How an Experienced Lawyer Negotiates Federal Proffer Agreements.

While often nicknamed “Queen for a Day,” a federal proffer agreement does not grant immunity. Additionally, a proffer agreement alone does not provide a guarantee of a plea agreement, cooperation agreement, or other favorable disposition. Prosecutors routinely make clear that information provided during a proffer session will not itself justify such results.

Given these restrictions, there are various issues that present distinct drafting decisions during negotiations. Prosecutors and defense counsel must negotiate each of these issues individually, beginning with whether the proffer will cover the defendant’s own liability in order to facilitate plea negotiations. However, if the defendant’s goal is to avoid charges and secure immunity, a proffer can still be a valuable strategy. In these cases, our defense attorneys focus on securing the most favorable direct-use, derivative-use, information sharing, sentencing, and breach provisions.

Ultimately, a federal proffer agreement takes the form of a proffer letter, and it should establish clear contractual terms and conditions that govern the subsequent information sharing session. Various individuals can participate in these sessions, including federal targets, subjects, witnesses, and defendants who have already been charged. Proffer sessions are most commonly attended by defense counsel, prosecutors, and investigating agents. These sessions can also occur both before and after indictments are handed down or charges are filed.

From the government’s perspective, proffer sessions serve as a means to evaluate the credibility, usefulness, and verifiability of information being presented. At the same time, prosecutors utilize these sessions to gather information that can be used in prosecutions, grand jury proceedings, and further investigations. For these reasons, our lawyers approach the process of preparing for a proffer session with a risk-management mindset, and we never assume that any proffer session is completely risk-free.

What does counsel investigate before proposing proffer terms?

What Information Does Counsel Need to Gather Prior to Negotiating Proffer Terms?

To negotiate in an informed manner, counsel must first understand the government’s goals and the defendant’s potential contributions. When necessary, this may involve asking the prosecutors what information they consider materially useful, or previewing the defendant’s intended topics before letting the government take the lead in questioning.

Preparation for proffers can range from reviewing documents, creating timelines, and calculating a defendant’s criminal exposure to anticipating government questions. However, these efforts are secondary to understanding the defense’s goals, and determining how to pursue them effectively.

Do All Defendants Need to Negotiate Their Own Proffer Agreements?

In a federal criminal case, defense counsel needs to determine whether a defendant is a witness, subject, or target. While defendants’ goals may overlap, their priorities and their leverage for negotiating should vary. For example, defendants who have unique information that the government cannot independently verify should have significantly more leverage than those whose information is either known or easily verifiable.

What are the Benefits of a Proffer Prior to a Grand Jury?

Even in cases that are not headed toward a grand jury, there are three main benefits to conducting a proffer prior to initiating plea negotiations:

• Establishing a Limited Attorney Preview

In many cases, it may make sense to conduct a limited attorney preview before arranging for the client to speak with federal prosecutors. This provides a chance to gauge the government’s interest and determine how the client’s cooperation will be utilized before committing to the risks of the client’s disclosure.

• Expanding the Client’s Options

For clients who are currently witnesses or targets, a proffer can be the first step toward securing their status as a cooperating witness. Conversely, if a defendant has already been indicted, a proffer can facilitate plea negotiations.

• Determining the Client’s Exposure

What are the Risks of Participating in a Proffer Session?

There are two primary risks to participating in a proffer session, both of which present opportunities for counsel to exercise informed judgment.

Are There Other Matters to Consider?

The final issues to consider before arranging for a proffer session are:

• Multiple Participating Agencies

If there are multiple agencies involved in the case, then there is a possibility that there are parallel investigative interests at play.

• Determining the Likely Timeline

The timing of a proffer session is critical, and this is another decision that should be made with informed judgment.

Which proffer protections should counsel negotiate separately?

These are among the protections that we believe should be negotiated on a case-by-case basis. Our attorneys can assess the unique circumstances involved and help clients decide whether these are the necessary terms and conditions for their proffers.

Federal Rule of Evidence 410

Federal Rule of Evidence (FRE) 410 governs the admissibility of statements made during discussions about a potential plea agreement. Its protections cover both direct-use and derivative-use admissibility in court, subject to the defendant’s knowing and voluntary waiver. As the U.S. Supreme Court noted in United States v. Mezzanatto, defendants can waive these protections. One example of a partial waiver is an “impeachment-only” waiver, which restricts the government’s ability to use proferred statements as substantive evidence at trial, but provides the government with more flexibility than broader “no use or disclosure” language.

U.S.S.G. §1B1.8

Similar to FRE 410, U.S.S.G. §1B1.8 contains specific protections against the use of proffers in certain scenarios. Unlike FRE 410, U.S.S.G. §1B1.8 protections only apply if the government agrees to the provision in the proffer agreement.

