Proffer Letter Agreements - Watch Your Step - A Discussion of Practical Issues Regarding Proffer Letter Agreements

PROFFER LETTER AGREEMENTS

Robert C. Bonsib, Esq.

MarcusBonsib, LLC

301-441-3000

robertbonsib@marcusbonsib.com

Proffer - "to offer, hold out, extend, tender, volunteer, submit, give" - all terms which define generally what we do when we permit our clients to meet with prosecutors and investigators to sort out the appropriate way to assess and potentially resolve a client's potential criminal exposure, i.e. through discussions of the client offering his services as a government witness or by means of entering into a plea agreement. Such "proffer" sessions are generally held pursuant to the terms what is variously called either a "proffer" or "debriefing" or in some areas a "queen for a day" letter. These agreements are commonly, and when dealing with federal prosecutors are almost universally, reduced to letter form.

Proffer letters once served the purpose of ensuring that the prosecution and defense could engage in preliminary discussions looking towards a fair resolution of a potential or pending criminal matter without either party being unfairly disadvantaged in the event that the matter was not able to be resolved. Over the years proffer letters, like so many other aspects of the criminal justice process, have been morphed by some prosecutors into offensive weapons. Proffer letter agreements have become one-sided documents which one often is almost inevitably forced to accept as a necessary prerequisite to engaging in plea discussions with the government. It seems that with each new version of the proffer letter, what is "off-the-record" becomes less while simultaneously the opportunities for prosecutors to make use of so-called "off-the-record" statements and information provided during proffer sessions increases. In the hands of some prosecutors the proffer letter no long serves to ensure that "off-the-record" discussions can be held between the parties under reasonable and fair circumstances but rather seeks to extract the greatest possible advantage for the government. The current versions of many proffer letter agreements essentially "gut" an accused's ability to present a defense at trial where a case is not resolved after the completion of the proffer process.

While there are certain standard and expected provisions in a proffer letter, different prosecutor's offices and, frequently even different prosecutors within the same office, often tweak proffer letters to serve their particular purposes or idiosyncrasies. One cannot count on the proffer letter that is received today to consist of the same substantive promises and waivers as the proffer letter received yesterday or that which may be received tomorrow. Each paragraph and each line of every proffer letter must be carefully read to ensure that one is completely familiar with its provisions. Within the same prosecutor's office, different versions of the proffer letters are used and, in some instances, the same prosecutor may change the proffer letter he or she used yesterday from the one he or she will present to you tomorrow.

A cautious approach to the "proffer" process often suggests that an attorney first meet with the prosecutor, without the client, to outline the scope and subject matter of a possible proffer session. This approach permits an attorney to gain some level of confidence, prior to agreeing to subjecting the client to a proffer session, that the proffer session is likely to succeed. By outlining the general tone and substance of what the client may be expected to say during the proffer session, an attorney can gauge the prosecutor's reaction to that information. If the prosecutor's reaction suggests that the proffer session will simply result in the prosecutor taking the position that the information provided by the client is untruthful or incomplete, then one can advise the client to decline to engage any proffer meetings. If this initial "attorney proffer" is conducted pursuant to the terms of a proffer letter agreement, then one must be extremely careful about what is represented to the prosecutor, even during preliminary attorney-to-attorney conferences, as some proffer letters suggest that what an attorney can be used should the client later say something contrary to the attorney's representations. It should be made clear that these initial discussions between the prosecutor and attorney are preliminary and any statements made by the attorney are not to be deemed admissions on behalf of the client. Discussion the position of the client in "hypothetical" terms is the wise and cautious approach.

As noted, many proffer letters include language that seek to cover not only statements made by the client during an "in person" meeting between the client and the government, but also representations made by an attorney during the course of an "attorney proffer." One must be very clear about the accuracy and truthfulness of any statements made on behalf of the client under such circumstances. One should have clear authority from the client to make such statements and the client should understand the potential for a prosecutor's use of the attorney's representative statements. Alternatively, a preferable approach would be to take the position that any conversations between an attorney and government counsel preliminary to a proffer session are to be considered more akin to settlement discussions, not binding on the client and are not usable by the government in any manner during any trial. Any language to the contrary in a proffer letter should be stricken and disavowed.

While preparing this article, I read "Pitfalls of Proffers in the Second Circuit," an article published in The Champion, a monthly magazine, published by the National Association of Criminal Defense Lawyers. This article contains an excellent discussion of how some courts have considered the various fairness arguments made for and against permitting the government to extract certain types of waivers in proffer letter agreements as condition precedent to the government engaging in settlement discussions. See United States v. Duffy, 133 F.Supp. 2d. 213 (E.D.N.Y. 2001 ) (finding that to permit the government to extract important rights as a precondition to engaging in cooperation negotiations would have "an overriding impact on public interests" in the fairness of both the plea bargaining process and federal criminal trials generally.) But see United States v. Velez, infra.

