What Happens After a Successful Proffer Session??

Immediately after a successful proffer session, prosecutors will take some time to assess the information you have provided. They will need to determine:

• Whether you were truthful;
• Whether you have useful information; and,
• Whether they can independently verify your information.

If the results of the proffer session are productive, this does not itself create a cooperation agreement. Similarly, while a successful proffer is sometimes the first step toward securing reduced charges and/or sentencing leniency, it does not create any guarantees in this regard either.

Federal Proffer Agreements and Letters

A federal proffer session is a voluntary meeting between a targeted individual and prosecutors. The terms of the session will be governed by a written proffer agreement. A proffer agreement is neither a guilty plea nor a grant of blanket immunity, and it is not intended to, nor does it, supersede the protections and rights afforded to all U.S. citizens under the Fifth Amendment.

Because of this, proffer letters are sometimes nicknamed “Queen for a Day” agreements. However, this nickname is more than just colloquial. Receiving a proffer letter does not mean prosecutors intend to grant immunity, nor does it necessarily mean they will offer any other concessions. A successful proffer is only going to result in a cooperation agreement or other concessions if the prosecutors determine it is in their interests to do so.

Timing of Proffer Sessions

With regard to timing, a proffer session can take place at various points during a federal criminal investigation. It can happen before charges have been filed against a targeted individual or after an indictment has already been handed down. Regardless of when it is offered, a proffer session should be viewed as a strategic risk, and individuals who are offered a proffer should only speak with prosecutors with the guidance of their own legal counsel.

What are prosecutors doing after the meeting ends?

Immediately after the proffer meeting ends, federal prosecutors and agents will get to work immediately verifying the information you have provided. Depending on what you have told the government, this process could take several days, weeks, or even months. If verifying the information you have volunteered involves interviewing other witnesses, speaking with agents on the ground, searching homes, or subpoenaing telephone records or financial accounts, then it could take a considerable amount of time.

During the process of verifying the information you have volunteered, the government will be looking for discrepancies. Agents and prosecutors will go over your answers during the proffer meeting and compare these answers against documents, recordings, or information that other witnesses have already provided. In some cases, agents and prosecutors may ask questions they already know the answers to, such as, in order to determine whether you are being truthful about the facts that you have offered to disclose.

If the information you offered is truthful, useful, and not already in the government’s possession, prosecutors will typically offer you a cooperation agreement, either before or after charges are filed. But, at the same time, the government will only do this if it believes that cooperation will ultimately help them build their case. If investigators determine that you are not going to be a valuable cooperating witness, they can (and likely will) simply continue to pursue their case without offering any cooperation benefits.

Limitations of Proffer Letters

It is important to remember that a proffer letter is not a grant of blanket immunity and it should not be viewed as a promise of future immunity. Generally, proffer letters provide limited protections. They offer protections for statements made during the proffer session and for statements related to statements. However, most proffer letters do not protect from derivative evidence. In federal criminal cases, derivative evidence is information that comes from the results of the proffer discussion itself. For example, if you tell agents during your proffer session about a certain hotel room, and agents then use information in your proffer letter to help find that hotel room and get a warrant to search it, any evidence they find inside the room will be considered derivative evidence.

Similarly, while they do not protect against derivative evidence, proffer letters generally also do not protect against evidence that the government obtains independently of the information offered during a proffer session. This is another important point to remember when it comes to thinking about whether it makes sense to offer information to federal prosecutors.

Why Timing Matters

Because the government can obtain equivalent information through other means, the earlier cooperation is offered, the more it can be worth. If you have information that you think the government will find useful, it could make sense to voluntarily come forward before the government has found out the information on its own. If you decide to voluntarily come forward, it is important to speak with legal counsel first so that you can effectively use the protections and benefits of a proffer letter.

What follows if prosecutors offer a formal cooperation agreement?

