US v. Jonathan Guerra Blanco: What Happens When the Government Uses Statements Made at a Proffer Against You at Sentencing?

This is an interesting case and involves an issue that frankly should be litigated more often—the Government’s use of immunized statements against criminal defendants at sentencing.  I hear plenty of complaints about this—a defendant signs a proffer agreement and agrees to tell the Government everything he or she knows and then, lo and behold, that information creeps its way into the sentencing proceeding and the defendant feel ambushed.  Well. There’s a remedy for when this happens and it ought to be used more.  It’s a Kastigar hearing and this opinion is a great example of litigating the issue (even though the defendant was not ultimately successful with the challenge).  Here is what happened:

The defendant, Guerra was aware of ISIS’s status as a foreign terrorist organization. Between October 2019 and September 2020, he ran two unofficial ISIS media networks, one of which was called “Muntasir Media.” Guerra produced and disseminated ISIS propaganda, recruiting materials, and instructional guides for committing acts of terror. ISIS relies on these decentralized networks due to recent losses. Guerra produced a video threatening terrorist attacks on the Spanish National Police and the Spanish subway system.  There was also additional evidence against Guerra– A video threatening attacks in Madrid, Spain, which included footage of a public square and calls for violence. A second video threatened attacks in Spain and called for supporters to take up arms for ISIS. A manual providing instructions on how to build a home-made bomb was found, along with a manual providing instructions on how to conduct a vehicle attack against a pedestrian crowd. Guerra recruited other ISIS sympathizers to help him operate these media networks. Some of the recruits, as it turned out, were undercover FBI operatives. Guerra was arrested after revealing his identity to an undercover FBI operative with whom he had a romantic interest.

During its prosecution of the case, the government executed a proffer letter agreement with Guerra around the time of his plea. The proffer letter agreement required Guerra to provide a truthful account and a password to access seized electronic devices. The government agreed not to use Guerra’s statements against him but reserved the right to use information from the debriefing to obtain leads to other evidence. Guerra waived his right to claim that this evidence should not be introduced because it was obtained from the debriefing. The agreement did not extend to statements concerning violence. 

Guerra argued to the district court at sentencing that the government was improperly using evidence obtained from his immunized proffer, including the video threatening the assassination of a Spanish judge and three documents titled “Open Source Jihad.” The sentencing hearing began with argument on Guerra’s motion for a Kastigar hearing. Guerra claims that the proffer letter agreement prevents the government from using any evidence obtained against him, except for evidence of violent acts he personally participated in. He did not object to the government’s presentation of two instruction manuals he translated and published in Spanish, as the government knew about them prior to his arrest.

In response, the government argued that the proffer letter agreement’s exclusion for “violent acts, or violence in any form” applied to the evidence it sought to introduce. Guerra argued that the government did not know about his insertion of English subtitles on the video threatening the assassination of a Spanish judge until they searched his computer. The district court ultimately denied Guerra’s motion for a Kastigar hearing, finding that the evidence falls within the proffer letter agreement’s exclusion for evidence concerning violent acts.

The lesson here is probably well known to very experienced federal criminal defense lawyers, but it is not something I have seen litigated often.  I think it should be and this strikes me as a powerful tool in the arsenal of criminal defense lawyers to push back against the immunized statements “creep” that often happens in these cases with cooperating witnesses.