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THE REVERSE PROFFER: A PERSONAL PERSPECTIVE
A friend of Prison Professors who went through the criminal justice system and personally experienced the reverse proffer contributed to this post
INTRODUCTION
Prosecutors bill the reverse proffer as an opportunity for defense counsel and their clients to meet with prosecutors and agents to hear some of the alleged evidence they have against the client.
Here is what it is like to go through the reverse proffer process in my white-collar criminal case.
DISCUSSION
Prosecutors usually offer criminal defendants a reverse proffer meeting in the wake of an arrest and the filing of charges.
That’s what happened in my case.
The week after my arrest for wire fraud and tax evasion, my lawyers informed me that prosecutors wanted to meet for a “reverse proffer.” Prosecutors wanted to show us that they had me dead to rights, and perhaps I should consider a quick guilty plea and cooperation agreement.
They hoped I would agree to provide evidence against my co-conspirators in such a cooperation agreement and potentially testify against them.
My defense team recommended that we agree to attend this reverse proffer meeting, saying that all we would have to do was listen and maybe ask a few questions. In their judgment, there was no downside. Although I was nervous and, frankly, still processing my arrest, I agreed to follow my counsel’s advice, and they scheduled the meeting.
A reverse proffer is akin to a prosecutor’s “show and tell” about the underlying investigation, including the government’s incriminating evidence.
Interestingly, prosecutors like to have defendants attend reverse proffer meetings, while criminal defense lawyers often prefer to meet with prosecutors alone.
Many prosecutors believe that defendants can benefit from hearing directly from the government about the criminal investigation. A reverse proffer may serve as a reality check for people unwilling to admit they face serious criminal liability.
What about defense counsel? Why do they often prefer to attend reverse proffers without clients?
There are several reasons.
For one, it can be difficult for newly-minted criminal defendants to sit through a meeting quietly and somberly while listening to prosecutors and law enforcement agents disclose the most damning evidence they found. I can share that it was not easy to sit through a 2-hour reverse proffer meeting.
Another reason some criminal defense lawyers prefer to go to a reverse proffer meeting alone is to control the flow of information to their clients about the case. They do not want the government framing the situation for their clients and explaining the risks.
Finally, defense counsel may have concerns about clients making impromptu comments or having an emotional outburst in front of prosecutors and agents.
Preparing For A Reverse Proffer Meeting
Like for anything else in life, preparation for the reverse proffer meeting is essential.
For me, the central part of my preparation included a meeting with my legal team the day before the reverse proffer meeting. We discussed the process in detail, the purpose of the meeting, my counsel’s expectations of me (just listen and show no reactions), and their expectation of how the prosecutors and law enforcement agents would conduct themselves.
The prep meeting was also a good opportunity to share my fears and concerns about the reverse proffer with counsel.
The most crucial discussion we had to prepare was about the importance of minimizing any reaction to whatever prosecutors and agents might say during the meeting. Counsel admonished me not to indicate agreement or disagreement with them at any point during the session. They emphasized that the prosecution would be trying to size me up at this session, and my job was to remain in control and bring my poker face.
The Reverse Proffer Meeting
In my case, like in other white-collar cases, prosecutors believed that they could convince me that their case was airtight at a reverse proffer meeting.
The meeting took place about a week after my arrest at the United States Attorney’s Office. For my side, it was my criminal defense lawyers and me attending. When we walked into the room, seven people were already there, sitting on the other side of a long conference table. I recognized the prosecutor who spoke in court at my arraignment and then quickly learned who the others were.
Two of them were lawyers working on the case, including a supervisor, for a total of three government lawyers present at the meeting. The lead prosecutor said hello curtly, without offering any pleasantries. His demeanor was all business. He did not introduce anyone else from his side, other than to refer to them as “federal agents from the FBI and IRS”.
The meeting began with the lead prosecutor thanking us for being there. My lawyer thanked them as well, cautiously reserving the right to make a presentation later in response to theirs.
The lead prosecutor spoke the most, while other lawyers and a couple of the agents added tidbits here and there. Most of them took copious notes, even though neither my lawyers nor I was saying much. I definitely felt them observing, trying to capture any reaction I might show. My lawyers asked a couple of clarifying questions.
To help stay focused and unreactive, I grabbed a pen and a yellow pad and took copious notes, as my counsel suggested.
By the way, I learned that the notes from the reverse proffer meeting matter. Having a contemporaneous record of the government’s statements during a reverse proffer session can be useful down the road as statements made by an agent of the opposing party. Also, contemporaneous notes can be helpful in other unexpected ways.
Moreover, prosecutors hold their cards close to the vest prior to a potential trial throughout a criminal case. A reverse proffer session is a rare opportunity for defense counsel to see some of those cards.
Indeed, the lead prosecutor set forth what he felt was the strongest evidence against me. He was specific, referring to documents and witness interviews. He was confident but not disrespectful. He expressly told us that I should consider a prompt guilty plea and cooperate against others. Prosecutors said that this was the time for the best possible plea deal.
Based on my preparation, I did not expect the prosecutors’ presentation to be fair and balanced, and it was not. Their description of the evidence focused on the “bad” evidence and the “bad” documents. Any evidence that undercut the prosecution theory was ignored. Their minds were made up by the time I was arrested.
My defense counsel did not make any rebuttal points at this meeting.
After The Meeting
After the reverse proffer session, I had several difficult conversations with my counsel. We even broached the topic of whether a plea might make sense. With my consent, my counsel asked prosecutors what type of plea deal was on the table if we went down the road to cooperate. Those discussions fell apart quickly, and those early discussions did not result in a plea deal.
CONCLUSION
Reverse proffers can be a helpful way to narrow the gap between the prosecution’s and the defendant’s view of the case.
That said, as a criminal defendant, it is difficult to sit tight and listen to the prosecutor’s version of events. In fact, some prosecutors use the occasion to bluster and oversell their evidence and may not approach the reverse proffer in good faith.
But as a general rule, and in my case, the discussions are civil, and there is little downside to participating in a reverse proffer meeting.
