Who Attends a Federal Proffer Meeting??

Who is Usually Present?

A typical federal proffer meeting consists of the following participants:

• You
• Your defense counsel
• The prosecuting attorney(s)
• The case agent(s) from a federal law enforcement agency

Judges and juries ordinarily do not attend federal proffer meetings. They do not have a role in these meetings, and you will not see one unless the meeting is part of a plea hearing (though a plea hearing is not the same thing as a federal proffer meeting).

Who “Should” Attend?

There is no federal statute or rule that establishes an attendee list for federal proffer meetings. However, the general goal of the proffer meeting (whether from the perspective of the participant, the defense, or the prosecution) will determine who attends.

As the defense attorneys at Spodek Law Group, we consider ourselves indispensable. And, we consider your presence indispensable as well. It would be highly unusual for any federal proffer meeting to not include you and your defense attorney. The same is true for the prosecutor(s) and the case agent(s).

While federal proffer meetings can be held anywhere, the most common location is a United States Attorney’s Office or the local office of an investigating agency. If you are being interviewed in Washington, D.C., it will usually be at the U.S. Attorney's Office for the District of Columbia or at the field office of the investigating agency.

What About Reverse Proffers?

In a reverse proffer, the government meets with you and your defense counsel to disclose a summary of what it has learned about you. This is done as part of the negotiation process for seeking immunity or leniency in exchange for your cooperation.

In reverse proffers, the government may not expect you to attend, and the government may disclose some (but not all) of what it has on you to your attorney. For various strategic reasons, you may not be present at a reverse proffer.

What roles do prosecutors, agents, lawyers, and specialists play?

Proffer Participant

The person providing information is referred to as the “proffer participant.” This individual may be a witness, the subject, the target, or the defendant. As a result, the participant’s role will vary.

We call our participants “individuals providing information” for a reason: they are the ones who need the protection of a proffer agreement. The government will classify proffer participants as witnesses, subjects, or targets based on the evidence it has in its possession at the time.

Prosecution Representative (AUSA)

An Assistant United States Attorney (AUSA) will typically represent the federal prosecution team. When offering a proffer agreement, the AUSA will typically negotiate a deal to protect the participant to the fullest extent possible.

As part of the proffer negotiation process, defense counsel may advise the proffer participant of potential criminal exposure and risks.

Case Agent(s)

The prosecuting agency’s case agent(s) will be present to ask questions. Depending on the agency, this may be an FBI, DEA, IRS-CI, HSI, ATF, or Office of Inspector General (OIG) agent. The agents involved are typically the ones that have led the investigation into the matter at hand.

Due to the nature of federal cases, there can be multiple prosecutors and agents assigned to the same investigation. Therefore, you may see several from each team.

In complex matters, you may also see some additional individuals. These may include special agents in charge of the agency’s field office, additional prosecutors from a law enforcement division, forensic specialists, and regulatory attorneys.

Defense Counsel

The participant’s defense counsel will prepare him or her for the meeting, negotiate the terms of the proffer agreement, and attend the proffer meeting with the participant.

When providing information in a proffer meeting, defense counsel will attend. When the proffer participant receives immunity or a plea offer, defense counsel will advise the client on his or her rights and interests.

While defense counsel will discuss pertinent information with the participant before the proffer meeting, the attorney cannot provide any type of testimony or statement in place of the participant.

Regulatory Counsel

Unlike criminal defense attorneys, regulatory counsel’s attendance can signal a parallel noncriminal investigation. The protections offered under the criminal proffer agreement may not cover parallel proceedings. As a result, you may need separate legal representation if you are being charged or investigated in a civil or administrative matter.

What happens during questioning at a federal proffer session?

Introduction

Depending on the scope of the proffer agreement, the participant’s counsel may introduce the intended subjects. For example, defense counsel may explain the nature of the participant’s potential cooperation or the evidence the participant may be able to provide.

Q&A

The investigative agents will typically conduct most of the questioning. Depending on the matter, they will probe the details of relevant events to a depth that is consistent with the scope of the proffer agreement. The participating prosecutors will intervene from time to time to clarify, correct, or ask about topics of legal significance.

Private Breaks

If the participant does not feel that defense counsel is sufficiently involved during the Q&A, the participant may request to have a private break to speak with counsel. These breaks are typically granted unless the government has strong grounds to deny them.

As part of the proffer session, defense counsel will be present during all questioning and may ask to be let alone with the participant if necessary.

