Proffer Agreement Explained
A proffer agreement is a formal contract between a criminal defendant and a government prosecutor. Typically, the term refers to a pre-indictment arrangement, but it is possible for federal prosecutors to offer a more informal proffer agreement during the course of adjudication (called a "proffer session").
In simple terms, a proffer agreement represents a plea deal with the goal of extracting as much information from the defendant as possible. The defense attorney avails the defendant of information about the crime in exchange for amnesty or a more lenient sentence.
When a defendant sees no other option but to snitch on his or her former accomplices, he or she can enter into a proffer agreement to bargain for a more lenient sentence. In some cases, the defendant’s testimony leads to a plea agreement with the government.
During a proffer agreement, the prosecutor in charge of the case agrees to disclose potentially exculpatory evidence that might otherwise bias the defense attorney or prosecutor . For example, the defense may call for hundreds of hours of tapes, which the prosecutor can use at its discretion – a tactic that might prove extremely damaging to the defendant.
In most cases, a proffer agreement involves a presentencing hearing or a grand jury indictment, rather than becoming evidence against the defendant in trial. Prosecutors must have good reason to give defendants these chances to reduce their charges.
In exchange for forthcoming cooperation, defendants are usually not required by law to testify against their alleged co-conspirators. The criminal defendant also has the option to accept, reject or renegotiate the deal at any time during trial. A proffer agreement essentially gives defendants the chance to appeal to their sense of self-preservation, even when it means telling the government everything they know.
The only danger of accepting a proffer agreement for the defense attorney is that any incriminating evidence the defendant provides could be used later for impeachment at trial.
How Does a Proffer Agreement Work?
A proffer agreement is an informal understanding between a federal prosecutor and a potential defendant. A proffer agreement is written and signed. A proffer agreement generally states two things. First, the proffer agreement will usually state that nothing said by the prospective defendant in the proffer meeting will be used against him or her, unless the prospective defendant later takes the stand and testifies in his or her own defense at trial.
Second, the proffer agreement will usually require the prospective defendant to provide "full, candid, and truthful" information to the prosecutor about the charges and the defendant’s alleged criminal activities. In most cases, a proffer agreement will have a paragraph that allows the prosecutor to revoke the agreement if the defendant is found to have provided any information that is not full, candid, and truthful. The government will hold the defendant to the terms of the proffer agreement.
If the proffer agreement is breached by not providing truthful and candid information, the government may grant no immunity to the proffered information. So, for example, even if a defendant provides potentially exculpatory information in the proffer session, the government may choose not to honor a promise not to seek charges if the defendant breaches the agreement.
The government almost never agrees in a proffer agreement to recommend leniency in sentencing. A proffer agreement may have a paragraph stating that if the government chooses to prosecute the defendant, the defendant will receive no lower sentence recommendation because of information provided during the proffer meeting.
The government also almost never agrees not to ask for a higher guideline range than is otherwise appropriate in a federal criminal case. The government almost never agrees not to seek a sentence at the highest end of the advisory federal sentencing guidelines range.
Most importantly, a proffer agreement does not provide immunity from criminal prosecution (i.e., no prosecution at all). A proffer agreement only provides very limited immunity from the use of information provided by the defendant at the proffer meeting. A defendant may be subject to prosecution for the same criminal charges, especially if the defendant is found to have provided untruthful information in the proffer meeting. A defendant may face prosecution not only for the charges under investigation, but also for other related criminal charges, using evidence that is obtained during the proffer meeting.
What distinguishes a proffer agreement from a formal plea negotiation with the prosecutor? In a plea negotiation regarding a federal criminal charge (e.g., material false statements), a formal plea agreement is reached and signed by both the prosecutor and the defendant. A formal plea agreement generally provides actual protection for the defendant from being further prosecuted for other offenses, additional charges retained by the prosecutor are dropped, and the extent of the cooperation is set out in the agreement.
A proffer agreement does not provide any of these advantages. The prosecution does not have to drop related charges before the proffer meeting. There is no basis in the proffer agreement for a prosecutor to agree to not retry the defendant for other charges. The prosecutor has no obligation to file a 5K1.1 motion or a Rule 11(c)(1)(C) plea agreement.
Is Proffering Snitching?
…There’s a lot of ongoing debate about the point at which proffering falls into the category of "snitching." The term "snitch" tends to have a very negative connotation for the person doing the proffering, and is a label that could have long-term effects on someone’s reputation, particularly if they go to trial and the prosecution includes "snitch evidence" in their case. It’s important to understand that when someone goes to a proffer session, it is always done under the terms of an agreement in advance, and the terms of that agreement include a statement of immunity. What you’re snitching on is all in the past, and the agreement made in advance of the proffer session spells out that you can’t be charged for any of it, and your proffered information cannot be used against you. Yet the term snitch tends to stick to people. Even the prosecutor will sometimes define how they view the process to the defendant through the lens of snitching. They may use the term, but it’s always said under the agreement that the acknowledgment of being a snitch does not apply to any of the proffered information, past, present or future. Much of the negative impact that comes to defendants who agree to give information in a proffer session is unintended, but it is still a natural reaction of many people, including prosecutors. It is true that there are times when defendants will go into a proffer session and conceal information. They may distort what actually happened in hopes of avoiding prosecution or providing false information with the intention of sending another person to prison. Those two things can definitely cause a problem for defendants on the stand, if it turns out the prosecutor is aware that information is false, thus putting the defendant in a position of lying to the court – a much more serious issue than simply being a snitch. The important takeaway here is that the proffer process has an agreement, and the agreement is specific. Your ability to get immunity from prosecution for information provided during the agreement is clearly defined in advance, as are the consequences for lying. Snitching is very rarely a problem for clients who are up front and honest with their attorney before and during their proffer.
