What Is a Proffer Letter and What Does It Mean??

The term “proffer” has multiple applications in federal practice. Federal Rule of Evidence 103(a)(2) governs an attorney’s “offer” at trial, referred to as a “proffer” in the courts, of the substance of evidence that the court has excluded from the proceeding. In federal criminal practice “proffer” can also refer to an “investigative proffer”, the voluntary presentation of information to prosecutors, typically prior to the decision to formally bring charges.

What is a “Queen for a Day” Letter?

A “queen for a day” letter is a colloquial term for a federal proffer letter. The phrase refers to the fact that the government is allowing the potential defendant to “reign” over their statements for a day by presenting them under the protections of the proffer letter without fear that they can be used to build a case against them. However, a “queen for a day” letter is not a grant of immunity, and signing the letter does not guarantee nonprosecution, leniency, or a cooperation agreement.

Does the Federal Government Use a Uniform Proffer Letter Form?

There is no single nationwide federal proffer letter form. Instead, federal proffer letters are negotiated contracts between the U.S. Attorney’s Office (DOJ) and potential defendants.

Is a Proffer Letter a Cooperation Agreement?

No, a proffer letter is not a cooperation agreement. A proffer session tests possible cooperation; it does not in itself constitute a cooperation agreement. The proffer session can lead to a cooperation agreement, but this is not its primary purpose and certainly is not a requirement.

How Does a Proffer Letter Work?

A proffer letter is a contractual agreement that defines what the government can and cannot do with any statements that you provide to prosecutors. It does not grant immunity; and, like a “queen for a day” letter, it does not guarantee nonprosecution, leniency, or a cooperation agreement.

How Do Federal Courts Determine the Scope of Protection for Proffer Statements?

Generally, federal courts interpret proffer letters as contracts; they follow standard principles of contractual interpretation when determining whether prosecutors have exceeded their authority to use an interview’s statements or information. However, federal courts also consider whether it is “unreasonable” for the governmental agency to use the statements in the case at hand, and this depends on whether it is consistent with the “spirit of the agreement.”

What Does a Typical Federal Proffer Letter Say?

A typical federal proffer letter generally prohibits prosecutors from using anything said during the proffer interview directly against the profferer in a trial. However, it generally allows the following uses:

• Use of statements for impeachment purposes.
• Use of statements to rebut a defense that is “inconsistent” with the proffer session statements.
• Use of information (including leads and evidence obtained from the proffer session) to develop other witnesses’ testimony, search warrants, and other forms of evidence against the profferer.
• Use of the profferer’s statements (including any of the above exceptions) to prosecute third parties.

Is Every Prosecutorial Interview Protected Under Federal Rule of Evidence 410?

No, every prosecutorial interview is not protected under Federal Rule of Evidence 410. Rule 410 generally bars specified pleas and statements made during plea discussions from being admitted against the defendant. However, the federal courts of appeals have ruled that a federal prosecutor’s interview of a suspected criminal is not necessarily a “plea negotiation.” In fact, prosecutors can obtain statements from a suspect’s interview without providing immunity, and a proffer agreement may permit use of a suspect’s statements to rebut testimony that is inconsistent with the proffer. This is why prosecutors call these interviews “proffers” rather than “plea negotiations.”

What is the Difference Between Use Immunity and Derivative-Use Immunity?

Under 18 U.S.C. § 6002, immunized testimony cannot be used directly against the immunized witness, nor can it be used to obtain information about where to find other evidence that is then used to build a case against the immunized witness. This protection is much broader than the protection that typically is afforded to proffer session statements. The protection that federal prosecutors grant in proffer letters is, in the vast majority of cases, purely “direct-use” protection.

What is the Difference Between “Direct Use” and “Derivative Use”?

• Direct use protection prohibits the government’s prosecutors from testifying against a speaker using the speaker’s actual statements made during a proffer session. If prosecutors have direct-use immunity, they cannot offer the statements as the prosecutor’s case-in-chief; however, they can still offer other evidence in the case-in-chief that they obtained based on information (leads) coming from the speaker’s proffer session statements.
• Derivative-use protection prohibits prosecutors from using the lead obtained in a proffer session to obtain other evidence (documents, witnesses, etc.) in order to prove the speaker’s guilt. The evidence derived from a protected proffer cannot be used during the speaker’s prosecution at all. For example, a witness may lead the federal government’s prosecutors to the location of a key document during a proffer session, and while prosecutors can still use that document at trial if the witness has only a “direct use” protection proffer letter, they cannot use the document at all if the witness has a “derivative-use” immunity proffer letter.

Is a Federal Proffer Session Worth the Risk of “Snitching”?

Signing a federal proffer letter alone is not “snitching”; however, the subject of a speaker’s statements during the session is what determines whether the speaker has “snitched.” A person can have a proffer session without necessarily implicating anyone else. For example, if a person has taken part in a federal crime and he, she, or they cannot maintain silence due to the fact that the federal government has already contacted a witness or otherwise has the resources to prove his or her guilt or culpability, a person may explain their own conduct and provide the prosecutors with information they can use as a defense to his or her charges.

Even if a person has a proffer session that doesn’t “snitch” on other individuals and doesn’t involve any formal cooperation, doing so may increase the possibility of avoiding criminal charges or a conviction. On the other hand, if a person formally cooperates with the federal government, this will almost certainly involve helping prosecutors investigate, charge, or prosecute other individuals.

