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What is a Proffer Agreement?

Categories: Criminal Law & Process

Handshake of agreement

At times, the best a defendant can do is to cooperate with the government. Our experienced criminal defense counsel at Oberheiden & McMurrey, LLP advise people to cooperate in one of two situations.

First, the evidence against a defendant is so overwhelming that it simply cannot be rebutted. For example, a client sells stolen government property to undercover agents and the entire transaction is filmed and recorded and the defendant, when confronted, admits his crimes.

Second, cooperation may be prudent when a defendant’s trial risks are significant and by cooperating he could receive significant credit for his cooperation. This credit could mean that the person cooperating may not be charged with a crime, or that the person could be charged with a lesser offense, or the cooperation could eliminate or minimize a custody prison sentence. The most common way to cooperate is by way of a proffer interview.

Purpose. A proffer is a meeting between a criminal defendant or suspect and the government. Typically, the meeting takes place at the local U.S. Attorney’s Office, and not in court. At the meeting, a defendant is represented by counsel and the government is represented by the prosecutor along with investigating agents. The meeting is normally covered by a limited immunity agreement where the purpose is to share with the government all verbal, written or electronic information, such as statements, records, emails, videos, or documents that may be of use to the government. Proffer opportunities do not apply to violent crimes or to individuals with a violent crime history.

Disclosure of Information. The rules for a proffer are simple. The defendant is expected to share with the government everything he knows about the crime in question and the people involved. The defendant must tell the truth and must not withhold any relevant information. A proffer is unique in that the defendant essentially incriminates himself by openly talking about his role in and his knowledge of the crime. He must not minimize his involvement, nor exaggerate his role or the role of others. By no means should a proffer be misunderstood as an opportunity to blame others and to present oneself as innocent bystander- the forum for this approach is a trial.

Untrue Statements. If it later turns out that information provided during the proffer is inconsistent with information, evidence, arguments, and representations received by third parties, the proffer statements may be used against the person who made the statement at trial. The government would use this proffer information to rebut or refute the information being offered by the witness with the goal of impeaching that person through cross-examination. In such a case, the government will be introducing the proffer information as evidence against the defendant at trial. Moreover, the government may use the proffer information at the sentencing hearing if the agreement is broken by the Defendant. At the proffer session, the government will emphasize that false statements or material omissions made during the proffer may be prosecuted under 18 U.S.C. Sect. 1001 (false statements to a federal agent). The threat of these charges and exposure to federal perjury charges are meant to further incentivize the defendant to tell the truth.

Benefits to the Defendant. A proffer agreement is not a promise of absolute immunity but an agreement between the parties for a certain level of “use immunity”. A proffer is often a door to making someone a cooperating defendant who may be eligible for a favorable sentencing recommendation. In order for the defendant to enter the proffer agreement, the government will agree to provide the defendant several important benefits in return for receiving valuable and true information. While the proffer agreement will explain that no firm promises can be made regarding the outcome of defendant’s case, the government will agree not to use information provided by the defendant during the proffer against him in court except under very limited circumstances. The government will further agree that, if the defendant is ultimately charged and convicted, the government will not seek to enhance the offense level based on statements made at the proffer session. However, the government can still pursue enhancements for certain facts that exist independently of the proffer as per the Sentencing Guidelines.

Derivative Use. The government may make derivative use of information during the proffer. Kastigar v. United States (1972). This basically means that the government may pursue any investigative leads suggested by, any statements or other information provided by a defendant. Such derivative information may be used against a defendant in any future proceedings. The Kastigar waiver associated with proffer letters allows the government to pursue and use these leads without having to later attend a hearing where it would have to justify the use and results of the defendant’s proffer information.

If you are a target or a defendant in a federal investigation and you are considering a cooperation with the government, you need an experienced defense counsel that understand the proffer process and who can effectively advise you whether you are a good candidate to enter an agreement with the government. Contact us today to speak with an attorney.

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