Federal Cooperation and Proffer Agreements
Federal Proffers and “Cooperation”: A Comprehensive Guide
Understanding the Proffer Process in Federal Investigations
A proffer, often referred to in legal circles as a "queen for a day" agreement, is a critical component in federal investigations. The term “proffer” essentially means offering a statement or evidence in a legal setting. But in this context it means that the Defendant or Target of an investigation is “invited” to provide information to the federal government under a form of immunity called “use immunity”.
Click here to learn about forms of immunity and how to obtain immunity.
FBI Tactics in Securing Interviews
When the target of an investigation is represented by an attorney, FBI tactics in securing an interview change drastically. Knowing that most knowledgeable defense attorneys will not permit the FBI unfettered access to their client, the FBI will contact the justice department to secure an interview of a witness who is represented by counsel. The prosecutor assigned to the case will determine the necessity of interviewing the witness and issue a letter informing the individual that she is the target, subject, or witness of a federal investigation and that the prosecutor is offering her a chance to come in and tell her story.
Origins of the Federal Proffer Agreement
The “queen for a day” or “proffer” originates from Federal Rule of Evidence 410, which states that statements made for the purposes of plea negotiations cannot be used as evidence. This encourages parties to discuss their case and negotiate without fear that these discussions will harm their case. The presumption that an early conversation between a target of an investigation and the federal government won’t be used in court is a federal prosecutor's strategy. Prosecutors do this by requiring that the target of an investigation sign a “proffer agreement” or “proffer letter”. A common misconception is that the protections offered by a “proffer” letter are a form of immunity – they are not.
Dangers of a Federal Proffer Agreement
Signing a proffer letter strips the target of rights that they ordinarily would have had under Federal Rule of Evidence 410. The letter informs the target that they are voluntarily engaging in discussions with the government and that, while the statements made at the meeting cannot directly be used at trial or to enhance a sentence, they can be used “derivatively” to rebut a later, inconsistent statement.
An Example of the Dangers of a Federal Proffer
For instance, imagine an interview regarding a drug trafficking operation where a witness agrees to sit down with prosecutors and then signs a proffer letter. The witness provides details of the drug operation in the hope that federal prosecutors will be lenient and permit him to reduce his sentence through cooperation. This leads to a series of events where the witness's statements are used against him.
How to Handle a Request to “Proffer” or “Cooperate”
If a defense attorney receives a letter inviting a “proffer,” they must immediately determine their client’s status in the case. This is because a “proffer letter” is a prelude to federal cooperation and an interview should only be entertained if counsel believes that the target is either merely a witness in the case or is culpable for the criminal activity and would benefit from cooperating with the federal government.
The “Attorney” Proffer
In an “attorney proffer”, the prosecutor decides to provide the defense attorney with some information. At that proffer meeting, his goal is to provide enough information about the client that it will show his guilt and secure cooperation. He doesn’t want to share too much because he still desires to maintain the secrecy of his investigation. This stage is critical for defense attorneys to gauge the strength of the prosecution's case and plan accordingly.
Warning: Proffering Without an Investigation Will Damage the Case
Proffering without a comprehensive understanding of the government's case can be detrimental. A thorough investigation by the defense can provide a robust foundation for making informed decisions and developing a consistent defense strategy.
If you Still Have Questions About Federal Proffers and Cooperation Agreements…
While a proffer agreement can provide an opportunity to mitigate legal consequences, it's a decision laden with potential pitfalls. It requires a strategic approach, thorough understanding, and careful consideration by both the individual involved and their legal counsel. The decision to proffer should be made with a full understanding of its implications, risks, and the overarching legal strategy.
Sample Proffer Agreement Below
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An Example of a “Proffer” Agreement
Re: United States v. xxxxxxxxxxxxxxxxx
Dear Mr. Chapman:
With respect to the interview of xxxxxxxxxxxxxxx (“your client”) by representatives of the United States Attorney’s Office for the Eastern District of Michigan, the Federal Bureau of Investigation, to be held on Wednesday, January 19, 2022 at 11:00 a.m., (“the interview”), the following terms and conditions apply:
1. Should your client be prosecuted, no statements made by your client during the interview will be used against your client in the government’s case-in-chief at trial or for purposes of sentencing, except as provided below.
2. The government may use any statement made or information provided by your client, or on his behalf, in a prosecution for false statements, perjury, or obstruction of justice, premised on statements or actions during or subsequent to the interview.
3. The government may make derivative use of and may pursue any investigative leads suggested by any statements made or other information provided by your client, and may use the evidence or information obtained therefrom against your client in any manner.
4. The government may use your client’s statements and any information provided by your client to cross-examine your client and to rebut any evidence or arguments offered on your client’s behalf.
5. Neither this letter nor the interview constitutes a plea discussion. In the event this letter or the interview is later construed to constitute a plea discussion, your client knowingly and voluntarily waives any right your client might have under Fed. R. Evid. 410, Fed. R. Crim. P. 11(f), or otherwise, to prohibit the use against your client of statements made or information provided during the interview.
6. Neither this letter nor the interview requires the government to enter into any plea discussions with your client or to file any motion regarding cooperation provided by your client. Furthermore, neither this letter nor the interview constitutes the timely provision of complete information to the government concerning your client’s involvement in an offense, within the meaning of Section 3E1.1(b)(1) of the Sentencing Guidelines.
7. No statements made by your client during the interview shall be used directly to determine the applicable Sentencing Guidelines range, except as set forth in the final sentence of this paragraph. However, the government may use such statements and any other information provided by your client to pursue investigative leads suggested thereby and may use any evidence or information generated by its investigation directly against your client to determine the applicable guideline range. Moreover, with regard to sentencing, the government may use the statements made and the information provided by your client during the interview to cross-examine your client and to rebut any evidence or arguments offered on your client’s behalf. In addition, the government may disclose to the Probation Office and the Court any statements made and information provided by your client and may use such statements and information to determine where within a given guideline range your client should be sentenced and to oppose any downward departure or downward adjustment.
Very truly yours,
United States Attorney