Pros and Cons of Proffer Agreements
Defendants can expect a number of different benefits if they enter into a proffer agreement – assuming the discussions are fruitful. A proffer agreement may be the best chance a defendant has of avoiding criminal charges, so it can certainly be a good idea from the start. But determining the long-term value for a defendant can be far more difficult and full of uncertainty. These are some of the potential advantages you might find: The downsides of a proffer agreement can be just as pronounced as the perceived upsides. These are some of the risks of signing such an agreement: It’s vitally important that you communicate clearly with your lawyer about what the intended objectives and expectations are for the proffer agreement.
Legal Implications and Guidance
There are numerous legal considerations that defendants must consider before signing a proffer agreement. It is imperative that defendants receive competent legal advice on the potential ramifications of making proffer statements to law enforcement agents. These discussions should not occur in the context of general advice but instead should take place during a private meeting between a defendant and his or her attorney. It is ‘attorney-client privilege’ (i.e., the right to talk freely with your lawyer) that provides a level of protection from what is said between a defendant and his/her lawyer. It does not, however , protect a proffer statement made to law enforcement agents.
Many federal defense attorneys encourage their clients to cooperate with the government in hopes of obtaining concessions such as a reduced sentence. The majority of proffer agreements allow defendants to withdraw from such agreements and will be permitted to withdraw based on the following three factors:
- The defendant was not forthcoming;
- There was no deal with the prosecutor; and
- The defendant has first withdrawn effectively from the proffer agreement.
When considering entering a proffer agreement, defendants should consult experienced criminal defense attorneys. Now more than ever it is important for individuals who are, or will be, the subject of a grand jury investigation to have competent criminal defense attorneys who are familiar with federal criminal proffers. Defendants should consider consulting with a former federal agent who has experience testifying in federal Grand Juries as they may be able to help you navigate the labyrinth of accusations being made against you on a daily basis.
Case Examples and Applications
From Wall Street to Washington, proffer agreements have proliferated across different sectors, industries, and levels of government. In 2001, former Vice President Spiro Agnew agreed to testify against other politicians in yet a separate proffer agreement.
In the aftermath of Wall Street’s 2008 collapse, two appearing before the House Financial Services Committee were granted immunity for their testimony. Former Lehman Brothers Global Inc Chief Executive Richard Fuld and former CEO of National City Bank Robert A. Maher Jr. were both granted immunity for their testimony regarding the collapse. The 2008 financial crisis was also the subject of testimony the following year on June 13 from former investment banker Eric Ben-Artzi as well as Martin A. Grube, former Deputy Chief Accountant for the U.S. Securities and Exchange Commission (SEC). Ben-Artzi and Grube were granted immunity in exchange for their testimony regarding the collapse of the AIG corporation. In November 2013, former Senator John Edwards was acquitted by a jury however prosecutors have announced they would retry the North Carolina Democrat on some of the charges. In January 2015, the prosecution in the recently-concluded trial of former Maryland Governor Martin O’Malley’s proposed casino deal argued for immunity for three of the former Governor’s aides for testimony in the case. The defense argued that the proffer agreement taken as a whole qualified as a "massive proffer agreement" with the immunity provisions buried beneath the exclusions. The district court judge overseeing the case had previously ordered that O’Malley be granted immunity for his testimony in the case. The power of immunity agreements has also been exploited in the world of sports, with the most notable example being that of Roger Clemens. On March 5, 2008, Clemens publicly testified before Congress and refused to answer questions about use of steroids during his career. Clemens later filed a defamation claim against former trainer Brian McNamee, whom Congress clearly believed had testified truthfully when he alleged that Clemens had used steroids, because the Court had granted McNamee immunity for his testimony before Congress in exchange for his agreement to testify in the lawsuit against Clemens. Most recently, in February 2015, the proffer agreement between the New England Patriots and NFL Commissioner Roger Goodell for the latter’s testimony before a Deflategate investigation has drawn much public scorn. Despite agreeing to grant the NFL Commissioner immunity from criminal and civil prosecution, Patriots owner Robert Kraft declined to grant Goodell immunity in return for his testimony.
Conclusions: To Proffer or Not
We’ve gone through a fair amount of analysis and commentary about the pros and the cons of using proffer agreements in criminal investigations. We’ve looked at, in the first part of this series, the risk to the individual who agrees to speak to the government on a limited basis, and how that risk can be mitigated.
We’ve followed the proffer agreement in theory with a real life example in the form of the recent Carver Proffer. Throughout this series we have labored the various ways to think about the proffer process (and defense counsel’s role) so that you can make up your own mind as to whether the entire exercise is worthwhile from a strategic perspective . Do the costs of use of a proffer outweigh the benefits? Is entering into the proffer at all worth your time? Can you salavage some good out of the process? Or does it seem more like an old-fashioned "snitch" deal?
The answer is not as simple as all that and the calculus of risk is one of the few things that this blog cannot predict. Indeed, figuring out the odds in a proffer deal are maddeningly difficult, which is perhaps why the process itself seems so heretic. Inherent in the use or disuse of the proffer system is the assumption made by the client to trust counsel, and to live with their decisions.
The bottom line, especially as it relates to white collar investigations, is that you must trust your counsel to provide the best advice they can. And if that advice is to proffer, then you must trust that they have weighed all the risks, and found that the benefit to enter into the process outweighs the risk.