Can the Government Break a Proffer Agreement??

Government conduct that is expressly permitted by the letter of a proffer agreement is not a breach. Conversely, as federal judges have noted, “conduct that exceeds the bounds of the agreement” can be a breach. In the context of proffer agreements, this can include:

• Using proffer statements during a plea negotiation
• Using proffer statements during a grand jury proceeding
• Using proffer statements during a sentencing proceeding
• Using proffer statements for any other purpose

All of these uses, if not expressly authorized by the agreement, can constitute a breach. When examining whether a proffer agreement has been breached, courts will determine from the letter, not the intent, of the agreement what it permits. As a result, the specific language used in a proffer agreement is paramount, and any negotiated, mutually understood (though unwritten), terms generally will not be admissible. If federal prosecutors use proffer statements contrary to the express protections of the agreement, the remedy for defendants is often limited to suppression of the use of those statements. However, the government generally cannot introduce such statements at trial, or even use them for any other purpose in the case.

We have represented numerous clients where the government attempted to use proffer statements in sentencing proceedings. This includes presenting the statements as evidence, using the statements to attempt to increase the defendant’s sentence, or otherwise leveraging the statements. In some cases, these attempts to use proffer statements constituted a breach of the agreement. In others, broad language authorizing the government’s use of any proferred statements at sentencing proceedings meant that the government’s conduct did not constitute a breach.

Does a Proffer Agreement Stop Prosecutors From Using What I Tell Them?

A federal proffer agreement (or “proffer letter”) is the agreement that governs the information-sharing meeting between federal prosecutors and a person who is currently under investigation (i.e., the “proffer target”). A common colloquial term for this arrangement is “Queen for a Day.” Under a typical federal proffer agreement, proffer protections limit the government’s use of the information disclosed during the meeting to: (i) avoiding direct use in the government’s case-in-chief, and (ii) avoiding indirect use by providing that the information can be used for investigation purposes.

The government’s ability to use information revealed during proffer meetings for investigative purposes includes:

• Obtaining Grand Jury subpoenas for the review of records or documents;
• Identifying and interviewing potential witnesses;
• Conducting additional questioning or investigations targeting other persons involved in the investigation; and
• Any other investigative activities as may be necessary to build a case.

As prosecutors and investigators build a case against a proffer target, they can avoid direct use of the information disclosed during the proffer meeting by relying on “independent sources.” This includes documents obtained from other means, information learned from a separate witness, or information that investigators learn from another source entirely. This includes any information that is later produced during discovery, as well as any testimony or information the investigators independently obtain from witnesses.

Are proffer protections standard across the federal government? No, they vary across federal districts, and their extent is often the subject of negotiation between federal prosecutors and the target’s attorney. As a result, it is critical that a federal target’s counsel review any proposed proffer agreement before the target agrees to its terms.

Will investigators take notes during your meeting? Yes. Investigators typically document a target’s proffer statements both in a formal report and within subsequent files. Documentation allows the government to: (i) evaluate whether the target has provided “substantial assistance” that could help them avoid prosecution; and, (ii) evaluate the target’s future testimony for inconsistencies that may violate the proffer agreement.

Is a Proffer Agreement the Same as Immunity From Prosecution?

An ordinary federal proffer agreement is not an immunity agreement. Immunity agreements (which are distinct from proffer agreements) come in several forms:

• Transactional immunity prevents the federal government from prosecuting a target for any offenses related to the information the target discloses. Ordinary proffer agreements generally do not provide transactional immunity.
• Use immunity prevents the federal government from directly using the statements the target makes during the proffer session in a prosecution against the target.
• Derivative-use immunity prevents the federal government from using the statements to obtain other evidence (i.e., using the information discovered during the proffer session to lead them to other evidence) which can then be used to prosecute the target.

If a target has “use-and-derivative-use immunity,” the government is prohibited from using either the statements directly or using the statements to uncover evidence to be used against them. As distinguished from immunity, the protections available under proffer agreements are limited and conditional.

