Understanding the "Use Immunity" in Proffer Agreements.

While “use immunity” sounds like it would protect the speaker against all forms of culpability or prosecution, its implications are extremely narrow. As discussed above, generally speaking, the term itself doesn’t mean much. The terms of the agreement determine the scope of the speaker’s protection, often to the speaker’s surprise. For instance, a typical “use immunity” proffer agreement will:

• Limit the direct use of the speaker’s disclosures (i.e., the government cannot present their statements in court)
• Permit the use of the speaker’s disclosures for investigation (i.e. if you reveal something, prosecutors and their investigators can still pursue it)
• Permit impeachment and rebuttal (i.e. if you’re later charged, the government can use your disclosures against you for certain purposes)
• Permit prosecution for any crime mentioned in the proffer agreement or arising from the information disclosed
• Permit prosecution for any false statements made in the proffer agreement

Why call it a “proffer agreement”?

A proffer agreement is basically a contract. It sets the rules for how a witness or suspect can disclose information to prosecutors in order to determine if there is any interest in negotiated resolution. The nickname “queen-for-a-day” letter stems from the (false) idea that the witness is “safe” while in the interview room. The “queen-for-a-day” protections have two major loopholes, first, independent evidence may be sufficient to justify prosecution, and second, most proffer agreements provide derivative-use permission. This gives investigators permission to use any leads the proffer reveals. These include, but are not limited to:

• Other people’s names
• Documents, files, and records
• Locations
• Timelines
• Internet address links
• Evidence of previous, ongoing, or future crimes

How is contractual proffer immunity different from statutory immunity?

The protection afforded under a proffer agreement is contractual protection. This means that the protection is a matter of contract, not statutory immunity. The rules that apply to your voluntary proffer are rules that apply because the government agreed to them in writing.

A voluntary proffer is different from testimony compelled pursuant to an immunity order. When testimony is compelled in a criminal case, the government is generally required to provide the witness with statutory immunity under 18 U.S.C. § 6002. This is a much broader form of immunity. While there are exceptions, 18 U.S.C. § 6002(b) bars “any direct or indirect use” of the immunized person’s testimony in a criminal case. By this, it means the government cannot use both the statements made by the witness and “any information derived from” the statements.

The Supreme Court has decided in Kastigar v. United States that when a defendant has been granted statutory immunity, the government has to bear the burden of showing that its evidence does not come from the immunized testimony. Specifically, prosecutors have to convince the court that they have an “independent source” for the evidence. The defendant can challenge the government’s evidence, and the court will hold a hearing to determine if it can be used.

While Kastigar governs statutory immunity cases, a voluntary proffer typically will not afford the speaker the protection of derivative-use immunity afforded under Kastigar.

As established earlier, use immunity is not the same as transactional immunity. Transactional immunity protects the recipient from criminal prosecution for any crimes that are covered by the grant of immunity. Use immunity only bars the government from using the protected statements against the witness. In most cases, use immunity only protects against direct-use prosecution.

Formal statutory immunity generally requires the issuance of a federal court order that compels the testimony of an immunized person. While statutory immunity can include certain transactional immunity, this is a separate from contractual proffer immunity.

Contractual proffer protection is afforded based on the specific terms and conditions that the speaker and the federal government agreed to in a signed proffer agreement. This is different from protection that is granted based on 18 U.S.C. § 6002.

Are there proffer clauses that allow prosecutors to use your statements?

In federal criminal cases, many common proffer clauses may allow prosecutors to use your proffer statements against you. The most common proffer clauses include:

• Derivative-use clauses, As discussed above, derivative-use clauses allow the government to use evidence it discovers from leads that it uncovers using your proffer statements.

What is an “impeachment use” proffer clause?

Impeachment-use proffer clauses are clauses that allow prosecutors to use proffer statements to impeach any testimony that is inconsistent with your proffer disclosures. Many federal agencies use these clauses in their proffer agreements.

What is a “rebuttal use” proffer clause?

A “rebuttal use” proffer clause is another common proffer clause. Some rebuttal clauses are limited in scope and only permit the use of proffer statements if they contradict a particular form of evidence presented at trial. More expansive “rebuttal use” proffer clauses permit use of proffer statements if they contradict evidence, arguments, or assertions made by the defendant or defense counsel.

What is a “rule 410 waiver” proffer clause?

A “rule 410 waiver” proffer clause is a proffer clause that expressly waives the protections that would otherwise apply under Rule 410. Rule 410 protects against the admissibility of statements made during plea negotiations or in discussions about a potential plea. Proffer agreements are essentially types of plea discussions. Proffer agreements often include rule 410 waiver clauses, which means that the protections afforded under Rule 410 do not apply.

