but it would also be inadmis-sible under Fed.R.Evid. 410. An attorney presentation seeking adeclination of indictment, such as is described in the govern-ment’s present motion, can in any case serve as the opening of _____________________2If necessary, the defense will call experienced practitioners,including former Assistant U.S. Attorneys, to establish thesegeneral practices and expectations.3Counsel may even have to parse his/her words at such asession, in order to protect confidences or for strategicreasons. For example, an assertion that someone received "nobenefit" from associating with an organization may in contextmean something very different from a representation that theperson received "no benefits." A claim of having not received"any money" or "not one penny," to take a couple of otherhypothetical examples, might not be inconsistent with havingreceived compensation in kind. Neither statement means, forexample, the same as "did not receive anything." Cf. Gov’tMtn., at 2. Lying, of course, is off limits, Pa.R.Prof.Cond.4.1, but selective disclosure is generally not. In thiscontext, any claim by the government that two statements ofcounsel, made at different times and in different contexts, areso contradictory to one another as to constitute circumstantialevidence of consciousness of guilt on the client’s part wouldhave to be very closely examined and runs a high risk ofmisleading and unfairly prejudicing the jury.-3-
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