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INTRODUCTION
Signing a proffer agreement is one of the most significant decisions for a person facing criminal charges. Before doing so, they should discuss five questions with their legal counsel.
DISCUSSION
As noted in previous blog posts in this series, proffer agreements (or “queen for a day” agreements) are letter agreements between federal prosecutors and people under criminal investigation or prosecution, encouraging them to tell the government everything they know on the promise of leniency.
To do so, witnesses receive some assurances that their disclosures will not be used against them in subsequent proceedings. This assurance intends to make a witness more comfortable speaking to prosecutors. But no one should rest too comfortably on this promise, which comes with hidden traps.
CLICK HERE FOR A DISCUSSION OF THE RISKS INHERENT IN PROFFER AGREEMENTS: Can A Proffer Agreement Be Used Against You?
Under a proffer agreement (or proffer letter), witnesses often provide documents, phone logs, text messages, and other physical and documentary evidence. Primarily though, witnesses provide oral testimony, and their demeanor and credibility are critical to the success of the proffer.
CLICK HERE FOR A GENERAL DISCUSSION OF PROFFER AGREEMENTS: Top 10 Things To Know About Proffer Agreements
There are serious risks inherent in a proffer agreement. Still, many people facing criminal charges assume those risks every day to mitigate their possible sentence.
Anyone signing a proffer agreement should do so in close consultation with their legal counsel.
Specifically, there are 5 critical questions that witnesses and their defense counsel would be wise to consider before signing a proffer agreement.
Question #1: Does Witness Have Criminal Exposure?
The decision to cooperate with the government and sign a proffer agreement should come after a careful evaluation of any witness’s potential criminal exposure. This is by far the most critical issue.
In white-collar cases, people with information about the alleged crime often face allegations of aiding and abetting or helping cover up a crime. It would not be too hard for a prosecutor to charge someone with aiding and abetting in a typical fraud scheme. All they have to show is knowledge of the scheme and an act in furtherance of the scheme. Any act will do.
Therefore, proffer witnesses should proceed with extreme care and consult legal counsel, no matter how minuscule their involvement in the underlying matter.
No Criminal Exposure
Even witnesses with no criminal exposure often prefer not to speak with the government, but they will not have much leverage. If the government wants the interview bad enough, prosecutors will issue a grand jury subpoena and compel the witness to appear.
Whether to grant the government an interview voluntarily, sign a proffer agreement, or wait for a grand jury subpoena is a decision for each person and their legal counsel to make together.
Giving an interview voluntarily and without a proffer agreement in place allows a witness to show that they have nothing to hide. Moreover, if the underlying case goes to trial and the person becomes a government witness, the terms of a proffer agreement cannot be used to impeach.
One last note: People entering a proffer session with no criminal exposure in the underlying criminal matter must still realize that lying to the government at a proffer session can expose them to federal charges.
Possible Criminal Exposure
How risky is it to make a proffer for people who cannot rule out possible criminal exposure?
It’s a matter of degree.
Defense counsel can often determine where prosecutors stand vis-a-vis their client, including if prosecutors are ready to indict.
Thus, for example, if an indictment is highly likely, and making a proffer provides the only opportunity to avoid an indictment, the witness will weigh the benefits versus the risks of making a proffer differently than someone who has no chance to avoid an indictment regardless.
Weighing the risks and benefits is a complex matter that involves many factors. Before entering into a proffer agreement, people would be well-served to discuss with their defense counsel any or all of the following:
- the strength of the government’s evidence and the prosecution theory;
- the possible defense strategies;
- the risks and benefits of waiting for specific charges before a proffer;
- the costs of mounting a criminal defense, which can be substantial, especially if there is a trial;
- the potential sentences under the Sentencing Guidelines;
- the potential trial penalty;
- who is the prosecutor; is the prosecutor reliable? Can they be trusted?
- if the proffer session goes well, what is the prosecutor’s offer? For example, misdemeanor instead of a felony? Will the prosecutor agree to recommend a downward departure under Section 5K1.1 of the Sentencing Guidelines?
