Will My Proffer Statements Be Used at Trial??

Federal Rule of Evidence 410 bars a prosecutor from using your plea-discussion statements against you at trial unless you waive your protections. In United States v. Mezzanatto, 513 U.S. 196 (1995), the U.S. Supreme Court held that Rule 410 protections are “presumptively waivable.”

Your proffer agreement is a contract. By signing it, you waive Rule 410 protections. As Justice Thomas wrote for the Court, a defendant’s waiver of Rule 410’s protections is valid and enforceable “absent some affirmative indication that the agreement was entered into unknowingly or involuntarily.” An impeachment waiver of the kind approved in Mezzanatto allows prosecutors to use your proffer statements only if you testify; a broader waiver is required before the government may use them in its case-in-chief. The Supreme Court did not address whether a defense attorney’s opening statement can trigger the waiver; lower courts, including the Second Circuit in Barrow, have held that factual assertions in counsel’s arguments and cross-examination can do so.

Rule 410 can keep proffer statements from being heard by a jury. However, Rule 410, like all Federal Rules of Evidence, does not apply at sentencing. Rule 1101(d)(3) provides that the Federal Rules of Evidence do not apply to “miscellaneous proceedings such as: extradition or rendition; issuing an arrest warrant, criminal summons, or search warrant; a preliminary examination in a criminal case; sentencing; granting or revoking probation or supervised release; and considering whether to release on bail or otherwise.” With this exception, proffer statements will be heard by the judge at sentencing, with no jury to intervene.

Rule 410 does not apply to all law enforcement interviews. It applies specifically to discussions with prosecuting attorneys or their agents. If you talked only to federal agents, Rule 410 does not apply. Also, Rule 410 is not a blanket protection: Rule 410(b)(2) expressly allows prosecutors to use your proffer statements in a criminal proceeding for perjury or false statement. Perjury prosecutions remain possible if you make false statements under oath, on the record, and with counsel present.

Federal Rule of Criminal Procedure 11(f) incorporates Rule 410 by stating that the admissibility or inadmissibility of a plea, a plea discussion, and any related statement “is governed by Federal Rule of Evidence 410.” When determining if a statement was made during plea discussions, courts generally look for both subjective and objective evidence of this.

What defense arguments can open the door at trial?

In United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court specifically addressed a case involving an impeachment waiver, leaving unresolved whether a case-in-chief waiver would be enforceable. More recently, in its 2009 decision in United States v. Sylvester, 583 F.3d 285 (5th Cir. 2009), the Fifth Circuit upheld a proffer agreement requiring the defendant to agree to the government’s use of his statements as “necessary” in a rebuttal case. While this example shows the strength of these contracts, other appellate court decisions are a bit more nuanced, though they still allow government use of proffer statements in cases where a defendant opens the door.

Although Mezzanatto left open the possibility of a case-in-chief waiver, some proffer agreements now include a provision stating that, if the defendant commits a substantial breach, the government can then use his statements during its case-in-chief. The courts are continuing to say yes to these waivers as well.

One of the key areas involving these proffer agreements is, at what point does a defendant open the door at trial to the government’s use of his proffer statement? The courts have reached some conflicting conclusions. In United States v. Barrow, 400 F.3d 109 (2d Cir. 2005), the Second Circuit distinguished between factual assertions that a defendant made in proffer discussions and attacks on the government’s case. This would mean that if a defendant’s counsel argues that a defendant committed an act that was less culpable in proffer discussions (even if this is something the government may try to introduce during their trial in rebuttal), then a defense argument that the government failed to meet all of the legal elements in its case-in-chief will not automatically allow the government to then rely on the defendant’s statements from proffer discussions in rebuttal.

If the defendant’s counsel argues that the government failed to prove its case beyond a reasonable doubt or that specific elements are unmet, this does not trigger a waiver. It doesn’t open the door to the government’s use of the statements.

Generally, if a defendant’s counsel cross-examines an agent about discrepancies within the agent’s own federal report, this will not open the door to use the defendant’s proffer statement at trial. But if a defense attorney uses the proffer statements as evidence during the cross-examination of a government witness, this will certainly open the door.

If the proffer statement reaches the jury, a judge may issue a “Rule 105 limiting instruction.” A Rule 105 limiting instruction is one where the court “will advise the jury that the evidence may be used only for impeachment purposes rather than as proof of guilt.” This is possible when your defense attorney opens the door during cross-examination of a government witness and is unable to otherwise avoid admitting the statement into evidence without prejudicing the jury’s perception of the defendant.

Federal Rule of Evidence 410 makes plea-discussion statements inadmissible against the defendant who made them; use for impeachment becomes possible only when the defendant waives that protection. However, this rule also allows proffer statements for another purpose as well. Under Rule 410(b)(1), a plea-discussion statement may be admitted “in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together.”

