Proffer Gone Wrong: What Happens If You Lie to Prosecutors.

If you lie in a federal proffer, you are breaching the proffer agreement. This is true if you fail to meet your requirements for truthfulness or completeness. If you breach the agreement in this manner, prosecutors can take advantage of this to use your proffer statements in ways that would otherwise be prohibited.

If prosecutors conclude that you are untruthful during a proffer, they can also determine that cooperation is no longer in the government’s best interest. If you lie about a key matter, the government may decide to terminate your cooperation and focus its efforts on other ways to secure justice.

In addition to the potential consequences discussed above, a lie told in a proffer could also provide prosecutors with the support they need to file additional federal charges. Lying to a federal agent is a violation of 18 U.S.C. § 1001. As a result, lying during a proffer can have its own legal consequences that can have implications for both your case and sentencing.

Statements you make during a proffer can potentially be used to impeach your testimony at trial. In United States v. Mezzanatto, the Supreme Court said that proffer agreements are valid and enforceable even if they waive a proffer participant’s right to prevent his statements from being used for impeachment. However, if you give a proffer and later lie about a key matter, your lie may be used against you in court if you do not have a valid defense.

If you introduce evidence at trial that contradicts a proffer statement, the government may also be able to use your proffer statement in rebuttal. In United States v. Velez, the court approved this when it was necessary for the government to address “contradictory evidence and arguments raised in the defense.”

Does one inaccurate answer void every proffer protection?

The answer to this question depends on the proffer agreement that you signed. The federal government uses proffer agreements in various federal districts, but these agreements can look different depending on the district, the prosecutor involved, and the individual circumstances. Federal courts typically use principles of contract law to interpret proffer letters and agreements. These principles apply because federal proffer agreements are essentially contracts that offer certain protections to the defendant in exchange for the defendant’s willingness to speak with investigators.

Despite variations among agreements, all proffer agreements generally include some basic provisions. For example, typical proffer letters include a provision stating that the information you disclose during your proffer interview cannot be used against you in the government’s case-in-chief. Instead, it cannot be used “directly” during your criminal trial unless you engage in misconduct. Some proffer agreements also include a “collateral use” provision that allow federal agents to use the information you provide during your proffer to pursue further leads.

Additionally, independent evidence that federal prosecutors obtain through their own investigation will always remain usable, regardless of the protections offered by the proffer agreement. A proffer participant’s statements themselves may be protected, but this does not protect the defendant if the government secures other independent evidence through its investigation.

Ultimately, whether an inaccurate statement during a proffer constitutes a breach of the agreement depends on the language contained in that specific agreement. Defendants can challenge the use of their proffer statements in criminal cases at federal courts. This involves filing a motion in limine, raising an evidentiary objection, or both.

Defendants can also challenge the government’s breach of the agreement. This may involve contesting the government’s determination that a breach has occurred. In many cases, the defendant’s counsel will be able to argue that the inaccuracy was not material, not intentional, or not a breach of the agreement for some other reason. If the defendant’s counsel can convince the judge that the government has not met its burden of proving a breach has occurred, this would be enough to convince the judge to deny the government’s motion to use the proffer statements.

Even though this scenario represents one of the most powerful defenses to the government’s request to use your proffer statements, it is only one of many defenses available under the law. When negotiating a proffer agreement, your criminal defense counsel will have the opportunity to work to secure the broadest possible protections.

When does a proffer lie become a federal crime?

A proffer lie is a federal crime when it constitutes a violation of 18 U.S.C. § 1001. The statute prohibits making false statements, including “any materially false, fictitious, or fraudulent statement or representation or any false or fraudulent document or writing.” The elements of a Section 1001 violation are as follows:

• Making a false statement
• Knowing or willfully
• Materially
• During a federal proceeding (or in relation to a federal matter)

Lying out loud to a federal agent during a proffer is a “false statement.” Even if the federal government declines to charge you with an additional Section 1001 violation, it may seek other penalties due to a breach of your proffer agreement.

The knowledge and willfulness requirements are cumulative. In order to convict you of a Section 1001 violation, the government must prove that you acted knowingly and willfully. A mistake, failure to understand what is being asked, a memory lapse, or other unintentional errors do not meet these requirements. A lack of memory is not a lie. If you truly forgot, then your statement about not remembering is not a knowing and willful false statement. The same is true when a statement is a good-faith guess. Uncertainty does not equal knowledge of the truth.

Materiality is measured by how likely a statement is to influence the government’s decision. If you lie about whether you enjoy to watch TV, it will probably not be material. If you lie about how you committed a crime, it will probably be material because it will shape how the government decides to proceed. It doesn’t matter if the lie actually does mislead the government; what matters is whether the false statement had the natural tendency to influence the government’s decision-making process.

