Proffer Agreement vs. Immunity Agreement: Key Differences.

Unlike a proffer agreement, which is a contract with a specific United States Attorney’s Office, statutory immunity is a provision of federal law (18 U.S.C. § 6002) that is imposed on witnesses by a federal judge. The former is a voluntary process (colloquially known as “Queen for a Day,” coming from the practice of federal prosecutors in the Southern District of New York in the 1970s), and in return for providing information, defendants obtain protection against criminal prosecution. The latter is an involuntary process in which individuals are compelled to testify by the court under threat of contempt, though the information they provide cannot be used directly or indirectly (i.e., derivatively) against them in a criminal case. “Pocket” or “letter” immunity sits between these two methods of obtaining testimony and providing protection: It differs from proffer agreements in that it protects against the derivative use of a witness’s disclosures, and it differs from § 6002 immunity in that it is more informal, and it does not require the step-by-step process of U.S. Department of Justice approval and the issuance of a court order.

• The most important substantive difference between a proffer agreement and a § 6002 immunity order is that a § 6002 order provides statutory protection against the derivative use of witness testimony, which a standard “Queen for a Day” proffer letter expressly waives.
• In a reverse proffer, prosecutors show the defendant (or the defendant’s counsel) what evidence they have in order to persuade the defendant to plead guilty.

How Does Federal Statutory Immunity Work?

18 U.S.C. § 6002 provides the U.S. federal government with a mechanism to compel testimony under statutory immunity. Specifically, federal statutory immunity is known as “use and derivative-use” immunity, and it is granted via a judicial order. To obtain a § 6002 immunity order, prosecutors and the witness will go through the following steps:

• 1. The prosecutor requests approval from the U.S. Department of Justice (DOJ) to petition the federal court. Under 18 U.S.C. § 6003 and Justice Manual 9-23.130, prosecutors must route their requests for authorization to petition for a compulsion order through the DOJ’s Criminal Division.
• 2. Once authorized, the prosecutor petitions a federal court to issue a § 6002 immunity order.
• 3. If the court decides to compel the witness to testify, it will issue the § 6002 immunity order. However, to invoke federal statutory immunity protection, the witness will have first been required to invoke their Fifth Amendment privilege.
• 4. If the witness complies with the court’s order and testifies, the witness will be entitled to protection under § 6002. If the witness refuses to comply with the court’s order, the court can find them in contempt and confine them in jail under 18 U.S.C. § 1826 (which allows for federal confinement up to eighteen months).

Before a § 6002 immunity order is issued, the prosecutor will likely file a sealed pre-immunity evidence memorandum that details the evidence known to the government in the case. The filing of the memorandum serves two purposes:

• 1. It serves as a record of the government’s evidence, which allows the government to defend against a “Kastigar” challenge (i.e. challenging the use of immunized statements in a later trial) more effectively.
• 2. It provides the government a justification to proceed with the prosecution if the immunized testimony does not provide the government with new evidence that undermines the government’s case.

After a witness’s immunized testimony is procured, the government must wall the witness’s immunized testimony and any other evidence derived therefrom off with a “filter team” (also called a “clean team”). This ensures that the prosecutors who trial the defendant will not be contaminated by using immunized testimony.

The Organized Crime Control Act of 1970 abolished the government’s ability to grant transactional immunity (which is immunity from prosecution for the entire offense). With statutory immunity, the federal government can now only grant use immunity (i.e., immunity with respect to the use of compelled testimony and any evidence derived therefrom).

When Can Prosecutors Use Statements from a Proffer?

Under Federal Rule of Evidence 410, statements made in the course of plea negotiations are generally inadmissible in a federal criminal court. However, in a 1995 decision, 513 U.S. 196 (1995), the U.S. Supreme Court held that defendants can waive their protections against the use of these statements in court. The Court held that “an agreement to waive the exclusionary provisions of the plea statement Rules is valid and enforceable.”

A common type of waiver found in proffer letters allows the government to use a defendant’s proffered statements for rebuttal purposes when the defendant’s trial counsel makes certain factual assertions during trial. In one Second Circuit case, 400 F.3d 109 (2d Cir. 2005), the U.S. Court of Appeals for the Second Circuit clarified when an argument constitutes factual assertions that are subject to rebuttal. According to the Second Circuit, “The defendant generally will not open the door to his proffer when he refers to the overall evidence as, for example, “generally, very thin,” a “complete disaster,” or “not a case, but a collection of evidence against some other person entirely.” Generic attacks on the government’s proof are not the “factual assertions” to which [the proffer] is referring, and will not open the door to the defendants’ proffers.”

