The Proffer

A common term in almost any criminal investigation conducted by federal prosecutors is the term “proffer.” As the term is used in everyday language, it suggests “offering” or “telling” some information with the notion that if what is offered is deemed valuable or sufficient by the recipient of the proffered information or proffered items, that the one “offering” or “telling” information or providing an item will receive a benefit. This concept has become a staple in the federal criminal justice system. It may be referred to simply as a “proffer agreement”; a “Queen for A Day Letter”; or simply as a “proffer”. Its essential parameters are generally the same and this is the trap for the unwary and inexperienced. Essentially, an individual agrees to speak with federal prosecutors and/or federal agents with very limited protections.

(2)Generally, the government agrees that what is said will not be used in the government’s case-in-chief, however, the government may use the proffered information in several other ways, and ultimately, may be able to use the statement in its case-in-chief. First, the government may use any and all leads derived from the statements. A few examples illustrate some of the potential problems. The person makes a statement to federal prosecutors that he threw the gun in a river at a particular location. The government agents then go to the river and find the gun. Ballistics tests are conducted. The ballistics test indicate that this is the weapon used in the crime and a fingerprint analysis demonstrates the presence of the person’s fingerprints on the gun.

All of this information is arguably admissible in the government’s case-in-chief. It is not the person’s statement. It is a lead or information derived from the statement and therefore, from the plain language of the agreement admissible in the government’s case-in-chief. Another example, a person tells federal prosecutors and/or their agents during a proffer session that she or he used a fictitious name, stolen social security number, and friend’s address to open bank accounts to facilitate illegal business transactions or to hide the profits from an illegal enterprise. Although the government will not be able to use the statement in its case-in-chief, it can go the bank, investigate all aspects of the bank account and serve the bank with grand jury subpoenas to obtain the information and documents.

This information is derived from the statement and is admissible in the government’s case-in-chief. In addition, the government can contact the friend and use the friend’s testimony in its case-in-chief. Second, the proffer agreements generally contain language indicating that if the person or entity takes a position in any way contrary to the information provided at the proffer, the government is free to use the proffer in its case-in-chief, cross-examination, and rebuttal. This provision is even more expansive than one might imagine. The inexperienced attorney may think that as long as his client does not testify, the statements made in the proffer session will never be heard by the trier of fact. This is false. If in her or his opening statement, defense counsel takes a position contrary to the proffer, the government is on solid ground for the proposition that the statements made in the proffer session with federal prosecutors and/or agents are now admissible in the government’s case-in- chief. As one can imagine, in the course of human experience, we all make statements in good faith which we later discover after subsequently reviewing documents or further reflection are inaccurate.

A proffer session allows no margin for error. Any error or change is likely to result in at minimum, impeachment as an inconsistent statement or impeachment by omission, and even worse as an admission by the government in its case-in-chief because defense counsel said something in her or his opening statement which is viewed as contrary to a statement made in the proffer session. I want to emphasize that the language in a proffer agreement indicating that the statements and information obtained or derived from the proffer may be used without restriction by the government should the defendant take a position contrary to the proffer must be approached with the utmost caution. An example will demonstrate the dangerousness of this provision. If in the course of the proffer, a person makes an incriminating statement. Subsequently, she or he is unable to obtain an immunity grant from the government and/or plea negotiations are not fruitful.

The defendant and defense counsel review the matter and decide that the defendant will proceed to trial. The defendant and counsel decide that the defendant will not testify at the trial and will argue that she or he is not guilty because of lack of credible evidence. Once defense counsel makes an opening statement asserting the defendant is not guilty, the government will assert that the defendant has taken a position contrary to the proffer and that the government is entitled to utilize the statements in the proffer. Obviously, under these circumstances, the defendant has placed himself or herself in an impossible position. Once the finder of fact hears the proffer session statement from a government agent, the defendant will have suffered a devastating blow to, at minimum, the credibility of the defense.

Another example may be helpful. The potential defendant proffers to the government that he or she has a particular defense to potential charges in an effort to stave off indictment. The government decides to pursue indictment. At trial, the defendant changes the defense or expands the defense. The government will take the position that the defendant has taken a position contrary to his proffer. The government will seek to introduce the proffer as an inconsistent false statement or, if the defendant testifies, seek to use the proffer for impeachment purposes arguing that the defendant is not only taking a position contrary to his proffer, but that she or he is lying under oath. This situation could result not only in the defendant suffering devastating cross-examination, but a subsequent indictment for perjury since proffer agreements generally state that if the government believes that the defendant lied, the government may pursue a prosecution for perjury or for making a false statement to a government agent in violation of Title 18 United States Code, Section 1001. In addition, if the defendant is convicted, the government will argue that the defendant lied and should receive a more severe sentence as result of the perjurious trial testimony.

Before engaging in a proffer session with the government, an individual should carefully review the details of her or his situation with experienced counsel.

1 The author served as an Assistant United States Attorney in Chicago for seven years and thereafter has represented individuals and entities in federal criminal matters for over thirty years. See his website at www.phillipturnerlaw.com. This brief overview is not intended as legal advice. The author would urge any person to consult with a competent attorney about her or his specific situation.

2 On occasion, federal prosecutors will accept what is commonly called an “attorney proffer”, which essentially means that an attorney speaks to the federal prosecutors on behalf of his client. This proffer by the attorney/agent presents disadvantages and advantages for the both the proffering individual or entity and the government. The advantages and disadvantages are fact specific and should only be undertaken by very experienced counsel under very limited circumstances.