"Queen for a Day" Explained: How Federal Proffer Sessions Work.

1. A Proffer Agreement is a Contract, Not a Court Order

A proffer agreement is a contract entered into between the target (or their counsel) and the prosecuting office (usually the U.S. Attorney’s Office). As such, it does not have the same weight as a court order or federal rule, and any relief under the agreement must be sought through a civil lawsuit or through negotiations between the parties.

2. Proffer Letters’ Role with Federal Rule of Evidence 410

Under Federal Rule of Evidence 410, “a statement made in the course of plea discussions with, against, or on behalf of a party or its representative” may not be admitted against the target or the representative. Crucially, this rule does not include statements made to agents (i.e., the FBI or IRS) unless they are “with a prosecuting attorney.”

3. The Legal Function of a Proffer Letter Is To Induce a Waiver of Rule 410

This is where proffer letters often “trap” the unwary. Proffer letters essentially act as “plea discussion” offers that induce targets (or their attorneys) to provide information while ostensibly “keeping it protected.” However, the federal rule protections to which these letters refer are, generally speaking, protections the targets already have. Therefore, the chief legal function of a proffer letter is to induce a target to waive the protections afforded by FRE 410.

4. Limitations of Proffer Agreement Protections

The U.S. Attorney’s Office’s use of the target’s or counsel’s statements is limited in scope by a proffer agreement. A standard “Queen for a Day” agreement limits the government’s ability to use statements directly in the case-in-chief against the defendant. The limitation does not apply to:

• Impeachment during a trial;
• Further investigation;
• Alleged proffer agreement breaches.

5. Federal Rule of Criminal Procedure 11(f)

Federal Rule of Criminal Procedure 11(f) is the other key rule governing the admissibility of statements made during plea negotiations. Rule 11(f) states that the admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410. Then, Rule 410 of the Federal Rules of Evidence, as quoted above, limits that scope to statements made to prosecuting attorneys.

6. No Miranda Warnings Necessary

Because proffer sessions are non-custodial and voluntary, Miranda warnings are not necessary, provided the individual has not been arrested. If the individual is offering information from a position of safety, the proffer session itself is a consensual interaction between the target and the prosecutor.

7. Fifth Amendment Implications

Finally, proferring doesn’t waive the privilege against self-incrimination under the Fifth Amendment for any other subsequent or present federal investigations or trials. The waiver provided by the proffer agreement is specific to that one interaction.

Can Federal Prosecutors Use What I Say in a Proffer?

The Supreme Court held in United States v. Mezzanatto, 513 U.S. 196 (1995), that the protections of Rule 410 are waivable. In this case, the Supreme Court approved the use of what it called a “limited-waiver agreement,” in which the government could use the defendant’s statements to impeach the defendant’s testimony at trial if a jury was necessary to avoid “unfairness to the government.”

While Mezzanatto only approved impeachment waivers, circuit courts have since extended this to allow for waivers of both rebuttal use (the government’s response to a defendant’s testimony) and case-in-chief use. Under United States v. Krilich, 159 F.3d 1020 (7th Cir. 1998), Under United States v. Krilich, 159 F.3d 1020 (7th Cir. 1998), the government can now use proffer agreement statements during the prosecution’s case in chief if the defendant testifies and if “jury confusion” is an issue., the government can now use proffer agreement statements during the prosecution’s case in chief if the defendant testifies and if “jury confusion” is an issue.

What Is the Difference Between the Use of a Proffer Session to Impeach and to Rebut?

The difference between impeachment and rebuttal is substantial. Rebuttal use is a way of asserting that if the defendant testifies and “puts the government to a rebuttal,” the government will be allowed to introduce statements the defendant made during their proffer session.

In United States v. Barrow, 400 F.3d 109 (2nd Cir. 2005), prosecutors cross-examined a defendant about his statements during a proffer session and used those statements to rebut his false testimony. This has led to concerns that a defendant’s counsel’s arguments alone (or any “opening of the door” through testimony) can trigger a “rebuttal” that allows federal prosecutors to use statements from a defendant’s proffer session.

What Are the Other Dangers of Proffers?

Another danger is a proffer’s lack of immunity. Proffers do not protect the client from the most obvious dangers. As prosecutors, we will follow every lead that a proffer supplies, using everything we find in order to attempt to prove a crime and obtain a conviction. So, if the evidence from a proffer session leads to incriminating evidence, the prosecution can then use that evidence to charge the defendant.

