Proffer Sessions With the FBI vs. the U.S. Attorney's Office.

Yes, it matters significantly who attends your proffer session, and the dynamics of the session change if FBI agents are present without Assistant U.S. Attorneys (AUSAs) present. FBI agents cannot independently bind federal prosecutors to evidentiary-use restrictions. The authority to make charging and immunity decisions belongs to the Assistant U.S. Attorney exclusively.

While this may seem like a mere difference in reporting lines, it is something more. As the structure of the federal government is not unified, a single Assistant U.S. Attorney will not necessarily have the same scope of authority as the federal government at large.

In these types of situations, we insist that our clients don’t start speaking to anyone, whether the AUSA or the FBI, without a signed agreement and the ability to leave when necessary. When this happens, we call this a conversation between equals.

As a result of this, a proffer agreement is not a grant of immunity.

A proffer agreement is a contract which stipulates that a single interview or series of interviews conducted in accordance with the agreement’s terms will not result in any prosecution, or use of the individual’s words or statements, against the individual whom proffered the statements. An immunity agreement is a much larger grant and only comes at the conclusion of a Grand Jury or federal investigation.

Furthermore, while there are ninety-three U.S. Attorneys who cover the ninety-four federal judicial districts, with most U.S. Attorneys covering a single judicial district, these boundaries are separate from those of the FBI. The FBI operates out of fifty-five field offices, and each field office is managed by an independent supervisory chain that is separate from the Assistant U.S. Attorneys who seek charges against their targets.

Accordingly, Justice Manual 9-11.151 contains the definitions of target, subject, and witness. The FBI does not decide which of those roles should apply; the Assistant U.S. Attorney possesses this authority.

What protections apply if FBI agents interview me alone?

If you refuse to agree to the Assistant U.S. Attorney’s terms and speak with an FBI agent directly, the agent may assure you of how they plan to “recommend” you for prosecution, but they cannot legally do so. An agent’s promise to “tell the prosecutor you cooperated” is legally unenforceable.

Again, FBI agents cannot independently bind federal prosecutors to evidentiary-use restrictions. While Federal Rule of Evidence 410 protects plea-related statements from prosecution, Rule 410 only applies in cases in which a prosecuting attorney is present.

As a result of this, statements made to FBI agents alone are typically admissible in federal court proceedings. While these statements may not be inadmissible under Federal Rule of Criminal Procedure 11(f) if the individual is facing prosecution, due to the same rule as above, they will typically constitute a “party admission” under Federal Rule of Evidence 801(d)(2)(A).

Are you required to have a lawyer present during a proffer session?

Proffer sessions are non-custodial in nature, which is to say that they are voluntary. The person agreeing to speak with the FBI is not in custody, and therefore, the FBI agent is not required to read the subject’s Miranda rights.

If no signed proffer agreement is in place, then an individual who agrees to sit down with the FBI can be at no risk but the risk of a party admission and prosecution. Without a written agreement, any protections the individual thinks they have are subject to the good faith of the agent and are legally unenforceable.

FBI agents may initiate voluntary interviews at homes, workplaces, and other locations. Since you may encounter an FBI agent on a day to day basis, it is important to contact legal counsel promptly to arrange a meeting or to find out more about the interview or proffer request you have received.

What are the risks of volunteering information?

One of the most dangerous aspects of the law is 18 U.S. Criminal Code Section 1001. It makes it a crime to give any statement (verbal or written) which an individual knows to be false during an investigation by an executive branch agency, the U.S. Congress, or the judicial branch. A conviction under Section 1001 can carry five years of prison time, although the federal government can seek eight years of imprisonment if the offense is related to terrorism.

If the false statement relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, the federal sexual abuse and trafficking provisions, the maximum penalty under Section 1001 rises to eight years of prison.

What does a prosecutor-approved proffer letter actually protect?

A proffer letter protects what is referred to as “the contents” of the proffer. That is to say that the letter protects the specific information that the individual has provided to the FBI in reliance on the proffer letter. The government cannot use these statements against the individual in a criminal proceeding.

However, this protection is not absolute, and the protections that it provides can only be triggered under the conditions stipulated in the proffer agreement. These include:

Mezzanatto Waiver

Federal Rule of Evidence 410 generally protects plea negotiations and statements made by suspects in these cases from being used as evidence at trial. However, the U.S. Supreme Court case, United States v. Mezzanatto (1995), has held that the parties to a federal criminal case can contractually agree to waive this protection. As a result, almost every proffer letter includes a “Mezzanatto waiver.”

The “Open Door” Theory

The Second Circuit court case, United States v. Barrow (2d Cir. 2005), lets federal prosecutors assert that, by pursuing an affirmative defense, the defense has “opened the door” to information otherwise protected under the proffer agreement or Federal Rule of Evidence 410.

