What If I Don't Have Useful Information to Proffer??

Lacking useful information does not establish dishonesty, and it does not establish a breach of your proffer agreement. As we discussed, “usefulness” is not necessarily the issue at hand; rather, the key is whether you “offer truth-fully, completely, and without reservation, all information and evidence in your possession, control, or knowledge” that is relevant to your case.

There is nothing in federal law that prohibits you from being incapable of providing information that will assist prosecutors in their case. In fact, 18 U.S.C. § 3553(f)(5) explicitly lists lack of “additional relevant or useful information” as a valid excuse for failing to assist the government, and the U.S.S.G. “acceptance of responsibility” provision under § 3E1.1 expressly allows for relief regardless of whether a defendant has “provided additional information that is useful to the government.”

These provisions collectively affirm that as long as you truth-fully disclose your lack of information, your proffer is successful. This does not count as “non-cooperation.”

Why Does it Matter if Your Proffer is “Useful”?

While a truthful, but not necessarily “useful,” proffer is not a failure, it is still important to identify information that is useful to the prosecutors. First, “usefulness” is what triggers the government to offer immunity, probation, or other favorable outcomes. Most proffer agreements do not guarantee immunity or outcomes by themselves; instead, these agreements are just the rules.

The second reason is that providing “useful” information increases your chances of getting a recommendation for a lower sentence. While not providing information that is useful to prosecutors does not disqualify you from “acceptance of responsibility” relief under U.S.S.G. § 3E1.1, your information does not have to assist the government in its case. It also counts as useful if it corroborates evidence the government has.

Can I Still Get Sentencing Relief Without Useful Information?

Yes. If you are facing a criminal offense for which you can qualify for “acceptance of responsibility” or “safety-valve” relief, providing a truthful, complete, and timely disclosure, even if it is not useful, may preserve eligibility for these reductions, but a proffer alone does not guarantee eligibility. While providing useful information is what prompts prosecutors to offer a government substantial-assistance motion, this motion is not necessary for relief under U.S.S.G. § 3E1.1 or Section 3553(f).

What is “Acceptance of Responsibility”?

“Acceptance of responsibility” is a provision of the United States Sentencing Guidelines (U.S.S.G.) that allows for a sentence reduction of up to three levels in select cases. Acceptance of responsibility is not necessarily synonymous with “informing” on others. It is, however, a required element of the U.S.S.G. for defendants convicted of offense level 16 or higher to qualify for an additional reduction. To qualify for “acceptance of responsibility” sentencing relief:

• There is no minimum offense level required for the initial two-level reduction;
• You must demonstrate a “clear demonstration of acceptance of responsibility,” and
• For the additional reduction, the offense level must be at least 16 and you must meet requirements under U.S.S.G. § 3E1.1(b).

Under the Guidelines, the initial “acceptance of responsibility” reduction is granted by the presiding judge and does not require a government motion. However, a government motion under U.S.S.G. § 3E1.1(b), stating that the defendant timely notified authorities of an intention to plead guilty, is required in order to secure the additional one-level reduction.

What is the “Safety Valve”?

The “safety valve” is a provision of federal law under Section 3553(f) that allows for sentencing relief for defendants charged with specified federal drug offenses. Defendants who qualify for “safety-valve” relief are those convicted of one of the drug offenses specified in Section 3553(f) who satisfy all five statutory criteria; this relief is independent of the U.S.S.G. “acceptance of responsibility” reduction and may be granted in addition to it. To qualify for “safety-valve” relief, a defendant must:

• Not have more than 4 criminal history points (excluding 1-point offenses), a prior 3-point offense, or a prior 2-point violent offense under 18 U.S.C. § 3553(f)(1); not have used violence, credible threats of violence, or a firearm or other dangerous weapon in the offense under § 3553(f)(2); and not have committed an offense that resulted in death or serious bodily injury under § 3553(f)(3);
• Not have been a “leader or an organizer” in the offense; and
• Fully, truthfully, and promptly disclose all information and evidence in his or her possession, control, or knowledge concerning the offense and the participants in the offense.

Do the Reduction Provisions Require Government Substantial-Assistance?

No. The “acceptance of responsibility” reduction is granted by the presiding judge, and the “safety-valve” reduction under Section 3553(f) is granted by operation of law. Neither of these reductions requires a government substantial-assistance motion.

Will Saying I Know Nothing Create a New Federal Charge?

Truthfully admitting that you know nothing about a federal case in question will not lead to charges under 18 U.S.C. § 1001. Although it is often called the “false statements” statute, § 1001 covers both concealing or covering up a material fact by trick, scheme, or device and making materially false, fictitious, or fraudulent statements. Here is a breakdown of the statute.

“Materially False, Fictitious, or Fraudulent”

Under 18 U.S.C. § 1001, “materially false, fictitious, or fraudulent” includes all of the following:

• A statement that is false or misleading; and
• A statement made within the federal government’s jurisdiction and which significantly affects the course of a federal proceeding or investigation.

