How Many Proffer Sessions Will I Have to Attend??

Federal law does not specify the number of proffer sessions that you will need to attend. If prosecutors get the answers they need, there might only be one session. However, if prosecutors need to ask follow-up questions based on what you say in the first session, you will have to participate in additional sessions. This is not uncommon.

A proffer agreement may expressly cover only one proffer session, or it may cover several. When you participate in a proffer, you should confirm with your defense counsel that the protections of your agreement extend to every subsequent proffer meeting. While you can potentially refuse to participate in subsequent sessions, in most cases this will not be a good idea for a participant who is trying to negotiate a favorable resolution.

Prosecutors are the ones who determine when they have the information they need to make informed decisions regarding criminal charges or cooperation agreements. If they need more information, they will inform you.

While proffer sessions frequently occur before criminal charges are filed, they can occur after a defendant has been charged with a criminal violation. Participants in a federal case can offer proffers at any stage of the process. Typical attendees include the participant and defense counsel, the federal prosecutors, and the investigating agents. Proffer sessions are typically held at the U.S. Attorney’s Office, though sessions can take place at other convenient locations. In some cases, federal prosecutors, investigative agents, and the participants will meet at a location such as a law enforcement agency building or at the participant’s private law office. The selection of location is generally based on where the attending parties are most able and willing to meet. Our lawyers can negotiate proffer agreements on your behalf, and we can also provide guidance on the appropriate time for you to offer a proffer to prosecutors.

What Makes a Proffer Continue into Another Meeting?

Prosecutors use proffer sessions to evaluate several factors. They use proffer sessions to:

• Evaluate the credibility of a defendant’s or target’s information and the defendant or target’s own credibility
• Evaluate the usefulness of the information
• See if they have information to corroborate what is being shared
• Determine whether they need additional information and whether they want to continue to accept the defendant’s or target’s cooperation

If there are questions that go unanswered during a proffer session or if there are aspects of the defendant’s or target’s story that prosecutors believe are not fully fleshed out, then they will need a second proffer session. The length of each proffer session is not strictly mandated by any federal rule, and there is no formal requirement for prosecutors to declare their proffer session “finished.”

During a proffer, a defendant’s or target’s defense counsel will listen in and may interject if necessary. In addition, defense counsel can ask to have a private meeting with their client at any time. The primary purpose of these private meetings is to evaluate the risks of sharing more information and to make informed decisions. If the risk exceeds the potential benefits of continuing, defense counsel will terminate the session immediately.

While defense counsel is there to provide guidance, the participant is the one who will have to answer the substantive questions that federal prosecutors and investigating agents are asking during the proffer session. The participant is offering the proffer, and so, not the defense counsel, the participant will be the one to answer the prosecutors’ questions.

Being candid during proffer sessions is very important, and incomplete information is generally viewed as dishonesty. Thus, presenting prosecutors with incomplete or inaccurate information can jeopardize the participant’s status as a cooperating witness and potentially lead to additional criminal charges.

Participating in a proffer is entirely voluntary. Participants can refuse to attend additional meetings. If your counsel advises you to terminate your proffer, then you should do so immediately. Conversely, even if you decide that you do not want to attend additional proffer meetings, if your counsel informs you that continuing to participate is in your best interest, you should abide by your counsel’s advice. After all, your counsel is working in your best interest and will make decisions based on their insight.

Will My Proffer Agreement Protect Every Follow-up Session?

Your written proffer agreement will detail both the permitted and prohibited uses of the statements that you make during a proffer session. The language and specific terms of proffer agreements will vary between federal districts, among federal prosecutors, and from one case to another. In most cases, a proffer agreement will allow investigating agents to pursue any leads that you may have provided during your questioning. This means that even though the investigators cannot introduce your statement into evidence, they can use the information provided to pursue further leads and find other evidence.

Generally, even though the statements made by the participant of a proffer session are prohibited from being used against them in court, all evidence obtained independently will still be usable by prosecutors regardless of how they obtained the evidence.