Assessment and Documentation

As the session proceeds, the participating government personnel will assess the credibility of the information being presented. They will evaluate the information based on consistency and consistency with other known facts. They will also look for corroboration and consider any detail missing from the participant’s statement.

At various times, the prosecutors or agents may ask questions to which they already know the answers. This will be used to confirm the truthfulness and precision of the participant’s responses.

Note Taking and Reporting

FBI agents will take notes during proffer sessions. Notes taken in such an interview generally become the basis for the agent’s FD-302 report. The report is an agent’s summary of the interview that may differ from the participant’s actual testimony.

An FD-302 does not normally provide a verbatim transcript of an interview, though the FBI has taken steps in recent years to record interviews and transcribed them in appropriate circumstances. If you have an interview with the FBI, you should assume that it will result in an FD-302 report.

Next Steps

At the end of the proffer meeting, the government will likely say it needs time to consider the information that has been provided. Once it has had a chance to evaluate the information, the government will notify the participant and his or her defense counsel of the next steps.

If the proffer participant was hoping to obtain immunity or enter into a plea agreement, the government may be prepared to make an offer at that time. Alternatively, the government may request a follow-up meeting to ask additional questions.

Does giving information make me an informant or defendant?

A cooperation proffer is usually designed to give the government information about someone else’s criminal activity. However, in many cases, a proffer is designed to get the proffer participant a nonprosecution agreement by helping the participant explain his or her limited involvement in the subject matter under investigation.

By itself, signing a proffer agreement is not an act of becoming an informant, and it will not protect anyone against being prosecuted if their crimes are a known fact.

As a general rule, participation in federal proffer sessions is voluntary. If your cooperation is required, then the government will likely use a grand jury subpoena ad testificandum or a court order granting immunity under 18 U.S.C. §§ 6002-6003. However, the participant who chooses to take a proffer may offer to cooperate in order to have some control over what is disclosed and who will be prosecuted.

Does proffer information count as a guilty plea or conviction?

Offering to cooperate under the terms of a proffer agreement does not count as a guilty plea or conviction. In some cases, a federal proffer can even provide the protection of a full dismissal of the underlying criminal charges.

Proffer meetings are initiated either by the defense or the government. If your defense counsel asks the prosecutor to arrange a proffer meeting, it will be initiated by the defense. In many cases, the government will ask to see the participant and invite them to give information in exchange for immunity.

At the time of the federal proffer meeting, you will be at the United States Attorney’s Office or at the local headquarters of the investigating agency that is conducting your case. If it is a high-stakes matter, the government will be able to have its law enforcement officials on site as well.

Can a person accused of a violent crime take part in a proffer?

Yes. At the time of writing, federal law creates no categorical proffer ban for anyone accused of a violent crime. However, the case at hand will dictate the ability of the federal agent to arrange a proffer meeting. If the individual is facing a potential death penalty or the federal authorities have strong grounds to believe he or she is guilty, then the proffer opportunity may be off the table.

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

What protections does a federal proffer agreement actually provide?

Agreement Terms

A proffer agreement (or “proffer letter”) is the key document that establishes who is and who will be present at a proffer meeting. It can specify the time and place as well as who is authorized to participate.

Substantive questioning should not begin until both parties have settled on the terms of a proffer agreement. The scope of the agreements can range from very narrow to very broad.

Because proffer agreement terms vary among federal districts and between individual prosecutors and cases, the agreement will be custom-drafted to reflect the circumstances at hand.

A typical federal proffer agreement will include:

• Definitions for the “participant” and the “government”
• Scope and nature of the individual’s cooperation
• Agreement not to prosecute the individual (if applicable)
• Agreement not to use the provided information to the individual’s disadvantage
• Agreement to keep the provided information confidential
• Agreement to provide a statement regarding the truthfulness and completeness of the individual’s testimony
• Agreement to appear in court and testify if necessary

Use Restrictions

The nickname “Queen for a Day” is commonly given to federal proffer agreements. While the nickname is well-known, the text of the agreement controls and determines the conditions under which a proffer can be used.

As a general rule, a proffer agreement will prohibit the government from using the participant’s statements “directly” against the participant. With that said, federal prosecutors have interpreted the term “directly” differently.

In a typical letter, “directly” refers to the government’s use of a participant’s statements in its trial case-in-chief. If the participant takes the stand at trial, statements made in the proffer session may be used to impeach if they are inconsistent with the participant’s testimony.

Some proffer agreements include a provision stating the government can use information to rebut the participant’s defense if the participant or a witness testifies in contradiction of the proffer statement.

The government’s use of a proffer statement in a trial case-in-chief is generally forbidden. However, this is conditioned on the participant not having given any testimony at trial that is inconsistent with the proffer statement.