While 18 U.S.C. § 1001 can trigger a Section 1001 violation during a proffer, a later correction does not automatically erase an intentional false statement. An intentional false statement may constitute a violation of Section 1001. Correction might be a strong mitigating factor during sentencing or negotiations, but it does not magically remove the offense once it has been completed.

As discussed, a lie in a federal proffer only meets Section 1001’s requirements if it is made knowingly and willfully. This differs from the truthfulness obligations in proffer agreements. Contractual obligations are often strictly enforced regardless of intent. However, promptly correcting a factual error during a proffer or in correspondence after a proffer will strongly support the inference that you never knowingly or willfully lied.

Under 18 U.S.C. § 3282, a statute of limitations period for Section 1001 violations is five years. This period begins to run on the date the violation was committed.

Can correcting a lie preserve cooperation and reduce sentencing harm?

While the issues listed above provide a comprehensive overview of what a proffer lie, a corrected lie, and a corrected omission in a proffer, an informed decision to accept a proffer will depend on the specific facts of your case. Remember, a proffer does not guarantee that you will be able to secure reduced charges or that you will get a reduced sentence. Also, proffer agreements do not include language that guarantees cooperation status.

In a proffer session, proffer participants can request a private meeting with their defense counsel. This is a common request. In many cases, the participant can also ask to stop answering questions in the room. While this is likely to result in the loss of your cooperation prospects, this can still provide you with the ability to avoid potential Section 1001 charges.

If you lie during a federal proffer and then continue to mislead federal investigators, prosecutors can seek a sentencing adjustment under 3C1.1 of the U.S. Sentencing Guidelines (USSG). This provision applies when it is determined that a defendant’s conduct significantly obstructed the administration of justice. U.S.S.G. § 3C1.1 provides that unsworn false statements to law enforcement officers ordinarily do not warrant the two-level adjustment, unless the defendant made a materially false statement that significantly obstructed or impeded the investigation or prosecution of the offense.

Further, continued deception after a federal proffer, including deception at sentencing, can jeopardize a defendant’s eligibility for acceptance reduction under U.S.S.G. § 3E1.1.

In terms of proffer agreements, whether correction of a proffer lie cures a breach is entirely subject to the language of the agreement and the willingness of prosecutors to waive breach penalties. With regards to sentencing, correcting a lie during an interview with federal agents does not automatically bar a defendant from acceptance credit. As United States Sentencing Guidelines Commentary Section 3E1.1 explains, “Conduct resulting in an enhancement under §3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§3C1.1 and 3E1.1 may apply.”

As a result, if you have already participated in a proffer, you need to discuss your next steps with your federal criminal defense attorney. Your attorney can explain how the time you have available can help you establish a new relationship with the government to minimize federal prosecution risks.

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

What happens if you lie to your defense lawyer?

Lying to your defense counsel is not an offense. In general, lying to your defense counsel is not perjury, but that is not the only reason why. Lying to your defense lawyer is not a crime that can result in additional criminal prosecution or sentencing penalties.

As federal criminal defense lawyers, we are not in a position to report a client to the federal government unless we have a legal and ethical obligation to do so. Many of our clients are untruthful when they first retain our services. This doesn’t change our willingness to serve as their legal representation. However, we do rely on our clients’ information to build a defense strategy.

Beyond issues of prosecution and sentencing, there are other risks involved when you lie to your defense counsel. Defense lawyers work for their clients. While there are exceptions to their duty to keep your information confidential, they are bound to protect client confidences. However, the duty of confidentiality is broader than the attorney-client privilege. Attorney-client privilege only applies to communications between you and your attorney. As the privilege does not apply to independently existing facts, there are numerous ways that these facts could potentially be disclosed.

While your defense lawyer can keep your secrets, there are several reasons why you need to be honest with your lawyer. For example, when you lie about a detail, it could result in you receiving bad legal advice. In addition, if you are not truthful, your lawyer will be caught off guard when your prosecution team introduces contrary evidence or testimony at trial. When a federal prosecutor gets the last word at a criminal trial, this would not leave any time for your lawyer to ask for a curative instruction for a jury.

Further, while your attorney must not knowingly present evidence that he or she knows is false, Rule 3.3 of the American Bar Association (ABA) Model Rules of Professional Conduct imposes duties of candor. If your attorney has unknowingly presented evidence that is false, this rule requires them to take remedial action after the fact. This could include remonstrating with the client, seeking to withdraw or correct the false evidence, and, if necessary, disclosing the falsity to the court.

Finally, the crime-fraud exception allows the government to fight attorney-client privilege in cases when clients seek help from attorneys to commit future criminal activity.

What can you do when a federal prosecutor lies?

