FEDERAL CRIMINAL LAWYERS

Can I Withdraw From a Proffer Agreement?

You can withdraw from a proffer agreement anytime you want. Walk out of the room. Tell your attorney to end the cooperation. Fire off a letter saying you’re done. The government cannot force you to keep talking.

Welcome to Spodek Law Group. Our goal is to give you the information nobody else will, because the question you’re really asking isn’t whether you CAN withdraw. The question is what happens to everything you already said when you do.

And heres the uncomfortable truth that changes everything: withdrawal ends the cooperation relationship. It doesn’t end the evidence relationship. Every word you spoke during that proffer session stays in government files forever. The FBI agents took notes. The prosecutors have summaries. Your statements exist independently of whether you continue cooperating. You cant unsay what youve already said.

Think about that for a moment. Your planning to withdraw from the proffer because the cooperation isnt working out. Maybe the deal they offered was worse than you expected. Maybe your worried about what you revealed. But withdrawing doesnt delete those statements from existence. It just stops you from getting any potential benefit in exchange for them.

The Paradox: You Can Leave, But Your Words Cant

Heres the kicker about proffer agreements that nobody explains clearly: withdrawing from the agreement doesnt undo the proffer session. It terminates the relationship going forward. The government still possess everything you gave them during your “queen for a day.”

This catches people completely off guard. They think about proffer agreements like canceling a gym membership. Stop paying, relationship ends, everyones back where they started. Thats not how it works with federal prosecutors.

The fundamental misunderstanding comes from treating proffers like ordinary contracts. In a normal contract, termination means both parties walk away. If you cancel your cell phone plan, the company dosent get to keep billing you. If you end a lease early, you might owe penalties but the relationship is over.

Proffer agreements operate differently. The “contract” governs what happens to information you provide – not whether that information exists. When you speak during a proffer session, you create something permanant: a record. That record exists independently of any agreement. The agreement just constrains (slightly) how that record can be used.

When you sit down for that proffer session, several things happen immediately:

First, FBI agents are in the room taking detailed notes. These notes become permanent records. The agents are trained to capture not just what you say, but how you say it. Your hesitations. Your word choices. The moments you look away. All of it goes into there notes. And those notes dont disappear just because you decide to stop cooperating.

Second, prosecutors are listening and forming investigative strategies based on what you say. Theyre not just taking information – they’re building a roadmap. Every name you mention becomes a potential witness. Every document you reference becomes a subpoena target. Every transaction you describe becomes a forensic accounting project.

Third, anything you reveal can be used to develop new evidence – even if your actual statements cant be used directly. This is called derivative use, and its the trap most defendants dont see coming. The Department of Justice Criminal Resource Manual explains how this works: your words cant be quoted directly, but everything they lead to is fair game.

So when you “withdraw” from the proffer, what actually happens? The government stops any obligation they had to consider you for cooperation benefits. You stop getting credit toward a potential 5K1.1 motion. The relationship is over.

What dosent happen? Your statements dont disappear. The notes dont get shredded. The investigative leads you provided dont get un-followed. Everything you said remains in the governments possession and can be used derivatively to build a case against you.

What “Use Immunity” Actually Means (Hint: Not What You Think)

Heres were most people get this wrong. They hear “use immunity” in there proffer agreement and think its protection. Its not protection – its a specific limitation that sounds better then it actually is.

Use immunity means your exact statements from the proffer session cannot be used as direct evidence in the governments case-in-chief at trial. Thats it. Thats the entire protection.

What use immunity does NOT protect against:

Derivative use. The Supreme Court established in Kastigar v. United States (1972) that the government can pursue any investigative leads your statements suggest. If you mention a bank account during your proffer, they can subpoena that bank account. If you reference a conversation, they can interview that person. The evidence they find through following your leads is fully admissible – even though your statements technically arnt.

Impeachment. If you testify at trial inconsistently with your proffer, the government can use your proffer statements to impeach your credibility. This basicly means: if you say something different at trial then you said in the proffer, they can bring in what you originally said.

Rebuttal. Modern proffer agreements often contain language allowing the government to use your statements if you present any evidence or argument inconsistent with what you proffered. Not just your testimony – your entire defense strategy.

False statements prosecution. If you lied during the proffer, your protected by nothing. Under 18 U.S.C. § 1001, false statements to federal agents are independently prosecutable. Ask Martha Stewart how that works out. She didn’t go to prison for insider trading. She went to prison for lying about insider trading during her interview with federal agents. The underlying conduct wasn’t even charged – but the false statements were.

Heres the uncomfortable math: the proffer session itself creates criminal exposure that didnt exist before you walked in. Your trying to help yourself by cooperating, but every word you say could become the basis for a completely separate prosecution.

