by Attorney Eric D. PuryearThose who are suspected of involvement in a criminal act by Federal prosecutors will sometimes be offered a Proffer, which is a type of limited immunity from prosecution in exchange for cooperation. Sometimes the Proffer is initiated by the prosecutors, and other times a person and their attorney will request a Proffer. Handling a Proffer situation properly is of the highest importance, as it can greatly affect whether a person is prosecuted and the outcome of such a case.
Proffering with the Federal government can occur for many reasons. Sometimes, a person is accused of a crime and sees cooperation as a means of avoiding prosecution. Other times, a person has essentially no criminal liability but does have information that the Federal prosecutors want, and will Proffer as a way of resolving that situation without the risk of charges. In still other cases, a person has already been charged and wishes to cooperate through a Proffer so as to obtain a reduced sentence.
Whether is is a wise to Proffer is a question that has no simple answer. Some people will benefit greatly from Proffering, while others would suffer significant harm. The decision as to whether to Proffer is one that is best made by a client who thoroughly has discussed the matter with his or her attorney.
The Proffer Letter
A Proffer letter is a document, usually a few pages long, that sets forth the terms of cooperation between a person and the Federal government. The most important portions of the Proffer letter address the sort of immunity from prosecution that is granted, any other benefits the person will receive for cooperation, and the type of cooperation that is to be provided.
A Proffer letter is a Contract between the person who signs it and the Federal government. As such, a person who is given and signs a Proffer is protected by the Proffer and need not worry that the Federal government will try to back out of the agreement. In the incredibly unlikely event that a Federal prosecutor were to try and break the Proffer agreement, the matter could be taken to the court for enforcement.
By that same token, the person who signs a Proffer letter is also bound by the agreement. The biggest way that issue comes up is when a person agrees to cooperate and then later has cold feet and provides untruthful information. Every Proffer letter will have terms that address the effect of such untruthful actions, and the result is always unpleasant.
A person who has been offered a Proffer letter, or who wishes to request one to cooperate with the Federal government, must fully understand the situation and the rights and responsibilities that go with a Proffer. Carefully consulting with one’s attorney is vital, since those who do no properly handle a Proffer situation can face tremendous problems.
The Proffer Meeting
After the Proffer letter is reviewed and signed by the client, the Federal prosecutor, and the client’s attorney, then a Proffer meeting is scheduled. The Proffer meeting is when the cooperation takes place for the most part, although there are situations where there is further or other cooperation beyond the proffer meeting. I have had Proffer meetings take place in my law firm’s office, the federal prosecutor’s office, and even jails (for clients who were already in custody). The law enforcement officers investigating the case always appear for the Proffer meeting, as does the client’s attorney and the client. Sometimes the Federal prosecutor will also appear.
The Proffer meeting generally involves the client being asked questions by law enforcement. Some of the questions are intended to gather useful information, while others are often intended to verify already-known facts so as to assess a person’s honesty. Sometimes, law enforcement will already know quite a bit about the situation, and in others it appears that the Proffer meeting results in a great deal of information being learned by law enforcement. Since the Federal sentencing guidelines consider a great many factors that are often discussed during the Proffer meeting, handling the questions properly is an important thing, and a large part of why the attorney is present.
Proffer meetings can be brief (lasting only a few minutes) or they can take many hours spread over multiple days. I have had clients where there was a single quick Proffer meeting, and clients where there were multiple Proffer meetings that took place over an extended period of time.
Cooperation Prior to a Proffer Letter
It is important to note that any cooperation that happens without a Proffer letter first being drafted and signed is not covered by the Proffer agreement. As such, there is nothing to guarantee that a person who cooperates prior to having a signed Proffer letter will receive any credit for that cooperation, or will be protected from having that information used against them. All too often people speak to the police without a Proffer, and end up causing themselves serious legal harm. Any person who is considering speaking to law enforcement is wise to seek an attorney before they make any statements.