Proffer Agreement Child Pornography

Proffer Agreement Child Pornography – What Happens When You Talk

The proffer agreement in a federal child pornography case is designed to help you. That’s what everyone says. It’s called “Queen for a Day” – you sit down with prosecutors, tell them everything, and in exchange they promise not to use your words against you at trial. Sounds like a good deal. It’s not. The proffer agreement is one of the most dangerous documents you can sign in federal court, and in child pornography cases specifically, it can transform a bad situation into an absolute catastrophe.

Welcome to Spodek Law Group. We’re putting this information on our website because defendants facing federal child pornography charges need to understand exactly what a proffer agreement does – and more importantly, what it doesn’t do. The protections are illusory. The exceptions swallow the rule. And in CP cases with mandatory minimums, the math often doesn’t work out the way defendants hope. Todd Spodek has represented clients who proffered expecting cooperation credit and discovered that their own admissions made their sentences dramatically worse. We want you to understand the reality before you sign anything.

The fundamental problem with proffer agreements is this: the government promises not to use your statements “directly” against you at trial. But trial isn’t where federal cases are decided. Sentencing is. And at sentencing, your proffer provides absolutely zero protection. Every admission you made, every crime you confessed to, every piece of conduct you disclosed – all of it gets used to calculate your guideline range. You came in hoping to help yourself. You walked out having handed the government everything they needed to bury you.

What a Proffer Agreement Actually Is

They call it “Queen for a Day” like your being given special treatment. Your not. Your being given the opportunity to incriminate yourself under controlled conditions.

A proffer agreement is a written contract between you and the federal prosecutor. You agree to sit down with investigators and tell them everything you know about the alleged offense. In return, the government promises – and this is important – not to use your statements directly against you in their case-in-chief at trial. Thats it. Thats the entire protection.

Heres what that protection dosent include. It dosent cover derivative use – meaning the government can follow every lead your statements provide, discover new evidence, and use that evidence against you. It dosent cover impeachment – meaning if you testify at trial and say anything that contradicts your proffer, the entire proffer becomes admissible to destroy your credibility. It dosent cover sentencing – meaning everything you admitted gets used to calculate your offense level. And it dosent cover false statements – meaning if the government decides you lied, the agreement is void and everything becomes directly admissible.

Read that list again. The “protection” is that they cant quote your exact words in their opening statement. Everything else is fair game.

The proffer agreement is not immunity. Its not a plea deal. Its not a promise of leniency. Its an opportunity for you to talk while the government decides wheather your useful enough to deserve anything in return. And in child pornography cases, “useful” has a very specific meaning that often dosent apply.

The Derivative Use Loophole

Heres how derivative use destroys defendants. You sit down for your proffer. You admit that you downloaded images from a particular website on particular dates. You think your just confirming what they already know. Your not.

The government takes that information and follows the lead. They contact the website. They subpoena records. They discover that your account accessed the site 47 more times then they knew about. They recover 200 additional images from the servers records. They identify three more victims.

All of that evidence – discovered because of your proffer – is fully admissible against you. Not as impeachment. Not at sentencing. At trial. In the governments case-in-chief. Becuase you didnt tell them the evidence. You told them where to look for the evidence. And derivative use is completly unrestricted.

The proffer agreement actualy says this. It says the government may pursue any investigative leads suggested by your statements. It says derivative information may be used in any future criminal proceedings. Your signing a document that explicitly authorizes the government to use your information against you – just not your exact words.

Think about what that means in a child pornography case. Every image has metadata. Every download has a timestamp. Every file has a hash. Your proffer dosent just tell them about the images you admit to. It tells them were to find more. And when they find more, they charge you with more.

How Your Proffer Destroys Your Sentence

Heres the paradox that nobody explains untill its to late. The proffer agreement protects you at trial. But you probly arent going to trial.

Federal conviction rate is over 93%. In child pornography cases, its even higher. Most defendants plead guilty. Most cases are resolved at sentencing. And at sentencing, your proffer provides absolutely zero protection.

Federal sentencing dosent just consider the counts your convicted of. It considers “relevant conduct” – all criminal activity that was part of the same course of conduct, same scheme, same pattern. Even uncharged conduct. Even conduct from years ago. Even conduct no one else was prosecuted for.

Your proffer expands the universe of relevant conduct. You came in being prosecuted for possessing 50 images. During your proffer, you admit that you’ve been downloading for three years. You admit there were probably 500 images total. You admit you shared some with online contacts. You think your being honest. You think honesty will help you.

At sentencing, the judge reviews your proffer transcript. Not for impeachment – for sentencing calculation. Your 50-image possession case is now calculated based on 500 images and distribution. The base offense level is higher. The enhancements are worse. The guideline range doubles or triples.