So what does “use immunity” actually give you? A limited protection against your exact words appearing in the governments opening statement. Thats probably not the fortress you imagined. Its more like a sheet of paper between you and a hurricane.

The Rule 410 Trap: Why Signing Reduced Your Rights

OK so heres something that blows peoples minds when they learn it. Federal Rule of Evidence 410 already provides protection for statements made during plea negotiations. You dont need a proffer agreement to get some protection – the rule gives it automatically.

But heres the irony. When you sign a proffer agreement, you typically WAIVE parts of Rule 410. The proffer letter substitutes its own terms for the rules default protections. And the proffer letters terms are almost always worse.

Under standard FRE 410, statements made during plea discussions are generally inadmissible. But proffer agreements routinely carve out exceptions:

• Impeachment exception (broader then FRE 410 default)
• Rebuttal exception (much broader then FRE 410)
• False statement exception (similar but specifically triggered)

This means signing the proffer agreement actually REDUCED your rights compared to where you started. You traded automatic Rule 410 protections for the proffer letters more limited version.

Todd Spodek has seen this exact scenario play out. Defendants come in after proffering, realizing to late that the agreement they signed gave them less protection then they would of had by simply engaging in informal plea discussions without a formal proffer letter. The irony is painful. You thought you were getting protection. You were actually giving some up.

How Your Lawyers Questions Can Sink Your Defense

This is the hidden connection that even experienced attorneys sometimes miss. Modern proffer agreements dont just trigger when YOU testify inconsistently. They trigger when your DEFENSE is inconsistent with the proffer.

Let that sink in. Your on trial. You decide not to testify – smart move, keeping your proffer statements from being used for impeachment. But then your lawyer cross-examines a government witness. The questions suggest a theory of defense that contradicts something you said in the proffer.

Guess what happens? Under the rebuttal exception, your proffer statements can now come in. Not because you testified. Because your lawyers questions implied a narrative inconsistent with what you proffered. Thats how expansive these agreements have become.

The implications are staggering when you think about it. Your attorney has to review every cross-examination question against the transcript of your proffer. Every line of questioning must be vetted. One wrong question – one implication that contradicts something you said during the proffer – and the jury hears everything. Its not just your testimony thats constrained. Your entire defense strategy is chained to whatever you said in that room.

United States v. Rosemond and related cases have established that certain defense actions DO NOT trigger the waiver:

• Arguing the government failed to prove elements
• Suggesting witnesses are mistaken or lying
• Pointing out discrepancies in police testimony
• Arguing lack of corroborating evidence

But anything that asserts facts contrary to your proffer? Thats fair game for rebuttal.

Heres what this means practicaly: your proffer dosent just constrain what YOU can say at trial. It constrains your entire defense strategy. Every question your lawyer asks must be vetted against what you said in the proffer. One wrong cross-examination and your statements come flooding in.

The Martha Stewart Pattern: Convicted of Cooperating Wrong

Heres the uncomfortable truth that everyone in federal criminal defense knows but defendants rarely understand until its to late: the cooperation itself creates criminal exposure independant of the original crime.

Martha Stewart wasn’t convicted of insider trading. She was convicted of lying to investigators. Michael Flynn wasnt convicted of whatever underlying conduct was being investigated. He pled guilty to making false statements to FBI agents.

This pattern repeats constantly in federal cases. The proffer or cooperation creates an entirely new avenue for prosecution: 18 U.S.C. § 1001 false statements.

What counts as a false statement during a proffer?

• Outright lies (obviously)
• Material omissions (leaving out important facts)
• Minimizing your involvement
• “Forgetting” things you actually remember
• Inconsistencies with other evidence they discover later

The standard isn’t whether you intended to deceive. Its whether your statement was materially false or misleading. And heres were it gets really dangerous: the government decides what counts as material.

So when your considering withdrawing from a proffer, remember: if you said anything inaccurate during that session, you may have already committed a federal crime. Withdrawing dosent undo that exposure. It just means you wont have any cooperation credit to offset it.

Timeline: What Happens After You Walk Away

People ask “can I withdraw from a proffer agreement” like its a yes/no question. The answer is yes – but the more important question is what happens next.

Immediately after withdrawal:
Your attorney notifies the government that cooperation has ended. This can be formal (written letter) or informal (phone call). Either way, the cooperation relationship terminates.

Days to weeks after:
The government evaluates what they learned from your proffer. They dont forget anything. Agents review there notes. Prosecutors assess whether you provided useful leads. Any derivative investigation continues.

If they developed new evidence:
Every lead your proffer suggested is still being followed. New witnesses contacted. New documents subpoenaed. New forensic analysis conducted. All of this evidence is fully admissible against you, even though it originated from your proffer statements.