Additionally, proffer agreements will allow the federal government to impeach the participant with a prior inconsistent statement during trial. If you say one thing during a proffer session, then deny it during your testimony at trial, then this constitutes a prior inconsistent statement, and the federal government can impeach you by bringing up the statement you made during your proffer session.

Typically, proffer agreements will also allow the federal government to use a statement for rebuttal purposes against any contrary evidence or argument that the participant presents during trial. For example, if a participant says one thing during the proffer session and then later argues that the truth is the complete opposite, then this constitutes an attempt to argue against the facts presented during the proffer session. The federal government can then use statements from the proffer session to rebut this argument.

Generally speaking, courts enforce proffer agreements based on their written language and impose protections that are expressly spelled out in the agreement. If the agreement language doesn’t restrict prosecutors from using the participant’s statements to prove a criminal violation, then the court will likely find the use of the participant’s statements permissible.

Finally, in a proffer session, the agreement’s language is what controls whether the federal government will still need to adhere to the restrictions in a situation where questioning was adjourned and then resumed. If the agreement explicitly states that the restrictions are only in effect during the session, then prosecutors may be free to use your statements if they take a break for a time, then resume the session. If the agreement states that the restrictions will remain in effect from the beginning of the session until the session ends, then the government must continue to follow the restrictions until the end of the session.

If any of this describes your situation, it is worth talking it through with counsel. Spodek Law Group can be reached at 212-300-5196.

Are Federal Proffer Sessions Recorded or Just Documented?

When federal agents preserve a participant’s answers during a proffer session, these are typically preserved in written interview notes. These rough interview notes are not same as verbatim audio or video recordings. A rough interview note is a summary of the answers given during a proffer session. The agent who created the notes will then use the notes as the basis for his or her official report to the prosecutor.

Federal proffer sessions are not uniformly audio- or video-recorded. However, if a proffer session is audio- or video-recorded, there should be a formal record available. In many cases, the participants will be given a copy of the recording.

DOJ policy creates a presumption that the FBI, DEA, ATF, and U.S. Marshals Service will electronically record custodial interviews of individuals in their custody that take place in a place of detention with suitable recording equipment, after arrest and before the individual’s initial appearance before a judicial officer. That presumption does not extend to proffer sessions, which are voluntary, non-custodial meetings held outside a place of detention and are usually not recorded.

Upon a defendant’s request, Rule 16(a)(1)(B) requires the government to disclose the following:

• The defendant’s own relevant written or recorded statements that are within the government’s possession, custody, or control, where the attorney for the government knows, or through due diligence could know, that the statement exists.

While Rule 16(a)(1)(B) requires the disclosure of recorded statements, it does not require the disclosure of rough interview notes. And, as discussed above, federal agents’ rough interview notes can substantially differ from the statements the participant may have actually made during the proffer session. As discussed below, false statements given during proffer sessions are prosecuted with frequency.

While the participants of a proffer session have no automatic right to a copy of the agents’ rough interview notes, federal courts have held that Rule 16(a)(1)(B) applies only to the defendant’s own written or recorded statements, and that participants do not have an automatic right to copies of rough interview notes.

While a proffer agreement can protect a participant’s statements from being used during trial, its treatment of false statements depends on the agreement’s terms, and such agreements commonly permit use in a prosecution for false statements. False statements during a proffer session can be prosecuted under 18 U.S.C. § 1001. Section 1001 is one of the government’s most frequently used statutes. It imposes fines and imprisonment on anyone who:

• “Falsifies, conceals, or covers up by any trick, scheme, or device any material fact;”
• “Makes any materially false, fictitious, or fraudulent statement or representation;” or
• “Uses or attempts to use any false writing or document knowing that it contains any false statement or representation.”

18 U.S.C. § 1001 also specifies that the statement must be made “knowingly and willfully” in a matter within the jurisdiction of the executive, legislative, or judicial branch of the federal government. This means that prosecutors must be able to show that the statement was made knowingly and willfully and that it was “materially false.”

