Can My Proffer Statements Be Used Against Me??

A federal proffer agreement is a written contract that sets the stage for a meeting between the defendant and federal prosecutors. The purpose of a proffer agreement is to establish terms regarding the defendant’s statement and to provide the defendant with some protection. In most cases, proffer agreements bar the direct use of a defendant’s statements in the government’s case-in-chief, but this does not mean the proffer statement cannot be used against the defendant.

Proffer agreements contain several exceptions to their limitations.

• Investigative leads. Evidence that federal prosecutors discover as a result of leads that come from the defendant’s proffer statement will often still be admissible in court.
• Waiver clauses. Many proffer agreements contain broad “waiver clauses” that may permit prosecutors to use the defendant’s proffer statement to impeach his or her credibility at trial. Additionally, prosecutors may use the defendant’s proffer statement to rebut the defendant’s arguments, such as if the defendant’s theory is that he or she was unaware of a federal offense.

Even when a defendant’s proffer statements are not admissible in court, a defendant’s proffer statements can still lead to negative results. Proffers can strengthen the prosecution’s case, as prosecutors will now have more information about the defense’s theory. If the proffer fails to result in a cooperation agreement, the worst-case scenario is the prosecutor having a roadmap for the case against the defendant.

Additionally, defendants who believe that they are innocent should still seek legal advice before accepting the offer of a proffer. Even if a defendant doesn’t say anything that is incriminating in and of itself, the proffer can reveal information about a separate offense. In this scenario, prosecutors may add new charges and the proffer’s protections won’t extend to the information that was not the subject of the proffer.

What does each clause in a proffer agreement actually mean?

Courts often enforce proffer letters, or proffer agreements, exactly as they are written. Consequently, prosecutors’ and defense attorneys’ roles are to ensure that federal proffer agreements are drafted correctly. Here are some common clauses and what they generally mean when they appear in a federal proffer agreement.

• Use in a Case-in-Chief. This clause refers to the prosecution’s case-in-chief. The case-in-chief is when the government’s case is presented for the first time. At that time, the government attempts to meet its burden of showing that a defendant is guilty. If there is evidence of defendant’s statements that contradict a defendant’s proffer statement, this clause will allow the prosecutor to use that evidence to rebut the defendant’s testimony.

• Use of Derivative Evidence. Derivative-use clauses address use of the evidence discovered as a result of the defendant’s statement. While a proffer agreement often protects against a defendant’s statements being used, it might not protect against derivative evidence. Derivative evidence is a lead that allows the government to uncover other evidence against the defendant.

• Use for Impeachment. Impeachment is a tool for which prosecutors are permitted to use a defendant’s statement if it contradicts his or her testimony. A common scenario for impeachment is when the defendant’s proffer statement is truthful, but the defendant takes a different position at trial. Prosecutors can impeach the defendant’s credibility at trial by using the proffer statement to show that the defendant said something else during the proffer.

• Waiver for Rebuttal. Prosecutors may include a waiver to use proffer statements for rebutting the defendant’s case as well. Unlike the case-in-chief clause that prohibits use in the government’s case, a waiver will explicitly allow the prosecution to use proffer statements if the defendant offers an inconsistency between the proffer statement and his or her testimony at trial.

When prosecutors have the ability to use the defendant’s proffer statement to rebut evidence, it will often appear in a waiver clause as well.

• Use at Sentencing. Proffers will often include a sentence clause. This clause limits the government’s ability to use the proffer statement in sentencing. In a favorable sentence clause, the prosecution will be prevented from using a defendant’s proffer statement in an attempt to seek a sentence above the federal guidelines. But if the case remains uncertain, this clause can turn into a sword for the prosecution.

• Breach of the Proffer Agreement. Most proffer agreements contain a clause outlining what constitutes a breach of the proffer agreement. Defendants are often expected to make a “full and truthful disclosure” during their proffer. If the defendant fails to provide this, the proffer is breached. If there is a breach, prosecutors are free to use all information that the defendant shared in the proffer to prove their case in court.
• Sharing with Third Parties. All proffer agreements should specify who the proffer information may be shared with in the event of a joint task force investigation. If prosecutors use proffer information that was shared with a third party who does not have access to the proffer agreement, this information might be used to build an investigative case against the defendant.

