What is a Proffer Agreement?
Sometimes, the best thing a defendant can do is to cooperate with the government. Our experienced criminal defense counsel at Oberheiden, P.C. advises people to cooperate in one of two situations:
First, the evidence against a defendant is so overwhelming that it simply cannot be rebutted. An example of this would be a client sells stolen government property to undercover agents, and the entire transaction is filmed and recorded and the defendant, when confronted, admits their crimes.
Second, cooperation may be sensible when a defendant’s trial risks are significant and by cooperating they could receive significant credit for their 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.
In any case, a proffer interview is the most common way to cooperate.
Purpose. A proffer is a meeting between a criminal defendant or suspect and the government that usually takes place at the local U.S. Attorney’s Office rather than in court. At the proffer, a defendant is represented by counsel and the government is represented by the prosecutor along with the investigating agents. The meeting is typically covered by a limited immunity agreement where the purpose is for the defendant to share with the government all verbal, written, or electronic information, such as emails, statements, documents, videos, or records that may be of use to the government. Notably, proffer opportunities do not apply to violent crimes or to individuals with a history of violent crime.
Disclosure of Information. The defendant is expected to share with the government everything they know about the crime in question and the people involved during a proffer. The defendant is legally required to tell the truth and not withhold any relevant information. A proffer is unique in that the defendant essentially incriminates themself by openly talking about both their role in and their knowledge of the crime committed. They must not minimize his involvement, nor exaggerate their 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 an innocent bystander— this is an approach that is reserved for a trial.
Untrue Statements. If it is later learned 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 during the 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 via cross-examination. In such a case, the government will introduce the proffer information as evidence against the defendant at trial. The government may also use the proffer information at the sentencing hearing if the defendant has broken the agreement. 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. § 1001 as false statements made to a federal agent. The threat of these charges and exposure to federal perjury charges are meant to further encourage and incentivize the defendant to only tell the truth.
Benefits to the Defendant. A proffer agreement is not a promise of absolute immunity but an agreement between the defendant and the government 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, less severe sentencing recommendation. The government will agree to provide the defendant with several important benefits in exchange for receiving valuable and true information in order for the defendant to enter the proffer agreement. Although the proffer agreement will explain that no concrete promises can be made regarding the outcome of the defendant’s case, the government will agree not to use the information provided by the defendant during the proffer against them 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 seek enhancements for certain facts that exist independently of the proffer according to the Sentencing Guidelines.
Derivative Use. The government may make derivative use of information during the proffer, as established by Kastigar v. United States (1972). This essentially means that the government may pursue any investigative leads suggested by, any statements or other information provided by a defendant from the proffer. Such derivative information may be used against a defendant in any future proceedings. The Kastigar waiver associated with proffer letters allows the government to both 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 cooperation with the government, you need experienced defense counsel who understands the proffer process and 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.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.