How to Talk Your Way into An Indictment By Speaking With The Government – Lessons From the Federal Cases of Martha Stewart, Michael Flynn, and Others.

As a federal criminal defense attorney, it is almost a cliché that the prudent advice to a client is to remain silent.

If the client does not discuss their case, especially with government investigators or prosecutors, the client cannot make incriminating statements and thereby assist the government in securing a conviction.

As with all rules of thumb, however, this advice is not absolute.  In this article, we will examine a common scenario – the proffer session – in which criminal defense attorneys, particularly in federal practice, advise their clients to sit down with government agents and prosecutors to discuss facts surrounding a criminal investigation.

As we will see, agreeing to a proffer session may be beneficial to the client's interests, but is far from risk-free.

What is a Proffer Session?

A proffer session could be best described as:

• an opportunity to speak with law enforcement about an individual's knowledge of a crime, with;
• the supposed assurance that the individual's words will not be used against them in a criminal proceeding.

This assurance is often reduced to writing in a “proffer letter,” which sets out specifically the government's obligations.

From law enforcement's perspective, a proffer session is an important investigatory tool. From the defense attorney's client's perspective, it is an opportunity to either:

• clear the client's name or, if an indictment is a foregone conclusion;
• to gain valuable consideration such as cooperation credits in sentencing or even complete immunity.

Why Agree to a Proffer Session?

Why would a client facing indictment, much less one who has already been indicted, agree to a proffer session?

A major factor is the substantial discretion enjoyed by prosecutors in:

• choosing which charges to file;
• in offering plea deals which are typically accepted by courts, and;
• in the case of federal prosecutions, to offer cooperation credits at sentencing.

Opportunity to gain information 

On the other side of the table, the government's motives for agreeing to a proffer are straightforward.  The government is hoping to gain information it does not currently possess.

This could be information implicating un-indicted co-conspirators or implicating co-defendants in additional conduct about which the government previously possessed insufficient evidence.

Witness or suspect? 

Before agreeing to a proffer session, the competent criminal defense attorney must determine how the government looks at the client:

• is the client a pure witness?
• a pure suspect?
• some combination of the two?

Regardless of the client's status in the government's investigation, what level of safeguards can the lawyer obtain for the client?

Readers will likely be familiar with the constitutional rule requiring a grant of immunity before a witness can be compelled to testify either at the grand jury or at trial over the witness' assertion of the right against self-incrimination under the Fifth Amendment to the U.S. Constitution.

What Is Queen for a Day Immunity?

The immunity granted in a proffer session – often called “Queen for a Day Immunity” – is substantially less extensive.

The proffering client will generally be immunized to the extent that their statements during the proffer session cannot be introduced by the government in its case in chief against the client.

This, however, leaves many pitfalls for the client. The proffer statements can still be used by the government on cross-examination should the client later testify inconsistently.

Derivative use immunity 

More importantly, perhaps, proffer session immunity rarely includes “derivative use immunity,” meaning the government can use the proffer statements to develop other investigative leads, and ultimately use that derivative information to prosecute the client.

Reverse proffer 

For these reasons, a safer procedure in many cases is to first agree to a “reverse proffer,” where the government does the talking and puts some of its evidence on the table for the client and lawyer's review before the decision to cooperate is made.

Several recent case studies illustrate the potentially disastrous consequences of speaking with the government, even in cases where the lawyer and client reasonably believe that the client will not make incriminating statements. Let's examine a few high-profile criminal cases below.

Martha Stewart

Noted lifestyle guru Martha Stewart was friends with Sam Waksal, founder of ImClone, a biopharmaceutical company that developed Erbitux, a potential cancer curing drug with an application pending with the FDA.

Shortly before news of the FDA's rejection of Erbitux became public, Stewart sold her shares in ImClone, thereby avoiding a $51,000 loss.  Stewart and Waksal shared the same stock broker, Peter Bocanovic.

The government's investigation into this potential insider trade revealed that Douglas Faneuil, Bocanovic's assistant, had called Stewart's assistant when he got word that Waksal was selling his stock in ImClone.

However, a federal judge ultimately dismissed the securities fraud charges against Stewart prior to jury deliberations for insufficient evidence.

False statements to government investigators 

As we all know, Stewart served federal prison time, but why?  Her only crime, for which she received 5 months in prison was obstruction of justice by making false statements to government investigators.

Put another way, had Stewart simply remained silent rather than choosing to speak to the government, and lying, she could not have been convicted of any crime.

Scooter Libby

Former Assistant for National Security Affairs to Vice President Dick Chaney, Scooter Libby, was indicted on five counts by a federal grand jury during the investigation of the leak of the true identity of CIA officer Valerie Plame.

Mr. Libby was convicted of four counts:

• one count of Obstruction of Justice,
• two counts of Perjury, and
• one count of making False Statements.

