Kastigar Waiver Explained: What You're Giving Up in a Proffer.

Just because you provide a proffer does not mean you get a cooperation agreement or immunity, and your proffer may not automatically shield you from the government’s later criminal prosecution. Your proffer is a pre-agreement negotiation, and the written proffer letter controls how the information you disclose can be used. While derivative use immunity is a standard proffer provision, a Kastigar waiver can surrender your contractual right to object to derivative investigative use as well. You also waiver the right to a Kastigar hearing, or any evidentiary hearing to determine the origin of evidence that the government attempts to use at trial.

Decided in 1972, Kastigar v. United States is the landmark Supreme Court case that addressed the constitutional issues of compelling testimony. The Court held that prosecutors cannot use evidence obtained in violation of the Fifth Amendment, and that the government must show that it obtained the evidence from independent sources unrelated to the compelled statements. In other words, the government must prove that it has not used the compelled information and that it did not derive the other evidence from the compelled information either. It also established the “Kastigar hearing”, an evidentiary hearing to determine whether the prosecution’s evidence came from an independent source. At this hearing, the burden of proof is on the prosecution.

Another important case is United States v. Schwartz, 541 F.3d 1331 (11th Cir. 2008), which involved an express waiver of a future Kastigar hearing. The court held that Schwartz could not later challenge the origin of evidence at trial, and this makes a Kastigar waiver potentially very potent.

Oliver North’s prosecution also encountered derivative-use issues following his compelled congressional testimony. Even though North didn’t explicitly waive his right to a Kastigar hearing, the government had to prove an independent evidentiary origin for its evidence.

How is a Proffer Different from Kastigar Immunity?

It can be confusing to distinguish between a proffer and immunity in the criminal context. Broadly, a proffer is a statement that is usually given in confidence. One of the key distinctions between a proffer and immunized testimony is whether the individual’s or witness’s statements are voluntary. In proffer agreements, individuals voluntarily disclose information with a conditional understanding, and the protections are contractual. When immunized testimony is sought, the individual is often compelled to testify, and the protections are constitutional.

While a proffer is often an informal stage of the negotiating process, it is not automatically privileged. In United States v. Mezzanatto (1995), the Supreme Court upheld the voluntary waiver of federal protections. The Supreme Court held that prosecutors’ ability to introduce a defendant’s proffer into evidence in order to impeach the defendant’s credibility would not necessarily render the voluntary waiver of the Fifth Amendment protection unconstitutional.

A proffer agreement’s language determines whether the protections are conditional, but if the government can prove that the individual lied during the proffer, the individual may forfeit all protections. Federal Rule of Evidence 410(b)(6) prohibits the government from using a qualifying disclosure against a defendant during a plea discussion. Although the proffer is usually considered to be a plea discussion, individuals typically waive protections that Rule 410 provides.

As the courts discussed in United States v. Mezzanatto, proffer agreements that allow the government to prosecute a defendant based on information derived from a proffer are generally sufficient and do not raise Fifth Amendment concerns. This is because a proffer is not automatic. A voluntary proffer does not entitle a person to immunity unless both parties agree to it.

How Do Use Immunity and Derivative Use Immunity Differ?

The government of the United States is generally not allowed to compel a person’s testimony, and if it does, it must grant the individual immunity for any testimony that is obtained in violation of the Fifth Amendment. A Kastigar hearing is typically required to determine if the government’s evidence is derived from the compelled disclosures. Kastigar v. United States established that “use immunity” and “derivative-use immunity” are sufficient under the Fifth Amendment protections to induce the person to testify without fear of self-incrimination.

Use immunity bars the government from directly using the testimony against the person at trial. Use immunity does not bar the government from prosecuting the individual, even if the prosecution is based on the information provided.

Derivative-use immunity prohibits prosecutors from using the information gathered from the immunized disclosure to investigate the suspect and then use whatever evidence it finds to prove guilt at trial.

Is a Kastigar Waiver Binding?

Whether a waiver is binding depends on several factors, including the specific language of the waiver and the controlling circuit precedent. If a person decides to voluntarily waive their right to immunity, then this waiver may be binding.

How Can Prosecutors Use My Proffer Statements Against Me?

The protections provided in proffer agreements include the phrase “prosecutorial use,” but the term’s meaning is left to the courts to decide. In general, “prosecutorial use” means “direct use” or “use as a substantive element of a federal offense.” The typical proffer protection limits the government’s ability to use the individual’s direct proffer statements as the government’s case-in-chief. While the case-in-chief restriction does not prevent the government from following up on information disclosed in a proffer, the evidence that the government later gathers may still be used to convict the defendant.

