Backing Out of a Proffer Agreement: Is It Possible??

What is a Proffer Agreement?

What is a Proffer Offer?

Can IWithdraw From a Voluntary Federal Proffer Agreement?

Why is a Federal Proffer Agreement Agreement So Important?

Can a Federal Proffer Interview Be Recanted or Withdrawn?

What Do I Need to Know Before I Agree to a Voluntary Federal Proffer?

Do I Really Need a Federal Criminal Defense Lawyer Before Participating in a Voluntary Proffer Interview?

Are There Any Risks With Responding to an Invitation for a Voluntary Proffer Interview?

What happens after a proffer interview?

How Can I Find a Federal Criminal Defense Lawyer Who Can Help Me?

Where can I see a lawyer to be represented?

What are the benefits of having a Federal Criminal Defense Lawyer handle my federal proffer interview?

What are the requirements to get the benefits of a proffer interview?

Does a proffer agreement have any other requirements?

Can we prepare a proffer agreement for you to use?

What other federal law firm do you recommend for criminal defense?

Does withdrawing cancel my signed proffer agreement?

The proffer agreement’s language will determine which provisions survive terminated cooperation. Generally, an agreement’s terms are either fulfilled by disclosing information during a voluntary interview, or the terms are not fulfilled; in either case, a signed proffer agreement usually will not cease to have effect by the fact that you decline to participate in a proffer.

Typically, a proffer agreement will protect you against the direct use of information you provided at a federal proffer interview. This means that federal prosecutors will be precluded from presenting statements that you made during a proffer interview at the prosecution’s case-in-chief. As discussed above, however, this protection against direct use will remain subject to various exceptions written into the proffer agreement.

Should your federal prosecutors or agents use your statements contrary to the language of the agreement in the event that the government committed a breach by using your statements contrary to your proffer agreement, then this government breach may, in some circumstances, support exclusion of your statements during a federal trial. This would be the case if the government committed a substantial breach of the proffer agreement that is related to the statements that the government is attempting to use against you in your federal trial.

U.S. federal courts generally interpret federal proffer agreements according to standard contract principles. Some waivers also cover other statements made by the defendant, and some waivers cover contradictions between statements made in a proffer interview and contradictory evidence introduced by the defense or contradictions between the statements made in a proffer interview and factual arguments presented at a federal criminal trial.

Proffer agreement letters are usually drafted by federal prosecutors at various U.S. attorney offices, and as a result, the letters may vary by office. This means that your proffer agreement should be signed before you make any protected disclosures.

Can prosecutors use statements after I stop cooperating?

Many federal proffer agreements explicitly permit federal investigators to pursue investigative leads that may have been generated by statements a person made during a federal proffer interview. If, during a permitted derivative investigation, a federal investigator discovers evidence of a person’s guilt, the government may be able to use that evidence to prove a person’s guilt in a federal criminal case.

If a defendant’s statements during a federal proffer interview materially contradict the defendant’s testimony at a federal criminal trial, then federal prosecutors can use the statements to impeach the defendant’s testimony.

Proffer interviews may be conducted under oath or without being conducted under oath. However, 18 U.S.C. Section 1001 explicitly includes unsworn statements made during the course of a federal investigation within its scope. As a result, proffer statements that are found to be knowingly and materially false could lead to criminal prosecution. This could be the case regardless of what language is included in a person’s federal proffer agreement, unless that person is fully protected.

Similarly, proffer agreements generally permit federal prosecutors to use statements made during a proffer interview in a prosecution for a crime such as making a false statement during a federal investigation, or for attempting to obstruct justice.

Whether federal prosecutors can use documents independently produced by a defendant during an investigation is another question. While federal proffer agreements can offer protection for statements made during a federal investigation, this protection does not automatically apply to independently produced documents. However, federal prosecutors and agents cannot use documents produced by a defendant to convict that defendant if they have no other legal authority to use those documents.

Whether the government can pursue derivative use of a person’s proffer statements depends on the precise language of the person’s federal proffer agreement. While federal proffer agreements generally prohibit the direct use of a defendant’s proffer statements, they often permit federal investigators to pursue leads generated by a defendant’s proffer statements. These agreements, however, typically prohibit federal prosecutors and agents from using those proffer statements to convince a judge or jury of a defendant’s guilt during the prosecution’s case-in-chief, although this is subject to various exceptions.

The precise wording of a proffer agreement determines if the government can use a defendant’s statements during sentencing. As a result, if a defendant declines or terminates his or her participation in a federal proffer interview, it is important to review the defendant’s proffer agreement with a federal criminal defense lawyer. The defendant’s federal criminal defense lawyer can advise the defendant of the exact language that is in the proffer agreement and provide information about how that language will impact the defendant’s right against self-incrimination.

Is a proffer agreement the same as immunity?

A proffer is not the same as immunity. A proffer agreement will not constitute immunity unless it specifically grant immunity. Immunity protection is generally divided into three types:

• Transactional immunity protection, or that which protects a person from prosecution for an offense covered under transactional immunity, although this immunity is limited to offenses within transactional immunity’s scope.
• Use immunity protection, which prohibits the use of a person’s testimony for purposes of prosecution in criminal proceedings, and which bars federal prosecutors from using a specific person’s testimony to help find evidence that may be used to convict a person in a criminal proceeding. Use immunity doesn’t necessarily bar prosecution, and, if the prosecution has not yet commenced, then prosecutors can still issue a target letter or indictment.
• Use-and-derivative-use immunity protection, which both prohibits federal prosecutors from using a person’s testimony to convict a person in a criminal case and restricts federal agents and prosecutors from using a person’s compelled testimony to help find evidence that may be used to convince a jury of a person’s guilt. The protection offered in a direct-use provision of a proffer agreement is typically not as broad as the protection offered in a Kastigar use-and-derivative-use immunity agreement, which was decided by the Supreme Court of the United States in 1972. As explained above, Kastigar immunity prevents prosecutors from using compelling testimony to initiate a prosecution. Even if prosecutors move to put a case forward, prosecutors will need to prove that the case is the result of independent sourcing.

