The Basics of Proffer Agreements
Proffer agreements are contracts typically used by federal prosecutors, when federal crimes are being charged or considered. A less formal arrangement than immunity, a proffer agreement allows a witness to speak with the government about potentially incriminating evidence without that evidence being used against them in court, should they choose not to testify under oath. It is a favored tool of federal prosecutors, because it gives them a means to obtain information and evidence needed for prosecution that they might not otherwise obtain. This can mean the difference between obtaining a conviction, and failing to do so.
Like immunity, a proffer agreement is not obligated to be issued once a defendant or witness asks for one. Federal prosecutors may offer a proffer agreement under the right circumstances, but as with immunity, they are not required to. Because agreeing to a proffer agreement is submitting to an interrogation under a veil of confidentiality, it can be considered dangerous for a defendant or witness to accept the deal, especially when it comes to accepting what is known as a queen for a day deal. A queen for a day deal disallows the government from using what is said during the proffer session against the proffering party or any other person . It essentially allows the proffering party to speak freely for the length of the session. However, in exchange for this freedom, the party is agreeing to provide a statement under oath which can be used for other legal proceedings.
Proffer agreements can be used by a government attorney who may or may not be involved in any potential prosecution of a defendant. For instance, if a government lawyer has been told about an individual who may have committed a crime, whether they have prosecuted or not, that government attorney can request a proffer meeting. Proffer agreements can also be used to get enough traction for an indictment.
If a defendant has been indicted, or a subpoena has been issued, an attorney can prepare a proffer agreement in order to inform the defendant or witness of the scope of potential criminal liability and/or exposure. The proffer agreement can be used to disclose what testimony might be necessary to defend against specific charges. Once the information has been provided, the proffer agreement can help to limit the use of evidence of criminal, civil and/or administrative (for federal employees) liability in a trial.
The Basics of Immunity Agreements
Immunity agreements have become more common in recent years as a tool to resolve disputes with the federal government and law enforcement agencies. Indeed, Immunity today has an expanded use outside of criminal proceedings. Attorneys can use immunity (including transactional immunity) in negotiating settlements of civil matters with government entities, including tax cases, environmental cases, and licensing and certification actions (e.g., when a contractor or supplier offers services/products to the government).
A transactional immunity agreement immunizes an individual from prosecution in exchange for providing relevant information. In such an arrangement, the person provides testimony and/or documents in exchange for the prosecuting attorney’s commitment not to prosecute. An example of a transactional immunity agreement would be an agreement that the USAO would not prosecute a corporate client for any potential criminal tax violations in exchange for the client’s testimony during a grand jury or proffer interview. Or, a transactional immunity agreement might be used in a qui tam case where the government brings an action for money damages and injunctive relief because the person has helped provide all applicable and relevant documents and information.
A use immunity agreement is an agreement not to use the information gained by the target at the grand jury, criminal hearing, or proffer interview against the target. Such an agreement still allows the attorney to ask the person any question or ask them to produce any information, document, or record of any type. This may be appropriate when the government is seeking information but does not want to block itself from later pursuing prosecution of a person based on other evidence or on information that the person has obtained through other means (such as the attorney’s own investigation).
Differences Between Proffers and Immunities
There are fundamental differences between a proffer agreement and an immunity agreement. First, and most importantly, a proffer agreement is non-binding on the Government. The rule in all Federal Courts is that a proffer does not Count in any way against the profferor. A proffer includes a "specific" statement by the Government that the statement cannot be used against the profferor in a trial or sentencing. However, a proffer agreement is binding on the person being offered such an agreement to cooperate with the Government. If the person cooperates and the Government provides some, all or some of the information provided is used against the profferor or counts against them, the profferor has no legal recourse as to a proffer agreement.
