By Jay V. Surgent, Esq.
The prosecutor has asked, through your lawyer, whether you would come in and talk. The meeting has a name, the proffer, and a letter comes before it. Read the letter twice.
What the Letter Says
The government agrees not to use your statements in its direct case against you. That is the whole of the protection, and the rest of the letter takes pieces of it back.
The government may follow any lead your statements give it and use whatever it finds. It may use your statements to cross-examine you if you testify differently at trial. In most districts the letter goes further and allows the government to use them to rebut any evidence or argument your lawyer offers that contradicts them. A false statement in the room is a crime under 18 U.S.C. § 1001.
Without the letter, Rule 410 of the Federal Rules of Evidence would keep statements made in plea discussions out of court. The letter waives that protection in part. The Supreme Court held in 1995 that a defendant who signs such a waiver knowingly and voluntarily is bound by it, and courts enforce them.
Lawyers call the proffer letter a queen-for-a-day agreement. The nickname overstates the protection by a wide margin.
What the Government Wants From it
The prosecutor already has a view of the case. The proffer tests you against it. He wants to know whether you will tell the truth about things he can already prove. He wants to know whether you know things he cannot prove, and whether you would hold up as a witness.
From that meeting he decides whether you are a witness, a subject who can be left alone, a cooperator, or a defendant. The meeting rarely changes his mind about the documents. It changes his mind about you.
What it Costs You
Every defense that contradicts what you said in the room is gone. You cannot testify to a different account at trial without the proffer coming in. Your lawyer cannot argue a theory you contradicted without opening the door. You have handed the government a map of what you know, who you know, and where the records are.
A proffer that goes badly leaves you worse off than silence. A proffer that goes well leads somewhere only if the government decides it does.
The proffer makes sense in a narrow set of cases. Your lawyer already knows what the government has. You intend to tell the whole truth. And there is a clear goal, usually cooperation, or persuading the prosecutor that you are a witness rather than a target.
The Attorney Proffer Comes First
Before you sit down, your lawyer can proffer for you. He describes, in the hypothetical, what you would say if you spoke, and he listens to what the prosecutor says in return. Nothing in that conversation binds you, and most of the useful exchange of information should happen there.
Sometimes the government offers a reverse proffer instead, where the prosecutor shows your lawyer, and sometimes you, the evidence it has. That meeting costs you nothing and tells you a great deal.
In the Room
Your lawyer sits beside you. The prosecutor and the agents ask the questions, and an agent takes notes that become the government’s record of what you said. You may stop and confer with your lawyer at any point.
Answer the question asked and nothing more. Say that you do not remember when you do not. Never guess, never round a number, never fill a gap to be helpful. Never minimize your own part, because the agents are measuring your answers against documents you have not seen, and minimizing reads as lying.
After
If the government wants your cooperation, the cooperation agreement will usually require a guilty plea and truthful testimony whenever the government asks for it. In return, at sentencing the government may file a motion under § 5K1.1 of the Sentencing Guidelines stating that you provided substantial assistance. That motion lets the judge sentence you below the guideline range and below any mandatory minimum. Rule 35 allows the same motion after sentencing for help that comes later.
If the government does not want a deal, your statements stay in its file under the terms of the letter. The case goes on, with the government knowing more than it did.
Jay V. Surgent, Esq., is the Co-Managing Partner of Weiner Law Group LLP and the Chairman of its Criminal Litigation Department. He has conducted numerous criminal, civil, and administrative hearings and trials to verdict, and he represents individuals under federal investigation or indictment. This article is general information, not legal advice, and does not create an attorney-client relationship. His cell number is 973-580-8042.