Understanding Proffers in Federal and White Collar Criminal Cases: Frequently Asked Questions

What is a “proffer”? 

The word “proffer” can mean different things, depending on the context in which it is used.  In the context of a trial or a hearing, for example, a “proffer” means an offer of proof: an attorney formally tells the court what the evidence would have shown, instead of actually presenting the evidence. Such “proffers” are made for the sake of convenience, so that courts do not have to listen through evidence deemed inadmissible, while still allowing the attorney to preserve an issue for appeal.

This article is concerned with a different use of the word “proffer.”  In the context of pretrial negotiations, the word “proffer,” sometimes also called “queen for a day,” refers to an informal offer of information by an individual—usually a target, but sometimes a witness or subject—to one or more law enforcement officials.  This is the “proffer” that we will be focusing on in this article.

What is the purpose of a “proffer?” 

Most commonly, proffers are a prelude to cooperation.  The individual is under investigation or has been charged with a crime, and wants to offer information to law enforcement authorities in exchange for some benefit, such as dropped or reduced charges or an agreement for a lower sentence.  However, law enforcement authorities do not know whether the individual is going to give truthful information or if the information will be useful. An informal proffer allows the individual to give some bits of information so that  law enforcement authorities can decide whether they want to offer formal cooperation.  In other words, a proffer can be like an “audition” to determine whether an individual will be allowed to cooperate with the government.

Proffers are also sometimes used by defense attorneys to persuade the prosecutor to not bring charges. This may be the case if the individual’s role in the criminal activity is minor, or if there are substantial weaknesses in the prosecution’s case that are not easily remedied. By bringing these facts to the prosecutor’s attention in an informal proffer session, the defense attorney may convince the prosecutor to save resources by not bringing any formal charges.

Proffers are an important part of criminal defense, especially in federal and white collar criminal cases.  In such types of cases, proffers tend to be a regular occurrence.  An attorney obviously needs to think about the possibility of a proffer if the client is interested in cooperation. However, even if cooperation is not possible in a given case, it is still important to keep in mind that other defendants can choose to cooperate and engage in proffer sessions with the prosecution.

What happens in a proffer session?   

A “proffer session” is the meeting between an individual and law enforcement during which the individual gives a proffer.

Proffer sessions usually take place in a U.S. Attorney’s Office, but sometimes can take place in a government agency building or even a private law office. Usually, a proffer session is attended by the individual, his or her attorney, the prosecutor, and at least one (and often more) of the investigating agents in the case.

During a proffer session, the defense attorney will usually begin with a preliminary statement about the topics that the client will address.  Then, the defense attorney will usually sit back while the prosecutor and the agents ask questions.  If the individual has any hesitation about answering a particular question, he may ask to speak with his attorney in private, and such requests are always honored at a proffer session. During the private consultation, the attorney will be able to address the client’s concerns.

What is a proffer letter?

A proffer letter describes any agreement the prosecution and the individual has regarding a proffer session or sessions.  Typically, a proffer letter will state that the individual has immunity from any incriminating statements being used against that witness at trial or another proceeding, to prove the witness’s guilt.

It is important to understand that there are different types of immunity, and that the specific kind of immunity bestowed by the proffer letter must be discussed with an attorney before hand. In rare cases, a witness may be able to obtain full immunity for all information and statements that witness provides to the prosecution.

What kind of protection can I expect from a proffer session? 

As noted, there are different kinds of immunity, which offer varying levels of protection.  The most common kind of immunity offered in proffer letters is what is called “use immunity.” This type of immunity prevents the prosecution from directly or indirectly using the statements provided by the individual at trial if the individual is later prosecuted. However, use immunity does not cover some common scenarios:

  • If the individual lies during a proffer session, use immunity does not prevent the government from using those statements to prosecute the individual for false statements (a separate crime).
  • If the individual says one thing at a proffer session, and later says something different in court, use immunity does not prevent the government from using those statements to “impeach” the individual in court.
  • If there is independent evidence to prove a point, use immunity does not prevent the government from proving the point using the independent evidence.

The kinds of protection offered will be usually spelled out in detail in a proffer letter, and sometimes can be negotiated by the defense attorney. Whatever the terms, it is important that you understand them before going in to a proffer session.

What is a “reverse proffer”?

A “reverse proffer” is very different from a proffer. In a reverse proffer, the prosecutor describes the evidence while the defendant and his attorney listens. Sometimes, reverse proffers may be done solely by the prosecutor to the defense attorney. Reverse proffers typically take place when the prosecution wants to convince someone to plead guilty, or to cooperate in an investigation.

Should I agree to participate in a proffer session?

The answer to this question depends heavily on the specific facts of the case.  A poorly planned or ill-advised proffer can have devastating consequences.  If the subject matter of the proffer session is not clearly defined, or if adequate steps are not taken to protect the witness, prosecutors can use the very statements a witness makes in a proffer session as the evidence against him.  Prosecutors can also decide to bring additional charges against a person who they believe has lied to them in a proffer session. On the other hand, a well planned proffer can be the key to the best possible outcome in a case, including possible dismissal of charges.  Here are some examples of cases we have done:

  • In one instance, we represented a bank official suspected of approving fraudulent loans. The investigation against him was closed after we agreed to a proffer.
  • In another instance, we represented a CPA accused of supplying fraudulent proof of income. This time, we refused multiple offers of proffer sessions from the government, and the government eventually dropped the case when it was unable to obtain sufficient evidence against our client from independent sources.

Because of the high stakes, the decision to participate in a proffer should be made with an attorney’s advice, after the attorney has thoroughly investigated the facts and the law.

Here are some important questions to think about in deciding whether to attend a proffer session:

  • What is the goal of the proffer session?
  • What subjects, facts and individuals will be discussed?
  • What subjects and facts should I decline to discuss?
  • What protection am I getting if I provide information to the government that could potentially get me in trouble?
  • What benefits are promised, explicitly or implicitly, if I offer useful information?
  • What is my exposure in this case or investigation?
  • If I have been charged or is a target, do I have good defenses? Would those defenses be compromised by the subject of my proffer?

Deciding whether or not to agree to the government’s request for a proffer session can, in many cases, be the most important decision in a given case.  For this reason, your attorney should be able to clearly answer your questions, including those above.

Conclusion

We hope that you found this information useful.  If you have been charged with a crime or are under investigation, and you have been approached by a federal agent about attending a proffer, you may call us for a free phone consultation.