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    The United States Court of Appeals for the Third Circuit affirmed Robert Dales' conviction for his role in an armed bank robbery. The court found that the district court properly admitted Dales' proffer statements made to the FBI, as the terms of Dales' proffer agreement allowed their use if he testified inconsistently. The defense counsel's statements at trial contradicted Dales' proffer admission of participating in the robbery. The court also rejected Dales' other claims, finding the government did not improperly vouch for witnesses and the district court did not commit plain error.

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    The United States Court of Appeals for the Third Circuit affirmed Robert Dales' conviction for his role in an armed bank robbery. The court found that the district court properly admitted Dales' proffer statements made to the FBI, as the terms of Dales' proffer agreement allowed their use if he testified inconsistently. The defense counsel's statements at trial contradicted Dales' proffer admission of participating in the robbery. The court also rejected Dales' other claims, finding the government did not improperly vouch for witnesses and the district court did not commit plain error.

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    Filed: 2011-04-28 Precedential Status: Non-Precedential Docket: 10-1435

    Original Title

    United States v. Robert Dales, 3rd Cir. (2011)

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    The United States Court of Appeals for the Third Circuit affirmed Robert Dales' conviction for his role in an armed bank robbery. The court found that the district court properly admitted Dales' proffer statements made to the FBI, as the terms of Dales' proffer agreement allowed their use if he testified inconsistently. The defense counsel's statements at trial contradicted Dales' proffer admission of participating in the robbery. The court also rejected Dales' other claims, finding the government did not improperly vouch for witnesses and the district court did not commit plain error.

    Copyright:

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    27 views5 pages

    Not Precedential

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    Scribd Government Docs
    The United States Court of Appeals for the Third Circuit affirmed Robert Dales' conviction for his role in an armed bank robbery. The court found that the district court properly admitted Dales' proffer statements made to the FBI, as the terms of Dales' proffer agreement allowed their use if he testified inconsistently. The defense counsel's statements at trial contradicted Dales' proffer admission of participating in the robbery. The court also rejected Dales' other claims, finding the government did not improperly vouch for witnesses and the district court did not commit plain error.

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    of 5

    NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS


    FOR THE THIRD CIRCUIT
    _______________
    10-1435
    _______________
    UNITED STATES OF AMERICA,
    v.
    ROBERT DALES,
    Appellant
    _______________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Criminal No. 2-08-cr-00289-003)
    District Judge: Hon. Paul S. Diamond
    _______________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    April 12, 2011
    BEFORE: FISHER, JORDAN and COWEN , Circuit Judges
    (Filed: April 28, 2011)
    _______________
    OPINION
    _______________
    COWEN, Circuit Judge.
    Robert Dales appeals from the criminal judgment entered by the United States
    District Court for the Eastern District of Pennsylvania. We will affirm.
    I.

    Dales, along with three other individuals, was indicted in connection with the
    January 22, 2008 armed bank robbery of a Bank of America branch in Glenside,
    Pennsylvania. Dales entered into a standard proffer agreement on August 11, 2008, and
    he then made statements to the government on the same day as well as on September 5,
    2008. However, the case against Dales ultimately went to trial.
    Following the defense counsels opening statement and his cross-examination of
    several government witnesses, the government filed a written motion to admit the second
    proffer statement, in which Dales, among other things, confessed to robbing the bank
    (and, in particular, that he personally held two bank employees at gunpoint near the
    entrance). After hearing argument from the prosecutor as well as the defense counsel, the
    District Court granted the motion and, following the conclusion of the trial, provided a
    written opinion justifying its determination. The statement came into evidence through
    the testimony of FBI Special Agent Daniel ODonnell. Agent ODonnell further
    indicated that Dales previously lied in his first proffer statement about his whereabouts
    during the bank robbery, claiming that he was smoking marijuana at home at the time in
    question.
    The jury found Dales guilty of one count of conspiracy to commit armed bank
    robbery under 18 U.S.C. 371, one count of armed bank robbery under 18 U.S.C.
    2113(d), and one count of carrying a firearm during and in relation to a crime of violence
    in violation of 18 U.S.C. 924(c). He was then sentenced to a total term of
    imprisonment of 147 months.

