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 Federal Proffers: Top 10 Things To Know 

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Michael Santos

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TOP 10 THINGS TO KNOW ABOUT FEDERAL PROFFERS

A proffer session is the most common way to cooperate with the government in a criminal case. In exchange, the defendant gets use immunity.

INTRODUCTION

A person involved in a criminal investigation or court case will typically look for ways to mitigate the impact of the criminal case and obtain the best possible outcome in the matter. 

In some federal criminal cases, defense counsel will discuss with a client early on whether they have information that may be valuable to prosecutors. In cases where the evidence against a client is airtight, such as where the client is on videotape committing the alleged crime, it may be in the client’s best interest to cooperate with prosecutors and provide them with all relevant information.

Cooperation can also make the most sense when a client faces significant prison time, the risks of a trial are significant, and there is a good chance they could receive significant benefits in exchange for their cooperation. The benefits could range from no criminal charges or a lesser charge. Or, prosecutors could agree to request less prison time at sentencing. 

A proffer interview is the most common way to cooperate with the government in a criminal case. If the client has helpful information to offer, 

defense counsel will offer the client’s cooperation and negotiate a proffer agreement.

*Pro-Tip: Prison Professors, an Earning Freedom company, regularly helps clients locate and vet experienced criminal defense counsel. 

What is a Proffer Agreement?

In a proffer agreement, people under criminal investigation or prosecution enter into a written contract to provide federal law enforcement with helpful information. In exchange, prosecutors agree not to use the person’s statements against them in the future. In addition, the defendant expects that prosecutors will grant them immunity or offer a favorable plea bargain. 

Proffer agreements are also referred to as “queen for a day.” 

Discussion

A proffer agreement (or “queen for a day”) allows people to tell law enforcement everything they know relating to a criminal investigation, with the assurance that the government will not use their words against them in any later proceedings (other than specific limited circumstances). 

Rule 410 of the Federal Rules of Evidence states: 

“Statements made during any plea discussions with a lawyer who has the authority to prosecute, if the discussions didn’t result in a guilty plea, are not admissible against a defendant who made the plea or who participated in plea discussions.”

This Rule protects defendants from prosecutors using their proffer statements against them in future proceedings, except for untrue statements. Untrue statements will void the proffer agreement and could result in new charges.

If a defendant knowingly lies during the proffer, prosecutors can use proffer statements at a subsequent trial to impeach. More importantly, prosecutors can also use proffer statements at the sentencing hearing against a defendant who breaks the proffer agreement. 

Indeed, before and during the proffer meeting, prosecutors will remind defendants of their power to prosecute anyone for making false statements or material omissions during the proffer, under 18 US Code § 1001 as false statements made to a federal agent. 

Defendants entering into proffer agreements must understand the danger of catching a new federal perjury charge should they not tell the truth during the proffer.

 

Top 10 Things To Know About Federal Proffers

  1. A proffer agreement is never a promise of absolute immunity but an agreement between the prosecutor and the defendant for a certain level of protection and compromise. 
  2. To avoid disagreements about the specific terms of the immunity or plea bargain offered under a proffer agreement, prosecutors and defense counsel should iron out in advance what the client is likely to receive in exchange for cooperation. Defense counsel should try to negotiate with prosecutors regarding issues such as: getting a favorable sentencing recommendation, limiting the use of proffer information, and limiting sentencing enhancements based on proffer information.
  3. Once a proffer agreement is in place, a proffer interview or meeting occurs, usually at a courthouse or the US Attorney’s Office. 
  4. The defendant or target of an investigation should attend this meeting with their legal defense counsel, never alone.
  5. The fundamental purpose of the proffer meeting is to provide law enforcement with helpful evidence for their continued investigation and to answer any and all questions.
  6. Prosecutors expect the defendant to share all the information they have about the crimes under investigation and disclose anyone else involved. However, the defendant should not exaggerate or embellish the criminal behavior by others in the investigation. 
  7. During a proffer session, prosecutors expect criminal defendants to admit to their own conduct, truthfully and accurately. Defendants should not try to minimize their involvement. This aspect of the proffer is the first step towards acceptance of responsibility and an eventual guilty plea. 
  8. Prosecutors expect defendants to tell the truth at a proffer session without omitting any relevant information or acting cagey. If they later find out that the defendant lied, prosecutors can use proffer information against the defendant at a trial. 
  9. If the defendant breaks the terms of the proffer agreement, prosecutors can use adverse proffer information at the defendant’s sentencing hearing.
  10. Prosecutors warn people during proffer meetings that making false statements or omitting relevant information could mean new charges under 18 USC 1001 for making false statements to federal agents.

CONCLUSION

People involved in the federal criminal justice system do well to understand the basics of federal proffer agreements. Proffer deals can be a valuable tool towards mitigating a prison sentence and achieving better outcomes.

Beyond that, it is also essential to understand those proffer agreements are not without risk. As mentioned above, participating in a proffer meeting can expose people to new charges for lying to federal agents. 

The following blog in this series focuses on the risks inherent in proffer agreements. Follow the Prison Professors blog and stay current on current white-collar crime news.

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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