What Happens During a Federal Proffer Session??

Participating in a proffer session is generally voluntary. However, a target may be compelled to participate in a federal grand jury proceeding, which can have the potential to expose a target to criminal liability.

In most cases, a written agreement will govern the proffer interview. While proffer agreements vary, they generally restrict federal agents and prosecutors to using the statements provided by a target during a proffer interview as impeachment evidence in a federal criminal trial, to uncover further leads, and to corroborate the target’s statements during subsequent proceedings. They typically restrict federal agents and prosecutors from using the statements to build their government case-in-chief against the target.

A proffer session cannot be undone. Once the government has received information from a proffer, the target cannot, as a matter of law, “claw back” the information. This is why, in most cases, preparation and strategic decision-making are critical when arranging to participate in a federal proffer interview.

There are two primary scenarios in which participating in a proffer session is not in a target’s best interests. The first scenario is where the government has little to no evidence of any crime, and the target’s information could potentially bolster a weak case. The second scenario is where the government has evidence of a crime, but there are substantial suppression issues at play, and the target’s information could potentially make it possible for the government to establish its evidence.

When determining whether to participate in a proffer session, we will contact the prosecutor on your behalf. If you decide that a proffer is warranted, we will negotiate an agreement, and then we will schedule the interview. The United States Department of Justice defines a “target” as “any person whose conduct is within the scope of a grand jury investigation and whom the United States Attorney’s Office has substantial reason to believe should be prosecuted.”

What Actually Happens in the Room During a Federal Proffer Session?

The parties to a federal proffer typically include the target (the “speaker”), the target’s federal defense counsel, federal prosecutors, and the agents involved in the grand jury investigation. The prosecutors and agents generally conduct the questioning.

Generally speaking, federal defense counsel cannot answer factual questions on behalf of the target. However, counsel is free to assist the target in phrasing responses to the investigators’ questions, and counsel will generally seek to avoid answering the target’s questions more fully or specifically than is necessary.

During the questioning, the target is free to request a private consultation with his or her federal defense counsel. Also, during the questioning, if the investigators’ line of inquiry poses any risks that were unforeseen, the target’s counsel is free to terminate the proffer session.

Typically, federal investigators will preserve the session through written notes. The following are examples of questions that target may be expected to answer:

• Do you use any drugs? Do you use any prescription drugs illegally?
• Have you associated with any drug traffickers? If yes, what are their names? What drugs are they selling? Have you been exposed to how they sell drugs?
• Are you acquainted with any individuals who sell drugs? Where do they sell the drugs? How do they acquire their drugs?
• Do you know any drugs sold in the area? What brands are sold? What is the street price per gram or kilogram? What forms of payment are they using? What do they use for storage? How do they distribute the drugs?
• When were you in touch with the person who sells the drug?
• How did you have contact with this person?
• Did you ever see drugs with this person?
• Did you buy drugs from him or her?
• Do you know anyone else who sells drugs in the area?
• Do you know anyone who owns any drugs in the area?
• Where do these drugs come from?
• Who buys these drugs?
• Are you aware of any individual who knows this information?
• Have you ever known anyone who had guns?
• Who is selling the guns?
• What are they selling the guns for?
• Have you ever bought drugs or guns from this person?
• Is anyone selling the drugs or guns to them? Where do they buy their drugs and guns?
• What form of communication do you use to buy drugs and guns?
• What do you owe the people who sell drugs?
• How do you pay them? Do you pay in cash? Do you use any apps or cards? Do you write checks? Do you give them any assets in exchange?
• How many drugs have you been exposed to? What are the amounts of the drugs? How many guns have you seen?

How to Conduct Yourself and What to Say

When deciding what to say during a federal proffer, it is important to keep in mind that federal investigators will usually ask questions that they already know the answers to. The purpose of the proffer session is to evaluate your credibility, knowledge, andfulness.

Does a Federal Proffer Agreement Protect Me from Prosecution?

No, a proffer agreement is not a plea agreement. While it can serve as a precursor to a plea agreement, its primary goal is to determine the scope of the information the target possesses. A plea agreement typically includes more specific protections, and it includes plea benefits, which are negotiated based on the information given in a proffer session.

Is a Federal Proffer Agreement a Grant of Immunity?

In most cases, a proffer agreement is not a grant of immunity. Immunity involves a different set of legal requirements under 18 U.S.C. § 6002, and it typically involves a grand jury subpoena. Immunity is far more protective than a proffer agreement, and it typically precludes the use of statements that investigators obtain through the immunity granting process in prosecution proceedings. It does not, however, prohibit the government from prosecuting on evidence obtained from a legitimate source wholly independent of the compelled testimony, although the government bears the burden of proving that the evidence came from such an independent source.