- will the government use proffer statements to impeach if the defense is inconsistent with the proffer?
- if known, who is the judge assigned to the case? How does judge approach sentencing, cooperation agreements, downward departure in similar cases?
Evidently, there is a lot to consider, and some of these issues are very difficult to discuss at the beginning of a criminal case.
Witnesses, subjects, and targets of a federal criminal probe are often in denial at the early stages of a case. They cannot wrap their heads around the reality that they may face criminal exposure. Defense counsel, too, may want to appear willing to fight the case to trial for the client and may prefer to avoid discussing some of these issues with clients early on.
Question #2: Does Witness Have Valuable Information?
The central premise of a proffer agreement is that the witness can provide the government with valuable information. To obtain leniency, the witness has to deliver the goods at the proffer session.
The key to success here is for the prosecutor’s expectations to match what the witness can deliver as close as possible. It falls on defense counsel to ensure prosecutors understand what the client can testify to before the proffer session. Equally important, prosecutors must understand the limits of the client’s knowledge to avoid unmet expectations.
Often, this is achieved via an “attorney proffer,” which refers to defense counsel informing prosecutors what the client has to offer.
For the proffer to succeed, the defense and the prosecution must share some common understanding of the value of the witness’s information.
Question #3: Will Making a Proffer Lead to Best Possible Outcome?
Once the issues of criminal exposure are on the table in response to Question #1, a fulsome discussion about the best possible outcomes is possible. If the witness faces imminent prosecution but has a chance at an immunity agreement or plea deal, making a proffer could be the best option.
This discussion should allow the defense counsel to share views on any potential motions to attack the indictment or any other perceived flaws in the government’s case.
Question #4: Will Prosecutors Agree Not To Use Proffer Statements Against Witness?
Prosecutors have templates for proffer letters, and they rarely deviate from them. Still, some witnesses can negotiate specific provisions of the proffer agreement, including the scope of their use immunity.
The government’s use of information obtained in the proffer is always a concern. At a minimum, prosecutors may agree to use the proffer statements only for impeachment purposes.
Also, everyone should understand clearly the risk that prosecutors will use proffer statements against witnesses who do not tell the truth or fully disclose all they know. Moreover, prosecutors get to decide what is “the truth” and what is complete information.
This issue may not be a deal-breaker in most cases because prosecutors hold almost all the cards. Still, it should be discussed before signing a proffer agreement.
Question #5: Will Prosecutors Agree to Outline Plea Deal/Immunity Deal In Writing In Advance?
As discussed in prior blog posts in this series on proffer agreements, people enter a proffer session with an informal understanding of what a possible deal with prosecutors might look like if the proffer is successful.
But in the proffer letter, prosecutors do not disclose the terms of a future plea offer and are even hesitant to confirm that they contemplate a plea deal with the defendant.
Instead, most proffer agreements specify the opposite: that the witness has not been promised anything from the proffer other than limited use immunity.
Nonetheless, there may be unique cases where the witness’ position is more substantial, and prosecutors might consider deviating from standard practice.
*Pro-Tip: Even though not written in the proffer letter, defense counsel should aim to understand as precisely as possible what prosecutors contemplate in terms of immunity or plea bargaining.
CONCLUSION
Signing a proffer agreement is a significant step that carries inherent risks. To navigate those risks and obtain the best possible outcomes, people should discuss these five critical questions with their legal counsel in advance.
Question #1: Does Witness Have Criminal Exposure?
Question #2: Does Witness Have Valuable Information?
Question #3: Will Making a Proffer Lead to Best Possible Outcome?
Question #4: Will Prosecutors Agree Not To Use Proffer Statements Against Witness?
Question #5: Will Prosecutors Agree to Outline Plea Deal/Immunity Deal In Writing In Advance?
Such a process can help a proffer witness and legal counsel gain the clarity needed to evaluate whether the benefits outweigh the risks.