An immunity agreement is binding on both sides. An immunity agreement can be enforced by the Court against a profferor who testifies, transmits documents, or otherwise participates in the investigation or prosecution. An immunity agreement can be enforced against the Government also in that it forbids the Government from obtaining other evidence of other crimes from a profferor’s cooperation. The testimony of a profferor is different than a profferor providing documents or other evidence. A proffer session is voluntary. Testimony usually will be before a Grand Jury. This means that generally a profferor may not refuse to testify if the Court expects them to do so. Testimony is subject to the Contempt Power of the Court. If a profferor refuses to testify against a person or about a given topic, the Court can hold the profferor in contempt and jail them.
An immunity agreement is governed by the fundamental rights of law under Constitutional provisions and Federal Rules of Criminal Procedure. A proffer agreement is governed by Contract law and the Court’s inherent power.
The Pros and Cons of Proffers
Proffer agreements are a useful tool in many federal criminal cases. While such agreements are often beneficial to the defendant they are not always the best option. They have both pros and cons.
One of the likely benefits of a proffer agreement is that the defendant will be able to avoid incriminating statements being used against him even if he does not cooperate with the government to the government’s satisfaction. The agreement is essentially a promise by the government that neither the interview nor the proffer session will be used against the defendant although the government will note that the totality of the information provided by the defendant was untruthful or evasive or not sufficiently useful in the government’s view to justify a further effort to obtain additional information from the defendant. This "limited use" provision helps protect the defendant from the government using as evidence against him any statements that he makes during the proffer session even though such statements were not helpful to the government.
A proffer agreement is also useful if the defendant has limited information to offer the government. Not all defendants have useful information to provide pursuant to a proffer agreement. Whether a proffer agreement is in the defendant’s best interests is a question that must be asked on a case-by-case basis based upon the anticipated information that the defendant has to share with the government.
Finally, a defendant who provides information during a proffer session may be able to obtain a favorable sentencing result due to the guidelines provision that allows for the reduction of a defendant’s sentence based on his assistance to law enforcement. The cooperation reduction is set forth in USSG Section 5K1.1 which allows the government to ask for a downward departure from the applicable sentencing guideline range where the defendant has provided substantial assistance to law enforcement authorities.
The cooperator’s session with the government, however, is not without risks. The defendant’s statement to the government at the proffer session may not be as consistent with the theory of defense as a criminal defense attorney would like. A proffer session might help the government obtain information about other criminal activity by the defendant unrelated to the charged offense or immigration status issues under consideration in the immigration proceeding. There also may be value in leaving the government guessing about the defendant’s knowledge and culpability. In some cases it might be better to take the risk of going to trial if the government case is weak, especially where a successful criminal defense may prevent deportation from the United States.
The defendant in an immigration case where the primary risk is deportation may have reason to agree to a proffer agreement because the cooperative efforts needed to persuade ICE not to enforce deportation orders may be better facilitated by cooperating with the government. In that case, the proffer agreement, discussed with ICE counsel, may help satisfy ICE’s requirements necessary for a satisfactory resolution of the matter and could lead to a more successful outcome.
The Advantages and Downsides of Granting Immunity
Immunities issued in exchange for information are generally favorable to defendants because they provide protection from prosecution and/or a "prosecution bar" – a limit on the use of certain information provided during an interview. In some cases, these agreements will prevent the government from using any testimony that is given in a way that incriminates the person offering the information. In others, it will allow the testimony to be used to further an investigation, but with the caveat that the witness will not be prosecuted.
A corporation or individual faced with a subpoena to provide documents or testimony may be faced with a choice to comply or defy and risk a contempt citation, or may be given the opportunity to apply for immunity. In the former case, there is no real choice and the subpoena must be complied with or contesting it could result in serious sanctions . However, if immunity is offered by the government, the recipient must sign immunity documents to get the protection of the deal. These documents will almost always include a statement acknowledging the testimony is being compelled and that the person providing the testimony has no right to refuse to give it or a right to protect the information from being used against him or her.