As described above, when a target has use-and-derivative-use immunity, prosecutors and agents are prohibited from using a target’s compelled testimony against the target directly or indirectly. This is what is sometimes referred to as the “Kastigar rule,” after the landmark Supreme Court case of Kastigar v. United States. At a “Kastigar hearing,” the federal government has the burden of demonstrating that it has not used the protected information.

Although this is the rule when someone is compelled to testify, most proffer agreements will only provide protections similar to use-and-derivative-use immunity. To make matters worse, many federal proffer agreements will include specific language that expressly authorizes the government to use information obtained from the proffer session during sentencing proceedings. Some federal proffer agreements will also include specific language expressly waiving the target’s right to a Kastigar hearing and to any protections similar to those afforded by the Kastigar rule.

Despite the protections provided under 18 U.S.C. § 6002(b), which generally bars the direct or derivative use of compelled testimony against the person who provides it, those who choose to voluntarily provide testimony in exchange for proffer protections may not be entitled to the same constitutional protections as those who provide testimony under compulsion.

Can the government obtain a proffer from a target before it files charges? Yes, and this happens in many cases. Why would a target agree to sit for a proffer session before charges are filed? A target may want to attempt to bargain for favorable charges or a plea deal, or they may believe that by providing the government with information the federal government can use to target other individuals, they can prevent the government from filing charges against them. However, this carries a risk because the protections that voluntary proffers afford a target can be quite different from the protections that individuals who provide compelled testimony receive.

Can Prosecutors Use My Proffer Statements Against Me at Trial?

Many federal defendants will rely on Federal Rule of Evidence 410 to block the government’s use of proffer statements at trial. Federal Rule of Evidence 410 is meant to shield the confidentiality of plea discussions; however, it will not apply to all interviews conducted solely by federal agents. When Rule 410 applies, a proffer target can only waive their right to the protections provided by Rule 410 “knowingly and voluntarily.” This is the standard that was upheld by the Supreme Court in United States v. Mezzanatto.

In addition to the protections provided by Rule 410, many proffer agreements will specifically authorize the government’s use of a defendant’s proffer statements to “rebut any statement[s] that contradict” the target’s proferred statements if the defendant chooses to seek protection under Rule 410 at trial. However, while the government cannot use the defendant’s proffer statements during the government’s case-in-chief, the defendant’s proffer statements could be used to rebut the defendant’s testimony or his or her defense’s efforts to present the case at trial. This includes evidence produced on the target’s behalf.

In United States v. Mezzanatto, federal prosecutors obtained a “voluntary impeachment-use waiver” from a defendant who agreed not to assert the protection of Rule 410. The court upheld the validity of this waiver. Similarly, in United States v. Velez, a federal court enforced a “rebuttal waiver” that the court found applied to “all statements he made during the sessions” for the purpose of presenting both “evidence and arguments.” This case demonstrates that the language used in proffer agreements will have an enormous impact on what can be used at trial.

While this is true of all waivers, it may be especially true of broad rebuttal waivers. While an “impeachment waiver” will apply only when there is a risk of fraud or perjury, a broad “rebuttal waiver” can also be used by the government to argue for admitting evidence if the defendant makes “arguments” in his or her defense that contradict a target’s proferred statements. This means that, in some cases, the government’s ability to introduce a target’s proffer statements at trial could be restricted to certain aspects of his or her defense, including (i) the content of certain testimony, (ii) the scope of the defendant’s cross-examination of certain witnesses, and, (iii) the scope of the defendant’s defense theories.

Does the use of a target’s statement during a rebuttal-use violation of a proffer agreement depend on whether this constitutes an “argument”? The answer depends on the specific wording of the waiver as well as the circuit precedent that governs. The Circuit courts are currently divided on whether a defendant’s argument at trial is sufficient to trigger the government’s ability to introduce the defendant’s proferred statement at trial.

