Madoff Investigation Proffers Allegedly Reveal Bogus Trading Tickets

Today’s Wall Street Journal reports, in a story here by Amir Afrati, that two assistants to longtime Madoff aide Annette Bongiorno were instructed by Bongiorno to generate trading tickets based on their researching of daily share prices for blue chip stocks “from the previous month or several months.” According to the Journal, the trading tickets are “now believed to be bogus.” The information was allegedly revealed by the assistants, Semone Anderson and Winnie Jackson, in proffer sessions with federal prosecutors. Madoff is expected to plead guilty to various offenses in federal court on Thursday.

The Journal article reports that the two former Madoff assistants were interviewed through the vehicle of proffer agreements, which the Journal describes as agreements ”in which prosecutors agree not to use [the assistants'] statements against them as long as they tell the truth, according to people familiar with the matter.”

In fact, the standard SDNY proffer agreement is much broader, and more dangerous, than this description suggests. For example, if the SDNY decides to prosecute one of the former Madoff aides, her proffer statement can be used against her if any portion of her defense, including an attorney’s opening statement or cross-examination question, is inconsistent with her proffer statement. So, assuming that the standard SDNY proffer agreement was used, and assuming further that the Madoff assistants admitted to intentional wrongdoing during the proffer interviews, their right to put on a meaningful defense may be damaged in the event that the SDNY wants to prosecute them, but they do not want to accept a plea offer.