If your case goes to trial:
Heres were it gets complicated. Your proffer statements cant be used in the governments case-in-chief. But:

• If you testify inconsistently: impeachment
• If your defense contradicts the proffer: rebuttal
• If you made false statements: separate prosecution

This creates an almost impossible strategic situation. You have to build a defense that dosent contradict anything you said during the proffer – even if you said things that weren’t completely accurate or were misunderstood. Your trapped by your own words, even though those words technically cant be used against you directly.

Sentencing:
If convicted, the government can use your proffer statements at sentencing. The limited “use immunity” only applies to trial – not to sentencing hearings. This is a critical distinction that many defendants dont understand until its to late.

At sentencing, the judge considers everything. All the information you provided during the proffer? Fair game. All the details about your involvement that you thought were protected? The judge hears it all. And sentencing is were the real damage happens in federal court – guidelines, enhancements, departures. Your proffer statements could significantly impact your sentence even if they never appeared at trial.

At Spodek Law Group, we’ve helped clients navigate this exact timeline. The key is understanding that withdrawal is a tactical decision, not an erasure. You cant unring the bell, but you can decide strategically when cooperation no longer serves your interests.

When Withdrawal Makes Sense (And When It Doesn’t)

Withdrawing from a proffer agreement isn’t inherently good or bad. Its a strategic decision that depends completely on your specific circumstances.

Withdrawal may make sense when:

The cooperation relationship has broken down. If the government isn’t offering what was informally discussed, continuing to provide information without reciprocal benefit is just giving them more ammunition.

You realize you made false statements. If you lied or omitted material information, continuing to cooperate may only compound your exposure. Consult with counsel immediately about your options.

The deal being offered is worse then going to trial. Sometimes the plea offer after proffer is so bad that trial becomes the better gamble – especially if your defense dosent contradict your proffer.

Your information wasn’t valuable enough. Some proffers dont lead to deals because the government already had what you told them, or it wasn’t helpfull. No reason to keep cooperating if theres nothing to gain. In these cases, your proffer didn’t hurt you much – they knew everything already – but it also didn’t help you. Withdrawing is just acknowledging reality.

The relationship has become adversarial. Sometimes the dynamic between your attorney and the prosecutors breaks down. Trust evaporates. When that happens, continued cooperation becomes counterproductive. Your providing information to people who may actively be looking for ways to use it against you rather then help you.

Withdrawal probably dosent make sense when:

You’ve provided substantial valuable information. If your cooperation is genuinely helping the government and a good deal is taking shape, withdrawal throws that away.

Your exposed to false statement charges. Withdrawing dosent fix this – it just eliminates any cooperation credit you might receive.

Trial would require a defense contradicting your proffer. If your only viable defense theory conflicts with what you proffered, trial becomes extremely difficult. Continued cooperation toward a plea may be the better path.

Protecting Yourself Before, During, and After

If your reading this before you’ve proffered, you have options. If your reading this after, you still have options – just different ones.

Before the proffer:

Consider whether proffering is actually necessary. Not every federal case requires cooperation. Strong defenses exist. Some cases are best fought at trial. Others are best resolved through negotiation without ever sitting down for a formal proffer session. The decision to proffer should never be made lightly – once you walk into that room, you cant take back what you say.

Rule 11 of the Federal Rules of Criminal Procedure governs plea negotiations, and informal discussions may provide some protection without the formal proffer letters limitations. Understanding these rules before you agree to anything is essential.

Negotiate the proffer letter terms. Not all proffer agreements are identical. Some have broader protections then others. Your attorney should push back on overly expansive waiver provisions.

Know exactly what you’ll say. A proffer session is not the time for improvisation. Every answer should be prepared, vetted, and strategized in advance.

During the proffer:

Tell the complete truth or say nothing. Partial truth is worse then silence. Omissions become false statements if there material.

Dont speculate or guess. “I dont know” and “I dont remember” are acceptable answers – if there true.

Assume everything will be used somehow. Even with “use immunity,” derivative use means your words will echo through the investigation.

After withdrawing:

Preserve all communications. If you later need to prove what was agreed to or what you said, documentation matters. Prepare for derivative evidence. Whatever leads you provided are being followed. Build your defense with that reality in mind. Consider the sentencing implications. If convicted, your proffer statements may reappear at sentencing. Plan accordingly.

Spodek Law Group handles proffer agreements and cooperation decisions in federal cases nationaly. Call us at 212-300-5196 if your facing this decision or have already proffered and need to evaluate your options. The paradox of proffer withdrawal is real – you can walk away from the agreement, but you cant walk away from your words.