Even the most one-sided provisions of proffer letters have been upheld by some courts in opinion that have rejected the argument that the coercive circumstances which are present in most criminal cases and which compel are clients to negotiate with the government to seek to resolve criminal cases should void waivers in proffer letter agreements. The Second Circuit elected to approve the one-sided provisions of these proffer letter agreements in a "must read" opinion which alerts one as to the dangers of the proffer process. United States v. Velez, 354 F.3d 190, 195-6 (2nd Cir. 2004) (rejecting the Duffy rationale and approving the approach taken in United States v. Gomez, 210 F.Supp. 2d 465, 473-6 (S.D.N.Y. 2002) where the district court held that the government may use proffer statements if defense presented arguments or presented evidence that specifically contradicted statements made by defendant during proffer sessions.)

As already noted, the original purpose of a proffer meeting was to permit an accused to share, in an "off-the-record" setting, an explanation concerning his own personal involvement in criminal activity and/or that of others. Generally, the objective of a proffer session was to try to negotiate a resolution of a criminal case in a manner that fairly characterized the defendant's own conduct or, perhaps, to gain the opportunity for advantage by cooperating with the government in its investigation or prosecution of some matter. The government was afforded the opportunity to "preview" the defendant's information so that it could make an evaluation of the truthfulness and importance of such information prior to entering into any final plea agreement. An accused or target could enter into such an agreement with the understanding that the information provided was "off-the-record" and could not be used directly against him in any criminal proceeding.

Generally speaking, the prosecutor reserved the right to use the information provided in a proffer session in two ways. The defendant was required to agree that if he later testified in a manner contrary to the information that he provided during the proffer session, then the government would have the right to use the contents of the proffer session to show that he had given inconsistent statements on different occasions regarding the subject matter at issue. In other words, the prosecution could impeach him with his proffer statements.

The government also insisted the right to make derivative use of the information provided during the proffer session and required the client to waive any potential Kastigar issues. See Kastigar v. United States, 92 S.Ct. 1653 (1972) (where person has been granted immunity, the government has burden of proving in any subsequent prosecution that its evidence was derived wholly independent from immunized testimony). This language was required by the government, quite legitimately, to avoid any subsequent argument that the government improperly used the information it received during the proffer session as leads to further its investigation. The government was concerned that without this protection, if it engaged in a proffer session and received information from a defendant and then no final agreement was reached, the defendant would contend that the government used the information during the proffer session to further its investigation of the defendant. Because there were often many facets to the government's investigation, the government would have been in a very difficult position of trying to separate out what information it learned independent of the proffer session, what impact, if any, the proffer information had in its decision-making as to what leads to follow and what investigative avenues to pursue. By including a Kastigar waiver in a proffer letter, the government seeks to avoid the "taint" argument that ultimately proved fatal to the government's prosecution of Oliver North. See United States v. North, 920 F.2d 940 (D.C. Cir. 1990). North had been granted immunity by Congress and compelled to testify before Congress. In his subsequent prosecution, the government was unable to prove that its evidence and investigation was not influenced or tainted by the government's exposure and its witnesses' exposure to the compelled testimony and information provided by Oliver North during his congressional testimony under a grant use and derivative use immunity.

Many recent revisions of proffer agreement letters have added additional provisions and require waiver of a variety of protections. These proffer agreements reflect an all too common attitude among some prosecutors of "my way or the highway." This is a product, at least in part, of the increased, and in some instances unreviewable, power afforded, particularly to federal prosecutors, through the threatened use of mandatory sentencing statutes and the manner in which United States Sentencing Guidelines operate. The result of this shift in power from courts to prosecutors has placed in the hands of federal prosecutors the ability, for those prosecutors who are so-inclined, to bully defendants into signing these very one-sided agreements.

As an example of the care one must exercise when reviewing proffer agreements, one need only look at a number of different versions of proffer letters used by United States Attorney's Offices and the Department of Justice in this area.

The first proffer agreement reviewed is used one United States Attorney's Office. Its terms represent the standard and classic proffer letter provisions and seek only to protect the government against being unfairly disadvantaged by the proffer process. It guarantees the client "use" protections as long as his proffer information is truthful and complete. The four standard paragraphs of that proffer letter state the following:

1. No statements or other information provided by you or your client will be admissible against him in the government's case-in-chief in any future civil or criminal proceedings.

2. The government will be free to use any statements or other information provided by your client or any information derived directly or indirectly from these statements or other information for impeachment, cross-examination and rebuttal should your client testify contrary to this proffer in any future proceeding.