The type of immunity that provides the federal government with “true derivative-use immunity” is known as Kastigar immunity. Under Kastigar, a prosecution must prove, by a preponderance of the evidence, that its evidence is entirely independent of the statements (and any leads derived therefrom). This is a stringent standard. True derivative-use immunity is not granted under proffer letters; it is granted when an individual is compelled to provide testimony. Because proffer sessions are consensual, and not compelled, the Supreme Court did not require a Kastigar hearing.

This further explains the difference because, as discussed in United States v. Barrow, 400 F.3d 109 (2nd Cir. 2005), a client’s counsel’s arguments alone can trigger the rebuttal clause. In this case, the government was allowed to introduce testimony and documents that came into the case as a result of a voluntary proffer session.

Who is Bound by My Federal Proffer Letter?

• A federal proffer letter is binding only on the signing district’s U.S. Attorney’s Office.
• As a result, a federal proffer letter does not bind:

- State prosecutors;

- State or federal civil law enforcement (e.g., the SEC or IRS Civil Enforcement Division);

- Other federal agencies (e.g., the Department of Defense or the Department of Labor).

• Even if the U.S. Attorney’s Office that signed your proffer letter declines to prosecute you for the crimes you discussed with them, state prosecutors may still be able to prosecute you.
• You can still be liable in civil litigation under state or federal law.
• You can still face civil administrative enforcement from the SEC, IRS, or other federal agencies.
• Even if the U.S. Attorney’s Office that signed your proffer letter does not charge you for the crimes you admitted to, U.S. Attorneys in other districts can pursue criminal charges based on the information revealed in your proffer session.
• Noncitizens can be removed from the United States based on their admissions during a proffer session. These removal proceedings can proceed even without a conviction in federal criminal court.
• Admissions during proffer sessions can also be used by state and federal professional licensing boards. Boards can discipline individuals based on information revealed in proffer sessions, even without a criminal conviction.
• While a proffer agreement limits the “use” of your words, a grant of immunity goes even further.
• In Kastigar v. United States, 406 U.S. 441 (1972), the Supreme Court said the granting of statutory immunity doesn’t exclude information revealed during the government’s inquiry. Instead, it prevents the government from using information revealed during a proffer session to convict that person. The result is that if the government wants to prove the person is guilty, the government must prove that any evidence is entirely independent from the testimony given under a grant of immunity.
• Statutory immunity (under 18 U.S.C. §§6002-6003) requires an order by a district judge.
• The Justice Department headquarters must approve any application for statutory immunity before a U.S. Attorney can petition a district judge to grant it.

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

How Is a Federal Proffer Session Recorded and Enforced?

1. FD-302 Proffer Memoranda

During a proffer session, FBI Special Agents will typically be the ones to take notes for the government. Agents memorialize what they hear in an FD-302 memorandum, which is the government’s summary of the session. Agents do not take verbatim transcripts.

Notably:

• No court reporters attend;
• No oaths are administered;
• No federal judges supervise the session.

2. Proffer 302s Can Become Giglio Impeachment Material

If a cooperating witness gets ready to testify against a co-defendant, the defendant’s counsel gets access to their file. As a result, a cooperating defendant’s proffer 302s become Giglio impeachment material for use at trial, during deposition or a pre-trial hearing. A defendant’s attorneys can then look for discrepancies between their client’s proffer memorandum and their client’s trial testimony. As a result, while it is a good practice to avoid volunteering information that is not subject to a proffer, it is extremely important not to lie about an accusation. Any inconsistencies during a proffer session will come back to haunt you if you decide to cooperate with the government.

3. Lying During a Proffer Session Is a Federal Felony

Proffer sessions are unsworn; and, as a result, perjury under 18 U.S.C. §§ 1621 and 1623 is not applicable. However, while perjury is not applicable, lying during a proffer is still a federal felony, and it’s prosecuted under 18 U.S.C. § 1001 (General False Statement). As a results, federal prosecutors can charge you with lying in your proffer session.

4. The Defense Against a Charge for Lying During a Proffer Session

If you are accused of lying during a proffer session, you need to understand how the prosecution will prove that you lied. Under 18 U.S.C. § 1001, the government has to prove:

• You lied;
• Your lie was “knowingly and willfully;”
• Your lie was material to the government’s prosecution.

Crucially, the government must prove that your lie was knowing. This allows for memory lapses to remain a valid defense.

5. Enforcement of Proffer Agreements as Contracts

As the U.S. Supreme Court clarified in United States v. Mezzanatto, 513 U.S. 196 (1995), a proffer agreement is the same as a contract between the defendant and the government. As a result, if a conflict arises between what the defendant said during a proffer session and what the proffer agreement allowed, the court will resolve that conflict by applying principles of contract law. This includes the fact that any ambiguity in the document will be interpreted against the drafter. When it comes to proffer agreements, the government is the drafter.