What is a “complete and truthful” proffer clause?

A “complete and truthful” proffer clause is another common proffer clause. It is often located under the “Defendant’s Obligations” section of a proffer agreement. Most “complete and truthful” proffer clauses will have similar language. This language generally says that the defendant must completely and truthfully disclose everything he knows regarding specific subjects.

What is a “breach” proffer clause?

As discussed above, “breach” clauses often appear in the same section of the proffer agreement as “complete and truthful” clauses. Breach clauses may permit the government to use all of a defendant’s proffer statements, including previously protected statements, in prosecution for any violation of the “complete and truthful” clause.

Most federal agencies also include a “case-in-chief” clause in their proffer agreements. A “case-in-chief” clause is a clause that explains what the government’s initial trial presentation will be. In some cases, the prosecutor or the agency will refer to this as “prosecutorial discretion.”

Can my proffer statements affect my sentence or cooperation credit?

Whether proffer statements affect sentencing or cooperation credit depends on the specific wording of the proffer agreement. Some agreements state that proffer statements will have no effect on sentencing or cooperation credit. However, some agreements explicitly permit prosecutors to disclose proffer information to the probation office and to the sentencing court.

U.S.S.G. §1B1.8 applies if prosecutors promise that a specific set of information will not be used to determine a defendant’s sentencing range. A proffer agreement alone does not bind prosecutors to make a filing for a “cooperation motion” under U.S.S.G. §5K1.1. While there are cases where proffer agreements bind the government to the sentencing guidelines, generally speaking, proffer agreements do not protect the speaker’s future sentencing potential.

18 U.S.C. § 3661 provides that in sentencing proceedings, the sentencing court can receive information from any source, including prosecutors. This includes information that falls within the scope of the government’s obligations in a proffer agreement. This law is in tension with the provisions of U.S.S.G. §1B1.8, and the courts’ interpretations of U.S.S.G. §1B1.8 vary.

While U.S.S.G. §1B1.8 prohibits judges from using information revealed during cooperation talks or proffer sessions to determine a defendant’s sentencing range, generally speaking, this prohibition does not automatically apply.If you are facing sentencing and you believe that you deserve a departure for providing “substantial assistance” to the government, then you have to ensure that the government files a cooperation motion pursuant to U.S.S.G. §5K1.1. Without the government’s “substantial assistance” motion, the court cannot grant a §5K1.1 departure, and it cannot sentence below a statutory mandatory minimum absent a motion under 18 U.S.C. § 3553(e). The court may still impose a below-guidelines sentence as a variance based on the 18 U.S.C. § 3553(a) factors, but it is not required to credit uncompensated cooperation. It is generally the government’s decision whether to file a §5K1.1 motion, and the probation officer’s recommendation will not supersede the prosecutor’s decision not to file the motion.

This applies to both before-sentencing motions for below-guidelines sentences and Rule 35(b) reductions after sentencing. In both cases, you must obtain a “substantial assistance” motion from the government’s prosecutors in order to receive the benefit. This means, again, that regardless of your participation in a proffer session, the benefit of your disclosures will depend on the government’s decision to seek the benefit of a “substantial assistance” sentence reduction from the court.

Todd Spodek is the managing partner of Spodek Law Group, a second generation criminal defense firm that has been practicing since 1976.

What happens if prosecutors violate the proffer agreement?

The federal courts have never issued a definitive ruling on the standard for proffer-agreement violations. The federal government’s obligations in proffer agreements can be either negotiated or standard. In the case of United States v. Torres, there was ambiguous language in the proffer agreement, and the court resolved the ambiguity against the party that drafted the agreement (the federal government).

A court-ordered immunity is a very different thing from a proffer agreement. If a court-ordered immunity order is breached, the remedy is based on the laws and rules that apply in that situation. If the terms of a proffer letter are breached, the remedy must be found within the context of the proffer agreement itself.

Generally speaking, in criminal trials, the legal team representing the defendant will raise alleged proffer-agreement violations through a motion to suppress or exclude evidence. Following this, the judge will order an evidentiary hearing to determine whether a “proffer violation” exists. In many cases, these hearings are like the Kastigar-type hearings described above. The judge hears testimony from agents and other prosecutors, and then makes a determination as to whether the government has met its burden of proving independent sources for the challenged evidence.