Even though the government may investigate further, prosecutors cannot introduce the proffer itself as evidence, but the government is allowed to use the proffer for impeachment purposes. Many proffer letters include an impeachment exception, and prosecutors can introduce the individual’s proffer when the individual gives contradictory testimony at trial. Some proffer letters go even further and allow the prosecution to use a proffer to contradict evidence or arguments presented by the defense.

If an individual lies during their proffer and fails to disclose all information, then this may constitute a “breach” of the proffer agreement. In addition to being a breach of the proffer agreement, lying to a federal agent is a federal offense under 18 U.S.C. § 1001, which can carry up to five years of imprisonment.

The result of a proffer breach finding, often called a “proffer breach finding,” can have several consequences. First, it can lead to the imposition of criminal charges under 18 U.S.C. § 1001 and related offenses. The second consequence of a proffer breach finding is to allow prosecutors to use any and all of the statements that the defendant made, and potentially it removes any derivative use protections. Some proffer agreements will state that this allows the government to introduce the proffer statements even during the government’s case-in-chief.

When it comes to Kastigar waivers, the language of the agreement decides whether the agreement waives the right to a Kastigar hearing. A Kastigar hearing is crucial to ensure that prosecutors do not use information obtained in a voluntary disclosure to build a case. An agreement will typically say “you hereby waive all rights to a Kastigar hearing, including the right to challenging the government’s evidence if it was obtained independently, or the government’s right to disclose the evidence if the government can prove an independent evidentiary origin.”

Does the Proffer Agreement Bind the Government?

Generally, proffer agreements bind both the individual and the government. When the individual gives voluntary testimony during the proffer process, this creates a condition that obligates the government to provide immunity. In this scenario, the individual can insist on the protections granted in the proffer agreement. However, when the individual makes mistakes or lies during the proffer, the consequences of such a mistake may result in loss of the protections provided in the proffer agreement.

Although a Kastigar waiver can be harmful to a defendant, a Kastigar waiver does not mean that a defendant can’t fight the government’s case. A Kastigar waiver allows prosecutors to introduce evidence into a federal criminal case, but the case still needs to be proven to meet the burden of proof required for a criminal case. A Kastigar waiver allows the government to introduce the defendant’s statements that are later used against them at trial, but it does not give them the ability to prove their case without admissible evidence.

Todd Spodek and the attorneys at Spodek Law Group handle federal cases of this kind from New York, Brooklyn, Queens and Los Angeles.

What Happens After the Federal Proffer Interview Ends?

A proffer interview can address the individual’s alleged criminal activity, the involvement of other parties, or both. This is an opportunity for the individual to demonstrate their value to the government. The government will also evaluate whether the individual is truthful and has accurate information.

Prosecutors use proffer interviews to evaluate the individual’s credibility and the quality and quantity of information offered. They want to know the individual’s knowledge and if the individual is willing to cooperate with the government. The proffer is not a request for testimony but rather a presentation of available information that may be useful for the prosecutors’ ongoing investigations.

Following the proffer, prosecutors may invest time and resources into investigating the leads provided. After this stage, they will determine whether they are willing to negotiate a plea deal, immunity, or another arrangement.

The outcome of a proffer depends on the government’s evaluation of the individual’s truthfulness and the value of the information provided. Possible outcomes of the proffer process include immunity, non-prosecution, diversion, plea negotiations, leniency, or no deal at all.

A successful proffer can potentially lead to a written cooperation agreement later. A cooperation agreement is different from a proffer agreement, and it can be used to protect the individual from prosecution.

Providing information does not necessarily mean testifying in the future. If the government wants the individual to testify, it will need to subpoena the individual or enter into a separate cooperation agreement with him or her.

A cooperation agreement creates an ongoing obligation to cooperate with the investigation and testimony beyond the initial proffer interview. If you negotiate a cooperation agreement, ensure you clearly understand your obligations.

Defense counsel, such as the lawyers at Spodek Law Group, should ordinarily attend the defendant’s federal proffer interview. Federal prosecutors and their assistants will make agreements with defendants, and it’s important to have a lawyer to ensure your interests are protected during the process.

While the government may initiate the proffer process, the defendant and their lawyer should discuss the time and place of the interview and any other matters involved in a proffer.

While your lawyer cannot guarantee the result of a proffer, a lawyer from Spodek Law Group, can help you communicate effectively with federal prosecutors, protect your rights, and secure an arrangement with the government.

