If you are facing a federal investigation or criminal charges, you may be exploring ways to mitigate your exposure and secure the best possible outcome. One option that often comes up in these discussions is cooperating with the government through a proffer session.
A proffer session is a formal meeting where a defendant or target of an investigation provides information to federal prosecutors in hopes of securing some benefit, such as a more favorable plea agreement or reduced sentencing. In exchange for this cooperation, the government agrees not to use the defendant’s statements against them, with some key exceptions.
While a proffer agreement can be an essential tool for defendants looking to mitigate their sentence, it is not without risks. Understanding how a proffer works, its benefits, and potential pitfalls is critical before deciding whether to participate.
What is a Proffer Agreement?
A proffer agreement is a written contract between a defendant (or target of an investigation) and the government. It allows the defendant to share information with prosecutors under limited immunity. In return, the government agrees that it will not directly use the defendant’s statements against them in future proceedings—unless the defendant violates the agreement.
Proffer agreements are sometimes referred to as a “Queen for a Day” deal, reflecting the idea that, for a short period, the defendant can speak freely without immediate consequences. However, this protection is not absolute, and there are serious risks involved if the defendant provides false or misleading information.
Legal Protections and Risks
Under Rule 410 of the Federal Rules of Evidence, statements made during plea discussions, including proffer sessions, are generally inadmissible in court. However, there are critical exceptions:
- If a defendant makes false statements or material omissions, prosecutors can use the proffer statements to impeach them or bring new charges.
- If the defendant’s information leads to an inconsistent trial defense, prosecutors may introduce portions of the proffer to challenge credibility.
- The government can use derivative evidence—meaning they can follow investigative leads gained from the proffer and build a case using independent sources.
Top 10 Things to Know About Federal Proffers
1. A Proffer is Not a Guarantee of Immunity
A proffer agreement does not mean full immunity. The government will not use your exact words against you, but they can use the information you provide to develop new evidence and build a case against you or others.
2. Proffer Terms Should Be Negotiated Carefully
Before agreeing to a proffer, defense counsel should negotiate terms that clarify what the client can expect in exchange for cooperation. This may include limiting sentencing enhancements or securing a more favorable recommendation at sentencing.
3. The Proffer Meeting is Formal and Recorded
A proffer session typically takes place at the U.S. Attorney’s Office or federal courthouse. Prosecutors and federal agents are present, and everything you say will be documented. Assume that every statement will be scrutinized.
4. Never Attend a Proffer Meeting Without a Lawyer
You should never walk into a proffer session without an experienced federal defense attorney. Your lawyer will protect your interests, ensure you do not make self-incriminating statements, and clarify legal protections before the meeting.
5. The Government Expects Full Disclosure
Prosecutors expect you to tell them everything you know about the criminal activity under investigation. Holding back information or being vague can be just as damaging as lying.
6. Lying in a Proffer Can Lead to New Charges
If you lie during a proffer, you could face perjury charges or new federal charges under 18 U.S.C. § 1001 for making false statements to federal agents. The government takes false statements very seriously and will use your own words against you if they discover deception.
7. You Must Admit to Your Own Conduct
A key part of a proffer is accepting responsibility. If you are unwilling to admit your role in the alleged crime, prosecutors will see this as a lack of credibility, reducing the chances of any benefit from cooperation.
8. Prosecutors Expect Information on Others
While discussing your role, prosecutors will also want details about other individuals involved. This includes co-conspirators, business associates, or anyone who might be implicated in the investigation.
9. Breaking a Proffer Agreement Can Be Costly
If you violate the terms of your proffer—by lying, withholding information, or later changing your story—prosecutors can use your statements against you at trial or at sentencing.
10. A Proffer Can Lead to a 5K1.1 Departure
If your cooperation provides substantial assistance, prosecutors may file a 5K1.1 motion at sentencing, which can result in a reduced sentence under the U.S. Sentencing Guidelines. However, this is entirely at the prosecutor’s discretion.
Weighing the Risks and Benefits
A proffer session is a double-edged sword. When used correctly, it can be a valuable tool to reduce sentencing exposure. But when approached carelessly, it can lead to unintended consequences, including new criminal charges. Before entering a proffer, ask yourself these questions:
- Do I fully understand what I am agreeing to?
- Do I have an experienced federal defense lawyer guiding me?
- Am I prepared to tell the full truth, including details that may implicate others?
- Is the potential benefit worth the risks involved?
Final Thoughts
A proffer agreement can open the door to cooperation benefits, but it is not a decision to be made lightly. If you or a loved one are facing a federal investigation, it is critical to consult with an experienced defense team before engaging with prosecutors.
At White Collar Advice, we help clients navigate these waters, working alongside experienced defense counsel to make informed decisions. If you are considering a proffer or have questions about the process, schedule a call with us today or join our weekly webinar to learn how prepare properly.
Justin Paperny
