Federal Investigation – Proffer
“Proffer” is information given by a target/defendant to assist prosecutions or to show the target/defendant’s limited involvement. In federal criminal investigations, “proffers” are sometimes made in order to try to convince the U.S. Attorney not to prosecute. If a person is a target of an investigation, or has been charged, then a proffer might be advantageous. Proffers are also made to minimize the client’s exposure by providing information that shows lesser involvement in criminal activity. Proffers are given pursuant an agreement with the U.S. Attorney for client immunity while in the proffer session. The proffer session allows the client to “open up” and give statements that the attorney would not normally allow.
The proffer agreement is between the U.S. Attorney and the client, represented by his/her attorney. The U.S. Attorney agrees that the answers given from their questions are considered part of plea negotiations. If these are considered plea negotiations, then the substance of the session cannot be revealed beyond the parties. So, the incentive for the government is to obtain information from the client, such as details of transactions. The incentive for the client is to speak without fear of theinformation being used against him/her. The client agrees to truthfully answer all questions asked in the proffer session.
Although federal prosecutors do not normally give immunity to prosecution, a proffer agreement gives limited immunity. The immunity from a proffer agreement is for the subject questions and answers during the proffer session. Again, proffer agreement gives both parties incentives to participate in the proffer session. The client’s proffer may contain information that the prosecution may not be able to obtain otherwise.
Upside to a Proffer
The possible upside to giving a proffer is the possibility of convincing the U.S. Attorney to not charge the client. Alternatively, an upside could be to convince the prosecution that the client’s involvement is less than the prosecution believes.
A proffer has basically two (2) potential downsides.
- The client is “locked in” to his/her answers given to questions in the proffer session. This may not present any problem, presuming the client will tell the truth. Nonetheless, the client may later recall information that he/she left out when answering questions. Note that if a client proffers then later testifies inconsistently, an agent can state client’s answers from the proffer session.
- Although client’s answers cannot be used against the client, the prosecution can use answers to independently develop other evidence. So, you potentially could give the prosecution ammunition against your client, or reveal your trial evidence.
Decision as to Whether to Proffer
The decision to proffer should be made by weighing factors in the investigation. That is, the amount of evidence against the client versus the possible outcome you could achieve by answering questions. If you believe you have a good chance to dissuade prosecution by proffering, or to reduce criminal exposure, then proceed. Never provide statements to investigators or prosecutors in a federal investigation or case without a proffer agreement.
Action in an Investigation
If you are under investigation or have been charged in a federal case, call federal defense attorney John Teakell. Mr. Teakell will evaluate the evidence against you and guide you through a possible proffer, as well as your defense.