Another type of waiver allows the government to use a defendant’s proffered statements during cross-examination. If the defendant takes the witness stand and tries to present himself as being honest, the government can use the proffer to show that the defendant lied. With “letter” proffers, this waiver can be triggered even if the defendant does not testify. If, on direct examination, a witness lies, the government can impeach him on cross-examination using statements he gave previously to the government in confidence.

Crucially, proffer agreements and statutory immunity are not a “free pass” to lie. If an individual who lies during a proffer presents false and material facts to the government, he or she can be prosecuted under 18 U.S.C. § 1001, and this could be the individual’s only federal offense. 18 U.S.C. § 1001 carries a maximum five-year sentence and can be charged as a criminal offense unless the witness can provide a good-faith reason for his or her false statement. Furthermore, proffer agreements and statutory immunity do not immunize the participants from prosecution, meaning that you can still be charged in a federal criminal case.

What Burden of Proof Applies to Proffer and Immunity Disputes?

At a Kastigar hearing, the government has the burden of proving that every piece of evidence is independent from the immunized individual’s disclosures. When the government is forced to show that a piece of evidence is independent, courts generally apply the “preponderance of the evidence” standard.” Therefore, while the government is required to show that it has information that is independent from immunized disclosures, there are very low burdens of proof during Kastigar hearings.

There are several other standards that apply in different contexts during criminal prosecutions. However, when it comes to burden of proof, these are the three most common standards used in U.S. courtrooms:

• 1. Preponderance of the Evidence: Preponderance of the evidence means more likely than not, and this is the standard of proof for most civil disputes (including tort claims).
• 2. Clear and Convincing Evidence: In legal practice, evidence is said to be “clear and convincing” when it establishes the existence of a fact (or claim) so that it leaves the judge or jury with a firm belief that the claim is highly probable. This is a higher standard than the “preponderance of evidence,” but it is lower than the “beyond a reasonable doubt” standard.
• 3. Beyond a Reasonable Doubt: This is the standard of proof used in criminal prosecutions. With this standard, the government has the burden of proving every element of a criminal offense beyond a reasonable doubt.

The question of whether an individual breached their proffer agreement will be decided by a judge, and the judge will use the preponderance of the evidence standard. However, in a reverse proffer, the standard of proof is not directly applied in the same way. The court will assess the evidence to determine if it is sufficient to sustain a conviction, but it is not specifically tasked with deciding whether a particular factual assertion has been proven to a particular standard of proof.

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.

Who is Bound by Proffer and Immunity Agreements?

Who is Bound by Proffer Agreements?

Proffer letters generally bind only the specific U.S. Attorney’s Office that negotiated and executed the letter, and they do not bind other U.S. Attorney’s Offices. Furthermore, state prosecutors, civil regulators, and non-state governmental officials are not bound by the restrictions of a proffer agreement executed at the federal level. For example, an individual who executes a proffer agreement with the U.S. Attorney’s Office in the Southern District of New York will still be eligible for prosecution by state prosecutors in New York, and for enforcement action by civil regulators such as the Securities and Exchange Commission, the Internal Revenue Service, the Securities and Exchange Commission, and the Commodity Futures Trading Commission.

Who is Bound by Statutory Immunity Agreements?

In a 1964 decision, 378 U.S. 52 (1964), the Supreme Court held that, unlike proffer agreements, when a witness is compelled to testify, the resulting testimony cannot be used by any governmental authority anywhere. In other words, a § 6002 immunity order is binding not only on the prosecuting federal district, but also on state and local prosecutors in every other U.S. jurisdiction.

What Types of Exposure are Shielded by Statutory Immunity?

Federal statutory immunity protects against all types of criminal exposure; however, it does not protect against:

• Civil Liability;
• License Revocation (e.g., law licenses);
• Deportation to a Defendant’s Country of Origin; and,
• Civil Forfeiture Proceedings. In other words, a § 6002 immunity order will not protect the assets seized in a civil forfeiture case.

Does the Fifth Amendment Protect Against Prosecution in a Foreign Country?

Does a defendant have a right to invoke the Fifth Amendment privilege on the basis of fear of prosecution by a foreign government? In a 1998 decision, 524 U.S. 666 (1998), the Supreme Court held that the Fifth Amendment does not protect a defendant against prosecution in a foreign country, and thus, this is not a valid reason to invoke the privilege.

Are There Differences Between Federal and State Immunity Laws?