    II.
    Dales challenges the admission of his proffer statements in the governments casein-chief on numerous grounds.1 He contends, inter alia, that: (1) the admission of such
    statements violated the Due Process and Confrontation Clauses of the Fifth and Sixth
    Amendments as well as his Fifth Amendment right against self-incrimination and his
    Sixth Amendment right to counsel; (2) the defense counsels conduct at trial was
    insufficient to trigger the governments right to introduce these otherwise off-therecord statements under the terms of the proffer agreement; (3) the government, by
    introducing irrelevant or exculpatory evidence through its own DNA witness, was then
    barred from attempting to use the proffered statements in its case-in-chief; and (4) in any
    case, the District Court committed reversible error under Federal Rule of Evidence
    404(b) by allowing Agent ODonnell to testify about his use of marijuana and by failing,
    at the very least, to provide a curative instruction informing the jury that such testimony
    could not be used for propensity purposes. We, however, must reject these various
    assertions given the circumstances of this case and prior case law.
    The standard proffer agreement signed by Dales and his prior counsel did state
    that the proffer statements would not be used directly against him in any criminal case,
    but it also contained, among other things, the following express exception:
    Third, if your client is a witness or party at any trial or other legal
    proceedings and testifies or makes representations through counsel
    1

    The District Court possessed subject matter jurisdiction pursuant to 18 U.S.C. 3231.
    We have appellate jurisdiction under 28 U.S.C. 1291.
    3

    materially different from statements made or information provided during


    the off-the-record proffer, the government may cross-examine your
    client, introduce rebuttal evidence and make representations based on
    statements made or information provided during the off-the-record
    proffer. This provision helps to assure that your client does not abuse the
    opportunity for an off-the-record proffer, make materially false
    statements to a government agency, commit perjury or offer false evidence
    at trial or other legal proceedings.
    (SA24)
    These proffer agreement provisions, although often phrased in slightly different
    ways, are quite common, and this Court, among others, has rejected challenges to their
    enforceability and application. See, e.g., United States v. Hardwick, 544 F.3d 565, 56872 (3d Cir. 2008). The defense counsels conduct at trial, in turn, triggered the
    representations through counsel language. In his opening statement as well as his
    cross-examination of the governments witnesses, he made implicit representations that
    his client did not actually participate in the bank robbery, thereby contradicting his
    clients own admission that he, among other things, held two bank employees at bay
    while his compatriots took money from the teller counter. For instance, the defense
    attorney indicated during cross-examination that four of the five victims had given
    descriptions that were inconsistent with his clients own appearance. It has also evidently
    been the governments position that the statement about smoking marijuana at the time of
    the bank robbery was a total fabrication, and the statement itself was thereby offered at
    trial merely in order to explain the circumstances surrounding the eventual confession by
    Dales. We further note that both Dales and his trial counsel were on notice of the terms
    of the proffer agreement, the government filed a written motion for leave to admit the
    4

    proffer statement into evidence, and the District Court then heard argument on this matter
    from both sides before rendering its ruling in favor of the government.
    We likewise determine that the remaining arguments advanced by Dales on appeal
    are without merit. Dales argues that the District Court was required to sequester Agent
    ODonnell, but he also acknowledges that such a theory is contrary to the relevant case
    law as well as the Senate Committee Report for Federal Rule of Evidence 615. We
    further note that the prosecutor did not improperly vouch for the credibility of a
    cooperating defendant (William Matthews) because, among other things, the prosecutor
    never based any assurances on either [her] claimed personal knowledge or other
    information not contained in the record. United States v. Lore, 430 F.3d 190, 211 (3d
    Cir. 2005) (citation omitted). Finally, Dales fails to establish that the District Court
    committed plain error with respect to the prosecutors closing argument, especially in
    light of the governments reasonable explanation that the surveillance tape evidence
    indicated that the person identified as Dales was taller and heavier than the other robbers.
    IV.
    For the foregoing reasons, we will affirm the District Courts criminal judgment.2

    We further grant the governments motion for leave to file a supplemental appendix
    under seal.
    5

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