3. the government may make derivative use of, and may pursue any investigative leads suggested by, any statements or other information provided by your client. Such derivative information may be used against your client in any future proceedings.

4. If your client knowingly provides statements or other information to the government which is false, misleading, or designed to obstruct justice, he would be subject to prosecution for any applicable criminal violations including, but limited to, perjury, false statements and obstruction of justice. Any such prosecution could be premised upon any statement or other information provided by your client and any information and leads derived therefrom.

A very similar proffer letter used by a division of the Department of United States Department of Justice in Washington, D. C., states:

1. Your counsel, (defendant's attorney), will be present and will participate in the interview. You have been informed and understand that you may end the interview at any time or decline to answer any questions asked. During the interview, you will be truthful, fully candid, and complete in providing information concerning the matters about which you are asked.

2. The United States agrees that no statement made by you during the interview will be used directly against you in any legal proceeding, except that your statements may be offered in any legal proceeding to impeach your testimony and may be used in a prosecution of you for perjury, obstruction of justice or making false statements or false declarations.

3. The United States is free to follow up any leads derived from the interview to pursue its investigation and any subsequent prosecution of you or others.

Both of these proffer letters properly and fairly balance the interests of both sides in ensuring that a proffer session can occur without either side being unfairly disadvantaged should the proffer session not result in a resolution of the pending matter.

Now, by contrast, review the operative paragraphs of a proffer letter used by another United States Attorney's Office.

1. Defendant will provide complete, truthful, and candid responses to any and all questions put to him by attorneys and agents of the United States. Defendant is not obligated to participate in the debriefing(s), and he may terminate the debriefing(s) at any time.

2. Defendant is not being offered immunity from prosecution. The government agrees only that no statements made by defendant during the voluntary, "off-the-record" debriefing(s) will be used directly against him in the in the government's case-in-chief at any criminal trial, except in any proceeding relating to a prosecution of the defendant for perjury or obstruction of justice (at which any statements provided by the defendant would be fully admissible against him during the government's case-in-chief at trial and otherwise.)

3. The government may make derivative use of any statements or information provided by the defendant during the voluntary, "off-the-record" debriefing(s). That is the government is free to use any statements or information provided by the Defendant to pursue its investigation.

4. Statements made by the defendant during the voluntary, "off-the-record" debriefing(s) may be used to impeach her testimony, or that of other witnesses presented on her behalf, in any criminal proceeding, including, but not limited to, any trial of the defendant. In addition, evidence regarding such statements and information may be introduced to rebut evidence offered on behalf of the defendant in any criminal proceeding, including but not limited to, any trial of the defendant.

5. This agreement, and the debriefing(s), conducted pursuant to this agreement, do not constitute or reflect plea discussions. However, if this agreement, or the debriefing(s) conducted pursuant to this agreement, are subsequently construed to constitute or reflect plea discussions, the defendant knowingly and voluntarily waives any rights that he might otherwise have derived from Rule 410 of the federal Rules of Evidence and Rule 11(f) (formerly, Rule 11(e)(6) provided by the defendant during the voluntary, "off-the-record" debriefing(s). The defendant knowingly and voluntarily waives any claim that the government's derivative and evidentiary uses of her statements and information provided during the voluntary, "off-the-record" debriefing(s) (described in numbered paragraphs (3) and (4), above are or should be prohibited by Rule 410 or Rule 11 (f).

(emphasis added).

The following are the operative provisions from another proffer letter used a federal prosecutor.

1. Except as otherwise provided in paragraphs two and three, no statements made or other information provided by you or your client during the proffer will be used against your client in any criminal case.

2. In order to avoid potential "taint" issues and obviate a Kastigar type hearing, your client agrees that the government may make derivative use of, and may pursue, any investigative leads suggested by any statements made or other information provided by you or your client during the proffer.

3. Your client's complete truthfulness and candor are express material conditions to the undertakings of the government set forth in this letter, therefore the government may use statements made or other information provided by you or your client during the proffer under the following circumstances:

a. The attorney for the government or other party may use statements made or other information provided by you or your client during the proffer (1) for the purpose of cross-examination in the event that your client is a witness in any proceeding related to this matter and offers testimony materially different from any statements made or other information provided by you or your client during the proffer, and (2) to rebut any evidence or arguments offered by or on behalf of your client ( including arguments made or issues raised sua sponte by the District Court ) at any stage of the criminal prosecution (including initial appearance, hearings relating to the detention and release conditions, all phases of trial, and sentencing) in any prosecution brought against your client.

b. If your client knowingly withholds material information from the government or otherwise is not being completely truthful and candid with the government, the government may use against your client for any purpose (including sentencing), any statements made or information provided by you or your client at the meeting. If the government ever does so conclude, it will notify your client of our intent to make use of any such statements or other information.

