Understanding The Risks Of Proffers In Federal Criminal Investigations
What is a Proffer?
A proffer, sometimes metaphorically referred to as “queen for a day,” is an informal offer of information by an individual to the government. Most times, the individual proffering is the target of a criminal investigation; however, subjects and witnesses of investigations may also choose to proffer.
Proffers are usually conducted in the office of the prosecutor, but may also occur at a law enforcement agency or at defense counsel’s private office. Participants in a proffer include the individual and their attorney, the prosecutor, and one or more investigating agents.
The prosecutor and agents lead the proffer by asking questions of the individual about what they know about the criminal conduct of others. During questioning, the individual may request a pause to speak with their attorney off the record. After discussion with their attorney, the individual goes back on the record and the proffer continues in this manner until concluded.
What is a Proffer Letter?
A proffer letter sets forth the terms and conditions of the proffer. Most importantly, the letter describes the immunity granted to the individual in exchange for their proffer statements. This immunity is nearly always limited to “use immunity” or “letter immunity.” This type of immunity generally protects the individual from having their statements used against them in a subsequent criminal proceeding. There are, however, significant limitations to use immunity that may not always be obvious to the individual and their attorney.
A proffer letter also sets forth that the individual is required to provide complete and truthful information during the proffer. This provision is absolute and obliges the individual to not only provide truthful responses to all questions, but also to volunteer all information related to the subject areas that are discussed.
The Risks of Proffers
Making a proffer in a federal criminal investigation is a high-risk endeavor. One may reasonably ask why proffers are so risky if the individual’s statements cannot be used against them? The answer lies in the inherent limitations of use immunity. While use immunity supposedly protects the individual who proffers information, it can provide the government with significant advantages when, which is often the case, the individual implicates themself in criminal activity during the proffer.
Derivative use of statements
The primary limitation of use immunity is that it allows the government to make derivative use of the individual’s proffer statements. That is, while the government cannot use the individual’s statements directly against them, it can use the information to follow up on leads and conduct further investigation. These leads and additional investigation often produce new evidence that can be used to indict and convict the individual.
Tactical trial advantages for the government
Whether or not the government is able to develop new evidence against the individual, the government gains several advantages from simply having the individual proffer. These include knowing how the individual handles the pressure of tough questioning, how they present as a witness and, perhaps most importantly, what their theory of the case is. These factors all accrue to the government’s benefit at a potential trial, from building evidence against the individual to structuring an effective cross-examination if they were to testify.
Information learned by the government during a proffer also boosts the government’s confidence that the individual is in fact guilty and that the prosecution is therefore justified. Further, if the government believes that the individual lied during the proffer, they can charge the individual for false statements.
Impeachment of the defendant
Another limitation of use immunity is that it allows the government to use an individual’s statements against them for impeachment purposes if they later testify inconsistently with their proffer. Additionally, in recent years, the government is drafting proffer agreements with broader language that further allow them to use an individual’s statements against them if any part of their broader defense, including questions their attorney may ask government witnesses on cross-examination, is inconsistent with their proffer.
This broader language can effectively deny an individual from presenting a defense at trial if any part of the individual’s defense is determined to be inconsistent with their proffer. In such a case, their attorney may have no option but to avoid contesting key aspects of the government’s case, decline cross-examination of certain government witnesses, and choose not put the individual on the witness stand in their own defense, all in an attempt to preclude damaging proffer statements from being heard by the jury.
Use of proffered information at sentencing
Pursuant to the United States Sentencing Guidelines, Section 1B1.8, proffered statements may not be used against the individual or used to determine the applicable sentencing guidelines range. However, Title 18, United States Code, Section § 3661, mandates that proffered information must be disclosed to the sentencing court and the probation department in the preparation of the presentence investigation report. As such, while not used to calculate the sentencing guidelines, proffered statements can nonetheless be used in determining the appropriate sentence, including where to sentence within the sentencing guidelines range or whether an upward variance from the range is warranted.
Limiting the Risks of Proffers
Given the risks of proffers, why would an individual with criminal exposure want to make a proffer? One reason is that the individual is facing imminent prosecution and is seeking a cooperation deal or favorable plea agreement, neither of which are usually available without first making a proffer. Even non-targets who the government want to question must still decide whether or not it’s to their advantage to honor the government’s request. Regardless of the reason, if an individual decides to make a proffer, there are several things that defense counsel can do to improve the structure and process of a proffer to ensure its success.
Setting subject matter parameters
Of primary importance is ensuring that the prosecutor and investigating agents know precisely what the individual is willing – and not willing – to discuss during the proffer. While this can sometimes be made part of the written proffer agreement, it’s more commonly accomplished through pre-proffer discussions between defense counsel and the prosecutor and between defense counsel and the individual. To accomplish this, defense counsel must be completely satisfied with the prosecutor’s trustworthiness and the case agent’s knowledge and support of the agreements and understandings between defense counsel and the prosecutor.
Strengthening use immunity
Another important objective is to persuade the government to agree to the traditional, more narrow definition of use immunity where it may use the individual’s statements against them only for the purpose of impeachment. Another point to consider is asking the government to include in the proffer agreement that it will consider a plea offer if it finds that the individual gave a truthful proffer. While the government may not agree to this in writing, they likely will not object to defense counsel orally putting this on the record at the beginning of the proffer.
When to Agree to a Proffer
An individual with clear criminal exposure should consider making a proffer, but only after thoroughly reviewing if it’s worth the risk. In assessing the risk, the first and most important question to answer is whether or not the individual is wholly committed and prepared to tell the complete truth during the proffer. If they are, then other questions need to be answered as well. These include: Is indictment a certainty if the individual fails to make a deal with the government? If indicted, what is the strength of the government’s evidence and available defenses? What is the sentencing exposure under the sentencing guidelines if convicted at trial as compared to a plea offer? How good is the plea offer in exchange for a successful proffer? Is the government offering a “substantial assistance” departure under the sentencing guidelines? Does any such departure offer amount to a promise or is it solely at the discretion of the government?
Individuals who are clearly without criminal exposure generally should not be making proffers. In such a case, if the government wants to interview the individual and they decline, the government can move on from the individual or subpoena their testimony before a grand jury or at trial. The individual can then answer questions under oath or refuse to testify if they are not given immunity. On this point, an individual without obvious criminal exposure may demand immunity on the basis that other targets, subjects, and witnesses may later give statements that implicate them or contradict their prior statements.
In short, an individual should agree to make a proffer only if they are prepared to tell the truth, indictment is certain in the absence of a proffer, a plea offer is contemplated by both parties if the proffer is successful, the contemplated plea deal constitutes a clearly better outcome than exposure from a trial, and the government attorney is completely trustworthy.
Before an individual decides on whether or not to make a proffer, there is substantial and crucial work that needs to be done by their federal criminal defense attorney. While federal proffers can be high-risk endeavors, they may be a risk worth taking under certain conditions. Any individual thinking about making a proffer should first consult with an experienced and knowledgeable federal criminal defense attorney to help them understand what the risks are and how best to limit those risks and ensure a successful outcome.