If prosecutors are interested in pursuing a formal cooperation agreement, there will be several additional requirements and restrictions. In most cases, these cooperation agreements will require:

Truthful and Complete Disclosure

Just as in a proffer agreement, a formal cooperation agreement requires the defendant or cooperating witness to be truthful and complete. The government will likely demand full disclosure of all relevant information, and it will examine any information disclosed for inconsistencies. If inconsistencies arise, then the cooperating witness may face additional charges.

Additional Debriefing Sessions

Informants, cooperating witnesses, and federal defendants who enter into cooperation agreements may be required to participate in additional debriefing sessions. Depending on the information provided during a proffer session, prosecutors may determine that additional information is necessary to successfully prosecute the target of an investigation.

As a result, the government may request to interview the individual at the United States Attorney’s Office, the Federal Bureau of Investigation (FBI), or with other investigative authorities. This can also happen if new, relevant information comes to light in relation to the investigation.

Grand Jury and Trial Testimony

Cooperation agreements will generally require cooperating witnesses to provide testimony to a grand jury. Trial testimony may also be necessary, particularly if the case proceeds to trial. In most cases, the witness or defendant will also be required to assist with investigations and other matters going forward.

Memorializing Any Promises or Obligations

If prosecutors provide concessions or establish obligations (such as a future motion to reduce charges or a sentencing recommendation), these should be memorialized in writing in the signed cooperation or plea agreement. We always recommend that federal defendants demand written documentation of any promises or obligations in the event that a plea agreement or cooperation agreement is negotiated, and we will work closely with our clients to ensure that these are memorialized.

The Giglio Disclosure Requirement

Under the Supreme Court’s decision in Giglio v. United States, the government must disclose any promises or benefits given to cooperating witnesses that could affect the witness’s credibility. This requirement is based on the legal principle of disclosure, and it is meant to ensure that both the defendant and the presiding judge are aware of these factors when considering the truthfulness of a witness’s testimony. The information the government must disclose includes, but is not limited to:

• Any promises not to charge the witness with crimes in exchange for testimony
• Any promises of sentencing recommendations, including leniency, or a favorable plea agreement
• Payments for travel or lodging expenses
• Compensation for loss of income or reimbursement for living expenses
• Payments for protection services or relocation expenses
• Any other benefit that could, to a reasonable person, appear to influence a witness’s perceived truthfulness

Witness and Informant Protection

The Witness Security Reform Act, 18 U.S.C. § 3521, authorizes the U.S. Attorney General to provide protection for federal witnesses in danger. This act covers both defendants and cooperators, and the protections granted under it are similar to the protections available to informants. Similarly, 18 U.S.C. § 1513 makes retaliation against any individual who has served as a witness, informant, or cooperating individual a federal crime. Under this statute, retaliation can include:

• Assault or physical harm
• Causing bodily injury
• Endangering, kidnapping, or killing
• Targeting the family members or households of witnesses and informants

Sealing of Cooperation Materials

To reduce the risk of retaliation, cooperating witnesses, informants, and defendants may ask the government to seal their cooperation materials. If granted, these materials are stored separately and not available to the public. They are only unsealed if required by a court order, if they are needed for trial, or if it is otherwise determined to be in the interest of justice. Sealing is not automatic and must be requested by the witness, defendant, or informant and then granted by the government.

Can a successful proffer reduce my federal sentence?

Under the Federal Sentencing Guidelines, U.S.S.G. § 5K1.1, defendants who provide “substantial assistance” in the investigation or prosecution of other federal criminal offenses may receive a substantial departure from the guideline range. Prosecutors have sole control over whether to file a motion to authorize a § 5K1.1 departure, and this is a discretionary decision. While a successful proffer can support a defendant’s request for a § 5K1.1 departure, it does not guarantee that the government will file the necessary motion.

What is a § 5K1.1 departure?

If the prosecutors file a § 5K1.1 motion, the federal sentencing judge will then determine the extent to which a § 5K1.1 departure is warranted. Under this provision, the judge can apply any appropriate departure a district court could apply under U.S.S.G. § 5K2.0. Ultimately, the judge’s determination will be guided by the factors set forth in U.S.S.G. § 5K1.1, such as:

Can a successful proffer result in a sentence below the statutory mandatory minimum?