The immunity agreement, almost always sets a time period in which the information must be provided to the government and if it is not, the government is free to pursue the individual potentially in ways that would not have been available if the immunity deal had been accepted. Power in the immunity deal is not 100% on the side of the suspect being offered immunity. The prosecutor has the upper hand, and the suspect and his attorney are at a tremendous disadvantage when faced with an offer of immunity. It is a negotiating tool and/or a tool used to obtain cooperation or evidence that will help out the Government.
Legal Strategy: Proffer or Immunity?
When evaluating whether to enter into a proffer agreement or an immunity deal, counsel needs to contemplate the legal and factual issues at play. Often times, this analysis will determine which option is more favorable. The first consideration is whether there is sufficient incriminating evidence against the potential defendant or whether the government would be able to successfully convict the individual. If there are serious concerns on both fronts, then a proffer agreement may be the best course of action. Alternatively, if there is sufficient evidence and a possible conviction, entering into an immunity deal is more favorable as it will allow the client to have protection before any prosecution occurs which may have permanent implications. An important factor in this analysis is the likelihood that the client will plead guilty or go to trial. A surefire way to avoid trial is to enter into a proffer agreement. However, because an immunity deal offers no guarantee of protection, a defendant would likely consider going to trial. This option, however, carries its own risks as a conviction will often result in a harsher sentence than what may be offered in a guilty plea. Additionally, a number of strategic considerations could affect counsels’ decision such as whether the deal is offered to all co-defendants, the strength of a co-defendants’ evidence, sentencing guidelines, and the timing of when counsel receives the information. Although an immunity deal presents a number of benefits, such as preserving the possibility of a due process challenge and maintaining attorney-client privilege, it should only be entered into after careful and deliberative analysis which weighs the short and long-term consequences of both options – before ultimately concluding which is most favorable to the client.
High-Profile Cases Involving Proffer and Immunity Agreements
The most famous case in which immunity agreements played a critical role is the "Israel Stinson" case from 1992. Stinson was arrested for possession of marijuana after an investigation by the anti-drug trafficking organization: "DEAN." Stinson was offered immunity in exchange for information on his suppliers of marijuana. Stinson cooperated, and his information led to the arrest of over 150 marijuana traffickers and the seizure of over $100 million in marijuana and cocaine. In 1994, the department of Justice used a portion of the proceeds from those arrests to pay Stinson’s attorney fees. Stinson never received nor agreed to any pay.
Stinson filed a complaint alleging that the D.E.A. breached its contract with him by paying his lawyers out of the proceeds of the drug bust, and that his rights therein were violated and his immunity agreement set aside. The United States District Court for the Middle District of Georgia ruled in favor of the defendants, stating that the Deal did not intend to pay any proceeds to Stinson, but rather to pay his attorneys. The court also stated that there was no contract in which the government intended to pay the "fair value" of Stinson’s proffer and immunities. The court found that Stinson’s proposed agreement was unreasonable and therefore invalid .
The Fifth Circuit finds the Israel Stinson case particularly interesting because it does not believe a true "deal" occurred in that case. They point to the fact that a contract requires offer, agreement, consideration, and execution. In the Israel Stinson case, none of these factors actually occurred for a true contract.
The case of United States v. Sattar is a contemporary case that also demonstrates the difficulty in exposing any contractual relationship between an individual and the government when it comes to proffer and immunity agreements. The defendant in this case was charged with terrorism. He entered into three proffer agreements, wherein the United States government was led to believe that he would testify against Jose Padilla. After such endorsement, the defendant backed out and refused to testify against Padilla. The United States government did not obtain his presence in Padilla’s trial.
Padilla and the defendant in Sattar were represented by prominent lawyers who testified at Padilla’s trial. Sattar was also represented by an obviously competent attorney. In any case, the most the government could do afterwards was impeach the defendant’s credibility – which was easy to do since they could not prove that a proffer or immunity deal was ever made because that trial requires a contract.