Specifically, if an agent denies receiving information from a target’s proffer session, the agent may have to testify about the timing of his and her interviews. This information may conflict with the date and content of the defendant’s proffer, and this may lead to the court finding that the government has to exclude the evidence at trial.

As discussed earlier, in Kastigar-type hearings, the admissibility of challenged evidence is based on whether the evidence has an “independent source.” If there is no independent source, the evidence is suppressed at trial. So, as a possible remedy, proffer statements that violate the proffer agreement may be excluded from trial.

For more specific obligations that do not apply to use immunity, courts have sometimes found that the only available remedy is “specific performance.” If the proffer agreement is clear and unambiguous, then this is a possibility. If it is ambiguous, the party that drafted the agreement, usually the federal government, will lose based on the canons of contract construction.

The general consensus is that proffer agreements will be governed by ordinary contract principles, subject to the exceptions discussed above. Courts will enforce the clear terms of a proffer agreement, and where necessary, will seek “specific performance.”

How do I decide whether to sign and speak in a proffer session?

Each local U.S. Attorney’s Office has its own standard proffer form. While some of these forms are identical to the example analyzed above, others vary in their derivative-use, rebuttal-use, and other provisions. Additionally, the standard for proffer forms differs from the standard for proffer letters, and it is important for the target to determine the proffer form’s specific protections for disclosures. If the proffer agreement is signed by one particular U.S. Attorney’s Office, it likely only binds that office. If the proffer agreement provides protections for disclosures to all federal agencies (e.g., IRS, FBI), then these protections must be clearly stated.

When negotiating a proffer agreement, the target must also consider the potential consequences of a failed proffer. While the target’s disclosures may be suppressed during trial, a target’s proffer can still provide federal investigators with permitted leads to pursue. This is especially the case if the target’s proffer session involves disclosure of other people’s names, documents, files, records, locations, timelines, internet address links, or evidence of prior crimes.

Whether to proffer also depends on the amount and strength of evidence that federal prosecutors already have in their possession. If the federal government already has enough evidence to make a case, then a target’s disclosures will have little to no bargaining value. However, if the federal government does not already have sufficient proof to initiate prosecution, the target’s disclosures can have substantial bargaining value. To make this determination, targets should work with their defense counsel to conduct an independent investigation to determine if a proffer can provide a new avenue of resolution.

While a target is expected to provide the government with information that is truthful and complete, in some cases, a target may not be able to provide a full or truthful disclosure. In these cases, you should be careful not to enter into a “complete and truthful” clause, as failing to adhere to the clause’s requirements can expose you to prosecution.

An individual who provides information during a proffer session can be a target of a federal criminal investigation, a federal government “subject,” a federal government “witness,” or a charged federal defendant. In some cases, a target should only agree to participate in a proffer session if he or she is already a subject, witness, or defendant who has limited or no regard for future culpability in the criminal case.

What safer alternatives can counsel negotiate before a proffer?

A reverse proffer is an informal proffer session in which prosecutors present the target and target’s counsel with evidence they have uncovered. As a result, the target can decide whether to offer cooperation after they have heard what prosecutors have uncovered.

An attorney proffer is an informal proffer meeting that only includes defense counsel and prosecutors. The purpose of an attorney proffer is to summarize information that a target knows, and to let the prosecutor determine whether a target’s personal appearance is necessary for the government’s case.

In a written proffer, a target provides disclosures in writing rather than during a session. This keeps the target’s disclosure record limited and ensures that the target uses careful wording to avoid unnecessarily increasing exposure.

A limited-topic proffer is an informal proffer where the parties agree beforehand on certain subjects. Then, the target agrees to only disclose information about those specific subjects.

Immunity demands can happen when prosecutors issue subpoenas or court orders compelling witnesses to testify. The witnesses can then demand statutory immunity before providing any substantive information.

While non-prosecution agreements (NPA) can include immunity, they differ from proffer agreements. A “true” NPA bars charges for all conduct, including conduct disclosed in the negotiation that falls outside the scope of the NPA.

Defense counsel can proffer information when seeking a charging declination, favorable specific plea, or any other desired result.

A proffer agreement is not a plea agreement, and as discussed above, it does not protect the speaker’s future sentencing potential. While targets can negotiate for favorable plea terms during or after a proffer session, the proffer agreement does not guarantee a plea agreement. This means that a target’s and target’s counsel’s best interest will be to seek information about plea potential prior to agreeing to a proffer.

The defense attorneys at Spodek Law Group have experience negotiating with the federal government. We have successfully obtained non-prosecution agreements and other favorable resolutions without the risks involved in a proffer session.

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