Preparing for a Federal Proffer: What Your Lawyer Should Do.

Last Updated on: 4th August 2026, 01:33 am

A federal proffer is a voluntary session in which we negotiate with prosecutors to present information, or information we obtain during an investigation, to aid in the government’s case. Because of the immense stakes involved, we must investigate your exposure to federal offenses thoroughly. A proffer can be a powerful tool for mitigating your culpability; but if a proffer is a mistake, it can have devastating repercussions. So, in federal cases, a proffer should never be accepted without first developing a comprehensive understanding of the government’s case and your ability to defend against it.

A federal proffer is a strategic disclosure whose protections depend on the proffer agreement and applicable law. After presenting information, the federal government retains the ability to use it, and the offer cannot be withdrawn. As a result, we are extremely careful about the information that we proffer. This includes conducting an independent investigation to develop our own understanding of the facts involved. While the government has substantial investigative resources at its disposal, independent investigations often uncover exonerating evidence that contradicts the government’s theory of the case and can also reveal the fact that the government’s theory is unfounded.

A courtroom proffer is an offer of proof and differs from cooperation interviews and other types of proffers. We prepare for courtroom proffers by negotiating with prosecutors and preparing for questioning. An attorney proffer is similar in that we can preview information that you can provide, but in an attorney proffer we will present this information without involving you initially.

If we are representing you, we cannot use information obtained through the representation of another individual even under a common interest arrangement. We must assess any potential conflicts of interest before offering information obtained from previous clients, regardless of any agreements or representations made by the client.

Does My Case Status Change Whether I Should Proffer?

How should you decide whether to accept an invitation to a proffer session? This is a decision we make together after reviewing your case. Prior to accepting, we must first identify viable defenses and any applicable suppression issues. In some cases, we may advise against accepting the invitation at all. This is most commonly the case when we find that your culpability is not clearly established, there are numerous suppression issues, or there are numerous suppression issues that make it unclear whether the federal government has the means to prosecute. While this is most common, in some cases accepting the invitation may be warranted. If an invitation is acceptable, we can usually accept the invitation at a later date, pending further investigation. If the prosecution has imposed a deadline, we will need to make a decision based on the information that we have available at hand.

Target

The Justice Manual defines a “target” at § 9-11.151(a) as “a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.” While you may be identified as a target in a federal investigation, this does not necessarily mean that the federal government can or will establish your guilt. In this case, identifying viable defenses and identifying the implications of a proffer on your case will be key.

Subject

Again referring to the Justice Manual, § 9-11.151(c) defines “subject” as “ a person whose conduct falls within the scope of a grand jury investigation conducted by the United States Attorney’s Office.” In your case, if the U.S. Attorney’s Office has not charged you with a crime, we need to determine whether you have any responsibility for the crime that is the focus of the grand jury investigation.

Witness

Similarly, witnesses are identified by the federal government based on evidence which identifies them as having information that is relevant to the prosecution’s case. A witness may also be a target or a subject, and a witness designation does not immunize the witness from later prosecution. While a witness may present an opportunity to avoid prosecution, in some cases accepting the invitation may create additional risks for the witness.

Charged Defendant

For defendants that have been charged with a crime, we will analyze the nature of the proposed proffer in light of the nature of the case, the filed counts, and the consequences of conviction. This is especially important if the federal government is requesting disclosures with regards to the specific case at hand. Targets, subjects, witnesses, and charged defendants can engage in proffer sessions. As a result, we determine whether to accept the invitation to proffer based on an evaluation of all applicable factors.

What Should I Tell My Lawyer Prior to the Proffer?

The first part of preparation involves a thorough review of all the information that is available in the case. This includes reviewing any discovery, subpoenas, communications, financial records, and any other evidence that has been produced. Next, we determine what the prosecutors likely know so that we can prepare substantive answers. With a clear picture of the case at hand, we can identify, develop, and test your potential defenses.

Following the initial review, we conduct mock questioning. We will go through the questions that the prosecutors are most likely to ask. In this mock session, we can identify any potential memory issues and look for any contradictions between your account and the available evidence. We also distinguish between information that is within your personal knowledge and assumptions, estimates, opinions, and secondhand information.

We also strongly encourage you to disclose all pertinent facts to your defense counsel. While you may be reluctant to disclose unfavorable facts, these facts are often what need to be addressed in the proffer session. While your defense counsel will keep these facts confidential, and you can choose whether or not to disclose these facts to the federal prosecutors, your counsel needs to know this information to properly prepare for the session. If you are reluctant to disclose unfavorable facts to your counsel, we will not be able to test your account against the available evidence. As a result, you will not be able to make the best possible decisions and we cannot ensure that you will not become untruthful during the session.