Who decides whether my proffer statements are admissible?

How are breach allegations determined by prosecutors?

In the context of proffer agreements, federal prosecutors have broad discretion. When a federal prosecutor concludes that a proffer agreement has been breached, that determination is made in the first instance by the government, but you may contest it, and the court decides whether a breach actually occurred.

If your proffer agreement is breached, the judge hears this fact as well.

Proffer agreements are contracts, and when it comes to ambiguity, the government generally loses. Because the government writes these contracts, any ambiguity is resolved against the government.

While the trial judge will ultimately determine if your proffer statement is admissible, you can always challenge a prosecutor’s determination that your proffer agreement was breached. In this case, the court will determine if a breach actually occurred and whether the provision that the government can use your statement was triggered.

How do trial judges determine admissibility under Federal Rule of Evidence 104(a)?

Under Federal Rule of Evidence 104(a), judges are the only ones who decide the admissibility of evidence. In Bourjaily v. United States, 483 U.S. 171 (1987), the Supreme Court held that when the facts relevant to whether a piece of evidence is admissible are in dispute, a “preponderance of the evidence” standard applies.

What about the role of the jury? While the jury will weigh and then assess the value of evidence, jurors are never able to decide whether a piece of evidence is admissible.

Under Federal Rule of Evidence 104(c), the court “must conduct any hearing on a preliminary question so that the jury cannot hear it if: (1) the hearing involves the admissibility of a confession; (2) a defendant in a criminal case is a witness and so requests; or (3) justice so requires.” Once the judge hears this, the judge determines whether your proffer statement was made during plea discussions as part of a proffer agreement and then determines whether your proffer statement can reach a jury.

If there is a dispute about enforcing an alleged breach of a proffer agreement, this too will be adjudicated by the court. But a judge is only able to adjudicate the dispute if a timely objection or a timely offer of proof has been made.

The rules that apply in federal courts to preserve an evidentiary issue for later use at trial or on appeal can be found in Federal Rule of Evidence 103. Specifically, if the trial judge rejects your objection to the use of your proffer statement, it becomes important to “make an offer of proof sufficiently clear and complete to allow a appellate court to determine whether, on proper objection, the evidence would have been admissible.”

If any of this describes your situation, it is worth talking it through with counsel. Spodek Law Group can be reached at 212-300-5196.

Can the sentencing judge consider statements excluded at trial?

United States Sentencing Guidelines (USSG) § 1B1.8 provides a protection that can apply even at sentencing if your defense attorney negotiating your proffer agreement includes it. According to USSG § 1B1.8, “information provided by a cooperating defendant that is self-incriminating in nature” is protected and “does not increase the guideline range.” This provision is designed to encourage defendants to provide information about their own crimes, even if they have not yet signed a full cooperation agreement.

According to USSG § 1B1.8(a), a cooperating defendant only receives this protection if “the government has formally agreed to the acceptance of the defendant’s assistance as a cooperating defendant” and “it has done so in writing.” However, most proffer letters do not formally grant this protection, which means a defendant’s proffer statements can still be used at sentencing.

USSG § 1B1.8 also includes a broad exception. Under USSG § 1B1.8(b), the protection in subsection (a) “shall not be applied to restrict the use of information” that was known to the government before the cooperation agreement was entered into, that concerns the existence of prior convictions and sentences, or that falls within the other exceptions the subsection lists.

While 18 U.S.C. 3661 places no limit on the types of information a sentencing judge may consider, it still only allows the consideration of “all information properly before the court.” This allows for consideration of everything from your criminal history to your post-arrest conduct. A sentencing judge can also consider all of the facts in your case regardless of whether they were considered admissible in your case-in-chief, as the rules that apply to a defendant’s case are significantly more permissive than the rules that apply to evidence that is admissible at trial.

Unlike a jury, which cannot consider any evidence that is deemed inadmissible, a sentencing judge can consider a variety of other types of evidence, including information about the defendant’s criminal history, post-arrest conduct, and others. While defendants only need to be found guilty of the crime beyond a reasonable doubt for sentencing to apply, the commentary to USSG § 6A1.3 states that “use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case.”

Unlike full cooperation agreements, bare proffer agreements do not generally include the protection offered under USSG § 1B1.8. USSG § 1B1.8 protections are usually granted only when the government formally and in writing grants these protections.

In a recent amendment effective November 1, 2024, the U.S. Sentencing Commission adopted an amendment to USSG § 1B1.3 prohibiting the use of acquitted conduct to calculate a defendant’s sentencing range. In the future, the U.S. Supreme Court or an appellate court may decide if this rule only applies to acquitted conduct that the judge learns about during the trial, or if this also prevents a sentencing judge from considering information he may learn about from your proffer statements after the trial.

