What Your Lawyer Should Negotiate Before You Proffer.

A federal proffer agreement is a contract that sets forth written rules for a voluntary interview between a target (or witness) and the U.S. Attorney’s Office (or another federal agency) that is conducting an investigation. An ordinary proffer agreement does not confer formal immunity. It typically provides limited direct-use protection. That is, the government generally cannot use statements made during a proffer against the target at trial. However, the specific language and exceptions dictate the extent of the direct-use protection.

Prosecutors usually draft proffer agreements. They may send the draft over to your defense counsel or require you to use a standard form. Our lawyers can request revisions to an ordinary proffer agreement, but that will be at the government’s discretion. If the government will not agree to a targeted proffer, your defense lawyer may need to advise you against accepting the government’s proffer agreement.

A federal proffer session generally includes the client, defense counsel, prosecutors, and investigating agents. While defense counsel is present, his or her role is limited. Your lawyer may preview the topics you intend to cover before you begin speaking. However, defense counsel cannot answer on your behalf or speak for you. Federal proffers may take place before indictment or after federal charges have been filed.

Federal proffer sessions generally take place at prosecutors’ offices, although defense counsel may agree to other locations. While defense counsel is present, he or she must remain in the background. During the session, your lawyer can advise you about whether to disclose particular information. At federal proffer sessions, you will have the opportunity to share information with federal prosecutors.

What must you and counsel establish before the proffer?

Prior to the proffer, your lawyer should discuss with prosecutors the subjects and individuals you will be questioned about. Counsel should also determine how prosecutors classify you. There are three classifications for federal targets. As a witness, you would be expected to provide information about others. As a subject, you would be under scrutiny, but formal charges have not yet been filed. As a target, the government will be pursuing charges.

Your lawyer may also ask prosecutors what information is materially useful or what areas of inquiry are priority. That is, your defense counsel can target your response to what is important to the government. The so-called “80/20 rule,” however, is not an accepted federal proffer doctrine. In fact, guess-work during the proffer can have a variety of issues. Your lawyer will help you determine what you know for sure. He or she will help you minimize guesses during the proffer, and he or she will help you avoid providing inaccurate information. If you provide inaccurate information during a federal proffer, this creates credibility and inconsistency problems that can haunt you.

Your lawyer can also explain what information is protected under the attorney-client privilege. For example, communications between you and your lawyer for the purposes of seeking legal advice generally cannot be disclosed. However, these communications protect the lawyer’s advice not the underlying historical facts. While communications with defense counsel to plan for future crimes or frauds generally do not fall under the attorney-client privilege, our lawyers are committed to upholding their legal and ethical duties.

Your lawyer can also ask the government to provide an inventory of information obtained. For example, prosecutors may agree to share their evidence or key areas of inquiry before the session. This may help you determine what the government knows and what information may still be relevant to the government’s investigation. Our lawyers may also request a debriefing after the session. Then you will know what the government learned and if there are any follow-up questions. If the government has additional questions, then your lawyer can review the questions you will need to answer. If you agree to answer more of the government’s questions then your lawyer can work with prosecutors to establish a second proffer session.

How should counsel narrow the government’s use waivers?

1. Consider Rule 410 Protection

When reviewing a proffer agreement, counsel should determine whether Rule 410 protection applies. Federal Rule of Evidence 410 (FRE 410) generally precludes the government from using statements from plea discussions against a defendant. However, there are several notable limitations and exceptions that make it difficult to rely on FRE 410 in a proffer scenario.

2. Analyze Rule 410’s Limitations and Exceptions

These limitations can make Rule 410 insufficient to protect targets in proffer sessions. This includes:

• Rebuttal use: While Rule 410 limits the introduction of plea discussion statements, it includes an exception for statements that directly contradict the defendant’s testimony at trial.
• Sentencing: U.S. Sentencing Guidelines Section 1B1.8 prohibit the government from seeking sentence enhancements based on proffer statements. However, these rules apply only when the government agrees to their protections.
• Broad waivers: United States v. Mezzanatto established that federal defendants can knowingly and voluntarily waive their Rule 410 protections.

3. Seek to Negotiate Rule 410 and Exception Limits

While prosecutors often include these exceptions by default, it is worth negotiating their scope. For example, defense counsel can seek to limit rebuttal waivers only to statements in conflict with a defendant’s own testimony at trial, excluding those that contradict testimony from other witnesses. Similar restrictions can be applied in sentencing proceedings as well.