Our final step in preparation is ensuring that you are familiar with all statements you have previously made. We strongly encourage clients to make an inventory of all statements to federal agents, grand juries, federal regulators, civil litigants, codefendants, and others. Then, with your help, we will build a dated chronology of the events and conversations that are relevant to the federal investigation. We cross-reference the chronology with all pertinent documents, communications, and other relevant evidence. Once we have the chronology, we then use it to make sure that the information being proferred is accurate and complete.

What Terms Should My Lawyer Negotiate in the Proffer Agreement?

Before the proffer session takes place, we prepare a detailed proffer agreement that outlines the rules that will govern the prosecutors’ use of the information you proffer. A typical proffer agreement does not grant statutory immunity, but instead it limits the government’s ability to use the information you proffer. For example, typical agreements only restrict the information’s direct use in the government’s trial case-in-chief. However, this does not necessarily exclude the information from being used at sentencing. Similarly, these restrictions typically do not apply in rebuttal if you testify at trial. Importantly, many typical agreements also permit prosecutors to pursue evidence which is derived from disclosures you make in a proffer session.

When negotiating on behalf of a client, we address each of these issues. As a result, we ensure that the proffer agreement does not unfairly subject the client to unnecessary risk. We look to expand the direct-use restrictions to include sentencing and rebuttal, and to limit the government’s ability to seek derivative evidence. If the federal government intends to include provisions in a proffer agreement that are considered abusive or that overreach, we will negotiate to address these as well.

Which Other Individuals or Entities will be bound by the Proffer Agreement?

Identifying the parties and government office bound by the agreement is also important. For example, we need to identify any individuals or entities that will have access to the information proferred and ensure that the agreement binds these entities as well. We also need to ensure that any oral assurances from prosecutors appear in the signed agreement as well, before we proceed.

Does the Agreement Waive Your Federal Rule of Evidence 410 Protections?

Federal Rule of Evidence 410 bars the use of statements made during plea discussions at trial. In some cases, however, a proffer agreement may require you to contractually waive these protections. With this in mind, the specific wording of the agreement must be scrutinized to protect your rights as a putative or charged defendant.

Which Types of Evidence can the Government Use Against You?

Finally, our approach to crafting a proffer agreement is to explicitly identify the types of evidence that the government can use against you. By doing this, we avoid relying on a general prohibition on “all statements or information disclosed” in a proffer agreement. We take the time to determine exactly which types of evidence would not be admissible, but we also take a detailed look at what can be admitted. As a result, we understand all that is at stake in the proffer session.

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

What Subjects Should Stay Outside a Federal Proffer?

Before the proffer session, we negotiate the session’s objectives, subjects, and proposed boundaries. While the federal prosecutors can ask questions related to the proffer, the proffer agreement can specifically exclude certain subjects and information.

Privileged Attorney-Client Communications

Privileged communications between clients and attorneys must generally be confidential, and the communication must be made with the purpose of obtaining legal advice. While you might assume that communications made to prosecutors during a proffer session are protected under the attorney-client privilege, this is not necessarily the case. While many agreements include a carve-out for privileged communications, this carve-out is not a statutory protection for everything you say during a proffer session. To fully ensure that your communications to the prosecutor are protected, you should not volunteer any information that the federal government can use to prove that you waived the privilege. This includes identifying communications with your counsel that are not covered under the attorney-client privilege or that do not meet the standard for privileged attorney-client communications.

Statements in State or Non-Criminal Proceedings

Federal Rule of Evidence 410 applies in federal civil and criminal cases and bars certain statements made during qualifying plea discussions against the defendant who made them. However, a federal proffer agreement that has the proper language will not necessarily provide the same protections. It is important to first determine whether the proffer agreement should include language which expressly bars the government from using your statements in other proceedings.

The Scope of the Proffer

Once the proffer agreement has the proper language, we then evaluate the scope of information you need to disclose. This means we must determine:

• To what extent is disclosure necessary to avoid charges?
• Do you have information that is helpful in achieving your objectives?
• What information is within your knowledge, and does it relate to other individuals or companies?
• Does the government want to use your information for a different matter or to investigate other individuals or entities?
• Are you prepared to disclose the federal government’s information to other agencies?

