When You Should NOT Enter a Proffer Agreement.

When You Should NOT Enter a Proffer Agreement Signing

a proffer agreement does not guarantee a plea offer, and it does not guarantee leniency. This is perhaps one of the most important considerations when deciding whether to engage in a proffer.

In federal criminal cases, protection from derivative use or waiver of a defendant’s right to testify at trial typically requires the witness to be fully, truthfully, and completely candid. A good-faith attempt to comply will not usually suffice. If the witness makes a materially false statement while at the proffer, the witness has not met these terms. In this case, the witness may be exposed to derivative use, or the waiver could potentially be enforced by the government.

In fact, making a knowingly material false statement during a federal proffer can be a violation of 18 U.S.C. § 1001. As you can see, even in this regard, there are significant risks to entering a federal proffer. Spodek Law Group handle matters representing individuals in proffer sessions, and we will never encourage a client to lie. We will only encourage a client to enter a proffer session if we feel the client can be completely candid and truthful.

In many cases, defense counsel can protect their clients during a proffer session by requesting a brief and private consultation in order to clarify the question and ensure that the proffer complies with the legal advice the client has received. While this generally is not a problem during federal proffers, it is a problem in state prosecutors’ proffers.

Broad rebuttal waivers are another concern. Proffered testimony that requires a rebuttal is subject to strict limitations. The rebuttal waiver could significantly narrow the witness’s testimony, cross-examination, and defense theories. This is where experienced legal counsel is needed, as defense counsel can often propose to delete the rebuttal waiver or narrow the waiver significantly before signing.

Finally, if a client does not know the answer to a particular question, the client must decline to answer the question during a proffer session. The terms of the proffer agreement will often carve out any answers a client refuses to provide or provides erroneously.

Can prosecutors use my proffer statements against me?

A federal proffer agreement will establish protections against the direct use of any statements made during the interview. Generally, this prevents federal prosecutors from introducing the subject’s or defendant’s proffer statements in their prosecution’s case-in-chief. But a proffer agreement is not a form of immunity, and there are some significant exceptions to this rule. One of the biggest exceptions is that while the U.S. Attorney’s Office is prohibited from introducing proferred testimony during the case-in-chief, it is permitted to use it to impeach trial testimony that is inconsistent with the testimony that was proferred. If you contradict your proffer during the trial, your proffer statements can be used against you.

Another exception is when you introduce evidence that contradicts your proffer statements. Broad rebuttal waivers may also permit prosecutors to use proffer statements to rebut arguments or evidence the defense presents at trial. In short, you are generally prohibited from introducing evidence or arguments at trial that contradict your proffer testimony; and if you do, the U.S. Attorney’s Office can then use your proffer testimony to impeach you or to rebut your arguments or evidence.

While a proffer agreement may protect you against the direct use of your proferred testimony, it will rarely protect you against the derivative use of that testimony. For example, if you proffer information that gives federal investigators a lead, then federal investigators can use that lead to obtain any evidence they may find.

In fact, if you are facing a federal criminal prosecution, proffer agreements may provide very little protection. Evidence obtained independently can be used against you in court. And, if you proffer information that becomes the basis for evidence that federal prosecutors obtain, the evidence obtained may also be admissible.

Federal Rule of Evidence 410 protects statements made during plea discussions. However, in order to qualify as a plea discussion, the statement must be made to an attorney for the prosecuting authority who has authority to negotiate a plea, and the subject or defendant must have had a subjective expectation to negotiate a plea that was objectively reasonable. Not all investigative interviews qualify as plea discussions. And, even if a subject or defendant is offering to provide information that could lead to a plea agreement, it may not qualify under FRE 410.

Similar to the protections provided by FRE 410, statutory use and derivative-use immunity under 18 U.S.C. §§ 6002-6003 provides similar, or even broader, protections. But, with an ordinary proffer, the individual is essentially waiving these protections (derivative use, etc.) for the purpose of entering into the proffer agreement.

At its core, a proffer agreement is a contract. It governs what you may say during the interview, and it governs whether the federal prosecutor can use those statements in court. The risks involved in entering into a proffer agreement, however, are real, and you should be extremely careful about agreeing to use the proffer process as a means of defense in a federal criminal case.

How do I decide whether a proffer is worth it?

What purpose does a federal proffer agreement serve?

A federal proffer agreement is typically used as part of a cooperator’s efforts to obtain a downward-departure sentence. While this is the most common scenario, others exist as well. Instead of focusing on cooperation, some proffers may instead present a subject’s or defendant’s innocence, minor involvement in the offense at issue, or potential weaknesses in the government’s case.