Can the Government Still Use Other Evidence to Establish the Facts against Me?

As mentioned above, a proffer agreement is not a grant of immunity. This means that, even if the government cannot rely on statements the target makes during a proffer session, it can still rely on independent evidence. This means that the government can still gather additional evidence without a proffer, which can take more time. In any case, the government can still pursue criminal charges if the evidence that it discovers during the investigation (or independently of it) supports this.

Can the Government Use Derived Evidence at Trial?

In addition to using independent evidence to establish the facts against the target, many proffer agreements allow the government to pursue leads based on the statements the target makes during the proffer session. For example, if a target tells federal investigators that he or she knows someone who has certain drugs in their possession, or if a target provides the investigators with the location of a storage unit where the drugs are stored, the investigators will seek to obtain evidence of these drugs. Investigators will use the lead to establish a search warrant for the individual or premises to obtain this evidence. This means that the government can have derived evidence of the drugs that is not dependent on the target’s proffer statements, and even if the target has a proffer agreement, the government can still use derived evidence of these drugs at trial.

Can Federal Prosecutors Use the Target’s Statements at Trial to Impeach or Rebut the Target’s Testimony?

In addition, many proffer agreements include provisions that allow the government to introduce the target’s proffer statements in court for impeachment or rebuttal purposes. This means that the government can introduce a target’s proffer statement in order to show that it is inconsistent with statements that the target made during testimony at trial. While this is not to be confused with direct use of a target’s proffer statements for a conviction, it can greatly reduce the target’s credibility in front of a jury. Furthermore, some proffer agreements permit the introduction of the target’s proffer statements to rebut assertions made in the target’s defense, with the aim of proving that the target’s defense was based on false information.

What Happens if I Lie or Forget Something During a Proffer?

During proffer, the target’s information is compared with documents, testimony from other individuals, and other evidence. The prosecutors examine the target’s answers, and they make determinations as to:

• Do you provide truthful information?
• Is the information you’ve provided useful to the case?
• Do you provide new information?
• Can the information you’ve provided be independently verified?

These determinations can help federal prosecutors determine if it is in their best interests to resolve your criminal case through a plea agreement or the dismissal of your charges.

Knowingly making a material false statement to an investigator or prosecuting agent can violate 18 U.S.C. § 1001, which reads as follows, in part: “Whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States knowingly and willfully makes any materially false, fictitious, or fraudulent statement or representation; . .. or presents false, fictitious, or fraudulent document or record knowing the same to be false, fictitious, or fraudulent, or conceals a material fact shall be fined under this title or imprisoned not more than 5 years, or both, as the case may warrant.”

Being caught lying can have multiple consequences, not only potentially which would expose you to criminal liability under Section 1001, but also potentially ending discussions regarding possible plea benefits and your potential role in the investigation. In addition to the risk of a separate prosecution under Section 1001, even if you do not face a separate prosecution, the information that you provided during a proffer can undermine your credibility and a future court judgment could be influenced by your perceived dishonesty.

In some cases, a federal offense committed involving a conspiracy to commit a fraud or other federal crime involving material false statements can result in longer sentences than 5 years. The penalties under Section 1001 depend on the specific offenses and they can extend up to 8 years in certain contexts involving terrorism and certain crimes related to sex.

Our attorneys regularly negotiate for the exclusion of Section 1001 violations from the lists of potential charges during proffer sessions.

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

Is Agreeing to a Proffer the Same as Snitching on Someone?

Not necessarily. Not every proffer involves the target providing information about anyone other than the target. When engaging in cooperation proffers, targets generally do disclose information about their involvement in the crime and the roles of other participants. When engaging in defensive proffers, the objective of the proffer session is to convince the government not to file charges by explaining the target’s limited or innocent role and potentially providing other information.

A reverse proffer is a proffer session where the federal prosecutors disclose what evidence the government has against a defendant to the defendant. This is done as part of negotiation for a guilty plea.

If the cooperation proffer is successful, this can contribute to the target being given a declination, deferred prosecution, or potentially reduced or no criminal charges.

After the proffer session, several outcomes are possible. Depending on whether the session was a cooperation proffer, defensive proffer, or reverse proffer, and depending on the government’s investigation, a target may face further demands for cooperation, enter into plea negotiations, or no agreement may be reached.