The federal government cannot knowingly use false testimony. In Napue v. Illinois, the Supreme Court found that the government cannot use knowingly false testimony. If prosecutors use knowingly false testimony, this violates a defendant’s due process rights and makes the conviction invalid.

However, a prosecutor’s false statement is not necessarily an intentional lie. Prosecutors use facts, witnesses, evidence, and information that may be inaccurate. A judge may also adopt information that was later proven false. In these cases, the prosecutor’s false statement is an unintentional lie.

Generally, when a prosecutor presents information that is inaccurate, this is considered prosecutorial misconduct. Prosecutorial misconduct can be the basis of remedies on trial or appeal. When a defendant’s due process rights are violated, however, the conviction itself must be questioned. A prosecutors’ bad act that is not a due process violation does not necessarily mean the charges must be dismissed.

The Supreme Court has held that prosecutors have absolute immunity from civil damages. However, this is true even in cases of bad faith and even in cases involving federal prosecutors. Prosecutorial immunity does not extend to criminal prosecution or professional discipline, so these could still be viable options for seek justice.

If prosecutorial misconduct was not raised in district court, it is generally considered a failure to preserve the record. On appeal, it would then be reviewed under the plain-error standard.

If your defense lawyer’s investigation reveals an instance of prosecutorial misconduct, he or she may file a complaint with the Office of Professional Responsibility (OPR) at the U.S. Department of Justice. But, as the Complaint and Resolution forms on the OPR’s website state, OPR does not handle appeals. A professional ethics complaint is not a substitute for an appeal, nor can it vacate your conviction.

In cases of a Napue violation, the Supreme Court says the conviction must be overturned if a defendant proves he is “entitled to a retrial when the false statement “could reasonably have affected the judgment.” When retrial is not appropriate, prosecutors can face professional discipline when a disciplinary committee or court finds a “clear and convincing violation of the duty of candor.” The National Lawyers Association’s (NLA) Manual on Defense Counsel Standards for Prosecution cases also addresses the issue of prosecutors misleading court proceedings.

Lying during a proffer is a serious offense that can have significant consequences. If you are thinking about offering a proffer to a federal agent, talk to an experienced federal criminal defense attorney.

Does making a proffer mean snitching or receiving immunity?

A proffer is a common tool used in federal criminal cases, but there are some differences among various types of proffer. Generally, there are two types of proffer interviews:

Cooperation Proffers: This is the most common type of proffer and, as the name suggests, a cooperation proffer is offered for defendants who are willing to cooperate. Most cooperation proffers are intended to provide information about other participants or crimes.

Innocence Proffers: In an innocence proffer, the goal is to persuade prosecutors that the information the defendant will provide proves that the defendant is innocent and that prosecutors should not pursue criminal charges.

When defendants agree to provide statements in an innocence proffer, prosecutors often impose no restrictions on the use of these statements. While defendants might call this type of proffer “snitching,” the purpose of an innocence proffer is to defend against charges against yourself. The purpose of a cooperation proffer, conversely, may be to help prosecutors pursue other targets, often in exchange for some form of leniency for yourself.

While a proffer may help establish your cooperation status with the government, signing a proffer letter does not make you a government cooperator. Becoming a government cooperator is a subsequent step that requires an attorney to negotiate with federal prosecutors on your behalf and often requires you to have a cooperation agreement signed by an attorney representing the government.

In many cases, a proffer letter may grant similar protections to a formal grant of immunity. However, formal grants of immunity under 18 U.S.C. Section 6002 may afford broader protection. Specifically, Section 6002 bars use of compelled testimony against the witness not only directly, but also any information that derives from the compelled testimony as well. “ a person who testifies… pursuant to an order issued under section 6003… shall be immune from prosecution for any offense revealed by his testimony.” This means that prosecutors may not use the compelled testimony or even use it as a “pointer” to lead to other evidence.

However, Section 6002 also provides an exception in cases of perjury. Specifically, Section 6002 states, “ a person who testifies… pursuant to an order issued under section 6003… shall not be immune from prosecution for the offense of perjury or any offense of making a false statement.” If you lie in a statement given under an order issued under Section 6003, this does not prevent prosecution. Similarly, the government can still prosecute someone for violating their order issued under Section 6003.

Unlike Section 6002, contractual proffer protections are not granted pursuant to a court order under Section 6003. Rather, the protections that a proffer participant gets come from the agreement they signed with federal prosecutors. Like the protections under Section 6002, the protections under contractual proffer agreements are not automatic. Instead, they must be the result of either an order of the court, agreement between prosecutor and defense counsel, or some other form of agreement.

Ultimately, choosing whether or not to make a proffer is an extremely important decision.

Given the stakes, you must discuss this with your federal criminal defense attorney. Your attorney can help you decide whether to proceed with your proffer and can also negotiate protections on your behalf.

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.