Giving False Statements

Giving false statements during a proffer session is illegal under 18 U.S. Criminal Code Section 1001, regardless of whether the person is under oath. In Brogan v. United States (1998), the Supreme Court eliminated the “exculpatory no” defense, meaning that a defendant cannot avoid prosecution for lying by claiming that the lie does not implicate them in the offense being investigated. Proffer sessions are not under oath, so federal perjury laws usually do not apply unless the proffer includes written statements made under the penalty of perjury.

Unilateral determination and Materiality

The government decides unilaterally whether a proffer obligation was fulfilled or breached. The government also determines if a breach of the proffer letter’s terms constitutes a material breach. For example, if the proffer agreement states a material breach allows the government to “use the statements that the defendant made during the proffer for any purpose,” this can potentially eliminate the protections in the letter. The individual’s obligation is to comply with the terms of the agreement, and it is for the government to determine if there was a material breach.

Will the FBI record what I say during a proffer?

Most proffer interviews do not involve any recording devices; however, they do involve two FBI agents. While a subject is never sure how he or she is speaking with these FBI agents, the agents are taking notes to write a report after the session. These reports, referred to as FBI Form FD-302, memorialize all of the proffer.

These reports are not verbatim transcripts but are rather the summaries of what a proffer subject said during a meeting or interview. The AUSA then receives the 302 and determines how the proffer would affect the case.

The FBI agents will not electronically record a non-custodial proffer interview. However, the Department of Justice (DOJ) requires that agents and AUSAs record their “interviews, interrogations, or other voluntary interactions” in some cases after a recording has become standard for custodial interviews following an arrest.

The reason that there are two agents is that one of the agents can later testify if needed. This is because the agent who is taking the notes will not be able to testify about the statements in the case because he or she will not be able to recall precisely what the witness said and because the note-taker will not be able to recall the content of the 302 verbatim.

What happens when a 302 does not contain the truth?

If the proffer subject reviews his or her 302 and disagrees with how the FBI has recorded the information discussed in the proffer session, then the 302 becomes the official government version. To correct this, the person may try to file a corrected version for review with the FBI. However, in practice, it may be too late to change the 302, as it will be the document that is used to determine the truth of what was discussed during the proffer.

Is a proffer 302 discoverable?

Yes, a proffer 302 will be discoverable once the individual who gave the proffer testifies at trial. At this point, a proffer 302 is what is referred to as Giglio material. Giglio v. United States (1972) holds that any evidence that suggests a witness is not providing truthful testimony must be disclosed to the jury. The benefits that an individual receives for giving a proffer session may call their credibility into question, and the Giglio material will likely be used to show that the testimony is compromised.

When must agents finish his or her 302 report?

FBI policy requires agents to finish their 302 reports within five business days of an interview, although this is not uncommon, and it is a good idea to confirm you got a report from the FBI.

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.

Can an AUSA promise that my statements cannot be used?

No, they cannot. Federal immunity issues do not work like state immunity. The federal government can only issue immunity through a court order under 18 U.S. Criminal Code Section 6002, and Section 6003 requires the United States Attorney to obtain approval from the U.S. Attorney General first. The Assistant U.S. Attorney is not able to unilaterally grant immunity.

In a federal immunity agreement, there are two types of immunity: use immunity and derivative-use immunity. The first prohibits the government from using the subject’s testimony against the subject. The second prohibits use of information the government obtains from the subject’s testimony. Transactional immunity, which protects an individual from prosecution for crimes committed in the transaction involving the testimony, does not exist.

In Kastigar v. United States (1972), the Supreme Court noted that the federal government only needs to show that no statement made by the individual has been used, either directly or indirectly, in the individual’s prosecution. This is referred to as the Kastigar defense, and it means that if the person is charged with the offense in question, the government must prove that the evidence it has is independent of the individual’s compelled testimony.

If you want to discuss your case with the Assistant U.S. Attorney and receive immunity, there are four ways to seek a favorable outcome. An AUSA-approved proffer agreement is a contract between a defendant and the government. However, a proffer agreement is not filed with the court, so no judge reviews or approves a proffer agreement. An Assistant U.S. Attorney can grant immunity or derivative use immunity under the Kastigar rule, but a request for transactional immunity is likely to be denied.

Derivative use is an important aspect of a proffer agreement because it allows the FBI agents to follow leads from the proffer in order to find new witnesses, records, and evidence. If the lead provides new information, this information will be available for use in the person’s prosecution.

In addition, the rules for grand jury witnesses in New York are different. In New York, all grand jury witnesses receive automatic transactional immunity under CPL 190.40. If a person receives an immunity order, they are required to testify. If they refuse, a judge can order civil contempt confinement for up to eighteen months.

