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The Hidden Dangers of Federal Proffer Agreements
The Contract Before the Conversation
The proffer agreement is the only document in federal criminal practice that requires a person to relinquish the Fifth Amendment privilege in exchange for protections that three decades of appellate decisions have reduced to near formality. The name persists. The shelter it implies does not.
What the agreement promises, in most United States Attorney’s offices, is that the government will not use a defendant’s statements in its case in chief at trial. What it obtains, before the first question is asked, is a waiver of Federal Rule of Evidence 410, a waiver of Federal Rule of Criminal Procedure 11(e)(6), and consent to derivative use, impeachment, rebuttal, and sentencing use of everything the defendant says in that room. The proffer letter runs to four or five pages. The protections occupy a single paragraph. The waivers occupy the rest.
In Kastigar v. United States, the Supreme Court held that use and derivative use immunity was coextensive with the Fifth Amendment privilege and sufficient to compel testimony. A proffer agreement does not offer Kastigar protection. It offers something narrower, shaped by clauses that the person signing it rarely comprehends until those clauses have constrained the defense at trial.
The Scope of the Waiver
In 1995, the Supreme Court in United States v. Mezzanatto held that a defendant could waive the protections of Rule 410 and Rule 11(e)(6), which otherwise exclude plea discussion statements from evidence. The Court’s reasoning rested on the general presumption that evidentiary rights are waivable unless Congress indicates otherwise. The holding addressed only impeachment use. What followed from it addressed everything else.
The Second Circuit, in United States v. Velez, extended the principle to permit the government to introduce proffer statements to rebut any evidence or argument offered by the defense, including testimony from defense witnesses and arguments raised by the court on its own motion. The Seventh Circuit and the D.C. Circuit have permitted case in chief use of proffer statements where the defendant is found to have breached the agreement. The breach determination belongs to the prosecution. What constitutes a breach remains a question on which the case law provides less certainty than the situation demands.
The entire architecture of the proffer, from the waiver clause to the derivative use exception, is constructed to extract the maximum informational value from a person who has been told, in writing, that the information will be protected. That sentence belongs at the end of this article, but it appears here because the detail should not obscure the structure.
We read the waiver provisions as permitting the government to accomplish, through contractual language, what the rules of evidence were designed to prevent. Prosecutors in most districts will not conduct a proffer session without the waiver. Justice Souter, dissenting in Mezzanatto, noted that standard forms already required these waivers before prosecutors would enter plea discussions, and that defendants were in no position to challenge the demand. That observation has only grown more accurate in the intervening years.
The practical consequence for a defendant who signs the agreement and then proceeds to trial: the defense cannot contradict the proffer without opening the door to the prosecution’s use of the defendant’s own statements. Defense counsel may find herself unable to call certain witnesses, unable to pursue certain lines of cross examination, unable to place the defendant on the stand. It limits the defense to arguments that do not conflict with what the defendant told the government in a conference room, under pressure, months or years before trial.
Whether this amounts to the “waiver of the trial itself” that Souter predicted is a question worth considering.
Derivative Use
The proffer agreement’s protections cover direct use of the defendant’s statements. They do not cover the investigative value of those statements, and the investigative value is where the damage accumulates.
A defendant who discloses during a proffer session that a co-conspirator attended a particular meeting, or that financial records reside at a particular address, or that a conversation occurred on a particular date has provided the government with a set of leads. The government cannot quote the defendant’s words at trial. It can, and does, pursue every lead those words suggested, obtain evidence through independent investigation, and introduce that evidence without restriction. Kastigar requires the prosecution to demonstrate that evidence was derived from a source independent of the immunized testimony. Most proffer agreements include a clause in which the defendant waives this Kastigar protection, and the government is relieved of the burden entirely.
The proffer session functions, for the government, as a guided discovery mechanism. The defendant provides direction. The government follows it. The evidence obtained at the destination carries no connection to its origin.
Four proffer sessions this year, in matters our office reviewed, produced information that the government conceded it would not have obtained through independent investigation. In each instance, the derivative evidence formed the center of the prosecution’s trial presentation. The defendant’s own statements were never introduced.
Overlapping Investigations and the Limits of the Letter
A proffer agreement binds the office that issued it.
Federal investigations now overlap with state investigations, with investigations conducted by other United States Attorney’s offices, and with inquiries by foreign authorities, with a regularity that would have been unusual fifteen years ago. A defendant who proffers to one district has no protection from another district, no protection from the state attorney general, and no protection from a foreign regulator that obtains access through mutual legal assistance treaties or through less formal channels of communication.
The letter does not address this gap because the signing office cannot bind other sovereigns or other federal offices. The session generates a record. Agents take notes. Prosecutors memorialize the substance. That record exists within the Department of Justice, and the question of whether proffer materials migrate from one office to another is not governed by the proffer agreement but by internal policies that provide the defendant no enforceable protection.