Comparison of FRE 410 and U.S.S.G. §1B1.8

While FRE 410 and U.S.S.G. §1B1.8 both contain protections, they are different in all respects. FRE 410 limits a statement’s admissibility in court, whereas U.S.S.G. §1B1.8 restricts the use of the statements for sentencing guidelines. With this in mind, defendants should seek protections under both rules if needed.

Statutory Immunity

Regardless of whether a defendant secures protections under FRE 410 or U.S.S.G. §1B1.8, both provisions differ significantly from the statutory immunity granted under 18 U.S.C. §6002. This statutory protection is limited to statements that directly lead to a conviction.

Derivative-Use Permission and Derivative-Use Immunity

There is also the issue of derivative use. Derivative-use permission allows the government to pursue charges based on the derivative evidence provided during the proffer, while derivative-use immunity forbids the government from pursuing charges based on the derivative evidence in order to avoid creating a situation where the information provided during the proffer is not fully utilized for its intended purpose.

Limitations of FRE 410’s Coverage

While a proffer session does not necessarily need to involve the prosecutors in order for the government to obtain derivative-use permission, FRE 410 only applies to qualifying discussions that involve an attorney for the U.S. government. As a result, any information revealed during discussions without the attorney’s presence could be admissible in court.

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.

How can counsel limit the proffer’s scope and downstream sharing?

Our attorneys generally work to limit the scope and downstream sharing of proffers when necessary. Our attorneys focus on mitigating the risks of a proffer session while still offering a valuable contribution to the government. Here are some examples of how we manage the proffer process:

1. Documenting Investigators’ Existing Knowledge

As the proffer process moves forward, our attorneys can help clients leverage pre-session evidence inventories. This allows investigators to document their existing knowledge and the sources of their information, which helps prevent them from unfairly claiming to have not known anything that is disclosed by our client during a proffer session.

2. Requesting Information about Government Attendees

One of the first risks involved in negotiating a proffer is not knowing exactly which government officials will attend. As a result, our attorneys will request that the government identify every individual who will attend, and we also make requests to ensure the government does not invite officials who might have a conflict of interest.

3. Negotiating the Proffer’s Scope

Negotiating a proffer also involves limiting its scope. This includes negotiating the covered subjects, people, offenses, and time periods that our clients are prepared to discuss.

4. Limiting Downstream Information Sharing

While we generally only speak to the federal prosecutors, we also include language that limits the proffer’s downstream sharing. One reason why is that while the government may promise not to share information with other state, local, or foreign authorities, these authorities may still have a right to use any information provided to them regardless of the promise. As a result, we make sure to request that our clients’ information not be shared with other authorities.

5. Documentation of Evidence Provided During the Proffer Session

In our experience, these are among the few examples of downstream sharing restrictions that have proven successful. However, we continue to work in good faith with the federal prosecutors and investigators, and as a result, our attorneys routinely offer to voluntarily facilitate the sharing of proffers if such information is necessary to help other agencies close their own investigations.

6. Requesting a Dated Discovery Production

Our attorneys will also request a dated discovery production. We can then compare the government’s production to the specific pieces of information revealed during our clients’ proffer sessions. This allows us to determine whether the government already had this information, which informs decisions regarding plea negotiations and sentencing mitigation.

7. Requesting a Restriction on the Government’s Ability to Share Proffers

Our attorneys may request restrictions on the government’s ability to share the information provided during the proffer sessions. This is a separate request from limiting the government’s ability to invite other government officials to attend the session, and it cannot be ignored, as the latter does not itself automatically restrict the former.

8. Negotiating a Notice Provision

If the government refuses to accept a ban on sharing, our attorneys will seek to include a notice provision in our clients’ proffer agreement. This ensures that the government provides our client with a detailed and timely notice before sharing their proferred information with any third party.

Can Proffer Statements Increase the Federal Sentencing Range?

Similar to protections under FRE 410, many proffer letters contain provisions regarding their use at sentencing. While some letters expressly allow for proffer use at sentencing, our attorneys generally work to negotiate express limits on such use.

Is Proferred Information subject to the U.S. Sentencing Guidelines?

Our attorneys will also negotiate the circumstances under which proferred information can be used to calculate federal sentencing guidelines. This includes mitigating risks for the Sentencing Guidelines in any possible scenario where the government might consider its clients’ proferred information relevant for sentencing calculations.

Many clients, defendants, and witnesses also have questions about when and under what circumstances they may be entitled to a sentencing departure. While, as often discussed, a proffer letter alone does not promise a specific result, it may be a useful tool for securing additional departures for a variety of reasons.