4. Negotiate Limitations on Derivative Use

Derivative-use waivers can be particularly broad, and negotiating their scope can be challenging when prosecutors reject full derivative-use protections. However, in these cases, it may be possible to establish fallback language that limits a derivative-use waiver to limited uses. For example, fallback provisions may limit a derivative-use waiver solely to impeachment purposes or strictly to information that the government is able to independently corroborate using a reasonably-specific and limited list of witnesses.

In addition to seeking to exclude statements from plea discussions under Federal Rule of Evidence 410, defense counsel should establish the client’s status prior to the proffer. Federal Rule of Evidence 410 generally only covers “plea discussions.” But every voluntary government interview is not necessarily a “plea discussion.” The scope of what Rule 410 covers can also depend on whether the government has already formally charged the individual, although this is not necessarily the case in all scenarios.

5. Establish Limitations on Cross-Sovereign Use

If federal prosecutors insist on a cross-sovereign use waiver, counsel should seek to narrow the government’s discretion. Some cross-sovereign use waivers are negotiated to only allow the government to share information when there are strong reasons for the government to do so. Rather than granting the government discretion, the government can agree to share a target’s statement only after confirming with defense counsel that the defendant no longer has a reasonable expectation of privacy. The most protective alternative is, however, to require that the government obtain consent to share a target’s statement with state authorities prior to any cross-sovereign disclosure.

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.

How can counsel restrict derivative and cross-sovereign use?

1. Derivative-Use Waiver

Many ordinary proffer agreements include derivative-use waiver provisions. For example, while prosecutors cannot use a defendant’s statement against that individual, investigators may be permitted to pursue any “leads” obtained through a defendant’s voluntary statements. Statements made during proffer sessions can be leveraged to discover other admissible evidence, and, as a result, while the proffer itself remains inadmissible, the derived evidence is admissible.

Generally, counsel should aim for a full derivative-use waiver. A derivative-use waiver protects the proffer from use against the defendant; and it limits the government’s ability to use proffer statements to develop subsequent evidence that could lead to prosecution. However, the government may reject this for a number of reasons. While the government may reject a derivative-use waiver for the proffer in its entirety, it may agree to accept it if the target is willing to fully cooperate. Our attorneys may propose various “fallback provisions” to negotiate derivative-use waivers in other situations.

2. Cross-Sovereign Use

Because one prosecutor’s agreement cannot automatically bind another prosecutor, cross-sovereign use is often a significant consideration in proffer negotiations. If you speak to the government’s prosecutors, you do not want your statements to be used against you by state authorities. With this in mind, counsel can seek to restrict prosecutors’ sharing disclosures with other authorities. A simple statement prohibiting prosecutors from referring a proffer-related communication to state or other sovereigns may not suffice. The agreement should contain clear and explicit language that protects the target.

3. Establish a Dated Evidence Inventory

To protect against derivative use, a dated evidence inventory can be essential. By getting evidence logs for all relevant pre-proffer documents and evidence, the target can establish what the government knows (and has proof of) before the proffer. When the government comes to the negotiating table with evidence, if the evidence was obtained through sources revealed during a proffer, then it may be derivative in nature.

As a result, if the government uses evidence against a target, prosecutors may need to prove that they derived the evidence from sources independent of the proffer. When prosecutors agree to this, they are which limits their ability to pursue derivative use.

4. Seek Nondisclosure to State, Regulatory, Civil, and Foreign Authorities

A federal proffer agreement should generally require that your proffer information not be shared with state or other authorities. While the target will typically receive a limited cross-sovereign-use prohibition, this should extend to state, regulatory, civil enforcement, and foreign authorities.

Because civil and regulatory enforcement authorities may not be bound by the proffer agreement’s terms, the target may want to insist on specific provisions that ensure prosecutors do not waive any of the target’s protections. This can be complicated; however, this is important to protect the target in the future.

With this in mind, our lawyers can assist you in determining which protections should be included in your proffer agreement. For example, Kastigar protection generally applies to compelled testimony. While federal proffers are generally voluntary, our lawyers may seek to obtain Kastigar protections if they apply.

What happens if prosecutors claim you breached the agreement?

1. Negotiate the Definition of “Materiality”

Most proffer agreements permit the use of protected disclosures if they are used for purposes beyond those covered by the agreement’s protections. Specifically, prosecutors will include an exception for use when a target makes an materially inaccurate or incomplete statement. This exception gives the government a way to punish a defendant for materially misrepresenting facts and for offering “less than candid” answers.

