Proffer Agreements Can Be Trap Doors

By Sara Kropf

A proffer agreement—or “queen for a day” agreement*—is the shiny fruit tart of the white collar defense world. It looks so lovely and perfect in the bakery window, but after your first bite, you realize that it tastes awful.**

Proffer agreements look good, too. After all, they protect your client in an important way: the government cannot use what your client says during the proffer directly against him. The more you understand how proffer agreements work in real life, though, the more you will realize that they don’t offer very much protection at all. There are some circumstances under which you may decline a proffer agreement altogether.

Prosecutors give out proffer agreements like candy. That alone should be a red flag that they aren’t a valuable commodity for people caught up in a criminal investigation.

All in all, proffer agreements are helpful but don’t let them lull you into a false sense of security for your client.

Terms of a Standard Proffer Agreement

A proffer is a voluntary interview with the government. (There are also “attorney proffers” and “reverse proffers,” but they are different.) Present during the interview are the prosecutor running the investigation and an FBI agent or two. They will take notes and draft an interview memo, or 302, of what your client says.

Here are the typical terms of a proffer agreement:

First, your client will agree to provide truthful answers to questions asked.

Second, the government will agree that no statements made by your client will be used by that prosecutor against him. If there were ever charges against your client and a trial, the government could not put an agent on the stand to testify that your client made specific statements during the proffer session.

Third, the agreement will say that the government can use the statements made during the proffer to rebut—or impeach—your client in any stage of criminal or civil proceedings.

Fourth, the agreement allows the government to make “derivative use” of your client’s statements. This means the government can pursue investigative leads discovered during the proffer—such as interviewing witnesses identified by your client, obtaining documents by subpoena, and so forth.

Fifth, the agreement will make clear that the government can prosecute your client for false statements made during the proffer.

Sixth, the agreement will say that it does not confer any immunity on your client and that it is the entire agreement – there are no “side agreements” here.

The Risks of a Proffer Agreement

A proffer agreement is not a free pass. There are risks to agreeing to one. By “risks,” I mean huge, gaping, bottomless holes in their supposed “protections.” You need to make sure your client understands these risks.

First is the derivative use provision. The government can investigate what your client says and if it can find evidence other than your client’s statements during the proffer, the government can use that derivative evidence to indict your client.

Let’s take a simple example: Your client is the co-founder of a tech startup. She is also a subject of a grand jury investigation into wire fraud based on supposed false statements to potential investors about the startup’s financial stability. During her proffer, she explains that she would receive regular updates from the CFO about the company’s financial situation via emails to her personal Gmail account and sometimes those emails contradicted the written disclosures given to investors. The government can subpoena Google to get those emails, and then compare the emails to the disclosures to prove that your client knew the disclosures were false. The government cannot use your client’s statement that she received the emails but it can use the emails.

Second, a proffer agreement does not protect your client if he makes any false statements. Outright lies during a proffer are a Very Bad Thing™. If your client has a slippery grip on the truth, then a proffer will turn out badly. (Please trust me; I’ve seen proffers go south, and it’s a very bad show. Worse than Tiger King.)

There is a much subtler risk at play here. A proffer agreement does not protect your client if he makes any statements that the government believes are false. If the government expects your client to give statements during the proffer to support the government’s theory of the case and your client does the opposite, it’s possible that the government will conclude that your client lied during the proffer and charge him with a § 1001 violation for false statements. This is a concern if you have an extremely aggressive prosecutor with strong views about her theory of the case. Prosecutors like that don’t like it when your client contradicts their view of the world.

Third, if your client ever wished to take the stand, what she said during the proffer agreement can be used to impeach her testimony. Since proffers happen before you know the entire scope of the government’s case or the evidence it has gathered against (or about) your client, an early proffer locks your client into her story about what happened. That early narrative leaves less room to strategize about how to tell her story in the most persuasive way down the road.

In addition, some proffer agreements say that the government can use your client’s statements to rebut any factual assertion made on behalf of your client in any criminal or civil proceeding. Even if your client never takes the stand later, if your defense theory contradicts what your client said during the proffer, then the government can offer evidence of what your client said during the proffer.

Fourth, proffer agreements are a way to get your client in the door to answer questions about one topic and then use the opportunity to ask questions about another topic. If you agree to a proffer session about investor fraud and the government begins asking questions about money laundering, you can certainly stop the interview because it is voluntary. But your client’s reaction to those questions–or your quick decision to stop the proffer–may be more telling than you want. (Sidenote: you absolutely should stop the interview until you have a handle on what is going on. Appearances are less important than making sure your client doesn’t say something stupid.)

Fifth, a proffer agreement technically binds only the U.S. Attorney’s Office that signs it. I have never seen it happen, but there is a possibility that another office could use your client’s statements against him. This is more of a theoretical than a real concern, but it’s something to keep in mind if your client is under investigation by multiple USAOs.

Should You Avoid Proffer Agreements?

No, I’m not suggesting that you avoid proffer agreements or refuse to advise your client to cooperate with the government under one. For a witness in a criminal investigation, a proffer agreement offers some protection in case your client makes an unexpected admission during the session.

A proffer session for a client who is a witness is often the least stressful course. The government wants to interview your client and may or (more likely) may not need your client to testify before the grand jury. During a proffer, you are sitting right next to your client and available to consult with her. Grand jury testimony is more stressful because your client goes in alone.

Targets of grand jury investigations don’t participate in proffers except in truly extreme circumstances. So, as a general matter, if you represent a target, you won’t have to evaluate these risks.

As always, it’s a subject who is in the most jeopardy. She could say something during the proffer that piques a prosecutor’s interest and sends an FBI agent down an investigative path against your client. Or she could say something that the prosecutor thinks is not true and face a false statements charge.

When would you consider declining a proffer agreement? I’ve seen this happen when a client is a witness only and the proffer agreement contains a provision that is unacceptable. For example, some USAOs include a provision that the client must agree to a future polygraph test. If you client does not wish to agree to that test (because they are so inaccurate), then your client may agree to the proffer without the agreement.

All in all, proffer agreements offer a level of protection that is most helpful to witnesses in criminal investigations. If you represent a subject, be sure to evaluate all of the risks of advising your client to agree to a voluntary interview – even with such an agreement in place.

* A colleague recently told me that this phrase may be viewed negatively, which is why I use the neutral phrase “proffer agreement” in the post.

** Maybe I’ve only had bad fruit tarts, but they are uniformly awful in my experience. I’ll take a mediocre chocolate croissant any day.

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