Defendants who expected 5-7 years walk out with 15. Becuase they proffered. Becuase they told the truth. Becuase nobody explained that the “protection” dosent apply to the part of the case that actualy matters.

The Truth You Don’t Get to Decide

Heres the trap within the trap. The proffer agreement requires you to tell the truth. But you dont get to decide whether you told the truth. The government decides.

If the prosecutor concludes that you lied – even about something minor, even about something you genuinly misremembered – the proffer agreement is void. Everything you said becomes directly admissible. The “protection” disappears completly.

And it gets worse. Making false statements to federal investigators is a seperate federal crime under 18 USC 1001. Up to 5 years in prison. This charge dosent require that you intentionally lied. It covers statements you “should have known” were false. If the government can show you had access to documents that would have revealed the truth, thats enough.

Memory mistakes become federal crimes. You sit in a proffer session for hours. Your asked about events that happened years ago. Your nervous, your exhausted, your trying to remember details about something you want to forget. You get a date wrong. You confuse one website with another. You estimate a number that turns out to be too low.

Thats a federal crime. Five additional years. On top of everything else.

And heres the uncomfortable truth. Your statements arent recorded verbatim. FBI agents take notes and write a summary called a “302.” When prosecutors decide wheather you were truthful, they compare your testimony to the 302 – not to your actual words. The agents interpretation of what you said becomes the official record of what you said. If there’s a discrepancy, your the one who lied.

Why Proffering in CP Cases is Different

Child pornography cases have mandatory minimum sentences. This changes the cooperation math completly.

Production of child pornography carries a 15-year mandatory minimum for first offense. Not a guideline recommendation. Not a suggested range. Fifteen years that no judge has discretion to reduce. Distribution, receipt, and transportation carry a 5-year mandatory minimum. If you have a prior conviction, that jumps to 15 years.

These are among the longest mandatory minimums in the federal criminal code outside of murder.

Heres why this matters for proffering. The purpose of cooperation is to get a 5K1.1 motion – the governments recommendation that the judge can sentence you below the guideline range, even below the mandatory minimum. Average cooperation credit is 35-45% sentence reduction.

But the government has to file that motion. You cant file it yourself. And the government dosent have to file it even if you cooperate fully. There’s no guarantee. You can tell them everything, testify against co-defendants, hand over every piece of evidence – and still get nothing.

Now consider the math. Your facing 15 years mandatory minimum for production. You proffer hoping for cooperation credit. The cooperation falls through – maybe the target you were supposed to testify against pleads out, maybe the government decides your information wasnt valuable enough, maybe they just dont file the motion. Now your back to 15 years minimum. But during your proffer, you admitted to additional conduct. That conduct expands your relevant conduct. Your guideline range is now HIGHER then it was before you proffered.

You tried to help yourself. You made it worse. And you cant take it back.

When Your Own Defense Becomes Impossible

Heres the irony that should make you pause. The proffer agreement effectively eliminates your ability to present a defense at trial.

Think about what happens if cooperation dosent work out and you go to trial. You have two choices. Testify in your own defense, or dont testify.

If you testify, the government compares everything you say to your proffer. Any inconsistency – even a minor detail that could be explained by memory or stress – allows them to introduce your entire proffer. Your trying to say “I didnt know those files were on my computer” and the prosecutor pulls out your proffer transcript were you admitted you downloaded them. Your defense collapses.

If you dont testify, you lose the chance to tell your story. The jury only hears the governments version. You cant explain your side.

This is why experienced defense attorneys describe proffer agreements as eliminating the right to present a defense. Federal circuit courts have upheld these agreements despite this effect. The courts acknowledge that proffering essentially takes away your ability to testify, and they approve anyway.

Your attorney may find herself unable to contest key portions of the governments case, unable to cross-examine certain witnesses, unable to put you on the stand – all becuase your proffer would come in and destroy you. The agreement you signed hoping for leniency becomes the weapon that prevents you from fighting.

The Cooperation Credit Gamble

OK so lets talk about when proffering might actualy make sense. Becuase its not always wrong. Its just almost always wrong.

Cooperation credit through a 5K1.1 motion can reduce sentences dramatically. 30-60% reductions are common. In cases involving large-scale distribution, cooperation credit has reduced 30-year sentences to 10 years or less. Thats real. Thats meaningful. Thats the reason defendants proffer despite everything I’ve explained.

But heres what the cooperation credit requires. First, your information has to be valuable to the government. That means you have to know something they dont know. In many child pornography cases, defendants are end-users. They downloaded images. They dont know who produced them. They dont know other defendants. They have nothing to trade.

Second, your cooperation has to lead to arrests, convictions, or sentences of other people. The government dosent give credit for information that dosent help them prosecute someone else. If your just admitting your own conduct, thats not cooperation – thats confession.

Third, the government has to actualy file the motion. Judges consider how helpful your assistance was, wheather you were truthful, how complete your information was, wheather your at risk of injury from cooperating. But the government controls wheather you even get to that stage.