Does Rule 410 or immunity protect my proffer statements?

There are multiple rules that provide protection for proffer statements during plea negotiations, including Federal Rule of Evidence 410 ( FRE 410). FRE 410 is Rule 11(f) of the Federal Rules of Criminal Procedure, and a proffer agreement usually contains the term “Federal Rule of Evidence 410.” In the federal justice system, however, a common source of confusion is that FRE 410 only provides “direct-use” protection, which is different from the “use-and-derivative-use” immunity provided under federal law.

What is Rule 410?

Rule 11(f) of the Federal Rules of Criminal Procedure points to FRE 410 and its protections, and it applies only to unsuccessful plea discussions. United States v. Mezzanatto, a decision handed down by the U.S. Supreme Court in 1995, also points to FRE 410. In this case, the Supreme Court upheld a proffer agreement that waived a defendant’s FRE 410 rights. The case had substantial implications for defendants and prosecutors who want to rely on FRE 410 for their proffer agreements. Although FRE 410 has the ability to protect a defendant’s statements, the Mezzanatto decision allows the government to request a waiver.

Does Rule 410 Protect All Proffer Statements?

Federal Rule of Evidence 410(a)(4) specifically applies only to unsuccessful plea discussions between a defendant and a federal prosecutor. It does not apply to discussions of plea agreements between a defendant and other third parties, such as federal agents, probation officers, or the defendant’s own attorney. With this in mind, you should never volunteer any statement or document for review by agents or other federal officials unless you have specifically entered into a proffer agreement first.

The aformentioned Mezzanatto decision means that prosecutors may seek an express waiver of FRE 410 for proffer statements. When prosecutors do this, the proffer statement will not be barred under FRE 410. For example, in the case of an express FRE 410 waiver, federal prosecutors could use a defendant’s proffer statement at trial and at sentencing, including using the defendant’s statement to seek a sentence above the federal guidelines.

What is the Difference Between Rule 410 and Use-And-Derivative-Use Immunity?

The final key difference between FRE 410 and use-and-derivative-use immunity is that the protection afforded by FRE 410 is called “direct-use” protection; use-and-derivative-use immunity is more comprehensive than “direct-use” protection. With “direct-use” protection, the government cannot use the statement itself to prove its case. If someone has use-and-derivative-use immunity, both the protected statement and all evidence derived from the statement cannot be used. While FRE 410 bars direct use, evidence derived from the statement is not barred under FRE 410. Evidence derived from the statement is considered derivative evidence and a proffer agreement or waiver can potentially allow prosecutors to use that evidence at trial.

What can trigger exceptions allowing proffer statement use?

What can trigger the government’s ability to use your proffer statements depends on the specific terms of your proffer agreement. With that said, here are some common examples of what can trigger a waiver or exception.

The Case of a Rebuttal Waiver

Rebuttal Waiver When the Defendant Never Testifies

In some cases, a rebuttal waiver could trigger the government’s ability to use the proffer statement even if the defendant doesn’t testify at trial. For instance, the defendant’s attorney can make assertions during the opening statement that conflict with the defendant’s proffer statement. In this case, the prosecutor may be able to use the defendant’s proffer statement to rebut these assertions. With the exception of this instance, the best case scenario for any defendant who has signed a rebuttal waiver is to maintain total silence at trial.

If the defendant doesn’t testify, but he or she allows his or her attorney to reference any evidence that conflicts with the proffer statement, this could also trigger the government’s ability to use the statement.

As a result, in addition to the opening statement, any of the following can potentially trigger a rebuttal waiver without a defendant testifying at trial:

• The defendant’s attorney’s questions and argument during cross-examination,
• Any defense exhibits, including testimony from witnesses provided in the defense’s exhibits,
• All testimony of third-party defense witnesses and expert witnesses.