Can I Challenge a Proffer Agreement that I Signed Under Pressure?

While a proffer agreement is a voluntary contract that you entered into knowingly and voluntarily, ordinary pressure from criminal exposure does not automatically establish legal duress. The U.S. Supreme Court has stated that prosecutors can use the threat of prosecution to induce defendants to make incriminating statements as long as the statements are voluntary. However, courts generally require that waivers for proffer agreements be knowing and voluntary.

Generally, the threat of facing lawfully-justified charges that are supported by probable cause does not alone establish legal duress. The fact that a prosecutor says that you may be facing a certain criminal penalty or that there are other participants in your case will typically not suffice to convince a judge that you did not sign the agreement knowingly and voluntarily. If you want to argue that your proffer agreement waiver was not knowing or voluntary, a judge will scrutinize the voluntariness of your signature, looking at factors such as:

• Whether you had counsel present,
• Whether you had enough time to consider the decision to enter the agreement,
• Whether you were given an opportunity to review and question the terms of the agreement,
• Whether you’re knowledgeable about the implications of the agreement’s language, and,
• Whether the government agents that worked on your case made any threats that caused you to feel coerced into signing the agreement.

If you believe that you did not sign a proffer agreement knowingly and voluntarily, you can potentially seek an evidentiary hearing in the district court. If the evidence suggests that your signature was not knowing and voluntary, the judge can exclude your waiver in the criminal case.

How Can I Prove Coercion into Signing a Proffer Agreement?

In some cases, emails from federal agents, or the agreement itself, can show a proffer is not voluntary. Agreement drafts, recordings of telephone conversations with federal agents, contemporaneous notes taken by the defendant, or even your attorney’s representation that the agreement was coerced can all be used to support claims of coercion.

How Are the Terms of Proffer Agreements Determined?

Generally, federal prosecutors treat proffer agreements as contracts. They interpret the terms as they would a contract and will enforce their terms, unless there are reasons they should not be bound to the agreement’s terms. The terms of proffer agreements vary between districts and can vary even between individual prosecutors. Federal prosecutors’ manuals offer guidance on negotiating a proffer agreement.

How Can a Proffer Help Get Charges Dropped?

Prosecutors typically use a proffer interview to see if a suspect has information that the government can use to build cases against other individuals. The prosecutors look for new, credible, verifiable, and significant information that can help build cases against those involved in the crimes. If a proffer includes credible exculpatory information, prosecutors may consider this information as a factor in deciding how to proceed. This does not mean that providing an exculpatory proffer automatically entitles you to a dismissal. A proffer interview is not an opportunity for a defendant to compel dismissal of criminal charges.

A “declination” is a formal notification from the prosecutor that they will not be bringing charges. Importantly, a declination decision is not a contractual promise that they will not bring charges in the future. Instead, a “non-prosecution agreement” conditionally promises that federal prosecutors will refrain from bringing specified charges in the future, unless specified conditions are met. A defendant can sometimes seek this by offering to disclose information, even if the government does not issue a subpoena.

In federal cases where the government has filed a formal complaint or indictment, you generally cannot simply “get charges dropped.” Pursuant to Federal Rule of Criminal Procedure 48(a), federal prosecutors generally need to obtain the district court’s approval before they can dismiss charges. Even if the judge approves the prosecution’s motion to dismiss the criminal case, this doesn’t entitle the defendant to a proffer.

How Can a Proffer Help Avoid Going to Prison?

While a proffer can help reduce a defendant’s exposure, providing a proffer cannot compel a specific result. With a non-prosecution agreement, the prosecutor might agree to not press charges. With a “pre-trial diversion” agreement, the individual can avoid federal criminal charges if they satisfy specified conditions. Prosecutors and defendants can also negotiate a plea deal that reduces charges from the indictment. While reducing charges leaves a prosecution pending on fewer or less-serious offenses, it will significantly reduce the sentence the defendant is subject to.

Why Did the Prosecutor Ask for My Source Records?

When a federal prosecutor offers to listen to a suspect’s exculpatory story, they will often ask for the suspect’s source records or to contact specific witnesses. The government cannot simply take a suspect’s word. By getting access to source records and talking to witnesses, federal prosecutors can test the truthfulness of a suspect’s claims.

A prosecutor might ask for a proffer interview either before or after criminal charges are filed. If you receive a proffer request from a federal prosecutor, it’s best to speak with a criminal defense attorney right away. Our lawyers at Spodek Law Group, deal with criminal charges and the Department of Justice on a daily basis.

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.