Finally, if a defendant makes a false statement during a proffer that is determined to be an attempt to obstruct the administration of justice, then this results in a “two level increase” under USSG 3C1.1.

Does a proffer require me to inform on others?

Under the United States Sentencing Guidelines (USSG) § 5K1.1, if a defendant provides substantial assistance in investigating, prosecuting, or securing a conviction against another person or entity, a prosecutor can file a motion with the court recommending that the court depart from the guideline sentencing range. This is an option that only the government has, and federal judges cannot pursue a 5K1.1 departure on their own.

While a 5K1.1 motion allows a judge to deviate from the guideline range, it does not allow the judge to impose a sentence below the statutory minimum. This was affirmed in Melendez v. United States, 518 U.S. 120 (1996). To go below the statutory minimum, the prosecutor must file a motion under 18 U.S.C. 3553(e) and then, for a mandatory minimum offense, a request to the prosecuting attorney to file a motion under 18 U.S.C. 3553(f).

Another possibility is to seek relief under the “safety valve” (18 U.S.C. 3553(f)). To qualify, a defendant must truthfully disclose to the government all information, evidence, and records that pertain to the offense of which the defendant is charged. Even if a defendant cannot provide information about any other person who helped with the offense or a co-conspirator, this will not prevent the defendant from seeking safety valve relief, as long as any such lack of information was a result of a “truthful and complete disclosure.”

Acceptance of responsibility is another option. Under USSG 3E1.1, a defendant who accepts responsibility can receive a reduction in his sentencing range. While a proffer agreement is not the only way to establish acceptance of responsibility, a proffer that does not involve revealing information about any other person is still an effective way of satisfying the requirements for an acceptance of responsibility reduction.

While a proffer negotiation involves providing information about one’s own crime or offenses, you can still limit the scope of your proffer agreement. For example, instead of informing on others, we can work with the prosecutor to restrict your proffer agreement to focus exclusively on your own conduct.

Who else can receive or use my proffer statements?

Who else can see my proffer statement?

Typically, a proffer statement only contains information that is shared with the U.S. Attorney’s Office handling your case. A proffer agreement will generally bind only the U.S. Attorney’s Office that is handling your case. It will not bind other districts’ federal prosecuting attorneys or foreign officials. It certainly will not bind state prosecutors, commissioners, or agents of other agencies like the Securities and Exchange Commission (SEC), Internal Revenue Service (IRS), or any other authority.

In a typical case, the FBI agents involved will prepare a statement from your oral proffer. This statement is captured on FBI Form FD-302, the standard form used for investigative summaries. An FD-302 is a narrative summary, not a verbatim transcript of everything the agent hears. He or she will listen, synthesize, summarize, and then write the narrative that is produced for use in the investigation.

Do I keep my Fifth Amendment privilege if I proffer?

A standard proffer agreement allows the prosecution team to use statements you make during a proffer against you in its effort to gather more information about other people or transactions, which may lead to you receiving assistance in the future if you testify in someone else’s trial. If you decide to offer information in order to save yourself from future liability, you can decide to limit what you say.

However, this is not a free pass. Many proffer agreements will include a Kastigar waiver, which waives your Fifth Amendment privilege for the information you provide. If you provide self-incriminating statements, you can’t use these as a basis to have a Kastigar hearing to determine whether the government is relying on the proffer statement at trial. While a Kastigar waiver generally prevents any investigative leads discovered through the proffer statement from being used against you in court, a Kastigar waiver may allow investigative-use of those statements if the statements made during the proffer agreement trigger further investigations.

What happens to my proffer statement if I take a deal and testify against others?

If you accept a deal and testify against another person or entity, you will be required to disclose the terms of your deal to the person or entity you testify against. This is a result of the government’s Giglio obligations under the Sixth Amendment (and even some cases where a 5K1.1 motion has been filed under the USSG).

When you accept a deal to testify as a witness against someone else, the government must provide you with a prior statement about the crimes you took part in. This is known as Jencks Act material, after the federal statute that requires providing this to the defense counsel when you testify against a defendant in a federal criminal case. Once you testify at trial, you will then receive a copy of your FD-302 proffer statement.

Will proffer have any other side effects?

If you agree to a joint defense, then giving the prosecutors a proffer agreement could expose you to lawsuits from co-defendants you name during a proffer. This is especially true when there is a contractual provision prohibiting a co-defendant from exposing you to civil liability. Moreover, it could lead to your defense counsel’s disqualification if your statements are considered as “compromising” the joint defense.

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.