A common example of a desired sentencing departure is the one found under U.S.S.G. §5K1.1. To qualify for this departure, a defendant must provide substantial assistance to the government in its investigation and prosecution of a federal offense. When a defendant satisfies this requirement, the government can file a substantial-assistance motion for a downward departure. However, as the Supreme Court noted in Wade v. United States, providing substantial assistance alone does not necessarily require the government to file a §5K1.1 motion.

Given these challenges, our attorneys work to negotiate as much as possible, and often we can successfully secure a §5K1.1 motion for our clients.

What are the Risks of Admissions and Proffers?

If a proffer agreement does not have protections under U.S.S.G. §1B1.8, then information provided by a defendant may serve as evidence of relevant conduct under the federal sentencing guidelines. While relevant conduct is an important consideration, it is not always known beforehand, which means our clients can face greater exposure if their proferred statements have the potential to support relevant-conduct findings under U.S.S.G. §1B1.3.

Our defense attorneys seek to negotiate §1B1.8 protection when possible, but it is also important for the government’s prosecutors to confirm that they will agree to a §5K1.1 departure if a substantial-assistance motion is warranted.

How Can Counsel Negotiate Proffer-Related Considerations Prior to Plea Negotiations?

Finally, in addition to the provisions we mentioned above, our attorneys may include additional information regarding proffer related-considerations in our clients’ proffer agreements. While such information is generally not considered a part of the proffer letter itself, it may appear in contemporaneous correspondence to the government. This helps avoid confusion and provide clarity if a dispute arises before plea negotiations begin.

How Can Counsel Narrow the Waiver and Rebuttal Provisions of a Proffer Agreement?

While some proffer agreements grant defendants the ability to invoke the Fifth Amendment for all purposes, others contain a waiver and rebuttal provision that is triggered in a wide variety of scenarios. For example, there are waiver and rebuttal provisions that are triggered when:

• Testimony is Offered at the Defendant’s Own Trial and the Defendant Doesn’t Testify

The waiver and rebuttal provisions in many proffer agreements are triggered even when the defendant doesn’t testify. This presents a significant concern as prosecutors can introduce a defendant’s proffered statements as evidence at trial even in a scenario where the defendant chooses to maintain silence.

• Contradictory Cross-Examination Triggers the Proffer Rebuttal Provision

A defendant’s choice not to take the stand is not the only thing that can trigger the government’s ability to disclose the defendant’s proferred statements at trial. If a defendant’s prior statements contradict the cross-examination testimony of a witness, this can be sufficient to trigger the rebuttal provision as well.

• Certain Defenses are Waived

How Can Counsel Protect Against All Waiver Triggers in a Proffer Agreement?

Our attorneys can protect against all waiver triggers by negotiating restrictions on the scope and applicability of the proffer’s waiver and rebuttal provisions. For example, this can include requests that:

• The Government’s Ability to Offer Proffered Information be Restricted to the Defendant’s Own Testimony

Restricting the government’s ability to offer proferred information to the defendant’s testimony does not guarantee that the information will not be used if the defendant testifies. However, it at least removes the possibility of the information being used when the defendant chooses not to testify at trial.

• The Government’s Ability to Offer Proffered Information be Subject to Preserved Defenses

The waiver provisions in proffer agreements are often all-encompassing. As a result, our attorneys expressly preserve our clients’ suppression, jurisdictional, and purely legal defenses, as these are protections that are otherwise routinely waived.

How Can Counsel Protect Against Broad Breach Provisions?

We often find that the breach provisions in a proffer agreement are overly broad as well. In addition to trying to limit the government’s ability to determine what constitutes a breach in the first place, we also look for specific ways that we can resolve any issues in good faith without triggering the government’s waiver and rebuttal provisions. Some of these issues can be mitigated by negotiating terms like:

• A Materiality Threshold for Omissions and Incomplete or Inaccurate Information

In most proffer agreements, an omission is deemed to be a breach of the proffer agreement regardless of whether the information was essential. As a result, our attorneys negotiate a materiality threshold, while also seeking to ensure that omissions not caused by a client’s breach of the agreement are not subject to a waiver.

• Notice and Response Procedure for Alleged Breach

Again, we seek a notice and response procedure so that if the government believes our client breached the agreement, our client has a clear understanding of the allegations and a fair opportunity to explain why they didn’t breach the agreement.

• Language Excluding Good-Faith Failures to Recall Particular Information from being Deemed a Breach

Our attorneys also negotiate terms that expressly exclude a defendant’s good-faith failure to recall a particular detail or a good-faith mistake.

• Protections against Prosecutors’ Sole Discretion in Determining if a Breach Occurred

Finally, we strive to ensure that the government cannot arbitrarily determine that our client has breached the proffer agreement without any regard to the defendant’s defenses and objections.

Although many proffer agreements reserve the determination of whether a breach has occurred to the government’s sole discretion, and this discretion is generally respected by the courts, we still work to mitigate this risk when possible.

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.