However, “materiality” is an extremely flexible term. In negotiations, your lawyer may seek to require an objective standard for materiality. When possible, a specific, objective standard provides a more predictable outcome. An example of this is establishing a target’s disclosure of a crime or criminal act as a materially inaccurate or incomplete statement.

2. Seek to Negotiate Other Breach Provisions

Besides negotiating materiality, your defense counsel may seek to limit the government’s ability to declare a proffer breach. For example, the agreement could require prosecutors to provide written notice and set forth an opportunity for a target to cure the alleged breach. Another way for counsel to protect targets is to set forth that prosecutors bear the burden of establishing the factual basis of any alleged material inaccuracy or incompleteness.

3. Establish Procedures for Correcting a Proffer

After a proffer session is completed, it may become necessary to correct inaccuracies. This may happen in various scenarios, including when new information is discovered and when prosecutors’ interview memoranda present inaccurate narratives. While prosecutors may not usually agree to a formal cure period, your lawyer can establish a process for providing corrected responses.

This includes identifying whether a target’s right to make corrections extends to follow-up sessions. To facilitate future sessions, counsel can also negotiate the production of interview memoranda, which often summarize a target’s interview responses. With access to these memoranda, counsel and a target can then decide what information the government appears to have understood, what information needs to be clarified, and what other information remains that should be volunteered.

4. Negotiate Limitations on Cross-Sovereign Information Sharing

Even when counsel negotiates restrictions on cross-sovereign sharing, some waiver will be necessary. For example, if a proffer agreement contains a cross-sovereign prohibition on sharing, this will need a specific exception for any disclosures that the government may need to share for legal reasons.

The protection of targets also includes limiting how prosecutors may use their information. While an ordinary proffer agreement will generally only exclude certain types of information, a proffer agreement that exceeds the standard language may lead to inadmissibility. For example, in some cases, the government may be bound to exclude all statements from the proffer and anything derived from a target’s statements.

The problem is a material omission. If a target makes a material omission, prosecutors can then use all related statements during the proffer to argue for the defendant’s culpability.

What cooperation benefit can the agreement actually promise?

1. Understand a Cooperating Witness’s Opportunities for Relief

If you are offering to be a cooperating witness, you have several opportunities for relief that vary by circumstances.

• 5K1.1. A significant opportunity for sentencing relief is the substantial-assistance departure. Specifically, under U.S. Sentencing Guideline §5K1.1, the government can move for a sentencing departure that applies during the original sentencing. This requires that a defendant has provided substantial assistance to law enforcement inconnection with an investigation. Substantial-assistance departures are a critical sentencing benefit that prosecutors can offer to cooperating witnesses.
• Rule 35(b). Federal Rule of Criminal Procedure 35(b) allows the government to seek a reduction of sentence post-sentencing. This rule provides defendants the chance to serve less time if they substantially assist after sentencing is complete.
• Non-Prosecution Agreement (NPA). In some cases, targets will secure non-prosecution agreements to avoid indictment. However, Department of Justice policy requires supervisory approval for NPAs and limited circumstances.
• Plea Agreement. When charges are on the table, defendant’s can negotiate plea agreements with the government to get the charges reduced, have charges dropped, or secure other sentencing concessions.
• Credit for Substantial Assistance. Charged defendants can also use Rule 35(b) to seek substantial assistance credit.

This relief may be available regardless of whether the defendant is cooperating or willing to provide a plea. For this reason, if you are facing criminal exposure, it is essential to engage the right type of legal counsel.

2. Understand the Role of a Cooperating Witness Proffer

While the information provided in cooperation proffers is key to sentencing, proffer agreements generally cannot promise a benefit. Instead, prosecutors typically use proffers to determine if a cooperating witness has useful information and is willing and able to assist in an investigation. If so, then the target may be able to negotiate the aforementioned relief after the proffers are concluded.

However, this means a lot is at stake. If a cooperating witness does not give truthful information during his or her proffer or if prosecutors find that their information is not useful, this may eliminate the possibility of receiving the aforementioned relief. That is why it is important for defense counsel to conduct a pre-proffer assessment before proceeding with a proffer.

3. Understand Why the Information Provided is Confidential

The information discussed during proffers can have a material impact on the outcomes of federal investigations. Therefore, this information is extremely confidential. In the case of a non-cooperating witness who is not facing criminal charges, the information provided in a proffer may not be confidential. However, a cooperating witness is most likely to secure a confidentiality provision. If a target is able to secure a confidentiality provision, prosecutors will need to negotiate its limits, ensuring that targets are not entitled to confidentiality even if this prevents the government from meeting its legal obligations.

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.