When you proffer in a federal case, that proffer will need to be truthful to avoid creating a violation of § 1001. However, if you simply have nothing to add that would assist the government’s case, then truth-fully stating this does not necessarily lead to an additional offense. You are merely stating a fact (your lack of knowledge), which does not make your proffer’s content “materially false, fictitious, or fraudulent.”

“Knowingly and Willfully”

In addition to “materially false, fictitious, or fraudulent,” 18 U.S.C. § 1001 also requires that statements or disclosures be made “knowingly and willfully.” An innocent memory error will not meet this threshold. Importantly, while statements made during an unsworn proffer may trigger a violation of § 1001, they will not lead to perjury charges.

“Conceals or Covers Up by Any Trick, Scheme, or Device”

Under 18 U.S.C. § 1001(a)(1), this includes all “acts and declarations,” and not only oral and written statements, “by which any person knowingly and willfully conceal, by any trick, scheme, or device, any material fact.” As a result, if you are unable to contribute information during a proffer, this fact will not necessarily lead to a charge under § 1001 as long as you do not engage in fraudulent activity to conceal information.

What Is the Penalty for Violating 18 U.S.C. § 1001?

Under 18 U.S.C. § 1001, the maximum penalty is a five-year prison term and/or a fine of up to $250,000, and the prison term rises to eight years where the offense involves terrorism or certain sex offenses. When you make an unsworn proffer, the only way you can avoid creating a new federal charge is to be truthful.

Does Agreeing to a Proffer Mean I Have to “Snitch”?

A proffer is not a guilty plea, and it is not a cooperation agreement. If you proffer without signing a plea or cooperation agreement, you may still waive evidentiary or other rights under the terms of the proffer agreement itself. By participating in the proffer process, you are simply choosing to meet with prosecutors to see what your information could do to you. Again, this is a voluntary process, rather than compelled testimony or an accusation for which you would otherwise need to confess.

Can I Proffer Without Implicating Others?

Yes. It is possible to make a proffer that touches on your own alleged actions without accusing or implicating others. A proffer can also present exculpatory facts. Importantly, you can provide a proffer that contains no self-incriminating information for the purpose of seeking no federal charges.

Is this “Snitching”?

The term “snitching” is a colloquial term without a controlling legal definition. As a result, while a proffer could be seen as “snitching” depending on what information the defendant reveals, it is not necessary that they “snitch” to engage in a proffer. Once again, the goal is to meet with federal prosecutors and determine the merits of a potential sentence reduction.

Does Participating in a Proffer Obligate Me to Cooperate if I Need to Mitigate Exposure?

A proffer alone does not make you a cooperater or a snitch. If you make a proffer and then it is determined that you have information that could lower the sentencing guidelines in a criminal conviction (or even make a case for not being charged), you will then need to enter into a cooperation agreement. If you decide to mitigate the potential exposure from a criminal charge or potential criminal exposure, a cooperation agreement will typically require you to testify for the government against others. However, it may not necessarily require you to cooperate as a fully-fledged informant. Instead, it can require you to make some disclosures regarding your alleged actions, and a proffer is often the starting point.

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

Which Cooperation Reductions Actually Require Useful Assistance?

Even with the intent to get a sentence reduction, prosecutors may decline to move forward if they determine that any information you can offer does not add “significant value” or “significant insight” beyond what they have already gathered. With this in mind, if you have relevant and useful information, this is where the only sentencing reductions that actually require useful assistance come in:

• U.S.S.G. § 5K1.1 Departure
• U.S.S.G. § 5K1.1 and Section 3553(e) Reduction
• Federal Rule 35(b) Reduction

U.S.S.G. § 5K1.1 Departure

This departure applies to defendants who provide “substantial assistance” for the “investigation, or prosecution, of another person.” Because U.S.S.G. § 5K1.1 does not provide authority to impose a sentence below the statutory minimum, to secure a reduction you will need a government substantial-assistance motion for a U.S.S.G. § 5K1.1 departure. The U.S.S.G. also clarifies that a U.S.S.G. § 5K1.1 departure is only available if the defendant “makes a timely and complete disclosure” and “fully cooperates” to the extent that is reasonably expected of them.

U.S.S.G. § 5K1.1 and Section 3553(e) Reduction

While a U.S.S.G. § 5K1.1 departure provides authority to impose a sentence below a federal guideline range, it does not provide authority to impose a sentence below the statutory minimum. To obtain a sentence below a statutory minimum, you will need a government substantial-assistance motion under Section 3553(e) of the federal sentencing statute as well. This motion will typically need to state that the “substantial assistance” provided by the defendant “is sufficient to warrant the imposition of a sentence below the minimum statutory sentence.”

Federal Rule 35(b) Reduction

Federal Rule 35(b) provides the possibility of a substantial-assistance reduction after sentencing, and it has two subsections:

• Federal Rule 35(b)(1) governs government-initiated motions that are made within one year after sentencing, as the provision states:
• “The government may move to reduce the sentence.... within one year after sentencing,” and
• Federal Rule 35(b)(2) allows the government to seek reductions on defendants’ behalf if the information provided “will significantly affect the sentencing of another person” or if “it has become clear since sentencing that the person’s provision of information significantly helped” the government’s case. While it has provisions for reductions filed more than a year after sentencing, this only applies in cases where “important information” about the defendant’s actions becomes apparent after the one-year deadline. In all other circumstances, the one-year period after sentencing is critical for obtaining Federal Rule 35(b) relief.