Is a Federal Proffer Session Worth the Risk of Lying?

A federal proffer is usually unsworn, and the person giving the proffer will not be under oath. This might make you feel like you can lie in a proffer session without consequences, but this is not the case. Even in an unsworn federal proffer, any material lie you tell could trigger criminal charges under 18 U.S.C. § 1001. Most federal proffer letters require the person to provide all the information that the prosecutors want, and they must provide “complete and truthful” information about all matters and information they know. So, unless you have a solid defense and there are no issues with your testimony, lying in a proffer session will be very risky.

Is it Worth It for Me to Participate in a Proffer Session?

This depends on a variety of factors. Some of these factors include:

• How much criminal exposure you are facing.
• What possible defenses you might have.
• What information you have in your possession that might be of value to prosecutors.
• The benefits that you are expecting to receive in return for participating.

If you don’t have enough information to be helpful to the prosecutors, or you are not able to tell the truth about all the matters that they are interested in, a federal proffer might be particularly risky.

Is a Proffer Worth It from a Defense Point of View?

When it comes to your defense, the question is more complicated. When you participate in a proffer session, you will probably have to sign a broad waiver that will expose your defense to the federal prosecutors. This waiver might also be interpreted as a “plea,” which can weaken your defense in court. In these circumstances, whether it is better to seek assistance from the prosecution or to build a strong defense case will depend on all the factors in the area. You need to consult your federal defense lawyer to determine the right course.

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

What Happens After the Proffer Session?

After the proffer session, prosecutors will assess whether you were truthful, whether prosecutors can corroborate your information, and the value of your information to the federal government’s investigation or prosecution. If the proffer session is successful, you can receive a range of different benefits, and this includes:

• Negotiating your willingness to cooperate in the federal government’s investigation or prosecution.
• Negotiating a plea agreement in which the prosecution will recommend reduced charges or a specific sentence, depending on the court.
• Negotiating an agreement to drop the charges against you.

If you provided truthful information but prosecutors find no need to offer any of the benefits listed above, this is also possible. You’ll need to make sure your defense counsel asks for whatever benefits you desire and make sure that they receive clarification about what to expect.

What Does Cooperation With the Federal Government Entail?

The form and conditions of cooperation can vary widely. Sometimes it involves providing additional debriefings, or making recorded telephone calls with other individuals. Other times, this includes testifying before a grand jury or at trial.

How Long Will the Federal Prosecutor Wait to Get Back to Me?

Unless the proffer letter or the negotiation process included specific time limits, there is no general federal deadline that governs the time a prosecutor has to respond to a profferer. In general, prosecutors will get back to the person who took the proffer session as soon as possible. However, it is not uncommon for the prosecutor to need additional time, not just to digest the information provided but to conduct additional debriefings and to examine additional evidence.

Can FBI Agents Write Down What I Said During My Proffer Session?

Yes, FBI agents often use Form FD-302 as a way to memorialize a proffer session. This form allows the federal agent to prepare a summary report of the proffer session which will be used by federal prosecutors in order to organize the evidence they have at hand.

What is the Point of a Proffer?

The general point of a federal proffer is to test a potential cooperators’s credibility, value, and consistency of their information with the evidence that the prosecution is already in possession of. Prosecutors can use a proffer to confirm that the suspect is being truthful, the suspect can use it to offer their side of the story, and the suspect may find out what the prosecution has against them.

Can My Proffer Affect My Sentence or Mandatory Minimum?

Sentencing guidelines and statutes provide some protections for information provided under a proffer. For example, Sentencing Guidelines §1B1.8 allows for information provided in return for a specific promise from the federal government that the information provided will not be used against the person. However, this provision only applies if the government agrees to a specific set of protections. Whether your proffer information can be used for sentencing depends on whether your proffer letter is specifically tailored, and this will need to be determined based on the specific language of your letter and the Sentencing Guidelines.

Can Prosecutors Use Information from My Proffer to File a §5K1.1 Motion to Depart Downwards?

Sentencing Guidelines §5K1.1 provides for a downward departure when a defendant provides substantial assistance in an investigation or prosecution of another person. This provision requires the government to file a motion in favor of the defendant. Similarly, to sentence below a statutory mandatory minimum, you have to rely on 18 U.S.C. § 3553(e). This statute also requires the government to file a motion. The proffer information can justify the prosecutor’s decision to file a motion, but that ultimately depends on the prosecutor’s discretion.

The federal court may not enter the motion in the present sentencing report or use it on its own to depart from the sentencing guidelines.

A §5K1.1 motion itself does not authorize the court to sentence below a statutory mandatory minimum. However, a sentence below a statutory mandatory minimum requires a separate motion under 18 U.S.C. § 3553(e), not merely a §5K1.1 motion.

Similarly, a §5K1.1 motion allows the government to be more flexible. The court, however, is not mandated to accept the information that the prosecutors provide. If the government files a §5K1.1 motion, it doesn’t obligate the judge to reduce the sentence to the recommended minimum.

Does a §5K1.1 Motion Entitle the Defendant to Information in the Present Sentencing Report (PSR)?

Under 18 U.S.C. § 3661, the presiding judge has the authority to seek any information he or she deems relevant. However, the present sentencing report does not necessarily contain a proffer from the federal government’s prosecutor. A §5K1.1 motion does not by itself guarantee that proffer information will appear in the presentence report. However, even if your lawyer negotiates a §5K1.1 motion, prosecutors have the final say.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.