What Is a Federal Proffer Agreement? A Complete Guide.

A federal proffer agreement is a written agreement between a federal defendant (or a target of a federal criminal investigation) and federal prosecutors. It governs an upcoming interview with federal law enforcement agents (FBI, DEA, IRS, etc.) and prosecutors. The interview is colloquially known as a “Queen for a Day” session, and the agreement is referred to as a “Queen for a Day” letter.

However, this colloquialism is often misleading. The nickname overstates the actual protection provided by a proffer agreement, and it can falsely imply that the individual is “safe” during a session with the government.

Proffer agreements are not immunity agreements, and they do not automatically grant immunity from prosecution. Instead, they establish the terms under which an individual can offer information without worrying that the information will be used to build a criminal case against them.

The protections, exceptions, and general rules of a proffer meeting are governed by the written proffer letter. This document outlines the scope of what the individual can and cannot say, what the individual is required to say, the limits of the government’s use of the statement, the limits of federal law enforcement’s use of the statement, and what constitutes a breach of the agreement.

While “proffer agreement” is the standard legal term, the terms “proffer meeting,” “proffer session,” “proffer interview,” and “Queen for a Day” are also frequently used.

Crucially, a proffer agreement does not grant immunity from prosecution. While successful cooperation can lead to immunity in some cases, the agreement itself is not a comprehensive immunity agreement and does not automatically grant immunity.

Likewise, a proffer agreement is not a plea deal and does not itself resolve pending criminal charges. It also does not guarantee sentencing leniency, reduced charges, or a plea bargain.

Is a Federal Proffer Agreement Just Snitching?

Whether a federal proffer agreement involves “snitching” is a nuanced question. While proffer agreements often function as auditions for formal cooperation, they are also used in various other contexts.

Proffer agreements often require the information to be shared to include not only other people’s roles in the criminal conduct at issue but also information about the individual’s own conduct. Cooperation after a proffer may involve testifying before a grand jury or at trial about others’ roles.

However, while many federal proffer agreements involve cooperation in the end, calling every proffer “snitching” overlooks other types of proffers, including:

• Pre-charge proffers that are focused on declination.
• Pre-charge proffers that are focused on mitigating the government’s case.

Pre-Charge Proffers Focused on Declination

Pre-charge proffers can serve two potential purposes. First, they can help correct factual misunderstandings that may lead prosecutors to wrongfully file criminal charges. They can also help demonstrate that prosecutors don’t have sufficient grounds to seek an indictment or guilty plea against an individual. When a defense attorney can convince prosecutors to decline to seek charges, this is known as a declination.

If successful, a pre-charge proffer is one of the best possible outcomes in a federal investigation. It also has the advantage of being relatively efficient.

Pre-Charge Proffers Focused on Mitigation

Pre-charge proffers can also be used to demonstrate a defendant’s limited role in criminal conduct when criminal charges are warranted. Demonstrating that a defendant was not the primary instigator or is not otherwise more culpable than others implicated will allow the defense attorney to seek a reduced indictment or sentence.

Post-Charge Proffers Focused on Mitigation

Post-charge proffers can achieve the same goals as pre-charge proffers. They can be used to persuade prosecutors to drop charges, show a client’s limited role in the criminal conduct at issue, and show other mitigation factors that may warrant a more favorable outcome.

Post-Charge Proffers Focused on Formal Cooperation

Finally, post-charge proffers can be used to build cooperation leverage with the government. Prosecutors value information that is new, verifiable, and significant. A successful post-charge proffer meeting can set the stage for negotiations over immunity or sentencing leniency.

What Clauses in a Federal Proffer Letter Matter Most?

The specific language of the “who-is-bound” clause matters as much as the “use” and “impeachment” clauses because it determines what information will be protected.

As federal prosecutors negotiate with candidates for federal plea deals or cooperation agreements, they will typically include provisions limiting their reliance on an oral promise not to seek an indictment based on an agreement (or oral agreement).