Even if the defendant is not the one who triggers the government’s ability to use the proffer statement, the consequences are the same. However, with that said, the best case scenario is still for the defendant to remain silent and rely on the advice of his or her attorney.

Rebuttal Waiver When the Defendant Testifies

The case of a rebuttal waiver when the defendant testifies is similar, except the defendant triggers the government’s ability to use the proffer statements through his or her testimony or answers to the prosecutor’s questions. Even if the defendant’s attorneys testify and defend the defendant’s position, any inconsistencies could provide the prosecutor with the authority to use the proffer statement.

Rebuttal Waiver When the Defendant Inadvertently Triggers it

In many cases, a rebuttal waiver can be triggered inadvertently. For example, a defendant may testify in a way that seems to align with his or her proffer statement but actually reveals some inaccuracies. When this happens, federal prosecutors can argue that a waiver has been triggered, allowing them to use a defendant’s proffer statement at trial.

A different case is when the defendant makes an admission at trial. Even if the defendant believes the admission is immaterial or doesn’t trigger the waiver, federal prosecutors may have a different opinion.

This scenario does not apply to testimony that makes a defendant’s statement in his proffer statement correct. When this happens, the government should not have the ability to use the proffer statement against the defendant. However, the consequences of a proffer breach depend on the agreement’s language and on the relevant federal law.

If you do not remember what you wrote in your proffer statement, the best solution is for your lawyer to work with prosecutors to determine whether you should continue to testify at trial.

Impeachment

A different situation is impeachment, where prosecutors can use a defendant’s proffer statement if a defendant’s testimony is inconsistent. In the case of a rebuttal waiver, you can trigger the exception even without giving any testimony. But to trigger impeachment, the defendant must give testimony.

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.

Can proffer statements increase my federal sentence?

Under U.S.S.G. § 1B1.8, the prosecution cannot use information that comes from a defendant’s cooperation in order to increase a defendant’s sentence. However, there are exceptions to this rule. Even with this limitation in place, your defense counsel should still seek an agreement that limits the use of information during sentencing as well.

One way that proffer statements can affect sentencing is through your presentence report. Under the guidelines, your presentence report is the foundation for sentencing in federal court. When you sign a proffer agreement, you are essentially accepting that the government will have the ability to present all information to the court that may be relevant. With that said, if a defendant has obtained a proffer agreement with an explicit prohibition against using proffer information at sentencing, then your sentence in federal court should reflect this restriction.

Another case is when the proffered statement has an effect on what constitutes relevant conduct. Under the federal sentencing guidelines, information pertaining to relevant conduct can affect a defendant’s sentencing. Relevant conduct can include a broad range of information. For example, relevant conduct can include uncharged acts committed in the same course of conduct or the same scheme or unlawful agreement. Because information in a proffer statement can lead to the discovery of uncharged acts, a defendant’s sentencing can still be influenced by his or her proffer statements.

Lastly, an admission in a proffer statement can impact a defendant’s defense counsel’s ability to argue for a downward variance at sentencing. In many federal cases, the defense counsel will use the proffer statement’s statements to support the argument that the defendant is eligible for a downward variance. In the best case, if the defendant has a favorable proffer agreement, this information will only reflect a downward variance. However, in the worst case scenario, this information can increase the sentencing by implying that it should’ve been higher due to the nature of the facts admitted by the defendant during his or her proffer session.

As a result, in any federal proffer session, your defense counsel needs to negotiate and establish the limits for the government’s ability to use cooperation information at sentencing. With this, the government’s use of cooperation information is subject to U.S.S.G. § 1B1.8 (a). Section 1B1.8(a) makes it clear that the government has the authority to use such information if it agrees to limit the government’s use of that information. Even then, Section 1B1.8 does not automatically apply to every proffer session.

What is 18 U.S.C. 3661?

18 U.S.C. 3661 allows prosecutors to share information with sentencing judges. This information include information gathered by federal prosecutors during sentencing hearings. With a sentence clause in a proffer agreement, you have the ability to limit how much of this information can be shared and what kind of disclosures prosecutors can make during sentencing hearings. However, 18 U.S.C. 3661 remove any restrictions on sentencing information without being mandatory.