(emphasis added).

The first two proffer letters provide the government Kastigar protection, the right to use for impeachment purposes information provided during a proffer session and also makes the proffer letter conditioned upon truthful information being provided.

Paragraphs 3(a) and 3(b) of one of the other proffer letters from the United States Attorney's Office insert a number of additional provisions including the right to use information provided by the attorney to rebut testimony offered by the client during his trial, to rebut evidence or argument offered by the client during his trial and even to rebut arguments or issues raised by the court on its own volition. These "extras" also permit the government to use this information, in the aforementioned ways, not just during the trial but during an initial appearance, release hearings, and all phases of trial and sentencing.

In considering the example of one the examples of proffer letters, not only does the client have to be cautious about what is said during the proffer session, but the proffer agreement also seeks to hold the client to the specifics of the representation made by his attorney. If an attorney proffers information of one nature and then at trial, at sentencing, during a detention hearing, or at some other proceeding, asserts a position on behalf of the client contrary to the information provided during the attorney proffer, the government may contend that it can use that information provided by the attorney to rebut the attorney's argument in court. One of the proffer letters does not contain the attorney proffer language, however, it does permit the government to use proffer statements and information "to rebut evidence offered on behalf of the defendant." Again, this use is not limited to impeaching the defendant's trial testimony, but permits the proffer information to be used to rebut any evidence offered by the defendant that is inconsistent with the position he took during the proffer session. No longer is the government seeking simply to protect itself from a defendant saying one thing in a proffer session and then testifying in a contradictory manner at trial, the government seeks to eviscerate any ability of a defendant, who has participated in a proffer meeting, to contest the government case without the risk of the government asserting its right to use information provided during a proffer session.

Imagine taking a client into a proffer session, fully disclosing the client's involvement in a case where you have every reason to believe that the government will offer an appropriate plea the end of the session, only to discover that at the end of the process that the government makes a plea offer that is totally unreasonable. Your client decides he has little to risk by going to trial and elects a strategy of aggressively challenging the government's evidence but does not testify. In opening statement, through cross-examination of government witnesses and through closing argument the government's evidence is challenged, and through that challenge, assertions are made, at least inferentially, that the facts are not as the government contends. The government then turns around and calls an agent to testify that during the course of an attorney proffer or during the course of your client's proffer sessions with the government, that a different position was asserted by you or your client.

No only do you have to be careful about the position(s) asserted by you or your client during trial, the proffer agreement from the United States Attorney's Office in the District of Maryland exposes you to the unforeseeable actions of the trial judge. In one of the proffer letters, the United States Attorney's Office asserts the right to use your statements or your client's statements to rebut any argument raised, sua sponte, by the trial court. In the defense of your case, no matter how carefully you may walk the line by challenging the government's case and avoid taking a position that opens the door to the government's use of proffer information, the trial court may decide to ask a question that puts those very matters directly at issue. The government then takes the position that it can use proffer information provided by you or your client to rebut the issues generated in the case, not by you or your client, but by the trial court. One must be very careful of proffer letters that seek not fairness in negotiation, but advantage and leverage.

Some prosecutors approach this proffer process with the idea that an exchange of information looking towards the resolution of the case should be conducted in an open and fair manner. In other instances, you must face the "you will do it my way" mentality. Knowing the players and the playing field is critical in order to fairly and properly counsel your client as to the risks and benefits of participating in any proffer session.

Are the terms of a proffer letter negotiable? The answer is "it depends." Those prosecutors who wear their authority imperially will likely refuse to entertain such discussions. Other prosecutors may be willing, in the appropriate circumstances, to modify the terms of the proffer letter. Whether or not the terms of a proffer letter are modified, it is important that the client, if the client is going to participate in a proffer session under the terms of one of these agreements, do so with informed consent. The terms of the proffer letter must be carefully explained to the client and the client must understand that an unsuccessful proffer session carries a tremendous penalty and many disadvantages. It may effectively eliminate any realistic opportunity to assert defenses at trial or challenge to the government's trial evidence in a way that was available prior to engaging in the proffer session. In addition, defense counsel must be extraordinarily vigilant when proceeding under proffer letters that seek to hold the client accountable for the statements made by defense counsel during the proffer process. How unseemly would it be in the trial for the government to be able to introduce evidence that a defendant's lawyer made a representation during a proffer session that was contrary to the position that the attorney or the defendant asserted before the jury or before the court during another proceeding.

In summary, proffer sessions can be, and in many instances are, a very important and necessary part of the process as you are exploring the options available to obtain the best result for your client. The purpose of this article is not to discourage participation in proffer sessions, but to red flag the need to be ever vigilant to the changing landscape and the variations in prosecution policies and practices in this area.