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Proffer Agreement in a Federal Criminal Case

Posted by Dmitry Gorin | Mar 23, 2020 | 0 Comments

In some federal criminal cases, it might be in the defendant's best interest to cooperate with the prosecutor. For example, the evidence against them is so strong that it can't be reasonably challenged, such as a case where the illegal conduct was recorded by undercover federal law enforcement agents.

Another example of when cooperation could be the best strategy includes a situation where a defendant is facing significant risk of taking their case to a trial. In other words, if convicted at trial, they could be facing several legal consequences. However, if they cooperate with the government, they might receive substantial credit in exchange for their decision to cooperate.

Proffer Agreement in a Federal Criminal Case

In some cases, cooperation with the prosecutor could mean they won't be charged with a federal crime, or they would face reduced charges that carries much lower penalties, or even to jail time. In federal criminal cases, cooperating with the government is commonly known as a proffer agreement, interview, proffer letter, or a “Queen for a Day” letter.

A proffer agreement is a written contract between a federal prosecutor and defendant, or a person under a criminal investigation, where they will make an agreement to give the prosecutor useful information. Their statements won't be used against them later in a criminal proceeding.

Most proffer agreements allow the prosecutor to introduce statements that were made during plea negotiations if a defendant's testimony was not consistent with their statements, or if the defense lawyer attempts to challenge evidence that contradicts their statements. In other words, the statements will be used to impeach the defendant.

To give readers a better understanding of a proffer agreement, our federal criminal defense lawyers are providing a detailed overview below.

Purpose of a Federal Proffer Interview

Under Rule 410 of the Federal Rules of Evidence, it states the following:

“Statements made during any plea discussions with a lawyer who has the authority to prosecute, if the discussions didn't result in a guilty plea, are not admissible against a defendant who made the plea or who participated in plea discussions.”

In simple terms, a proffer interview is a meeting between a criminal defendant, or someone under investigation. Normally, this meeting will be conducted at the U.S. Attorney's Office. During the meeting with the federal prosecutor and law enforcement agents, the defendant has their own legal representation.

This meeting is usually covered with a limited immunity agreement where the primary purpose is to exchange with the prosecutor verbal or written documentation, such as records or other material that could be useful to the prosecutor.

During the meeting, the defendant is expected tell the prosecutor all the information they know about the federal offense under investigation and anyone else who is involved. They are also expected to tell the truth without omitting relevant information about the case.

They are also expected to not make any attempts to minimize their own involvement and overly exaggerate criminal behavior by other in the investigation. In other words, a defendant should not be under the impression that the interview is a golden opportunity to place primary blame on other people and give the impression they are just a victim who has been falsely accused.

Typically, a proffer is made with the understanding the prosecutor will either grant them immunity or offer a favorable plea bargain. Frequently, a federal prosecutor won't even offer immunity or a plea bargain without a proffer in place.

It's not unusual for disagreements to come up later about the specific terms of the immunity or plea bargain offered.  This means it's crucial for the defendant's attorney and prosecutor to reach an agreement about what the defendant is likely to receive in an anticipated plea agreement.

Risks of a Federal Proffer Agreement

In a situation where it is later revealed that the information that was provided during the proffer not consistent with evidence, arguments, or information that was received from other witnesses, then the proffer statements could be used against the defendant or suspect at trial.

The prosecutor can use the proffer information to challenge the information that might be offered by a witness for the defendant in order to impeach them during a cross-examination.

If this happens, the prosecutor will then use proffer information as evidence against the defendant at their trial. Also, they could even use the proffer information at the sentencing hearing if the defendant breaks the terms of the agreement.

During a proffer interview, the prosecutor will normally tell the defendant or suspect that if they decide to make false statements or omit relevant information, they could face charges of making false statements to federal agents defined under 18 U.S.C. 1001.

Benefits of a Federal Proffer Agreement

It should be noted that a proffer agreement is not a guarantee or a complete immunity against facing federal criminal charges, rather an agreement for a certain level of immunity.

A proffer agreement is frequently an opportunity for a cooperating defendant or suspect to be eligible for a favorable sentencing recommendation.  As stated, if a defendant decides to enter into a proffer agreement, the prosecutor will make an agreement to give the defendant many crucial benefits in exchange for receiving important information about the case.

Typical proffer agreements will clearly explain there are no solid promises about the outcome of their criminal case, but they will agree not to use proffer information against them except in limited situations.

The prosecutor will also usually agree that if the defendant is charged with a federal offense and convicted, they won't make an attempt to enhance the offense level on any statements that were made during the proffer interview.

It should be noted, however, the prosecutor could still seek enhancements on information received outside the proffer as described under the United States Sentencing Guidelines.

However, the government can still pursue enhancements for certain facts that exist independently of the proffer as per the Sentencing Guidelines.

Contact our Federal Criminal Attorneys for Help

Suppose you are a criminal defendant or a suspect in a federal criminal investigation and might be seeking to cooperate with the prosecutor or federal law enforcement agents. In that case, you will need an experienced federal criminal defense lawyer who understands proffer interviews and can provide crucial information about whether you should enter into such as agreement with the government.

Our dedicated and experienced legal team will review your case in order to determine whether a proffer agreement is in your best interest.

Eisner Gorin LLP is a top-ranked criminal defense law firm representing clients throughout the United States against all types of federal charges. We are located at 1875 Century Park E #705, Los Angeles, CA 90067 and 14401 Sylvan St #112 Van Nuys, CA 91401. Contact our office for a consultation at (877) 781-1570.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...


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