A § 5K1.1 motion alone cannot be used to overcome a statutory mandatory minimum sentence. However, if you are subject to a mandatory minimum sentence, the government can file a motion under 18 U.S.C. Section 3553(e) in order to facilitate a sentence below the statutory minimum. This authorizes the court to impose a sentence below the mandatory minimum when the government believes that the defendant has provided “substantial assistance” in the investigation or prosecution of another criminal offense.

Will a successful proffer affect my sentencing calculation?

Some cooperation agreements explicitly state that statements made in a proffer session will not be used by the government to calculate a defendant’s sentence, and other agreements stipulate that they are only available for the purposes of calculating the defendant’s sentencing obligations. At Spodek Law Group, we negotiate favorable terms for our clients, and we also represent our clients during their sentencing hearings. Our attorneys are well-versed in the legal requirements for sentencing departures and benefits for cooperating witnesses, and we work tirelessly on behalf of our clients to secure favorable outcomes.

Spodek Law Group, led by managing partner Todd Spodek, defends clients in federal criminal and white collar matters.

Can cooperation still reduce my sentence after sentencing?

Yes, even if you have already been sentenced to a federal criminal offense, you may still be able to receive a sentence reduction if you qualify for relief under Rule 35(b) of the Federal Rules of Criminal Procedure. Under Rule 35(b), federal judges have the authority to reduce the sentence of a defendant who provides substantial assistance in the investigation or prosecution of another criminal offense. Similar to other forms of substantial assistance, Rule 35(b) relief is discretionary, and it requires the government to file a motion with the court.

Rule 35(b) relief available up to one year after sentencing

Under Rule 35(b)(1), federal prosecutors can file a motion to reduce a defendant’s sentence up to one year after the court has imposed the sentence. A defendant who is able to provide truthful, useful, and verifiable information may be able to obtain relief under this rule.

Rule 35(b) relief available more than one year after sentencing

Rule 35(b)(2) also authorizes the filing of a motion to reduce a defendant’s sentence more than one year after the sentencing date in limited circumstances, including:

• Information that the defendant provided within one year of the sentencing date, which becomes useful more than one year later, provided that prosecutors cannot ascertain the same information through other means.
• Information that the defendant was unaware of, at the time of sentencing, until at least one year later, and that the defendant provides promptly after learning of the information.
• Information that the defendant provided as soon as the usefulness of the information became apparent to him, even though the usefulness of the information was unanticipated at the time the defendant cooperated with the federal authorities.

Rule 35(b) relief for defendants subject to mandatory minimum sentences

Under Rule 35(b)(4), federal prosecutors can move to reduce a defendant’s sentence below the statutory mandatory minimum sentence if it is determined that providing substantial assistance warrants such a reduction. Thus, if you are serving a mandatory minimum sentence, you may still be able to obtain sentencing relief by providing substantial assistance.

What if prosecutors refuse a promised assistance motion?

If prosecutors refuse to file a substantial-assistance motion under Section 5K1.1 or Rule 35(b) after a cooperation agreement expressly promises such assistance, then the court may review whether the government’s refusal constitutes a breach of a promise.

Relief under Wade v. United States

In Wade v. United States, the Supreme Court held that if prosecutors refuse to file a promised assistance motion for unconstitutional reasons, then this can be improper. The Supreme Court noted that if the government denies a requested assistance motion based on the defendant’s race, sex, national origin, religion, or any other similar characteristic in violation of the Equal Protection Clause of the U.S. Constitution, then it is likely to be considered a breach. Similarly, Wade found that a refusal to file a substantial-assistance motion may also be improper if the refusal lacks any rational relationship to any legitimate governmental objective, such as which defendant provided information first or what specific evidence is needed in order to obtain a conviction.