Can Prosecutors Use My Proffer Against Me in Court?

We help you negotiate the terms of your proffer. Once you sign the proffer letter, the letter controls what the government can and cannot do with the information you provide in the session. While these provisions are not fixed by federal law, most proffer letters will protect against direct use in prosecutors’ case-in-chief investigations, but allow for derivative investigation.

What is Derivative Investigation?

A derivative investigation is an investigation based upon information that you disclose during a proffer. In other words, if you disclose a witness or location during your proffer, the government may use the witness or visit the location to gather evidence against you. If that evidence does not involve you personally, and thus does not affect your proffer protections, then the government is likely to be permitted to use that evidence even if your proffer letter limits direct use of the contents of your proffer in prosecution’s case-in-chief.

What is Impeachment?

Another common, and sometimes overlooked, provision is the government’s right to use statements made during a proffer to impeach defendants if they testify that is contradictory to their proffer. If you decide not to agree to a plea or cooperation agreement, your statement during your proffer can still have ramifications; and, if you take the stand during your criminal trial and testify, then you will need to be mindful of your prior proffer disclosures.

What is a Material Breach?

A third common, and sometimes overlooked, provision is the government’s right to make direct use of a defendant’s proffer if the defendant materially breaches the proffer agreement. Under the U.S.S.G., a material breach typically includes making a willfully false statement in your proffer; however, the exact parameters will be set forth in your proffer agreement. The U.S.S.G. provides for a sentence reduction only if a defendant made a “voluntary acceptance of responsibility” which the defendant did not subsequently “withdraw his or her acceptance of responsibility.” In this context, a material breach of a proffer agreement could count as withdrawing acceptance of responsibility.

Will the Protections of My Proffer Carry Over to Sentencing?

The protections offered during a proffer will also apply at sentencing if your proffer letter or a subsequent agreement says so. Otherwise, only U.S.S.G. § 1B1.8’s protections for acceptance of responsibility apply. However, according to the Notes to U.S.S.G. § 1B1.8, the protections afforded by the Provision’s “voluntary acceptance of responsibility” only apply when “the defendant’s cooperation arises out of a cooperation agreement with the government.” As a result, a federal proffer letter alone may not protect you in court, and it may not bind state prosecutors during state criminal proceedings if there is a potential state charge involved as well.

What Should My Lawyer Do Before I Agree to Proffer?

What your lawyer should do before you agree to proffer depends, fundamentally, on what you can offer. If your lawyer has already identified some potentially useful or relevant information you can provide in your case, your lawyer will likely choose to propose the information to the prosecutors in an attorney proffer session. Attorneys are permitted to speak on behalf of their clients. This is a great way to gauge whether prosecutors think it’s worth it to make a formal offer of cooperation. However, prosecutors may still demand that you personally confirm information if they decide to take your case forward to negotiations. If you’re confident that you cannot provide useful information to the government, you could also insist on a “reverse proffer.” During a reverse proffer, the government presents their case while you and your lawyers listen to the information presented. Once the session is over, you will know what the prosecutors already know and what they are lacking. With this information in hand, you and your attorney can make an informed decision about when you want to participate in the proffer process.

When Would An Attorney Proffer or Reverse Proffer Result in a Successful Proffer Recommendation?

The factors for making a successful proffer recommendation involve a detailed assessment of a defendant’s conduct, his or her knowledge of the crime(s) involved, the government’s current investigation, and what the government is seeking from its target defendants. Again, this depends heavily on the nature and scope of the criminal charge, and there is no one-size-fits-all solution.

Can I File for Ineffective Assistance of Counsel if My Lawyer Fails to Secure a Proffer Recommendation?

Filing for ineffective assistance of counsel under the Strickland standard is difficult, and it is not advised to assume that a bad outcome from a proffer equals an attorney’s failure.

Under Strickland, for a defendant to prove ineffective assistance of counsel, he or she must:

• Show that counsel’s performance was objectively unreasonable, and
• Show that this deficient performance had a reasonable probability of affecting the outcome of the proceedings.

Neither of these steps is a “given” just because you didn’t receive the sentence reduction you wanted. For example, even if prosecutors rejected your attorney’s attempt to negotiate during an attorney proffer, this might not mean that your attorney’s performance was deficient. Likewise, even if an unsuccessful proffer led to unfavorable sentencing, this alone would not mean that the same result would not have happened if you had proferred properly.

What is the 80/20 Rule for Federal Proffers?

There is no federal proffer rule under the federal rules or the federal sentencing guidelines. The 80/20 rule is essentially a heuristic (a rule of thumb), as a result of the common Pareto heuristic. As with many other heuristics, the 80/20 rule is widely cited on the Internet, and it is likely to be misunderstood by some who cite it.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.