Preparing for Proffer Session.

When facing federal investigation, it is vital to understand the scope and purpose of a proffer agreement, and its inherent limitations. From the outset, it is important to be clear that a proffer agreement does not equal a plea agreement, a grant of immunity, or any other contractual assurance of a non-criminal outcome. For an individual who chooses to volunteer information under the terms of a proffer agreement, it allows that individual to speak freely without the assurance of a deal but with the expectation that their voluntary statements will not be used against them in later legal proceedings (subject to certain limitations).

Regarding the decision to participate in a proffer, it is important to remember that it is entirely voluntary. When federal prosecutors send out proffer invitation letters, this invitation is not to be interpreted as a legal or procedural requirement to participate. Rather, the invitation is an expression of interest and a proposal for the individual to come forward.

From a law enforcement perspective, federal prosecutors use proffered interviews to evaluate:

• Credibility, to assess whether you are a reliable witness;
• Usefulness, to assess whether you have information they want or need; and
• Value, to assess whether your information can assist with solving a separate case or if you have significant grounds for sentencing leniency.

At Spodek Law Group, we make sure that we approach proffer agreements with a clear-eyed understanding of these expectations. The written agreement controls the protection available during and after questioning, and federal law enforcement officers are trained to be cognizant of what can be used as evidence at trial versus what can only be used for the purposes of the investigation.

Even though the individual providing the information is doing so voluntarily, providing false or misleading statements can still create criminal exposure. In fact, in addition to the underlying allegations at issue, deliberately making false or misleading statements during a proffer interview can also create substantial criminal exposure under 18 U.S.C. § 1001, and it is extremely common for federal prosecutors to use these cases for sentencing or additional charges.

How Should Counsel Test the Case Before Recommending a Proffer?

A proffer can occur before the government pursues formal charges, after a grand jury has issued an indictment, and in several other circumstances. To adequately represent you in federal case, your defense counsel needs to understand the scope of the investigation and all available information prior to recommending a proffer. This ensures that they can explain the weaknesses and strengths of your case before charging decisions are finalized, and so that you are prepared for any potential adverse reactions to your information.

Along the same lines, you should ensure that your defense counsel is available to attend your proffer interview and has the ability to request breaks or private consultations if necessary. You will also need to identify the subject matter of the proffer agreement before the questioning begins. At Spodek Law Group, we approach this critical task with care, and you should make sure your counsel has experience in structuring and negotiating these agreements as well.

Along with ensuring you have an experienced attorney by your side, you should ensure that your attorney has vetted your anticipated answers. They need to be able to compare these responses to the available documents and other evidence in order to determine if there is any reason for concern during the session. This includes reviewing information obtained from grand jury subpoenas. In fact, by reviewing the scope of a subpoena, your attorney can work to identify the investigation’s subjects, transactions, date ranges, and more before you ever speak with federal agents.

The preparation for a proffer interview also varies between federal districts. In some federal districts, the attorneys will proffer before their clients; in other federal districts, they will proffer alongside their clients. At Spodek Law Group, we work to ensure that you are prepared for any outcome and any changes to the plan that may arise. This includes ensuring that your attorney is comfortable addressing potential concerns with prosecutors during your proffer.

With all of this in mind, you will not want to attend a proffer interview without your attorney. Your attorney needs to know what is at risk and they must be able to negotiate terms in your favor. To ensure that they are able to do so effectively, your attorney needs to know what you are prepared to say and how this will affect you in the long run. By engaging a senior federal defense attorney, you can work to protect yourself as much as possible.

Families retain Spodek Law Group on behalf of someone they love every week of the year.

Which Words in the Agreement Control Use of a Proffer Statement?

Proffer agreements usually state that an individual’s statements will not be used directly in the government’s case-in-chief. While this is a key protection, it is far from the only one. For this reason, it is important to understand the following terms and concepts:

1. Derivative Use

While the government may not be able to use statements directly, it may still be able to engage in “derivative use.” Derivative use occurs when the government uses a statement obtained through a proffer in order to uncover other witnesses, records, or independent evidence. In other words, the statement can be used to generate new evidence that can then be used in court. This is often called “bootstrapping,” and it is one of the most common ways for the government to use a proffer statement to build its case.

2. Investigative Use

To protect themselves from allegations of “bootstrapping,” some prosecutors will include a clause in a proffer agreement which expressly permits “investigative use” of the information disclosed. This means that the government agrees not to use your statements as evidence, but it can use them to decide which direction to pursue in its investigation.

3. Impeachment and Rebuttal Use

Some proffer agreements include a provision permitting “rebuttal use.” This means that the government may be able to use proffer statements for impeachment or rebuttal if the defendant later testifies or otherwise presents a position inconsistent with the proffer. Rebuttal use clauses can apply broadly to any defense evidence that is presented at trial, not just a defendant’s own testimony.

These examples are just a starting point. The specific terms and phrases used in proffer agreements vary widely between different United States Attorney’s Offices and individual federal prosecutors. As a result, it is critical for all individuals and their counsel to analyze these agreements on an individual basis. At Spodek Law Group, we work to ensure that your attorney has full control of the negotiation process. This involves crafting language that provides the maximum amount of protection possible while still which will satisfy the government’s requirements for participating in a proffer session. We strongly recommend negotiating and finalizing a proffer agreement with experienced defense counsel on your side.

When Can Cooperation Produce Relief, Repeated Sessions, or New Exposure?

A proffer can help prosecutors decide whether to pursue formal cooperation discussions. If a proffer is successful, the participants’ prosecutors and defense counsel will negotiate a cooperation agreement that, if acceptable, will provide the participants with immunity or substantial sentencing benefits. If the government needs additional information from the participants, however, this can lead to repeated proffer sessions or potentially to separate investigations.

On the other hand, a proffer can also expose the individual in various ways. Among the risks of attending a proffer is a possible criminal prosecution for providing a materially false statement, which is a violation of 18 U.S.C. § 1001. This section of the U.S. Code generally criminalizes any knowingly and willfully made, materially false statement or fraudulent representation in any matter within the jurisdiction of the federal government. “Under 18 U.S.C. § 1001(a), the offender shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.” Thus, a proffer that exposes you to a possible Section 1001 violation can heighten the risks facing you in your federal investigation.

If you provide substantial assistance and the government files the required motion, sentencing relief may be possible under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). As the Sentencing Guidelines state, under 5K1.1:

“Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, a sentence that is below the otherwise applicable guideline range may be appropriate.”

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 888 348 8028.