                                                       NOT PRECEDENTIAL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 counsel’s 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 O’Donnell. Agent O’Donnell 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.


                                             2
                                              II.

       Dales challenges the admission of his proffer statements in the government’s case-

in-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 counsel’s conduct at trial was

insufficient to trigger the government’s right to introduce these otherwise “off-the-

record” 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 O’Donnell 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, 568-

72 (3d Cir. 2008). The defense counsel’s conduct at trial, in turn, triggered the

“representations through counsel” language. In his opening statement as well as his

cross-examination of the government’s witnesses, he made implicit representations that

his client did not actually participate in the bank robbery, thereby contradicting his

client’s 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 client’s own appearance. It has also evidently

been the government’s 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

O’Donnell, 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 prosecutor’s closing argument, especially in

light of the government’s 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 Court’s criminal judgment.2




2
 We further grant the government’s motion for leave to file a supplemental appendix
under seal.
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