I am less certain about this risk than the preceding sections might suggest. The case law on cross-office use of proffer materials is underdeveloped, and the few district court opinions that have addressed it reach inconsistent conclusions. What I can say, from having raised the issue in pre-proffer negotiations, is that most prosecutors will acknowledge the concern and decline to include protective language.
In late February, during preparation for a proffer in a matter that involved parallel state and federal proceedings, we spent the better part of two hours cataloguing every agency that had, or might acquire, jurisdiction over the conduct at issue. The list extended further than either the client or this office anticipated. The proffer agreement addressed one entry on that list.
Sentencing and Section 1B1.8
Under the United States Sentencing Guidelines, Section 1B1.8 provides that information disclosed during a proffer session shall not be used to determine the applicable guideline range, provided the cooperation agreement or proffer agreement includes such a provision. This limitation is the provision most often cited as a safeguard for defendants who cooperate.
The limitation is real. It is also incomplete.
Title 18, United States Code, Section 3661 mandates that no limitation shall be placed on the information a sentencing court may receive and consider. Proffer statements are disclosed to the probation department during preparation of the presentence investigation report. The sentencing judge receives that report. Since United States v. Booker rendered the guidelines advisory, the guideline range is one factor among several in the determination of sentence. A judge who has read the presentence report and determines that a sentence at the top of the range, or above it, is warranted by the totality of the information, has acted within statutory authority.
The Proffer Room
Most clients who contact this office about a proffer have already received the letter. Some have signed it.
The sequence is familiar enough to describe. An agent or assistant United States attorney contacts defense counsel and proposes a session. The proposal carries a suggestion that cooperation at this stage will be viewed favorably. The client, who may have endured months of investigation and months of waiting, regards the proffer as an opening. The client believes the session will be the moment when the situation can be explained, when the government will recognize that the conduct was not what the investigation suggested.
That belief is incorrect in nearly every case we have seen, though the sample is not scientific and the exceptions may prove instructive. The government does not conduct proffer sessions to hear explanations. It conducts them to obtain information it does not yet possess.
The person who sits across the table in the proffer room (a conference room in the United States Attorney’s office, with agents positioned at one end, a recording device present, the signed letter set to one side as if it were already an artifact of some completed transaction) is not the same person who rehearsed with counsel the night before. The stress of the setting, the awareness that every word carries the weight of 18 U.S.C. Section 1001, the presence of agents who have studied the case for longer than the client has known about the investigation, all of this produces a version of the client who is simultaneously more forthcoming and less precise than counsel prepared for. Memory dissolves under pressure. The rehearsed account gives way to approximation. And approximation, in a proffer session, generates the discrepancies that federal prosecutors were trained to identify.
You sign the agreement and then you discover what the agreement permits.
Our preparation for a proffer session extends beyond reviewing the facts. We reconstruct, to the extent available evidence allows, the government’s existing knowledge. The objective is to determine what the government already possesses and what it hopes to obtain through the session, so that the client’s disclosures do not expand the investigation into areas it has not yet reached. This requires a review of search warrants, grand jury subpoenas, and whatever discovery materials exist, combined with whatever intelligence defense counsel can gather through a joint defense agreement where one is in place. The reconstruction is, if we are being precise, an informed estimate. The government does not reveal its evidence before the session. We proceed with what is available, which is rarely everything.
We also advise clients to address, before any proffer, the following:
- Every prior statement, document, or record that could be characterized as inconsistent with what the client intends to say.
- Every area where memory is uncertain, with a plan to state “I do not recall” rather than approximate.
- Every topic that could direct the government’s attention toward conduct or individuals not yet under investigation.
The distance between a proffer that advances a client’s position and one that damages it is a function of preparation. The session lasts a few hours.
The Consultation
A telephone call to this office begins, and assumes, nothing beyond a conversation. The initial consultation carries no fee and no obligation. What the call accomplishes is an assessment of the investigation’s stage, of the likelihood that a proffer would serve the client rather than the government, and of the specific risks presented by the agreement in question.
Not every client who contacts us should agree to a proffer. In something close to half the matters we review, we recommend against it, either because the government’s case is less substantial than the client has been led to believe, or because the information the client possesses will not generate a cooperation agreement of sufficient value, or because the terms of the proffer letter transfer all exposure to the client without a corresponding benefit that justifies the transfer. The decision requires more information than most clients have when the letter arrives, which is, of course, part of the design.
The federal proffer agreement occupies a position in criminal law that few other instruments share: it is a document of cooperation that operates, structurally, as a mechanism of investigation. The protections it extends are real but constrained, circumscribed by waiver provisions that courts have expanded at every opportunity since Mezzanatto was decided. The person who signs the letter has entered a process governed by rules that favor the government at every significant juncture. The decision to enter that process should be made with full knowledge of what the agreement permits and what it does not. That knowledge is not contained in the agreement itself. It is contained in the case law, in the practice, and in the specific circumstances of the matter at hand.