What Is Proffer Agreement

What Is Proffer Agreement

Proffer agreement is written agreement between you, your attorney, and federal prosecutors allowing you to provide information about criminal activity with limited protections against government using your statements directly against you. Commonly called “Queen for a Day” agreement, proffer allows you to show government what information you have without immediately committing to full cooperation. Prosecutors evaluate whether your information is valuable enough to warrant cooperation agreement. During proffer session covered by agreement, you meet with prosecutors and agents answering questions about crimes, participants, and what you know. Agreement provides that government cannot use your statements in its case-in-chief at trial against you – but critical limitations exist. Statements can be used for impeachment if you testify inconsistently, rebuttal if you present contrary evidence, sentencing purposes, perjury prosecution if statements were false. Proffer agreements are not immunity – they provide narrow protection allowing exploration of cooperation without full commitment from either side. Understanding what proffer agreements protect and don’t protect is essential before providing information to government.

Thanks for visiting Spodek Law Group – a second-generation law firm managed by Todd Spodek, who has defended federal criminal cases for many, many years. We negotiate proffer agreement terms for clients, prepare them for proffer sessions, and protect them from making inadvertent damaging statements. Proffer sessions are critical inflection points – what you say affects whether government offers cooperation, what charges are brought, and potential sentence exposure. Having experienced counsel prepare you and attend proffer session is essential to protecting your interests.

Purpose and Function of Proffer Agreements

Proffer agreements serve specific purposes for both sides. Government wants to evaluate what information you have before committing to cooperation agreement. Do you have valuable information about other criminal targets? Are you credible and willing to cooperate fully? Can your information be corroborated? Proffer session allows prosecutors to assess these questions. You want to show government your cooperation value without fully waiving Fifth Amendment protection. Proffer agreement’s limited use protections allow you to provide information demonstrating value while maintaining some protection if cooperation doesn’t materialize.

Typical scenario leading to proffer: Federal agents arrest you or execute search warrant. During initial contact, you indicate willingness to cooperate. Rather than making statements without protection, your attorney contacts prosecutors to arrange proffer session. Parties negotiate proffer agreement terms. You attend proffer session providing information overview. Government evaluates and decides whether to offer formal cooperation agreement. Alternatively, you may be target of investigation who learns about it and proactively seeks cooperation opportunity before charges filed.

Key Provisions in Proffer Agreements

Standard proffer agreement includes several critical provisions. Use restrictions form the core protection. Government agrees not to use your statements during proffer session in its case-in-chief against you. This means prosecutors cannot put on witnesses or introduce evidence at trial directly derived from what you said in proffer. However, government CAN use statements for impeachment purposes. If you testify at trial and your testimony contradicts what you said in proffer, government can introduce proffer statements to impeach your credibility. Statements can be used in rebuttal. If you present evidence at trial contradicting proffer statements, government can use proffer to rebut your evidence.

Sentencing use is another key provision. Most agreements allow government to use proffer statements at sentencing for relevant conduct calculations or other purposes. This can significantly affect guidelines even if statements aren’t used at trial. Perjury and false statement exposure continues. If statements made during proffer were false, government can prosecute for perjury or false statements – proffer agreement doesn’t protect against charges for lying to federal agents. Derivative evidence provision addresses whether government can use leads from your statements. Some agreements prohibit derivative use; others allow government to use leads or evidence discovered because of information you provided during proffer.

What Happens During Proffer Session

Proffer sessions typically occur at U.S. Attorney’s Office or federal law enforcement facility. Participants include you, your attorney, one or more Assistant U.S. Attorneys, and federal agents (FBI, DEA, ATF, etc.). Sessions usually last 2-6 hours depending on scope of information. Prosecutors ask questions about your involvement in criminal activity, other participants’ roles and identities, specific transactions or events, documentary evidence locations, organizational structure if applicable. Your role is answering truthfully and completely. Any false statements can result in perjury charges and destroy cooperation prospects. Your attorney’s role includes protecting you from questions beyond proffer scope, ensuring you understand questions before answering, preventing inadvertent misstatements, advising when to decline answering certain questions.

Government assesses several factors during proffer. Is information you’re providing valuable? Do you have knowledge about crimes or participants government doesn’t already know? Is your information corroborated by other evidence? Are you credible and consistent? Are you willing to testify if needed? Do you seem committed to full cooperation or holding back? Prosecutors take notes and may record session. Some proffer agreements specify whether session will be recorded. After session concludes, government evaluates internally whether to offer cooperation agreement, what charges to bring against you, whether information was substantial enough to warrant leniency.

Risks of Proffer Sessions

Despite limited protections, proffer sessions carry significant risks. You’re admitting criminal conduct that can be used against you in certain contexts. Even though government can’t use statements in case-in-chief, sentencing use provision means statements affect your guidelines calculation. Sentencing judge hears what you admitted in proffer even if statements aren’t admissible at trial. If cooperation doesn’t materialize and case goes to trial, your admissions during proffer limit defense options. You’ve confessed to crimes, making it difficult to argue innocence or present inconsistent defense. Impeachment risk means you effectively cannot testify at trial without government introducing proffer statements. This eliminates your ability to tell jury your version of events.

Perjury trap exists if you’re not completely truthful. Any false statement during proffer can result in separate perjury or false statement charges (18 U.S.C. § 1001). Government may have evidence you’re unaware of that contradicts what you say in proffer. Statements can be used against others. While proffer agreement protects you from certain uses, it doesn’t prevent government from using information you provide to investigate and prosecute others. If you implicate family members or associates, they may face charges based on your proffer information. Cooperation may not result even after proffer. Government might decide your information isn’t valuable enough, or you’re not credible, or case is better resolved without your cooperation. You’ve made admissions but received no benefits.

Strategic Considerations Before Entering Proffer

Carefully evaluate whether proffer serves your interests before agreeing to one. When proffer makes sense: you have valuable information about significant criminal targets, cooperation could result in immunity or substantial sentence reduction, government is likely to prosecute you anyway so providing information early maximizes cooperation value, your attorney has negotiated favorable proffer terms limiting statement uses. When proffer may not make sense: you have minimal information government doesn’t already know, your potential charges are relatively minor and you might avoid prosecution without cooperating, proffer agreement terms are unfavorable with broad statement use provisions, you’re not prepared to be completely truthful about all criminal conduct.

Preparation is critical before proffer session. Review all relevant facts with your attorney. Identify what you know about crimes and participants. Anticipate what questions prosecutors will ask. Discuss areas where you have knowledge gaps – better to admit you don’t know something than to guess and be accused of lying later. Consider whether you’re willing and able to cooperate fully if government offers cooperation agreement. Partial cooperation that stops short of testimony has limited value. Your attorney should negotiate proffer agreement terms before session. Push for narrower use provisions if possible: limiting derivative evidence use, limiting sentencing use, specifying no recording of session, defining scope of topics covered.

Todd Spodek has defended federal criminal cases throughout his career, negotiating proffer agreements and preparing clients for proffer sessions. Proffer agreements provide limited protection while allowing cooperation exploration, but carry significant risks requiring careful evaluation and preparation. When facing federal investigation and considering cooperation, call 212-300-5196 for counsel who understands proffer dynamics and protects your interests.