• A “use” clause allows prosecutors to use your proffer-based information.
• An “impeachment” clause allows prosecutors to use your proffer-based information if you testify inconsistently with your proffer.

Who-Is-Bound

Who-is-bound clauses identify (i) the protected party (the proffer participant) and (ii) the government offices bound by the agreement (the U.S. Attorney’s Office, the Department of Justice, etc.). This includes federal agencies that may be involved in a parallel administrative or civil enforcement matter.

Covered-Session

The “covered-session” clause limits the letter’s protection to certain interviews (the “covered sessions”). Other interviews (not in the proffer letter) will not be protected. This limits the scope of a defendant’s protection.

Use

Use clauses limit the use of statements made during the covered sessions. A use clause can be narrow, limiting the U.S. Attorney’s Office to the “direct use” of the proffer statements. A use clause can also be “derivative use,” which limits the use of information obtained as a result of the proffer.

Impeachment

Impeachment clauses allow federal prosecutors to use proffer statements during a criminal trial. Generally, an impeachment clause is triggered if the individual: (i) takes a contrary position (e.g., by testifying in a different capacity) or, (ii) accepts a benefit from the U.S. Attorney’s Office in exchange for immunity from prosecution.

Sentencing

Sentencing clauses determine whether federal prosecutors may use proffer statements during sentencing. For example, if a defendant decides to testify at a criminal trial, prosecutors may want to use statements from a prior proffer session to discredit the testimony or seek a more severe sentence.

Breach

The “breach” clause defines when an individual is in breach of a proffer agreement. If an individual lies during a covered session (or refuses to answer), the government is not bound by the agreement’s protections.

Disclosure

The “disclosure” clause limits the disclosure of proffer statements. In most cases, federal prosecutors will share your statements with the associated agency (e.g., the FBI or OIG), the IRS or another agency or regulator that has a direct (non-criminal) enforcement interest, and federal judges (if they need to determine whether prosecutors are entitled to a “motion to compel” based on a breach of an agreement).

Integration

An “integration” clause is used to preclude reliance on oral representations. If an individual relies on an oral promise, they will need to be able to rely on that promise regardless of any “integration” clause.

Is a Proffer Agreement the Same as Immunity?

A common misconception about proffer agreements is that they afford the same protections as “immunity.” However, this is not true.

There are two main sources of immunity in federal criminal cases: the U.S. Attorney’s Office, which can provide “prosecutorial immunity” via Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(f) (with certain limited exceptions); and a federal court, which can provide substantial “statutory immunity” under 18 U.S.C. § 6003.

Federal Rule of Evidence 410(a)(4) prohibits the use against the defendant of a statement made during plea discussions with an attorney for the prosecuting authority, if the discussions did not result in a guilty plea or resulted in a later-withdrawn guilty plea. Federal Rule of Criminal Procedure 11(f) similarly incorporates the admissibility provisions of Evidence Rule 410. However, the rules don’t protect “every interview conducted during an investigation” that involves a prosecuting attorney and a suspected individual. Even then, United States v. Mezzanatto, 513 U.S. 196 (1995) showed that Rule 410 protections can be waived. Prosecutors’ proffer letters commonly include waiver language.

A federal immunity order under 18 U.S.C. § 6003 grants a scope of immunity (known as “Kastigar immunity”) for “the use of the statement and any information derived from it.” Voluntary proffers do not afford Kastigar protection. With Kastigar immunity on the table, prosecutors still control the decision: the order issues only on the U.S. Attorney’s request, and the court’s role in granting it is essentially ministerial.

However, before seeking an immunity order from a federal judge, the U.S. Attorney must obtain approval from the Attorney General, the Deputy Attorney General, the Associate Attorney General, or a designated Assistant Attorney General or Deputy Assistant Attorney General.

Federal Rule of Evidence 410(a) states that, in a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

Does it provide derivative-use protection?

A federal proffer agreement rarely provides derivative-use protection. If a proffer agreement allows prosecutors to use statements for “direct use,” it typically allows them to also use the information derived from those statements in subsequent enforcement actions.

Does it provide admissibility protection?