Limitations on Relief Under Wade

However, the government may continue to withhold the assistance motion if the refusal has a rational relationship to a legitimate governmental objective. Before discovery or an evidentiary hearing is granted, a defendant must also meet a “substantial threshold” showing that their allegations against the government are warranted. Notably, providing substantial assistance is not sufficient, on its own, to entitle a defendant to a government motion under Wade.

Appellate Review and Section 1001

Finally, appealing the government’s decision not to file a substantial-assistance motion can be a high-risk strategy. While defendants may successfully argue that prosecutors improperly used statements to exceed the terms of a proffer agreement, the government can also claim that a defendant’s statements were false. If false statements were made during a proffer session, then they may constitute a federal offense under 18 U.S.C. § 1001. Section 1001 generally carries a maximum penalty of five years of federal prison.

Are federal proffer sessions recorded or only documented?

Proffer meetings generally include (i) the speaker, (ii) the speaker’s defense counsel, (iii) the relevant prosecutor(s), and (iv) the investigating agent(s). The scope and terms of proffer agreements vary widely by federal district, individual prosecutor, individual case, and targeted individual. However, courts typically enforce proffer agreements and letters strictly according to their express written terms.

Proffer Session Documentation

Typically, the government will document any information proffered during a proffer session. That being said, documentation does not itself demonstrate that the meeting was audio recorded. At present, there is no Federal Rule of Criminal Procedure that requires the electronic recording of all proffer sessions.

The Proffer Session Process

Although defense counsel will attend a proffer session, it is not a co-counsel arrangement, nor does defense counsel have the opportunity to negotiate a plea deal during the proffer session. The speaker, i.e., the targeted individual or defendant, will be the one answering the substantive questions that prosecutors and investigators ask during the session. A speaker may request a private consultation with their defense counsel during questioning, if necessary, but otherwise the speaker’s responses will determine the next steps for moving forward with the federal investigation.

Use of Proffered Statements

Generally, as noted above, proffer agreements restrict prosecutors from using proffered statements as the government’s case-in-chief. This does not prohibit use in impeachment, however, and it means that speakers must remain truthful during the process. It is also important to remember that proffer agreements only provide limited, conditional protections. Thus, while proffer agreements generally restrict prosecutors from using statements against the speaker, they also generally leave open the possibility of using them to prosecute other individuals.

How often do defense attorneys win after a proffer?

When proffer sessions are successful and lead to the pursuit of cooperation agreements, then the individual’s future in the federal case will depend on the outcome of the investigation. At the same time, however, a successful proffer is not the only pathway to avoiding federal charges. Instead of seeking to cooperate, prosecutors may negotiate a pre-trial plea, offering a conviction with reduced charges or other favorable terms. They may also offer nonprosecution, deferred prosecution, or pretrial diversion, especially if an individual has limited culpability, is unlikely to reoffend, and poses no threat to public safety.

Do Successful Proffer Sessions Lead to Successful Outcomes in All Cases?

Unfortunately, since federal cases do not have a unified database tracking whether they end in guilty pleas or acquittals, there is no way of providing an exact win rate for defense attorneys. There are many factors that affect an individual’s outcome in a federal criminal case, including federal prosecutors’ and agents’ willingness to pursue charges, the strength of their evidence, whether they are willing to offer plea deals, and the defendant’s willingness to enter into a plea agreement.

How Often Do Federal Felony Cases Resolve through Guilty Pleas?

Federal Bureau of Investigation (FBI) statistics indicate that an estimated 90 percent to 95 percent of federal felony cases resolve in guilty pleas. That being said, these statistics also tell us nothing about how often defense attorneys negotiate favorable outcomes in a plea bargain. Pleas to guilty do not represent a win or loss on their own.

What Happens if I Don’t Seek to Cooperate?

If you are in a case where pursuing a cooperation agreement does not make sense, we can seek to get the case dismissed before it ever gets filed. This involves reaching out to prosecutors to convince them to decline prosecution and the best way to do this is by providing an explanation of how you have limited culpability in relation to the alleged criminal offense.

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.