The case was based on false and misleading statements Libby made to FBI agents and to the grand jury that was investigating the leak of Ms. Plame's identity.

After a failed appeal, President Bush commuted Libby's sentence of 30 months in prison, leaving the other parts of his sentence intact.

As a consequence of his conviction, Libby's law license was suspended until being reinstated in 2016.  President Trump fully pardoned Libby in 2018.

As with Stewart, the only provable crime against Libby was the making of false statements.  Had he simply asserted his Fifth Amendment right by refusing to speak with the FBI, and forcing the government to immunize him to compel his grand jury testimony, he likely would have avoided conviction.

Sheriff Lee Baca

Disgraced former Los Angeles County Sheriff Lee Baca was initially brought to trial on charges of:

• Obstruction of Justice, and
• Conspiracy to Obstruct Justice.

The jury returned an 11 to 1 vote to acquit, and a federal judge declared a mistrial.

On retrial, the government strategically added a charge of False Statements of which Baca was ultimately convicted and sentenced to 36 months in prison.

Civil rights abuses in Los Angeles County jail 

When he was interviewed by the FBI, Baca had denied knowledge of the Sheriff's plot to impede a federal investigation into corruption and civil rights abuses at LA County jail facilities.

In other words, the government could not convince a jury that Baca had himself obstructed justice or conspired with others to do so, but it could prove that he lied to the FBI about the state of his knowledge.

Michael Flynn

The recent high-profile litigation surrounding former Trump National Security Advisor Michael Flynn perhaps illustrates best the pitfalls of speaking with the government, even when the client believes they are merely a witness.

Flynn was interviewed by the FBI shortly after beginning his tenure as National Security Advisor regarding the bureau's investigation into potential 2016 election interference.

The record is disputed as to whether the FBI intentionally led Flynn into a “perjury trap,” however what followed from Flynn's conversation with investigators is clear.  During the meeting, Flynn:

• falsely stated that he did not ask a Russian Ambassador to refrain from escalating the situation in response to sanctions that the U.S. had imposed against Russia.
• he also falsely stated that he did not remember a follow-up conversation where the Russian Ambassador stated Russia had chosen to moderate its response to those sanctions as a result of Flynn's request.
• he made false statements about calls he made to Russia and other countries regarding a UN Security Council resolution submitted by Egypt regarding Israeli settlements.
• finally, Flynn made false statements in his FARA (Foreign Agent's Registration Act) filings, on behalf of his company the Flynn Intel Group, Inc. regarding his contacts with foreign governments, specifically Turkey.

Motion to withdraw guilty plea

Flynn's guilty plea has been subject to voluminous litigation.  His new counsel moved to withdraw his guilty plea, partly on the basis that the prosecutors improperly withheld from him evidence that should have been produced during the plea discussions including the FBI memorandum of interview.

The Justice Department has since moved to dismiss the case, and the trial judge appointed his own counsel to litigate the trial judge's right to decide whether:

• he has the authority to decide to dismiss the Indictment, or
• whether he must agree with the Justice Department's decision to dismiss the case.

A three-judge appellate panel held that the Judge did not have the authority to decline to dismiss, but an en banc D.C. Circuit Court of Appeals held that he did.

The case is now back before the trial judge who will evaluate the motives of the Justice Department in their decision to dismiss the indictment.

Why Michael Flynn should have remained silent 

Whatever the reader's view of the political wrangling's surrounding Flynn's prosecution, the lesson for defense counsel is clear.

Had Flynn remained silent, his attorneys would have had strong arguments that none of Flynn's underlying conduct could be shown to be criminal beyond a reasonable doubt.

Much of the conduct would not even constitute a crime but for the lies to investigators. Flynn likely considered himself a witness, rather than a target, and believed the investigators questioning him were playing for the same team.

Proffer Sessions Are a Valuable Tool in Federal Criminal Cases

What is the takeaway from these case studies for the criminal defense practitioner?  Proffer sessions remain:

• a valuable tool to securing cooperation credit at sentencing, or
• avoiding the filing of more serious charges.

In the case of a client who is clearly guilty and facing a prosecutorial agency in possession of overwhelming evidence of that guilt, proffer may be the best or even the only option for mitigating the consequences to the client.

In many other cases however, the state of the government's evidence is more ambiguous.

Competent counsel must balance the potential benefits of proffer with the very real possibility that the client, by being less than completely truthful, will talk his or her way into an indictment which might otherwise have been avoided completely.

Eisner Gorin LLP are nationally recognized federal criminal defense lawyers that represent clients in California and throughout the United States. Our law firm is located at 1875 Century Park E #705, Los Angeles, CA 90067. Contact our office to review the details of your case at (877) 781-1570.

Related Content:

• Right to Invoke the Fifth Amendment in a Federal Case
• What If a Federal Prosecutor Offers You Immunity?