What do I Get in Return for Cooperating After a Proffer?

Participating in a proffer session guarantees neither reduced charges nor a favorable sentencing recommendation. While targets who cooperate may receive such benefits, these outcomes are not guaranteed by the proffer itself. The primary mechanism for receiving sentencing relief due to cooperation is Section 5K1.1 of the United States Sentencing Guidelines (U.S.S.G.). Under Section 5K1.1, a federal judge can depart from the sentencing guidelines if the government files a motion stating that the defendant has provided substantial assistance in connection with an ongoing or past criminal investigation.

The request for a sentencing departure can be made based on several factors. The motion filed by the government to request a sentencing departure will typically include information about:

• The target’s cooperation
• The target’s credibility and truthfulness
• The information provided and the results obtained from it
• Information obtained through the target’s information that was not available to the government before the target came forward

A Section 5K1.1 departure alone does not allow a judge to sentence a defendant below a mandatory minimum. If the government is seeking to have the defendant sentenced below a mandatory minimum, the government must file a motion pursuant to 18 U.S.C. § 3553(e) in addition to filing a Section 5K1.1 motion.

The determination of whether a target has provided substantial assistance rests with the federal prosecutors. Prosecutors make this determination based on a variety of factors including the usefulness of the information provided, the target’s credibility, the amount of corroborating evidence they are able to identify, and the extent to which the target’s information contributed to the resolution of criminal cases. When cooperating in a federal criminal case, it is important to remember that a cooperation agreement does not guarantee that the government will file a motion requesting a Section 5K1.1 departure.

There are limited circumstances in which courts will review a federal prosecutor’s decision not to file a Section 5K1.1 motion. In Wade v. United States, the Supreme Court held that, in cases involving “exceptional circumstances,” a trial court could review the government’s reasons for not filing a cooperation motion to ensure they were not based on unconstitutional motives. In addition, courts will review a refusal to file a cooperation motion when the refusal constitutes a breach of an enforceable government promise.

When working with a federal defense attorney to ensure that the government fulfills its side of a cooperation agreement or otherwise assists you to your best advantage, you can expect your attorney to:

• Contact the prosecutor to determine the possibility of reduced charges or a favor sentencing recommendation;
• Negotiate favorable provisions for your proffer agreement or cooperation agreement;
• Represent you during the proffer session;
• Carefully manage the consequences of your statements for the duration of the investigation;
• Work toward securing a sentencing departure based on cooperation.

How Often do Defense Attorneys Actually Win Federal Criminal Cases?

Neither the national nor the local statistics reflect a general “win rate” for defense attorneys; and because win rates themselves are not representative of the unique circumstances in each case, they cannot be used to predict whether a target will, can, or should seek a favorable outcome when arranging to participate in a federal proffer session or criminal proceedings.

A “win” for a federal defense attorney has no uniform meaning. While a judge-acquitted defendant in court has certainly won his case, declination, dismissal of charges, a favorable plea agreement, or a relatively reduced sentence are also types of defense “wins” that can vary in significance.

As a result of this disparity, there is no singular, accurate statistics that reflect defense attorneys’ performance against prosecutors in federal criminal cases. Trials for felony offenses are rare. The vast majority of federal criminal cases never reach trial. For example, a trial-acquittal percentage of about 20 percent of federal felony cases does not include the cases that were dismissed, resolved at the pre-charge stage through a declination, or settled in favor of the defense through plea agreements with favorable terms and conditions.

Another reported statistic claims that up to 90-95 percent of felony cases nationwide result in a guilty plea. With different statistics available, this raises a question as to why they differ so much. These estimates vary significantly based on their timeframe, how the statistics were gathered (i.e., methodology), jurisdiction, and what (if anything) was the denominator (i.e., cases filed in state court, cases filed in federal court, or both).

Many defense firms and media sources publish anecdotal accounts of their clients’ outcomes; however, anecdotal results are not inherently representative of an overall success rate. Similarly, when looking for a statistic on defense attorneys’ success rate, it is important to remember that many targets who face charges will never disclose their outcomes, and others will never seek out this information.

A federal proffer session is essentially a pre-trial interview and can have far reaching consequences. While federal prosecutors are inclined to look for targets to work with, it is also true that federal prosecutors frequently use proffers to build their cases.

As a result, you cannot rely on a general success rate, but you can rely on the knowledge and experience of your defense attorney. Spodek Law Group defends clients in matters involving the Department of Justice. We understand what it takes to help you get the result you want.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.