And fourth, even with cooperation credit, mandatory minimums are mandatory. The 5K1.1 motion allows the judge to go below the guideline range and below the mandatory minimum. But if the government dosent file it, you get neither.

The FBI 302 Problem

Theres something technical you need to understand about proffer sessions. Your words arent recorded the way you say them.

During your proffer, FBI agents take notes. After the session, they write up a summary called a “302.” This document becomes the official record of what you said. Its not a transcript. Its not a recording. Its the agents interpretation of your statements.

Heres why this matters. When the government decides wheather you were truthful, they compare your statements to the 302. When they decide wheather to void the agreement, they compare your trial testimony to the 302. When they calculate wheather your cooperation was valuable, they review the 302.

You dont get to review the 302 before its finalized. You dont get to correct misunderstandings. The agents interpretation of what you said becomes what you said.

Ive seen cases were defendants clearly said one thing and the 302 recorded something different. Not deliberately falsified – just heard differently, interpreted differently, summarized differently. That discrepancy becomes evidence that you lied. The agreement voids. Your statements become admissible.

This is the system your trusting with your freedom.

What You Should Actually Do

If your facing federal child pornography charges and prosecutors have offered a proffer, heres the question you need to ask. Not “will this help me.” Thats the wrong question.

The right question is: “How much worse could my sentence get if the cooperation dosent work out?”

Run the math. What are you charged with now? Whats the guideline range? Whats the mandatory minimum? What additional conduct might you reveal during the proffer? How would that conduct affect your guideline calculation? What happens if the government dosent file the 5K1.1 motion?

If the answer is “my sentence could get significantly worse,” you need to think very carefully about wheather the potential benefit is worth the risk.

Heres the inversion that experienced federal defenders understand. The proffer agreement dosent exist to help you. It exists to help the government gather information. They’ve designed a document that convinces defendants to confess under the illusion of protection. The exceptions swallow the rule. The “protection” at trial dosent matter when sentencing is what counts. And in CP cases with mandatory minimums, the cooperation credit you hope for may be impossible to achieve.

Todd Spodek dosent tell clients wheather to proffer. He explains exactly what proffering means, what the risks are, what the realistic outcomes look like. Then clients make informed decisions. Thats what representation means.

Call Spodek Law Group at 212-300-5196. Before you sign anything. Before you sit down with prosecutors. Before you say a single word that cant be taken back. The consultation is free. The mistake of proffering without understanding the consequences isnt.

Dual Sovereignty – The Risk Nobody Mentions

Heres another trap that defendants dont consider. Federal and state governments are separate sovereigns. Double jeopardy rules prevent multiple prosecutions by the same sovereign – but not by different sovereigns.

What does this mean for your proffer? The information you provide to federal prosecutors might also be relevant to state prosecutors. The federal agreement dosent bind the state. You could proffer to resolve your federal case and discover that state prosecutors have opened their own investigation based on what you revealed.

In child pornography cases, both federal and state laws typically apply. Federal jurisdiction exists because the internet constitutes interstate commerce. But state laws against possession, distribution, and production also apply. Your cooperative federal proffer becomes a roadmap for state prosecution.

And state sentences can be consecutive to federal sentences. Your hoping to reduce your federal exposure and you end up adding state exposure on top. The proffer that was supposed to help you created an entirely new case against you.

This is why experienced federal defense attorneys coordinate with state counsel before any proffer. The risks extend beyond the federal system.

The Timing Decision

When should you decide about proffering? Most defendants face pressure to decide quickly. Prosecutors suggest that early cooperation is valued more highly. Theres truth to this – the earlier you cooperate, the more useful your information tends to be.

But theres a counter-argument that matters more. Defendants who proffer before fully understanding the governments evidence often reveal information unnecessarily. They dont know what prosecutors already have. They admit to things that might never have been discovered. They fail to appreciate the strength of potential defenses.

The pressure to decide quickly serves the government, not you. They want your information before you understand your situation. They want you talking before your attorney has reviewed discovery. They want cooperation before you realize you might have a defense.

Take the time to understand what your facing. Review the evidence. Assess wheather the government can actualy prove the charges. Understand what mandatory minimums apply. Calculate your guideline range with and without proffer admissions.

Only then can you make an informed decision. The government will still accept your cooperation later. It might be worth slightly less. But an informed late proffer is better then an uninformed early one that destroys your case.

The Bottom Line

The proffer agreement in a federal child pornography case promises protection it dosent deliver. It exposes you to derivative use, impeachment, sentencing enhancement, and false statement charges. It eliminates your ability to present a defense at trial. And in CP cases with mandatory minimums, the cooperation credit you hope for may not be legally achievable.

Before you proffer, understand exactly what your giving up. Becuase once you talk, you cant untalk.