The admissibility of proffer statements depends on the agreement’s terms. However, if a proffer agreement is executed at the pre-charge stage, a proffer participant will generally rely on Federal Rule of Evidence 410 protections. If prosecutors are not bound by a proffer agreement, they will likely be able to use any information gathered during interviews to build a criminal case against an individual.

Does it grant immunity from prosecution?

A federal proffer agreement grants an individual “some protection” from prosecution but does not grant the individual full immunity. With that said, an individual who uses a proffer to cooperate with prosecutors may be able to secure immunity for the criminal conduct at issue, or reduced charges as part of a plea bargain.

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

Can Prosecutors Use Your Proffer Against You Later?

Proffers often serve as “opening doors” for prosecutors. Many proffer participants rely on Federal Rule of Evidence 410 to prevent their proffer statements from being used in a case-in-chief. However, Federal Rule of Evidence 410 only prohibits the admissibility of proffer statements. If an individual’s statements help federal agents develop the government’s case, the information from that information could allow federal prosecutors to introduce other evidence.

Can the Federal Government Use “Derivative Use” against You?

Derivative use means investigators use a proffer statement to identify witnesses, target individuals, locate evidence, or develop their case. While proffer protection generally limits the federal government’s “direct use” of a proffer statement, it does not limit the government’s “derivative use” of that information.

Can the Government Use a Proffer to Build its Case Without Admitting the Statements?

Yes. If the government can develop its case using information obtained from a proffer, it can build a case that does not rely on the proffer statements.

Can prosecutors use your proffer during a criminal trial?

Yes, but only in limited circumstances. Many proffer agreements include an impeachment provision that allows prosecutors to use statements made during a proffer meeting to “impeach” (discredit) a witness if the witness testifies to the contrary. The government can seek admission of your statement if you take a “contrary position” (or your counsel does) at trial, on an appeal, or “in relation to any other legal or administrative proceeding.”

This typically happens if a defendant takes the stand and testifies inconsistently with their statements during the proffer session, or if a defendant’s attorney introduces evidence that contradicts their proffer.

Some proffer agreements go even further. They allow for rebuttal if a defendant’s attorney tries to suggest that the government is overreaching or that the defendant did not play a principal role in the underlying criminal conduct. However, as in Rosemond v. United States, 572 U.S. 65 (2014), the Supreme Court has limited the ability of the government to rely on a waiver provision to avoid its duty to disclose evidence in accordance with the Brady rule.

Does a “not guilty” plea constitute a waiver of protection?

Typically, a not-guilty plea on its own does not constitute a waiver. It can be entered without contradicting anything stated in the proffer session.

Does a waiver mean you no longer have protection?

Even if a defendant takes a contrary position at trial, this does not necessarily mean he no longer has protection. Instead, it only means that the government is permitted to introduce a proffer statement (or statements from a confession or waiver) to show that the defendant’s current position is inconsistent with a prior statement. This doesn’t mean the government can introduce a defendant’s prior proffer session in its entirety to prove the elements of the crime alleged against him.

Will a judge enforce a proffer agreement?

A proffer agreement is a contract. If an individual breaches the contract, the government is not bound to follow the contract’s terms. On the other hand, if the government breaches the contract, it is the government that will be responsible. In both scenarios, the individual is entitled to full protection. In many cases, a federal judge will grant an immunity order in these scenarios.

What Happens After a Federal Proffer Agreement?

What happens after a proffer is a matter of negotiation. Depending on the contents and value of a proffer, the U.S. Attorney’s Office may offer to pursue:

• Formal cooperation
• A favorable plea agreement

A successful proffer can create a powerful basis for negotiations. If a proffer is sufficient to establish a defendant’s eligibility for substantial-assistance, it can provide the necessary foundation for negotiations over a favorable sentencing recommendation.

While cooperation may provide substantial-assistance eligibility, a defendant will still need the U.S. Attorney’s Office’s confirmation of substantial-assistance to benefit from the protections of U.S.S.G. §5K1.1.