The phrase “not directly” in a proffer agreement also leaves room for the government to use the information gathered in the proffer for “investigative purposes.” With that said, the use of information derived from the proffer is subject to certain constitutional restrictions. The information should not be used to directly target a participant in a trial and, ideally, will not be used to uncover new evidence that could then lead to the individual’s prosecution.

Along with not disclosing the information gathered during the proffer to other agencies and individuals, the government will not use the information obtained in the proffer for any purposes other than the one authorized.

However, if the participant lies to the authorities during the proffer session, then the government will not be bound by the restriction in the agreement. Rather, they may use the information obtained as a direct result of the participant’s lie.

This means that the government can use a proffer statement in a trial case-in-chief if the participant lies to the authorities in the proffer session. The government can also use the statement when the participant intentionally omits any material fact during his or her interview.

Is a proffer agreement the same as immunity?

Even if a federal proffer agreement provides direct-use protection for a proffer participant’s statement, independent evidence will still be usable to support the government’s criminal charges. The same, however, applies to immunity.

An ordinary proffer agreement does not grant automatic immunity from prosecution; instead, it will establish the specific circumstances under which the government will avoid prosecuting the individual.

Statutorily-granted immunity under 18 U.S.C. § 6002 provides much broader protection than a traditional proffer agreement. This federal statute states:

“No person subject to a court order under section 6003 shall be liable to prosecution, indictment, or impeachment in any federal court on account of the information lawfully disclosed by him in accordance with the order, and his or her refusal to testify shall not be admissible as evidence of guilt in a criminal proceeding.”

As a result, the government must rely on independently source evidence. The prosecution of individuals facing statutory immunity is governed by Kastigar v. United States, 406 U.S. 441 (1972).

Under Kastigar, when testifying under statutory immunity, any information obtained from a witness’s compelled testimony must independently support the evidence against the individual. To make this determination, the court may request the government to provide the independent source and to prove the independence of the evidence.

Although it is generally forbidden, the United States Supreme Court recognized in United States v. Mezzanatto, 513 U.S. 646 (1995), that plea statement protection can be waived knowingly.

While a proffer agreement does not typically require the approval of a judge, a request for statutory immunity under 18 U.S.C. § 6003 requires a judge’s approval.

When seeking to protect witnesses’ testimony, the federal government does not seek statutory immunity, but may settle for a proffer agreement instead. Once a person voluntarily testifies, then he or she cannot invoke Fifth Amendment rights. To be able to make a witness testify, the government seeks a court order from a judge, and the witness then testifies voluntarily. The protections offered by a court order granted by a judge are broader than those offered by a proffer agreement.

What can happen after the proffer meeting ends?

A proffer agreement never guarantees reduced charges, leniency, or granting the participant’s request to cooperate. The purpose of a proffer meeting is to provide the government an opportunity to assess whether the participant’s information is truthful and useful. The government will also assess if the information can be independently verified and if any of the information may lead to more information. With this in mind, prosecutors will use what they have learned in the proffer session to figure out the next steps. At Spodek Law Group, we will assess these possibilities as we get insight into what is going to happen in the federal investigation of the proffer participants.

If the proffer occurs before an indictment, the successful proffer meeting may have the ability to influence whether the prosecutors file charges. When it is a post-indictment proffer, the outcome can range from the prosecutors deciding to terminate discussions with the participant, to requesting more proffer sessions, to negotiating a cooperation agreement.

If a prosecutor requests a follow-up meeting, that may happen again and again. While agents can use this opportunity to learn more about the subject matter at hand, they will also use it to assess how well the proffer participant sticks to his or her story. By comparing a participant’s later account with the first one, the government will determine whether the participant is being honest.

Even if a proffer participant cooperates fully, this does not provide any guarantees. A successful proffer does not ensure leniency; it only increases the chance of obtaining a favorable outcome. Additionally, substantial assistance obtained through proffers and cooperation may produce sentencing benefits, but this too is far from a guarantee.

Under Section 5K1.1 of the U.S.S.G., the government will file a motion for substantial assistance departure. At this stage, the government will argue that the participant provided cooperation that has helped with the investigation and that it is deserved that the participant receives less punishment. The government will request the judge to depart from the sentencing guidelines.

Regardless, the Section 5K1.1 motion alone cannot be used to authorize a judge to go below the statutory minimum. To go below a statutory minimum, the government must move for a downward departure under Rule 35(b), or the participants must receive a pardon from the President of the United States.

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.