Who else can receive my federal proffer statements?

In the case McKnight v. United States, an American defendant who accepted immunity negotiated a proffer agreement. During the proffer session, federal prosecutors and federal agents shared the defendant’s statements with French authorities who were conducting their own investigation of fraud. Because McKnight’s agreement did not specifically prohibit his information from being used for foreign prosecution, federal prosecutors and agents were permitted to share McKnight’s proffer statements. The Ninth Circuit of the U.S. Court of Appeals refused to read any foreign prosecution protection into McKnight’s agreement. However, as a result of the McKnight case, most modern-day proffer agreements do specifically prohibit disclosures that are not intended to be part of the agreement.

In short, federal prosecutors and agents can share your proffer information with anyone they want to. They will only be limited if you expressly prohibit the information from being shared. This means that if you want your proffer statements protected, you need to be specific with your restrictions.

While you may think that you are dealing only with the prosecutors involved in your case, remember that they may share your information with anyone they deem helpful for the investigation. The agencies that prosecutors are likely to share your proffer statements with could include the U.S. Citizenship and Immigration Services, the Internal Revenue Service, and other civil enforcement agencies. None of these agencies are parties to your proffer agreement. Unless an agency agrees to uphold your proffer agreement or there is a federal law that prohibits them from disclosing the information to the prosecutors, you can’t trust these agencies to protect your proffer statements.

How are Proffer Statements preserved?

Typically, a federal proffer session is an in-person meeting with one or more federal prosecutors, a federal agent or agents, your defense counsel, and you. Typically, federal prosecutors do not want to waste a lot of time making notes or recordings during proffer sessions. Instead, federal agents usually make notes or recording during the session. These records allow the prosecutors and defense counsel to go back to the statements when they will need to reference information made during the proffer session. Once the proffer session is over, the proffer is recorded by the federal agent. Then, the notes or recordings of these statements may be stored electronically on the government’s computer system. Once a proffer statement is stored on the government’s computer system, then the prosecutor has the information he or she needs in case they need to use a statement or information obtained during the proffer session to build their case against the defendant.

When do written proffer protections begin and end?

A written proffer statement will be governed by the agreed proffer letter. As discussed, a written proffer statement will be admissible if there is an exception that permits its use.

Proffer agreements generally contain an integration clause. This means that the entire agreement between the parties is included in the proffer letter. Consequently, any statement not written into the agreement will not bind the government or the defendant.

Can My Pre-Signing Statement Bind the Government?

Statements made before signing the proffer agreement do not fall under its scope. Once the proffer agreement is signed, you must tell the truth. If you made an incorrect statement before signing, the proffer agreement’s language only allows the government to use any false, incomplete, or misleading information made during the proffer session. However, the statement made before signing the proffer agreement was not made during the proffer session. As a result, that statement should not cause the proffer to be breached.

Can I Speak Outside the Proffer Session?

Once you signed the proffer agreement, you are free to speak. However, any comments you make before, during, and after the proffer session in a break room or hallway will not fall under the scope of the proffer agreement. Therefore, your defense counsel will limit all discussion to the agreed area. When the time comes for you to speak, your defense counsel will determine what you say.

Can the Proffer Letter Apply to Future Sessions?

If the federal prosecutors want to hold another proffer session, your proffer letter should explicitly state that this is covered. Otherwise, you will need to enter into a new proffer agreement. As a result, no additional sessions can be conducted without your consent.

Along with a new session, any additional topics should also be mentioned. If you discussed a different topic that was not part of your proffer, then your proffer statement may not be admissible.

What is a “Queen for a Day” Meeting?

A proffer session is also commonly known as a “queen for a day” meeting. This term is used because the defendant’s attorney can help him or her offer information to federal prosecutors without worrying about it becoming public. However, this is not a blanket privilege. If you are thinking about taking a proffer statement, you should talk to our attorneys right away.

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.