A materially false statement is one that has a “natural tendency to influence, or be capable of influencing, the decision of the agency.” If a statement during a proffer session is materially false, then the federal government can prosecute the defendant for a violation of Section 1001.

Does Attending Proffer Sessions Make Me a Cooperating Witness?

No, attending proffer sessions does not automatically make you a “cooperating witness.” While a participant can later become a cooperating witness, a proffer alone does not make that happen; cooperating-witness status comes from a separate cooperation agreement with the government. And even then, “snitch” is not a legal status.

In many cases, defendants and targets in federal cases enter into proffer agreements to see if they have information that would be useful against other people, organizations, or both. If the information that the participant is offering is useful, prosecutors may agree to cut a deal for a reduced sentence.

Defendants and targets can also use proffer agreements to clarify their limited involvement or their innocent role in the alleged offense. By accepting a proffer agreement, prosecutors are essentially acknowledging that they need to learn more about the defendant’s or target’s involvement (or role) in the case.

As discussed in the previous section, a proffer is different from both a plea agreement and a cooperation agreement. While a plea agreement is also the result of a negotiation between the federal government and the defendant, the purpose of a plea agreement is completely different. And while a cooperation agreement is also the result of a negotiation, there is a distinction between a cooperation agreement and the preliminary process of presenting information to prosecutors.

Following a proffer session, the prosecutors will take the information and analyze it. After this analysis, prosecutors may:

• Continue talking to the defendant or target to find out more, offering a plea deal;
• Offer a plea deal; or
• Decide to reject the defendant’s or target’s offer of cooperation.

A reverse proffer is also a possibility, and this occurs when the federal government offers information that they have against the defendant or target to the defendant’s or target’s counsel. In a reverse proffer session, participants discuss the government’s evidence and the defendant’s or target’s involvement in the alleged crime. This differs from a regular proffer session in that the government shares its information with the defense rather than the defendant sharing information with the government.

What Can Happen After My Final Proffer Session?

When federal prosecutors decline to file charges against a target, it means that the target will not be subject to criminal prosecution. Typically, these declination decisions result from one of two scenarios. In many cases, the federal prosecutors will determine that the target does not have the criminal intent required to be prosecuted. In other cases, prosecutors will decide that they simply do not have the evidence they need. While a credible pre-indictment proffer can be very influential, the prosecutors will still want to investigate and confirm the facts that you’ve shared with them. If they are able to confirm these facts, and they find that you were completely honest during the proffer session, then they may choose to decline to file charges against you.

While a successful proffer session can also have a positive impact after an indictment, it will not lead to the government to dismiss the case. Typically, a successful post-indictment proffer session may reduce the charges that are being brought against you. While proffer agreements do not expressly guarantee results like charges being declined, charges being dismissed, or charges being reduced, it remains very helpful to participate in proffers.

While federal prosecutors will present prosecutors with a set of charge-count statistics, they will not isolate those cases which was declination based on information learned from a proffer session. Therefore, if you are interested in finding information on federal prosecutors’ proffer declinations and charges dismissals, then the published statistics and the anecdotes of federal defense attorneys will not provide a reliable answer.

What is a Declination?

A declination is when federal prosecutors have decided not to file charges against a defendant or target in a federal criminal case. When criminal charges are declined, the case essentially ends before criminal charges are officially brought in court.

A dismissal is the termination of an existing criminal case. When federal prosecutors dismiss charges against a defendant, it usually means that prosecutors had already charged the defendant and brought charges to court. They are then withdrawing the charges for one reason or another.

While prosecutors will present a set of statistics that quantify the amount of charged cases that prosecutors ended up dismissing or declining to prosecute, they will not isolate those cases which ended up being dismissed or declined for the same reasons that they declined or dropped charges. This means that it is not possible to tell from these statistics whether proffer sessions played any role in these decisions.

It is also not possible to discern whether proffer sessions played a role in these outcomes by anecdotes given by federal defense lawyers. Anecdotes are not representative of all cases, so they may not indicate common outcomes.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.