Under U.S.S.G. §5K1.1, the U.S. Attorney’s Office may file a motion with the sentencing court for a below-guidelines sentence. The court can then impose a sentence below the Guidelines range if it finds that the U.S. Attorney’s Office found a “substantial assistance” result.

A §5K1.1 motion cannot, on its own, justify a sentence below the statutory minimum. However, the U.S. Attorney’s Office may move for a below-minimum sentence if a defendant meets the criteria of 18 U.S.C. § 3553(e), which requires that “the defendant has provided the court with substantial assistance in the investigation, prosecution, or sentencing of another person or persons.”

If the U.S. Attorney’s Office files a motion to depart below the statutory minimum under 18 U.S.C. § 3553(e), the judge can impose a sentence regardless of whether the defendant pleaded guilty to a offense that carries a mandatory minimum sentence.

What if I get sent to prison?

If you’ve already been sentenced to a term of imprisonment, a motion for a substantial-assistance sentence reduction under Federal Rule of Criminal Procedure 35(b) remains on the table. If the U.S. Attorney’s Office found you provided substantial-assistance to federal law enforcement, they can file a motion under Rule 35(b) to reduce your sentence after your sentencing hearing.

What if I’ve not yet reached a plea deal?

If a proffer supports cooperation negotiations and the U.S. Attorney’s Office declines to pursue charges, the case is over. However, even in this situation, the U.S. Attorney’s Office may file a sentencing memo showing the individual’s cooperation.

As a result, there is always a clear incentive to work with the U.S. Attorney’s Office (even if the prosecutors won’t offer cooperation immediately). The sooner you can demonstrate the value of your information or statements, the sooner you will be able to begin negotiations over leniency.

How Should You Decide and Prepare Before Proffering?

Making a decision about whether to proffer requires weighing all available facts. In our experience, three key questions deserve specific consideration in the decision process:

(i) Do I risk exposure to additional charges?

Proffer agreements are designed to encourage individuals to “come clean” and volunteer information. However, this offers both a benefit and a risk. By volunteering information, the defendant risks providing prosecutors with information that could subject them to charges under 18 U.S.C. § 1001.

While a false statement during a proffer is a §1001 offense, the statute applies to “who knowingly and willfully makes any materially false, fictitious, or fraudulent statement or representation.” Falsely recalling information does not necessarily mean you lied.

(ii) Does it make sense for me to volunteer information?

Deciding whether to proffer also requires weighing it against the government’s case. If a trial defense is strong enough to be likely to be upheld at trial, it may make strategic sense to continue pursuing that defense rather than to try to “buy” leniency by volunteering information. If a defendant is likely to be found not guilty anyway, proffering makes little sense.

However, on the other hand, if the government’s case against a defendant is compelling, cooperation can provide an effective way to gain leverage and avoid a harsh sentence. When a defendant makes a compelling trial defense case, a proffer allows prosecutors to determine what type of assistance they can gain for them.

(iii) Does it make sense for me to try to buy lency by proffering information?

If the government has compelling evidence, proffering information as soon as possible is generally a good strategic move. As prosecutors, a defendant can make it easier to be eligible for substantial-assistance, which can mean everything.

How Do I Prepare for a Proffer Agreement Meeting?

Preparing for a proffer agreement meeting is an essential step. Thorough preparation allows defense lawyers to know exactly what you know, what you don’t know, and what you are willing to say. We work with your lawyers to help you prepare for your proffer meeting by reviewing prior statements, digital records, and other information we think the government already has.

Our mock proffer interviews help you understand the types of questions that will be asked and will let you know what is, and is not, within your memory. This will enable your lawyer to know when it’s prudent to refrain from guessing during the interview.

Can My Attorney Offer Information On My Behalf?

It is often helpful for an attorney to proactively communicate with prosecutors. We can use an attorney proffer meeting to make preliminary statements about what is in your possession and to make specific proffers on your behalf. This approach keeps the individual out of the interview, giving the individual’s attorney more time to discuss a plea deal or cooperation agreement that will satisfy the individual’s expectations.

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.