I teach a continuing legal education class on defending white-collar criminal cases. When I developed the curriculum, I quickly realized that one of the class’s main goals was to teach everyone the lingo of being a white-collar defense lawyer.
This is no small task.
Like every practice area, white-collar work has its own special vocabulary. There are terms of art that make no sense unless you practice in the area. I’m sure ERISA lawyers have their jargon as do tax lawyers and estate planning lawyers.
One of the main topics of the class is proffers. There are several types of proffers but we’re going to focus on reverse proffers here.
Three Types of Proffers–The Basics
First are simply proffers. That is when you bring in your client to talk directly to the government. This is a Very Big Deal, since it likely requires considerable negotiation over your client’s immunity status (transactional immunity, queen-for-a-day immunity). Client proffers put your client in the riskiest position since the proffer could go south and your client’s words could be used against him. The government will ask questions; your client will answer them.
Second are attorney proffers. This is when you talk to the government without your client present. It’s usually the step before a client proffer since it gives the government a way to learn what your client will say down the road without having to negotiate all of the immunity issues. It also gives you as the lawyer a chance to (hopefully) influence the government’s view of your client. During an attorney proffer, you will make some sort of presentation—formal or informal— to the prosecutor but you’ll also try to answer the prosecutor’s questions.
Third are reverse proffers. Reverse proffers are a different animal altogether. In a reverse proffer, the government does the talking. A reverse proffer usually happens only when your client is a target but can also happen if your client is a “subject trending target” (read: he’s damn close to be a target, so you better cooperate).
What Happens During a Reverse Proffer
During a reverse proffer, the government lawyers will go through the case they have developed, talk about the evidence they have gathered and explain what charges they are considering. Often, they will show you documents that support their case. In a complex case, there may be a PowerPoint presentation. They will rarely disclose specific witness names but the government will often discuss generally the fact that it has convinced other witnesses to cooperate and what kind of evidence they have from those witnesses.
The presentation will also include the government’s analysis of how your client’s conduct fits into the legal standard, and what kind of penalties the government will seek if the case goes to trial.
The purpose of a proffer is usually to convince a target to plead guilty. I’ve been in situations where a reverse proffer has been used to try to convince my client to plead guilty to a minor offense and cooperate with the government to bring much more serious charges against the “real” target of the investigation.
Will Your Client Be Present?
Sometimes your client will participate (if invited by the government) and sometimes your client will not participate. If your client is there, you have to be sure that he can keep quiet, maintain a poker face and not exhibit any troubling behavior or body language. Personally, I prefer to have a reverse proffer without my client present because then I don’t have to worry about my client’s reaction. I don’t want the government knowing that my client is scared out of his mind. But sometimes the government wants the client there so the client can hear the evidence directly.
A reverse proffer may give a client a “reality check” if he has been completely unwilling to admit that he faces liability. This can be helpful, I suppose, but it’s not why I bring a client to a reverse proffer. I want to be the one sending that message and explaining the risks—not leaving it to the government.
Reverse Proffers: Good or Bad?
I find reverse proffers incredibly helpful, but with certain limitations. They are helpful because the government will lay out most of its case for you. In essence, you’ll hear the government’s opening statement and it will give you a chance to figure out where to focus your defense. Plus, in a case where the government has your guy dead to rights, it’s a chance to start the plea negotiation process.
There are limitations of a reverse proffer that you need to consider. First, the prosecutor is trying to convince your client to plead guilty, so she is not going to offer a “fair and balanced” description of the evidence. You will hear all of the bad evidence and see all of the bad documents. The prosecutor is not going to highlight the email your client sent that undercuts the evidence of intent, or the communication with in-house counsel where your client get the sign-off from the lawyers.
Second, a reverse proffer comes early in the case, certainly before indictment. This means that you haven’t received any Rule 16 discovery or Brady disclosures yet. You are a long way away from getting Jencks material. So you are working from a disadvantage as far as information goes. The government is in a much stronger position. (See my earlier post on the negotiating power of information.)
Third, there’s often no way to “look behind the curtain” to find out if the government’s representations about witnesses are true. Unless you have a joint defense group that includes all the relevant witnesses and can find out what those witnesses have said to the government, there’s no way to check to see if the witnesses the government claims to have are actually as strong as the government claims.
I’m not suggesting that the government lawyer will lie about a witness but there’s a strong incentive to represent that a witness has really bad things to say about your client when, in fact, the witness’ testimony may not be quite that damaging when subjected to cross-examination. Certainly, the prosecutor is not going to explain that a witness has credibility issues.
How to Take Advantage of a Reverse Proffer
Strategically I try to do a few things before and during a reverse proffer.
- Talk to other lawyers for other subjects or targets who have already participated in a reverse proffer. This keeps me from being completely surprised during the reverse proffer.
- Conduct research by talking to my client ahead of time, looking at his documents and researching the law. This lets me understand if the prosecutor is blustering or not.
- Prepare my client if he’s attending the proffer–to stay calm, avoid reactions to the prosecutor’s statements and so forth.
- Listen, listen, listen. That’s the hardest thing for lawyers—myself included—to do. You need to listen to what the prosecutor is saying. Now is not the time to convince the prosecutor of the merits of your defense.
- Take a lot of notes during the proffer session. Write down everything you can.
- Copy quotes from documents you haven’t seen before, including dates, bates numbers and recipients.
- Ask for a copy of the documents at the end of the session (the prosecutor always says no).
- Draft a detailed memo of the proffer right after the meeting when it is fresh in your mind.
After the Proffer
After the session, I have a conversation with my client. This can be a tough conversation because we start talking about whether a plea makes sense and whether my client can afford to go down the path of a full defense. I don’t let my clients make up their mind about pleading right after the reverse proffer, unless there is a great plea deal on the table and some reason for a quick decision.
There’s no getting around the fact that when you leave a reverse proffer session, it is likely with a pit in your stomach. This is the same feeling you get after you hear the government’s opening statement at trial. It’s important to keep in mind that your job is investigate what the government is saying and not simply take it at face value.
Good prosecutors invite reverse proffers because they have built a strong case. Be cautious, however, because some prosecutors use a reverse proffer to bluster and oversell their evidence. (This is why having a strong network of fellow defense lawyers is key: you can get some intel on your prosecutor.)
As a general rule, there’s no downside to participating in a reverse proffer. I’ll certainly learn a thing or two about the government’s case that I didn’t know before. Information is power. After a reverse proffer, I’ll have a road-map to the government’s case, but the government doesn’t have a road-map to my defense.