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 if I Lie During a Federal Proffer Session?

Federal proffer agreements commonly include a clause that requires the target to provide “full and complete” disclosure during the proffer sessions. These agreements generally prohibit the target from willfully omitting relevant and material information. If, during a proffer session, a target tells a material lie (i.e. to a federal agent or a federal prosecutor), this may violate 18 U.S.C. § 1001. Federal prosecutors generally will not charge targets with perjury, because perjury generally requires the government to prove that a false statement was made while “under oath.” However, 18 U.S.C. § 1001 does not have an oath-taking requirement.

If a proffer agreement includes a stated dishonesty clause, i.e., one that “requires truthful and complete” proferred information, this may authorize the government to use the defendant’s statements in his or her subsequent criminal case if he or she provides false information.

When is it a violation of 18 U.S.C. § 1001 to give a false statement to a federal agent? One important aspect of federal investigators’ roles is conducting proffers, and as a result, many investigations start with these proffers. At many of these proffer sessions, targets are not given an opportunity to swear in or provide a sworn statement, and targets can respond to the question as though they are not under oath. As stated above, because 18 U.S.C. § 1001 does not contain an oath-taking requirement, if the federal government thinks a target’s response to a question during a proffer is false, the federal government may be able to file a criminal charge under the federal false statements statute regardless of whether the target was sworn in before speaking to a federal agent or prosecutor.

Does a dishonesty clause in a proffer agreement expand the permissible use of a target’s proffer statements during federal criminal prosecution? If it does, what does it authorize? As discussed above, dishonesty clauses typically expand the government’s ability to use a defendant’s proffer statements to a “rebuttal use” that may apply in a wider variety of circumstances than an impeachment waiver would.

The answer to these questions will depend on the specific breach and use provisions of the proffer agreement in question, and a target’s attorney will need to analyze these provisions together with the applicable circuit precedent.

Is Agreeing to a Proffer Session the Same as Snitching?

As with any legal question, the answer is not straightforward. If a target is willing to proffer information about their own conduct, it may make sense for the target to do so in order to facilitate a negotiation with prosecutors. However, a proffer can also provide information about accomplices, other potentially relevant witnesses, documents, and locations. As a result, it can be difficult to determine exactly when a proffer session crosses the line into “snitching.”

Regardless of whether you believe that offering a proffer is “snitching,” it is also true that doing so does not necessarily constitute “cooperation” under the terms of a federal investigation or criminal case. While all cooperation begins with a proffer, not all proffers lead to cooperation. For example, just because a proffer provides prosecutors with information that could lead to the identification of other individuals who may have been involved in a crime does not necessarily mean the government will be able to rely on that information at trial.

Offering a proffer alone does not obligate a target to testify in grand-jury or trial proceedings. It also does not mean the target will be given an opportunity to receive a cooperation agreement, although prosecutors may offer such an agreement if the information the target provides is deemed useful. Most importantly, if prosecutors or federal agents offer a proffer, it does not mean they are willing to file charges or a plea offer.

A proffer is typically an exploratory step that federal investigators and prosecutors take to make an informed decision. They want to assess the target’s credibility, usefulness, and possibility of cooperation. This information, if obtained, helps prosecutors decide whether it makes sense to offer a cooperation agreement and, if so, what types of charges or plea offers are appropriate. While a proffer may lead to a cooperation agreement, it may also lead to additional charges or prosecution. Although an ordinary proffer letter does not require prosecutors to file a motion for a downward departure under U.S.S.G. § 5K1.1, it typically will if cooperation is in fact rendered.

What Is an Example of Unethical Attorney Conduct in a Federal Proffer Session?

An example of unethical attorney conduct during a proffer session would be if the attorney knowingly misstated a material fact to the prosecutors or federal agents. ABA Model Rule 4.1, “Truthfulness in Statements to Others,” provides that “a lawyer shall not knowingly make a false or misleading statement of material fact to a third person.” However, ABA model rules are not legally controlling, and they will only govern if the state or jurisdictional bar has adopted those rules in whole or in part.