In most cases, federal prosecutors use proffers not only to obtain information from potential cooperators, but also to probe the credibility of a subject or defendant. The facts suggest the potential cooperator’s credibility is of paramount importance. After all, if the witness is not credible, then any information he or she offers is either useless, worthless, or even dangerous.

So, if you are thinking about becoming a federal cooperator, there are several factors that will influence your value as a cooperator:

• Novelty: The more novel the information is, the higher its value.
• Usefulness: The more the information is useful for the government’s case, the higher its value.
• Corroboration: The more the information is corroboratable, the higher its value.

So if you think you have novel, useful, and corroboratable information, then you will likely be considered high-value. A high-value witness is more likely to see benefits of cooperation and obtain protections against derivative use.

Does a defensive proffer help me?

In many cases, a defensive proffer may help. Here, while there may be no risk of triggering a derivative-use, credibility issue, or the government not believing the client’s truthfulness, there are still risks involved, including the risk of the witness triggering an inconsistency or the risk of derivative use.

Despite the risks involved, when a defendant enters into a defensive proffer, he or she must still sign a contract that governs his or her statements and the government’s ability to use them. Here, too, a contractual waiver for the use of the information proffered may be required in order to gain the proffer’s protection.

The risk of entering into a defensive proffer is smaller than the risk of entering into a cooperator’s proffer, but the possibility of contractual waiver remains.

When should I refuse to enter into a federal proffer?

So, how should a subject or defendant decide whether to refuse to sit for a proffer? When is it worth the risk? Generally, the subject’s or defendant’s decision to refuse is determined by assessing:

• The quality of the information that he or she is thinking of proffering.
• How strong the government’s case is.
• Whether he or she is able to meet his or her obligations under the proffer agreement.
• How valuable his or her information is.
• Whether there are other avenues of defense that should be pursued.

While every case is different, this comprehensive approach gives defense counsel the best opportunity to advise his or her client on whether it is in the client’s best interest to enter a proffer.

What can defense counsel do if I enter a federal proffer?

Regardless of whether you are thinking about cooperating or you have evidence in support of your innocence, experienced defense counsel can often take affirmative steps to protect you during a proffer. Defense counsel can request a reverse proffer from federal prosecutors, he or she may attend a proffer session before the client enters, and, he or she may request a private consultation during the session. This is another aspect of federal proffer negotiations that requires an experienced attorney.

While a proffer session provides protection against a broad range of risks, this protection is contingent on the subject’s or defendant’s full and truthful disclosure. Not meeting these terms by making a knowingly material false statement or even unknowingly making a false statement can result in a breach of the agreement. Faulty memory and incomplete answers can be deemed a breach, meaning it’s crucial to work with experienced defense counsel to ensure you are prepared.

Who else can receive and use my proffer?

In McKnight v. Torres, 563 F.3d 890 (9th Cir. 2009), the prosecutor’s agreement did not prohibit disclosure to French authorities, which resulted in the defendant’s disclosures to the United States being used against him in France. Generally, a prosecutor’s office cannot bind separate sovereign authorities by merely signing a proffer agreement. Consequently, when entering into a federal proffer, defendants often fail to realize that they are not protected against parallel investigations, which may involve state, regulatory, or foreign authorities. In addition to risks from other sovereign authorities, defendants must realize that unless the proffer agreement explicitly prohibits disclosure to other agencies, the federal prosecutor can share information provided during the proffer with other agencies that may be interested in obtaining information about the subject’s or defendant’s alleged criminal involvement.

Can I negotiate the terms of a federal proffer agreement?

While most proffer agreements will have a fairly similar set of terms, these terms are negotiable. You can use your defense attorney to negotiate the following terms in your federal proffer agreement:

• Limit the topics you will be required to discuss during the session.
• Prohibit disclosure of proffer information to foreign sovereign authorities.
• Prohibit disclosure of proffer information to other agencies within the United States government.
• Prohibit the derivative use of proffer information by both the United States government and other agencies.

  What other disclosures are involved in a federal proffer?

  In a cooperation proffer, you will likely be expected to disclose information about other suspected participants in the offense at hand. This means that during the proffer session, the FBI or other agency agents will memorialize your answers in their interview notes. So, not only are you revealing information, but your answers are also being documented in official files. In any case, this should be another aspect of federal proffer negotiations that you only leave in the hands of a highly experienced defense attorney.