All 50 states have their own unique immunity laws, some of which differ significantly from their federal counterparts. For example, in New York, witnesses who are compelled to testify before a grand jury are granted automatic transactional immunity (i.e., immunity from prosecution for the offense) under New York Criminal Procedure Law § 190.40.

Does Making a Proffer Mean I am Snitching?

When individuals make a proffer, they are effectively agreeing to “come clean” to the government. However, the term “snitching” typically implies cooperating with the government to provide information in order to get others in trouble. This is not what happens during a proffer session. During a proffer session, no oath is sworn, the individual does not testify, and the individual does not need to make a courtroom appearance. Instead, proffering is a way for the individual to provide information to the government in exchange for protection from prosecution. Cooperation agreements are the instruments that are used when individuals testify against other individuals.

How do I Know Who is in the Room During My Proffer Session?

Prior to attending a proffer session, you can demand to know who is in the room. Agents in charge of the case and prosecutors from the relevant U.S. Attorney’s Office are the only ones that are typically present during a proffer session. However, in some cases, the government may require that you proffer the information to the agent only. This can happen if the prosecutor does not want any potential issues to arise.

Will the Government Use an Audio or Video Recording for the Proffer Session?

The government will not typically use audio or video recordings of a proffer session. Instead, the agents will typically take notes and draft a summary. As the Summary Report form known as “FBI Form FD-302” will be available for review, the agents will not typically transcribe your statement verbatim. This is because, as a witness, your specific phrasing is not of much importance to the government.

Will Proffer Notes Be Discovered in Later Stages of the Case?

If you decide to testify in order to get a reduction of your sentence or for another reason, your proffer notes will be made available to opposing defendants. If you do not testify, the proffer notes will not be discoverable.

What is Giglio?

Giglio refers to the requirement for prosecutors to disclose information to the defendants they prosecute. Specifically, when an individual testifies in order to get a reduction of their sentence or other benefits from the government, this is considered a significant factor in determining his or her reliability. As a result, prosecutors must disclose this information to defendants that the individual testifies against.

What is the Jencks Act?

The Jencks Act, 18 U.S.C. § 3500, is the provision that requires prosecutors to hand over the prior statements of testifying witnesses to the defendants for impeachment purposes. When a witness testifies in order to benefit from cooperation, his or her prior statement to the government is discoverable.

When are Proffers not Used as a Tool for Testimony?

In some cases, the defense attorney will proffer to the government in order to argue against charging. If you think the government has a weak case, you can proffer in order to show the prosecutor that he/she does not have a case.

What Benefits Can a Proffer Produce?

Can a Proffer Prevent the Prosecution of a Defendant?

Can a proffer protect you against a criminal conviction? Generally, no. While a proffer may prevent the prosecutor from charging you if they realize that they don’t have a case, there are other potential reasons why a successful proffer can lead to not being criminally charged:

• 1. You may present the government with information that leads to a non-prosecution agreement or a deferred prosecution agreement.
• 2. You may present information that the government believes is sufficient to secure a conviction against a target that is higher up in the hierarchy.

Can a Proffer Lead to a Sentence Reduction?

If you cooperate, a proffer can also help reduce your sentence. A proffer is the first step toward receiving a “substantial assistance” sentence reduction under United States Sentencing Guidelines (USSG) § 5K1.1. If the prosecutor finds that your cooperation provided substantial assistance to the government, they can file a motion with the court asking for a substantial-assistance departure. This is a significant reduction of the sentencing range.

If the government determines that your cooperation provided substantial assistance, the government can also ask the court to sentence you below the statutory mandatory minimum under 18 U.S.C. § 3553(e).

If you have already been sentenced, but then cooperate, the government can ask for a post-sentencing reduction under Federal Rule of Criminal Procedure 35(b).

It is important to understand that none of these reductions happen automatically. A judge cannot grant these reductions without first filing the motion. This gives prosecutors discretion over whether or not to support your sentence reduction based on your willingness to fully cooperate with the government.

What is Protected by USSG § 1B1.8?

During the proffer process, you may reveal information that is self-incriminating. However, USSG § 1B1.8 protects such self-incriminating information so that it doesn’t increase your sentencing range. To receive the protections of USSG § 1B1.8, a defendant must:

• 1. Offer a proffer to the government; and,
• 2. Execute a cooperation agreement.

As a result, a proffer letter is not enough to protect against the use of self-incriminating statements. The proffer letter must be followed by a cooperation agreement in order to activate USSG § 1B1.8.

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.