6. Proving a Breach of a Proffer Agreement

If a federal prosecutor decides to use information that was proffered during your proffer session in court, that means they think they can prove you breached your proffer agreement. They can’t, however, just do it by saying you breached the agreement. They have to prove a breach before using any statements. In most cases, prosecutors prove a breach by a preponderance of evidence. While this is not as much as the “beyond a reasonable doubt” standard in a criminal case, it can still be a high bar.

As a result, while the government can’t use statements made during the proffer if the defendant did not breach the agreement, it’s extremely important to be truthful. If you lie about an accusation, the government might try to prove you breached your proffer agreement so that they can use your statements at trial.

Can Proffer Admissions Increase My Federal Sentencing Range?

• Yes, unless otherwise stipulated in the proffer agreement. Under USSG §1B1.8, “such information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement” in a defendant’s sentencing range. However, “this only applies if the government’s agreement to accept the offer expressly indicates that any statement accepted will be excluded.”
• The danger is that if the U.S. Attorney’s Office does not include this provision in a defendant’s proffer letter, then admissions made during the proffer session are considered relevant conduct under USSG §1B1.3 and are used to increase the defendant’s sentencing range.
• As a result, most standard-form proffer letters do not provide sentencing protections. Before the session even starts, this protection must be negotiated into the letter.
• Under USSG §1B1.8(b), this protection does not apply to any information that the government either:

- Already knew; or,

- Uses to calculate a defendant’s criminal history.

• But under the First Step Act of 2018, the USSG’s “safety valve” can be applied to individuals with up to four criminal history points. With the safety valve, individuals sentenced for non-violent federal crimes are sentenced according to the Sentencing Guidelines, rather than being sentenced to a higher mandatory minimum.
• Another way defendants can reduce their federal sentencing ranges is by accepting responsibility. Acceptance of responsibility (which involves admitting guilt in a proffer session and expressing remorse) earns an automatic two-level reduction under USSG §3E1.1. Defendants sentenced at Level 16 or higher can also receive an additional level reduction if prosecutors request it.

Does Cooperation Guarantee a Lower Sentence or Avoiding a Mandatory Minimum?

• The answer is no. The federal sentencing guidelines in section 5K1.1 authorize a federal judge to sentence a defendant below the guideline range on the government’s motion. As a result, a defendant’s attorneys cannot just ask for a below-guideline sentence, the request must come from the U.S. Attorney’s Office. If a defendant cooperates and helps get a conviction in another case, then the prosecutors will usually make a request for a below-guideline sentence for the defendant.
• In Melendez v. United States, 518 U.S. 120 (1996), the Supreme Court found that a §5K1.1 motion alone can’t pierce a mandatory minimum. So, if a defendant faces a mandatory minimum, then the prosecutors must file a second motion under 18 U.S.C. §3553(e) to lower the sentencing floor.
• Defendants can also receive sentence reductions under Federal Rule of Criminal Procedure 35(b) if they help law enforcement after their sentencing.
• All three of these provisions, however, only authorize the court to grant a reduction. As a result, defendants who cooperating won’t be guaranteed a below-guideline sentence, sentence reduction, or statutory minimum.
• Not everyone who cooperates gets a reduction in their sentencing range. According to USSG §5K1.1, fewer than one in ten federal defendants who cooperate with the government receives a substantial-assistance sentencing reduction.
• As a result, in drug crimes, it can be much better to use the “safety valve.” Under 18 U.S.C. §3553(f) (The “Safety Valve”), defendants convicted of drug crimes can avoid their mandatory minimum sentencing floor without testifying or informing on anyone. This allows the defendant to get a guidelines sentence instead of a harsher mandatory minimum.
• The USSG’s “acceptance of responsibility” guidelines also provide benefits. But, like the safety valve, these rules are very narrow. Specifically, USSG §5C1.2(a)(5) requires that a cooperating witness have made full and truthful disclosures and provided them in a timely manner prior to sentencing.

How Does the Government Justify the Amount of a §5K1.1 Reduction?

The amount of a §5K1.1 reduction is entirely up to the government. Federal judges have no role in determining the amount. Once a judge approves the government’s request, the judge can sentence the defendant anywhere from probation, or time served, to the mandatory minimum. According to USSG §5K1.1(a), prosecutors make their requests for substantial-assistance reductions by assessing the defendant’s cooperation based on several factors. These factors include, but are not limited to:

• The value of the information provided;
• The assistance provided;
• How timely the assistance was provided;
• The risks to the defendant’s family;
• The defendant’s effort to assist law enforcement.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.