  Can pressure make a proffer agreement legally invalid?

  Is it true that federal investigators can lie in federal proffer negotiations?

  Yes, federal investigators can lie during federal interviews and negotiations, which includes negotiations for a proffer agreement. Federal law does not prohibit investigators from using lawful deception, including lying about the evidence they have on hand. The only thing investigators cannot do is force you to say something or do something against your will. However, as long as a subject or defendant is willing to cooperate, investigators may apply lawful pressure, but coercion that overbears the person& #x27;s will is never permitted and renders any resulting statement inadmissible.

Whether or not you have been arrested or charged, the Fifth Amendment protects you against compelled self-incrimination. But once you agree to enter into a proffer agreement, then you are voluntarily waiving that constitutional protection.

While pressure may be involved in contract negotiations, it generally does not render the contract unenforceable. For a contract to be unenforceable under the doctrine of duress, the other party must have made a wrongful threat that left the individual with no reasonable alternative but to sign.

In the Bordenkircher case, the Supreme Court held that the fact that the prosecution used pressure for a plea deal, including threatening to file additional charges, did not render the plea deal unlawful coercion.

Can prosecutors enforce a proffer waiver if I was pressured?

In general, courts only enforce a proffer waiver if the witness signed it knowingly and voluntarily. In Velez, the court enforced a waiver that the defendant signed before a second proffer session in a federal felon-in-possession prosecution. The court found that even though the witness was under pressure, he or she still signed the waiver knowingly and voluntarily.

How do courts treat proffer agreements?

Courts treat proffer agreements as contracts, and they apply the general rules and principles of contract law to interpret the terms and conditions within a proffer agreement. If the contract includes a promise that is not in writing, it might not be enforceable. And, the promise might leave you with less protection than a promise in writing.

Would another agreement protect me better at sentencing?

Is a proffer agreement considered a grant of immunity?

A standard proffer agreement is not a grant of immunity. It provides protection against the use of the individual’s statements made during the proffer session. While the a proffer agreement provide limited protections, statutory immunity under 18 U.S.C. § 6002 is the highest form of immunity, and it includes both the use of the immunized testimony and the derivative-use of the immunized testimony. Generally, you cannot obtain statutory immunity if you have a low-value case or if your information does not meet the standards required by the federal prosecutor’s office.

What section of the U.S.S.G. should I worry about with respect to a proffer?

U.S.S.G. § 1B1.3 governs “relevant conduct.” This includes conduct that occurred before or after the offense’s commission, as well as conduct that is uncharged. As a result, those who enter into a proffer agreement may be at risk, and they will want to discuss their risks with an experienced criminal defense lawyer.

Is a proffer different from statutory immunity under the U.S.S.G.?

U.S.S.G. § 1B1.8 provides the following:

• It applies when a subject or defendant has entered into a cooperation agreement with the U.S. Attorney’s Office.
• In exchange for cooperation, the government promises not to charge the subject or defendant for certain offenses committed before entering into the agreement.
• It only provides this protection when the protective treatment is stipulated within a cooperation agreement.

U.S.S.G. § 1B1.8 also states that the protection from sentencing enhancement does not apply to information the government already possessed.

Is a proffer the same as a substantial-assistance departure?

A proffer is not the same as a substantial-assistance departure. While substantial assistance is often the result of cooperating through a proffer agreement, a substantial-assistance departure is only available under certain conditions. Specifically, under U.S.S.G. § 5K1.1, a substantial-assistance departure can only be granted if a motion for a substantial-assistance departure is filed by the federal prosecutor. Defendants who are facing a long prison sentence should discuss the availability of this form of sentencing relief with their defense attorney.

Are proffer agreements different from non-prosecution agreements?

In a non-prosecution agreement, a subject or defendant provides cooperation and information in exchange for an agreement that the U.S. Attorney’s Office will not pursue charges against them. In a cooperation agreement, the subject or defendant is charged and agrees to provide assistance in exchange for favorable treatment (including, in some cases, sentencing assistance) at sentencing. The protections available under U.S.S.G. § 1B1.8 include:

• Uncharged offense conduct
• Material falsehoods and perjury
• Unreported taxes and similar obligations

  Can I assume protections for uncharged offense conduct or material falsehoods if I have a cooperation agreement?

  No. Protections under U.S.S.G. § 1B1.8 are only applicable for information the government did not already possess. If the government already has the information in their possession, the U.S.S.G. § 1B1.8 does not apply.

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.