Who else can use statements covered by my proffer letter?

A proffer agreement binds only the U.S. Attorney’s Office that signs it. If the U.S. Attorney signs the agreement in the Southern District of New York, the U.S. Attorney in the Eastern District of Texas does not have to abide by the terms in the proffer letter.

Furthermore, a proffer letter does not bind other government agencies. Securities and Exchange Commission (SEC), Internal Revenue Service (IRS), Department of Homeland Security (DHS), and state prosecutors can use any information in a federal proffer for prosecution or removal proceedings.

An individual who is not a U.S. citizen or a legal permanent resident can be deported under federal immigration law, even if they only provided the information in a proffer session.

Does the same proffer letter work if I work for multiple district offices?

No. Every federal district office has different rules and terms, and it may be necessary for our lawyers to negotiate multiple agreements if a proffer involves a multi-district or multi-agency investigation. For example, as with the Mezzanatto waiver and proffer obligation, the Southern District of New York allows the government to rebut a proffer subject’s claim of a material breach, while most other districts do not allow for rebuttals.

Similarly, a federal proffer letter will not bind other Justice Department components unless it says so expressly. This means that U.S. Attorneys’ Offices are bound by their internal proffer policies and the Justice Manual. If a federal district office or federal agent is not in the same chain, a U.S. Attorney’s Office is not bound to provide the subject with transactional or use immunity.

A federal proffer letter does not bind a state professional licensing board. If you have your proffer for evidence to your licensing board or are fighting with an agent about the contents of your proffer, you could be facing a license suspension for unprofessional conduct.

What is the meaning of Section 1B1.8(b) of the Sentencing Guidelines?

Section 1B1.8(b) protects individuals and organizations from having information that they provide as results from acceptance of responsibility against them. This doesn’t apply to information that the government independently knows, or information that the government obtained from a grand jury or other legal proceedings.

U.S. courts have addressed this in numerous cases, such as United States v. Pielago (11th Cir. 1998), where the courts noted that the government could use derivative evidence obtained from a defendant’s voluntary statement against the defendant.

Are there safer ways to cooperate than a full proffer?

If you want to cooperate with the government and receive the protections of Section 1B1.8, then you should be wary of a proffer agreement. While Section 1B1.8 generally bars prosecutors from using any cooperation statements (unless otherwise agreed) to raise the defendant’s guideline range, the government argued in a recent Supreme Court case that the protection only applies if it is contained in the agreement signed by the defendant. As a result of this ruling, if you do not explicitly include Section 1B1.8 in your proffer agreement, then anything you say may be used by the prosecutor to raise your sentencing range by designating your proffer statements as “relevant conduct.”

The safety valve under 18 U.S.C. Section 3553(f) is an important, but often under-utilized provision that allows a court to lower a defendant’s minimum sentence for drug offenses to the level of safety valve eligibility without the need for the prosecution to file a motion for a downward departure.

There are also four alternatives to the traditional voluntary proffer session, all with varying degrees of benefit:

(i) Lawyer’s Proffer

In this type of proffer, your lawyer will transmit the relevant information to the Assistant U.S. Attorney without regard to how you got that information. Your lawyer is not going to tell the government anything about you, and no FBI 302 report will be produced. As a result, the risk of your statement being used against you is substantially lower than the risk during a voluntary proffer session.

(ii) Fully Executed Agreement

In a regular voluntary proffer, the Assistant U.S. Attorney is not going to call in until he or she reads the signed proffer agreement. Once he or she approves the agreement, he or she will then review it to ensure that you do not say anything that would violate the agreement’s terms. This means that the agreement itself acts as a buffer to protect you. If you don’t have a signed agreement, the Assistant U.S. Attorney can use everything you say during the session against you at sentencing, unless the prosecutor is restrained by Section 1B1.8.

(iii) Hypotheticals

A hypothetical proffer is similar to an attorney proffer, except that the Assistant U.S. Attorney will present facts that are assumed to be true. The Assistant U.S. Attorney will ask whether those facts have any meaning in relation to the crime or case. You can present your arguments to the Assistant U.S. Attorney without adopting these facts as part of your statement.

A hypothetical proffer allows you to ascertain the government’s opinion about the information you can provide. It also prevents you from volunteering information that can be used against you, so you can better control the flow of the conversation.

(iv) Proffer on Condition of Full Disclosure (The Truthful Proffer)

A proffer on the condition of full disclosure is a type of “voluntary truthy proffer.” Section 3553(f)(5) requires a truthful disclosure of all information relevant to the offense and any other conduct that is the subject of the investigation. If a truthful disclosure is not made, then the proffer agreement is materially breached, and the prosecutor can use the individual’s information against the individual.

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& #x27;s attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.