EFTA00090588¶
Michael,¶
We do understand that your attorney proffer today will be preliminary, and to the best of your client’s current recollection and to the best of your current understanding, and without, e.g., having been provided documents or other materials by the Government.¶
We also confirm that your statements will be considered to be made pursuant to Fed. R. Evid. 410 and Fed. R. Crim. P. 11(f), and therefore under those protections. Regarding Rule 408, we’ll just note what we have for other counsel in this case and others who have made similar statements or submissions, which is that we don’t take any position on the effect or application of Rule 408 in a prospective or hypothetical dispute in civil litigation, because it doesn’t implicate any rights the Government would or would not have, but you can consider us advised that your position is that your statements are also covered under 408. (While our Office itself can’t guarantee the protections of Rule 408 because any dispute on that issue would be beyond our purview, we are also not taking the position that we believe it does not apply.)¶
Prior to our meeting today, I am writing to confirm that statements I make to you today are preliminary and subject to further refinement once Ms. and I have the benefit of additional document review and refreshed recollection if necessary based upon input we may receive from your office. My statements to you are intended in hypothetical form only and in any event, we understand that the provisions of FRE 408 and 410 apply.¶
Please advise if my understanding is correct.¶
Thanks.¶
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