Additionally, if prosecutors seek a court order compelling testimony, then 18 U.S.C. §6002 provides that compelled testimony will be used and derivative use immunity. A court will order a witness to testify in return for immunity when a prosecutor invokes the public interest.

If any of this describes your situation, it is worth talking it through with counsel. Spodek Law Group can be reached at 212-300-5196.

What happens after I end the proffer process?

If you end the proffer process because it was successful, your federal defense lawyer and federal prosecutors will move on to the next step. This will involve working with federal prosecutors and agents to finalize a plea or a cooperation agreement, and it will involve participating in more interviews if you intend to continue cooperating with the federal government. If you end the proffer process because you have given federal prosecutors what they want and they have rejected your request for an agreement, a reduction in charges, or a sentencing benefit, then you do not have to worry about the process continuing.

The two main types of sentencing benefits based on cooperation with the federal government are provided under U.S.S.G. §5K1.1 and 18 U.S.C. Section 3553(e). Under U.S.S.G. §5K1.1, if a defendant wants a substantial-assistance departure, then he will generally need the government to file a motion requesting a sentence below the guideline range the court finds applicable. Under 18 U.S.C. Section 3553(e), if a defendant wants a sentence below the statutory minimum based on his cooperation with the government, federal prosecutors must file a motion asking the court to impose a sentence below the statutory minimum.

Even if you have helped with the federal government’s investigation, there is no guarantee that you will qualify for either a §5K1.1 or §3553(e) motion. Prosecutors have a wide range of factors they have to consider in order to assess the appropriateness of filing a sentencing motion. These factors can include, but are not limited to:

• Whether your statements are consistent with your prior statements.
• Whether your statements are consistent with the statements made to federal agents.
• Whether the information you provided is useful.
• Whether the information you provided is complete.
• Whether your statements appear to be truthful.
• Whether you possess any information that contradicts your statements.
• Whether the government has information that may contradict your statements.
• Whether the government has information that undermines your truthfulness.

Does signing a proffer mean I agreed to snitch?

A federal proffer interview can cover a person’s conduct, others’ conduct, or both. Some people think snitching refers to the act of giving information about other people’s criminal conduct, and as a result, people generally view providing information about other people’s conduct as snitching. However, simply signing a federal proffer agreement will not alone establish that a person has implicated anyone. As outlined above, signing a federal proffer agreement, even one that is designed to incentivize a person’s cooperation with the federal government, will not necessarily imply a continuing obligation to continue cooperatively with the federal government, and the agreement will not automatically establish that the defendant intends to testify.

If you have not entered a guilty plea, then you may still enter a not guilty plea. You can do so regardless of whether you have accepted a proffer agreement and regardless of whether you have provided truthful information that the government may use to prove your guilt. Even if the government agrees to file a U.S.S.G. §5K1.1 motion, the motion alone does not authorize a sentence below the mandatory minimum.

Furthermore, federal proffer agreements are not legally restricted to white-collar prosecutions. Additionally, for a judge to enter a sentence under 18 U.S.C. Section 3553(e), he or she must find that the sentence is warranted based on the defendant’s substantial assistance to the federal government. This means the judge must find that the defendant provided substantial assistance to the federal government, not just that the defendant provided helpful information to federal prosecutors. There is no guarantee that the judge will find that a person’s information was useful enough to warrant a sentence under this section of the law.

Can my defense lawyer withdraw from my case?

According to the American Bar Association’s (ABA) Model Rules of Professional Conduct, your defense lawyer must withdraw from your case if you discharge him or her. ABA Model Rule 1.16(a)(3) states that a lawyer must withdraw when discharged by the client.

However, ABA Model Rule 1.16(c) requires a withdrawing lawyer to comply with the rules of the tribunal before representation is terminated. A tribunal has the authority to order a lawyer to continue representing a client even if grounds for withdrawal exist. This gives judges discretion to determine whether a lawyer’s request to withdraw is appropriate or whether the lawyer should continue representation.

Following a lawyer’s withdrawal from representation, ABA Model Rule 1.16(d) mandates that the lawyer take steps to protect the client’s interests. This involves providing reasonable notice to the client, allowing the client time to find new representation, and surrendering all papers and property to which the client is entitled.

Regarding your proffer agreement, a lawyer’s withdrawal from representation will not automatically cancel the agreement. As explained, your lawyer’s role is to advise you on the implications of the agreement; however, the agreement itself is between you and the federal government.

ABA Model Rule 1.16(a) requires lawyers to withdraw in various situations as well. For example, if a lawyer is no longer able to provide effective representation due to a personal or financial commitment, then the lawyer must withdraw. Similarly, ABA Model Rule 1.16(a) prohibits lawyers from continuing to represent clients if the representation would lead to a violation of ethical rules, such as ABA Model Rule 1.7(a)(2), which prohibits the representation of clients with concurrent conflicts of interest.

Regarding the Sixth Amendment and your proffer interview, your right to counsel generally attaches after adversarial proceedings, such as an indictment, have begun. Since a voluntary federal proffer is pre-adversarial, this means that your right to counsel is not established unless you are facing indictment or are at risk for indictment.

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.