Unrelated Criminal Conduct

As long as the federal prosecutors do not establish that you have responsibility in unrelated criminal cases, you should keep these matters separate. Voluntarily disclosing unrelated information to the government during the proffer session can create risks that you otherwise do not have. While lying to a federal officer or in federal court is a criminal offense that generally carries five years’ imprisonment under Section 1001, any false information should be disclosed before the proffer session.

How Should My Lawyer Control and Document the Federal Proffer?

During the proffer session, you must be entirely truthful. A material, knowing, and willful lie, while likely not to lead to direct use of a statement during a proffer session, will probably violate 18 U.S.C. § 1001.

While there is a misconception that defense counsel speaks 20 percent of the time during a federal proffer session, there is no rule requiring such a ratio. While we cannot answer substantive questions on your behalf, we will monitor the proffer closely. If you do not understand a question, are hesitant, or need to speak with us privately, we can request the session take a break. If we need to conclude the session for any reason, we can also request the session be paused.

While there is no requirement that prosecutors record and document these sessions, they do so in most cases. Typically, this takes the form of an FBI agent taking notes and drafting a report. The proffer session, when documented, also typically includes an agent who documents the responses to the prosecutor’s questions. We maintain an independent, complete record of the proffer session. In our record, we include all questions asked and your responses to each question. We review these records each time we meet the federal government and prepare to take them to the DOJ if necessary.

Ensuring the Federal Government’s Notes are Correct

In some cases, federal agents take incomplete notes and misrepresent our clients’ responses during the proffer session. While not a breach of the proffer agreement, this is an issue with the potential to create a new risk of being untruthful in a proffer session. If agents misquote, misrepresent, or leave out information, we will promptly request the federal government to correct these notes in writing. We can send a written correction to a federal agent or the U.S. Attorney’s Office. This is critical to ensure that you can testify to the accuracy of your statement and continue the proffer process as planned.

Do I Need to File a Motion with the District Court?

A federal proffer is an off-the-record session which will not involve the district court. Since this is a fact-finding session for the federal government, it will have no impact on the district court unless the federal prosecutors decide to indict or if a resolution has already been obtained. We will continue to keep you updated on all developments and advise you on the next steps to take.

What Outcome Can My Lawyer Realistically Seek from a Proffer?

While we can never guarantee any specific outcome from a federal proffer session, we can seek a number of different outcomes. A proffer session itself is an off-the-record session which provides the information that may lead the government to pursue charges or refrain from pursuing charges. A proffer can be used to obtain a resolution, a cooperation agreement, or even to convince the government to decline to pursue charges.

Declination

For a client who is eligible to seek a declination, the goal of a proffer session is to demonstrate the government’s lack of evidence or the client’s innocent, limited, or no-culpability for the crimes of interest. As a result, we seek to document that there is no evidence of guilt or that there are compelling grounds for declination. While we will take the time to understand all our client’s exposure in a case, we carefully align our proffer strategy with all our client’s specific objectives.

No-Charges Agreement or Cooperation Agreement

If a no-charges agreement or cooperation agreement is warranted, then we can pursue these as well. A no-charges agreement is a non-prosecution agreement that includes conditions under which the client avoids prosecution. A cooperation agreement requires the government’s prospective assistance to the grand jury in return for immunity or favorable treatment in the pending case. If we determine that our client can resolve the matter without going to trial, then we can use the information in a proffer session to seek a cooperation agreement from the U.S. Attorney’s Office.

Sentence Reduction

If the federal government charges our client, and our client cooperates, our client will be eligible for a sentence reduction. In many cases, federal prosecutors make offers to proffer a substantial assistant under Section 5K1.1 of the United States Sentencing Guidelines (U.S.S.G.) or for a substantial assistance departure under Section 3553(e) of the Sentencing Reform Act or 18 U.S.C. § 3553(e). Federal Rule of Criminal Procedure 35(b) also addresses the government’s request to sentence reductions. A 5K1.1 motion allows the sentencing judge to vary the sentence below the advisory guideline range. While a sentence reduction is a serious consideration, no proffer strategy can compel a federal prosecutor to grant a favorable recommendation to the district court.

Plea Agreement

In some cases, the resolution is a plea agreement. We negotiate favorable terms, and we advocate for our client’s rights to ensure that our client can accept the plea agreement while being able to accept the consequences of guilty.

Declination Submission

When preparing a declination submission, we provide a summary of the evidence that we use to document a lack of culpability. We align the evidence we have with the relevant offense elements to show a lack of evidence to support the relevant elements. We also identify the evidentiary and legal defects and work with the federal government to resolve them if possible.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.