If you are under investigation or accused of a federal crime, you could face significant fines and prison time if convicted. In many of these cases, demonstrating a willingness to cooperate with the federal government can go a long way toward resolving your case with lesser penalties or even getting charges dismissed.
To this end, your federal criminal defense attorney may recommend making an informal overture known as a proffer to the government, commonly called a “proffer agreement” or a “proffer interview.”
A proffer agreement is a written contract between a federal prosecutor and a defendant or someone under a criminal investigation. The person will agree to give the prosecutor helpful information, and their statements will not be used against them later in a criminal proceeding.
A proffer is an informal statement expressing your willingness to volunteer potentially useful information to federal prosecutors so they can evaluate whether to enter into a more formal cooperation with you.
A successful overture like this can lead to a proffer session with the federal government, which can benefit you through a plea deal or even an agreement that formal charges won't be brought against you. It could also result in reduced charges with lesser penalties or even no jail time.
Suppose you are in a situation where you are facing a significant risk if you decide to take the case to a federal trial. In other words, if you are convicted at trial, you would face severe penalties and lengthy incarceration. In that case, cooperating with the government could result in substantial credit in exchange.
Cooperating with the prosecutor might be in your best interest in some federal criminal cases. For example, suppose the evidence against you is so strong that it can't be reasonably challenged. For example, suppose undercover federal law enforcement agents recorded your illegal conduct.
Defining a Proffer Session and Proffer Agreement
A proffer session sometimes called a “queen for a day” session, is an opportunity for an individual accused of a federal crime to share information with federal prosecutors and investigators in exchange for limited immunity.
This means the information provided during the proffer session cannot be used directly against the individual in court. A proffer agreement is a written document outlining the terms and conditions of this arrangement, typically signed by the accused, their attorney, and the federal prosecutor.
Simply put, a proffer interview is a meeting between a criminal defendant or suspect under investigation at the United States Attorney's Office. Defendants can have legal representation at meetings with federal prosecutors and law enforcement agents.
The Purpose of a Proffer Session
A proffer session typically serves two key objectives: Firstly, it allows the government to evaluate the information that a defendant can provide.
Secondly, it allows a defendant to convince the government of their worth, hoping to negotiate a plea deal or possibly avoid charges altogether.
This meeting is usually covered with 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 Procedure of a Proffer Session
As noted, during the proffer session, the accused will meet with federal prosecutors and investigators, usually at the U.S. Attorney's Office or another secure location.
The accused's attorney will also be present. During this meeting, the defendant will present their information to the following:
- Government attorneys,
- Assistant U.S. Attorneys,
- FBI agents, and
- Other federal law enforcement officers.
The information shared might pertain to the defendant's involvement in the alleged crime or provide insight into the actions of others.
During the meeting, the defendant is expected to tell the prosecutor all the truthful information they know about the case under federal investigation without omitting relevant information and anyone else involved.
They are also expected not to make any attempts to minimize their involvement and overly exaggerate criminal behavior by others in the investigation.
Defendants and suspects should not be under the impression that the interview is an opportunity to place most of the blame on other people and that they are just a victim who has been falsely accused.
After the session, assuming the government is satisfied with what they have heard, all parties will draft and sign a written proffer agreement.
This agreement outlines the mutual understanding between both parties, often including specific conditions of cooperation for which the defendant may receive consideration or leniency in court. Typically, a proffer is made with the understanding that the prosecutor will either grant them immunity or offer a favorable plea bargain.
Tips for Navigating a Proffer Session Successfully
To make the most of a proffer session, consider the following tips:
- Consult with an experienced attorney. Because so much is potentially at stake with a proffer session, you should never issue a proffer or attend a proffer session without the guidance of an experienced federal defense attorney. They can help you understand the implications of a proffer session and negotiate favorable terms in the proffer agreement.
- Be honest and accurate. Providing false or misleading information during a proffer session can have severe consequences, including potential perjury charges. Be truthful and accurate in your statements.
- Understand the limitations of immunity. A proffer agreement provides only limited immunity, meaning that the government can use the information you provide indirectly or as a lead to build a case against you. Discuss the scope of immunity with your attorney.
- Weigh the potential benefits and risks. Before agreeing to a proffer session, consider whether the potential benefits, such as leniency in sentencing or avoiding charges, outweigh the risks, such as unintentional self-incrimination.
Potential Risks and Rewards
It should be noted that although a proffer session is informal, the implications can be far-reaching and potentially risky.
On the one hand, if the information provided proves useful, the defendant may secure a reduced sentence or even complete immunity. On the other hand, if a defendant discloses guilt or implicating information, they may inadvertently incriminate themselves.
One key element to remember is the proffer agreement. Under the “queen for a day” agreement, the information provided by the defendant during the proffer session cannot be used directly against them.
However, this protection is not absolute. For instance, if the defendant later testifies inconsistently with their proffer statement, the statement can be used to impeach their credibility.
A proffer agreement is frequently an opportunity for a cooperating defendant or suspects to be eligible for a favorable sentencing recommendation.
The prosecutor will also usually agree that if the defendant is charged with a federal offense and convicted, they won't attempt to enhance the offense level on any statements made during the proffer interview. However, they could still seek enhancements on information received outside the proffer as described under the United States Sentencing Guidelines.
Suppose you are a criminal defendant or a suspect in a federal criminal investigation and might seek to cooperate with the prosecutor or federal law enforcement agents.
In that case, you need to retain an experienced federal criminal defense attorney who understands proffer interviews and can provide crucial information about whether you should make an agreement with the government. You can contact our law firm by phone or using the contact form. Eisner Gorin LLP is located in Los Angeles, CA.