Proffer Agreement

What is a Proffer Agreement?

The proffer agreement is a written contract between someone, including a defendant under a criminal investigation, and a federal prosecutor. They will agree to provide the prosecutor with helpful information which can't be used against them in future criminal proceedings.

Proffer Agreement
A proffer agreement in a criminal case is a contract to give the federal prosecutor useful information.

However, suppose a defendant's testimony does not match their statements, or their federal criminal defense lawyer attempts to challenge the evidence that conflicts with the defendant's statements. In that case, the proffer agreement would typically allow the prosecutor to introduce statements made during plea negotiations.

Simply put, the statements would then be used to impeach the defendant. During a trial, “impeachment” is described as discrediting or undermining a witness's credibility by showing evidence or asking questions that contradict their testimony or reveal bias, inconsistency, or false statements.

Typically, proffer statements are made with the mutual understanding that the prosecutor will give them immunity from federal criminal prosecution or offer a favorable plea deal for sentencing.

As noted, their proffer statements are also expected not to be used against them later. Most proffer agreements will require substantial negotiation, and you will need a federal defense lawyer to protect your legal rights before making an agreement.

What is the Purpose of a Proffer Interview? 

Simply put, a proffer interview is normally a meeting held in the United States Attorney's Office and will include the following people:

  • defendant;
  • defense lawyer;
  • someone under investigation;
  • federal prosecutor;
  • federal law enforcement agents.

It often includes a limited immunity agreement where the primary purpose is to exchange verbal or written documentation with the prosecutor, such as records or other material that could be useful to the prosecutor. The defendant is expected to do all of the following:

  • tell the prosecutor all the information they know about the federal offense under investigation and other people involved;
  • tell the entire truth without omitting relevant information;
  • not attempt to minimize their involvement and exaggerate criminal behavior by others.
  • not be under the impression that the interview is an opportunity to blame other people and claim they are a victim of false accusations.

There is an expectation that the government will either grant immunity or offer a favorable plea bargain. Typically, a federal prosecutor won't offer immunity or a plea bargain without a proffer.

What Happens at a Proffer Interview?

Prosecutors typically ask questions while agents take notes that will later be used to prepare written summaries of interviews. Defendants are expected to provide the prosecutor with any of the following:

  • written communications;
  • electronic communications,
  • emails,
  • texts,
  • bank statements,
  • video and audio recordings, and
  • any other information that might be useful to the prosecution.

Anyone making proffers can have a lawyer present who can participate in the interview as needed. For example, the lawyer could ask clarifying questions if a specific response confuses prosecutors or creates a wrong impression. Further, because a proffer is voluntary, they can end the interview anytime.

Should You Cooperate with the Government?

Sometimes, cooperating with the prosecutor might be in a defendant's best interest in federal criminal cases. For example, consider the following:

  • The evidence in the case is so solid and overwhelming that a defense lawyer can't reasonably challenge it;
  • Undercover federal law enforcement agents recorded the criminal activity;
  • The defendant faces a significant risk of taking their case to a trial and losing, resulting in a lengthy prison sentence.

In these scenarios, cooperation with the government in exchange for substantial credit could likely be a defendant's best defense strategy. Sometimes, cooperation with the prosecutor means the following:

  • They will not be charged with a federal crime;
  • They would face reduced charges that carry lesser penalties, or
  • They would not have to serve any jail time.

This “cooperation” is the heart of a proffer interview. The person agreeing with the government to cooperate is typically the defendant, co-conspirator, or someone under a criminal investigation.

Will a Proffer Agreement Guarantee Immunity?

No, proffer agreements do not guarantee immunity, but there is an agreement for leniency between the defendant and the federal prosecutor.

Will a Proffer Agreement Guarantee Immunity?
A proffer will not guarantee immunity, but it typically includes an agreement for leniency.

For example, as noted, a defendant could receive a less severe sentence recommendation in exchange for their cooperation or given other crucial benefits in exchange for valuable and accurate information.

While there are no promises about the outcome of a defendant's case, the government will not usually use the information it provides against them, but there are exceptions.

Suppose the defendant is indicted and convicted. In that case, the prosecutor will generally agree not to make any attempt to increase the offense level based on statements made during the proffer session.

Notably, the prosecutor could still seek enhancements according to the federal sentencing guidelines for specific facts that can be considered independently of the proffer.

What are the Risks of a Proffer Agreement?

While the benefits of a proffer can be significant, there are also some risks, including the following:

  • If it was later revealed that the information provided during the proffer was not consistent with evidence, arguments, or information from other witnesses, they could be used against the defendant;
  • The prosecutor could use proffer information to challenge the information offered by a witness for the defendant to impeach them during cross-examination;
  • It's possible that the witness will admit criminal responsibility for matters challenging to prove or that were not considered initially;
  • Depending on the quality of the information, immunity or a plea agreement might not be granted;
  • New evidence is uncovered against you due to proffer interview;
  • Lying, omissions, or inconsistencies of material facts about the alleged crime will automatically void the proffer agreement;
  • The government can decide what valid and valuable information is.
  • Proffer information could be used at a defendant's sentencing hearing if they break the terms of the agreement.

During a proffer interview, the prosecutor will usually inform a defendant that if they provide false information, they could face charges of making false statements defined under 18 U.S.C. 1001. 

What Are the Benefits of a Proffer Agreement?

Let's review some crucial benefits of a proffer agreement in a federal criminal case, including the following:

  • It's an opportunity for a cooperating defendant or suspect to be eligible for a favorable sentencing recommendation;
  • The prosecutor will agree to give the defendant many crucial benefits in exchange for receiving important information about the case.
  • Prosecutors will agree not to use proffer information against them except in limited situations.
  • The prosecutor will agree that if the defendant is charged and convicted of a federal crime, they will not attempt to enhance the offense level on any statements made during the proffer interview.

Why Do You Need a Federal Defense Lawyer?

Suppose you are a criminal defendant or a suspect in a federal criminal investigation and want to cooperate with the prosecutor or federal law enforcement agents.

Why Do You Need a Federal Defense Lawyer?
Contact our federal defense attorneys for advice.

In that case, you will need a seasoned federal criminal defense lawyer who understands proffer interviews and can provide you crucial information about whether you should enter into such an agreement with the government.

You should never enter into a proffer agreement with the government or deal with any matter in the federal criminal justice system without guidance from an attorney.

Defense counsel can help you analyze the relevant factors and limit potential risks to the fullest extent possible. Suppose you are a target or a defendant in a federal case; then you need legal representation that can effectively work for your best interest during the interview and trial, if necessary.

We offer a free case evaluation to review all the details and legal options. We serve clients throughout the United States on federal criminal matters. The Hedding Law Firm has offices in Los Angeles, CA.

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