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 Can A Proffer Agreement Be Used Against You? 

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Michael Santos

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CAN A PROFFER AGREEMENT BE USED AGAINST YOU?

There are some situations when the government can use information from a proffer session against the defendant.

INTRODUCTION

In a prior blog post, we discussed the top things people should know about proffer agreements in federal white-collar criminal cases.

Top 10 Things To Know About Federal Proffer Agreements.

DISCUSSION

The article above covers the benefits a criminal defendant stands to gain from a proffer agreement, also known as a “queen for a day” agreement. Under a proffer agreement, a target, subject, or witness in a criminal investigation agrees to cooperate with prosecutors in exchange for leniency. 

Anecdotally, we know that subjects and targets of federal criminal investigations provide the most proffers. However, witnesses also provide information under a proffer agreement, though less frequently.

Learn more about who is a witness, subject, person of interest, or target in a federal criminal investigation here: Witness, Subject, or Target.

*Pro-Tip: Remember to consult legal defense counsel regarding any criminal investigation or court case. Prison Professors, an Earning Freedom company, works alongside criminal defense counsel to help clients involved in the criminal justice system obtain better outcomes.

WHEN CAN PROFFER INFORMATION BE USED? 

A proffer session is the most common way to cooperate with the government in a criminal case. During the proffer session, the defendant gets use immunity, which means that prosecutors generally cannot use the statements from a proffer session against the defendant in a later proceeding.

But, to what extent are people aware of the pitfalls and risks of cooperation? Can prosecutors use information gleaned from a proffer agreement against a criminal defendant?

Read on for answers to these important questions. Anyone considering a proffer agreement must be fully aware of the substantial risks involved. 

THE BOTTOM LINE

Even though prosecutors generally cannot use statements from a proffer agreement against the defendant in a later proceeding, the reality is that there are exceptions to the rule. As such, anyone entering into a proffer arrangement in a federal criminal white-collar investigation must understand the risks inherent in this process.

Keep reading to learn when the government can use information from a proffer session against a criminal defendant.

*Pro-Tip: Prison Professors, an Earning Freedom company, regularly assists clients to locate and vet experienced criminal defense counsel to handle white-collar investigations and prosecutions.

Proffer Agreements Are Not Without Risks

As noted above, proffer, or “queen for a day,” agreements are letter agreements between federal prosecutors and people under criminal investigation or prosecution, which encourage them to tell the government everything they know and receive the assurance of some leniency. They also receive assurances that, generally, their disclosures will not be used against them in any subsequent proceedings (“use immunity”). 

The information provided to federal prosecutors can include documents, phone logs, text messages, and other physical and documentary evidence, though primarily it is oral testimony. 

People face substantial risks when entering into proffer agreements with prosecutors.

Risk #1: Prosecution For False Statements or Material Omissions

At a proffer session, the witness may not get sworn in by putting their hand on a Bible the way it happens in a courtroom. But the government still expects the truth, the whole truth, and nothing but the truth. 

Thus, at the beginning of every proffer session, prosecutors will remind the witness that they will not hesitate to prosecute people who lie, mislead, or omit important information. Such prosecutions typically occur under 18 US Code Section 1001 for making false statements or material omissions to a federal agent.

The government will not take a person’s misrepresentations, omissions, or half-truths lightly. Prosecutors do not come to these meetings alone. Several law enforcement agents working on the investigation typically attend proffer sessions to track and verify what the witness reveals. They will also assist prosecutors with follow-up questions. Therefore, expect to see FBI agents, IRS agents, and other federal law enforcement in the room during most white-collar proffer sessions.

Risk #2: The Promise of “Leniency” is Not Set in Stone

What the witness will get from a proffer is not guaranteed in the first instance. The expectation of “leniency” is an informal understanding between prosecutors and defense counsel and is not set in stone.

It is crucial to understand that a formal, written immunity agreement or plea deal does not happen until after prosecutors have a chance to evaluate the witness’s performance at the proffer. Before the proffer session, the government merely agrees to listen to the information a witness has to offer. They will not enter into a binding agreement without first evaluating what the witness actually brings to the table. Moreover, the proffer letter expressly denies any specific promise of immunity or a plea deal.

What prosecutors will do is indicate what they might offer the witness after the proffer. In effect, defense counsel outlines for the prosecution what the witness has to offer before the proffer session, and prosecutors informally outline the possible terms of a deal based on what they anticipate the witness will say. 

The gap between what the prosecution expects to hear and what the witness delivers creates measurable risks, and prosecutors could end up underwhelmed by the proffer session. 

For this reason, some seasoned criminal defense counsel believe that entering into a proffer agreement will have negative consequences for most people should the negotiations break down.

Unless the witness is willing to tell all, they may not want to start down the road of proffering. Going into the proffer session, there are typically no guarantees.

Risk #3: Information From Proffer Can Be Used Against Witness In A Later Proceeding

How so? 

We said earlier that a  witness or defendant could rest assured that prosecutors cannot use the proffer information adversely in subsequent proceedings.

But there are a few scenarios in which the information could come back to haunt the defense.

First, prosecutors can make “derivative use” of proffer statements. They can use the statements to pursue new leads in their investigations, and they can use new evidence stemming from those leads to file charges against the defendant. 

Second, regardless of the proffer agreement, the government gets to use a witness’s statements to impeach them at trial. One scenario is where the witness testifies at trial, and prosecutors bring up the statements from the proffer on cross-examination to impeach.

Third, suppose the defense lawyer proposes a theory at trial that is inconsistent with the proffer. In that case, some prosecutors will try to introduce the defendant’s statements from the proffer session into evidence.

In other words, if the defense stakes out a position at a later trial that is inconsistent with anything the defendant said under the proffer agreement, prosecutors could seek to introduce to the jury everything the defendant said at the proffer. 

Undoubtedly, most of what the defendant said during the proffer session will be damaging. For example, seeking to impress prosecutors and obtain leniency, the defendant will have accepted responsibility at the proffer session, and implicated others. While it sounds unfair to allow prosecutors to show the jury everything the defendant said at the proffer session, this is not unheard of. As such, this is a real risk that defendants should consider in the event that their proffer agreement does not lead to an immunity agreement, non-prosecution agreement, or plea deal.

Fourth, statements from the proffer session could play a role at the sentencing hearing. At the sentencing hearing, prosecutors can use statements from the proffer session against a defendant who breaks the proffer agreement. 

CONCLUSION

There are benefits and risks associated with proffer agreements in criminal investigations and prosecutions. For some criminal defendants, a proffer agreement results in an immunity deal or a favorable plea agreement. 

In other cases, the negotiations for immunity, non-prosecution or plea deals break down after the defendant has shared substantial information with prosecutors.

Defendants should make the decision to participate in a proffer session only after careful consultation with experienced criminal defense counsel on a case by case basis.

Prison Professors can assist people facing a white-collar criminal investigation in vetting experienced defense counsel.

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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