What Are a Defense Attorney’s Obligations When Representing a Proffer Target?

When negotiating the terms of a proffer agreement, the target’s defense counsel should negotiate narrower (i.e. more restrictive) provisions regarding (i) derivative use, (ii) rebuttal use, and, (iii) use of proferred statements in sentencing proceedings. Defense counsel should also negotiate for protections regarding the use of a defendant’s proferred statements at trial. Beyond negotiating favorable terms, defense counsel will have the affirmative obligation of providing effective legal advice regarding the defendant’s decision to offer information during a proffer session.

What Can Occur During Appellate Review?

Following proffer sessions, targets may raise the following issues on appeal: (i) an unauthorized or prohibited use of a proferred statement, and (ii) ineffective assistance of counsel with respect to the proffer negotiations. This is especially true in cases where a broad rebuttal use or sentencing use waiver allows for the use of the target’s proffer statement at trial or in sentencing proceedings, or in cases where the target’s defense counsel did not properly advise the target with respect to the risk of an authorized use of a proffer statement.

Who May Attend the Federal Proffer Session?

Along with a target, federal proffer sessions ordinarily include: (i) the target’s defense counsel, (ii) one or more federal prosecutors, (iii) one or more federal agents, and (iv) an assistant U.S. Attorney. An assistant U.S. Attorney may attend the proffer session on behalf of the United States Attorney or Department of Justice.

What Can I Do if the Government Breaches My Proffer Agreement?

In Santobello v. New York, 409 U.S. 230 (1970), the U.S. Supreme Court held that if a prosecutor or judge fails to fulfill a promise made during plea bargaining, then the defendant may either withdraw his or her plea or receive specific performance. As the U.S. Supreme Court noted, this is the same remedy that a litigant receives in contract litigation.

However, the specific facts in Santobello are quite different from the facts involved in proffer negotiations. Santobello involved a completed plea agreement, and it does not necessarily apply to pre-plea proffer letters. Proffer agreements are not binding until the target elects to accept the terms of the agreement. Moreover, whether a proffer agreement constitutes a valid and enforceable contract depends on the circumstances of the agreement and the letter’s contents.

How Do Federal Circuit Courts Interpret Proffer Agreements?

In interpreting proffer agreements and deciding what remedy is appropriate for a breach, federal circuit courts apply different contract doctrines. Consequently, there is no uniform rule that governs how a federal proffer agreement breach should be handled.

Should My Charges be Dismissed?

A proven breach of a proffer agreement does not automatically require dismissal of the charges against a proferred target. While the District Court of Maryland in United States v. Kim, 711 F. Supp. 2d 555 (M.D. Md. 2010) referred to dismissal as the “appropriate remedy” when the government breached a proffer agreement, that is one case among many and does not constitute binding authority in the District Court or circuit courts of the United States.

What Federal Rules apply to Proffer Agreements?

Several federal rules may apply to proffer agreements. Federal Rule of Evidence 103(a)(1) requires a party to specifically and timely object to the use of protected statements. This rule helps prevent the government from introducing protected statements into evidence in criminal cases, and failure to object may result in an inability to appeal. Additionally, under Rule 16(a)(1)(B)(ii), the federal government may be required to produce the records it has in its possession with respect to any relevant oral statements produced by a federal agent or prosecutor during the proffer session. Proving the fact of a target’s statements is an evidentiary hurdle that the government often has the records of proferred statements to overcome.

What is a Kastigar Hearing?

A Kastigar hearing is one that takes place when a proffer target is prosecuted for a crime for which they previously provided compelled testimony. At a Kastigar hearing, the government must affirmatively demonstrate that the evidence it has obtained is not tainted by the defendant’s compelled testimony. This may prove the information came from an independent source or that the statement is so irrelevant that the risk of use can be eliminated during trial.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.