Federal Criminal Cases and the “Proffer”: What is it and What Should I Know Before Agreeing to This Process?

It’s a New Year in Atlanta, and I am doing my usual work on federal criminal cases, criminal appeals, post-conviction matters and whatever else that my clients need that can help with their various situations.  One of today’s tasks is to schedule a “proffer” session for one of my clients who has been charged with federal fraud crimes.  While working on the relatively mundane job of scheduling a proffer session, I started thinking about how many clients, and even some attorneys, really do not fully understand what a proffer is, how it can help, and more importantly, how it can be a bloody disaster if not handled correctly.

A “proffer” is when a lawyer takes his or her client over to meet with federal prosecutors and investigators for a question and answer session.  This session is never something that the client is obligated to do, it is totally his or her choice, after of course consulting with well-trained legal counsel.  The proffer is kind of like the test-drive when considering a certain car at an automobile dealership.  The driver is not obligated to buy the car, the seller has no duty to sell, both sides are trying to learn more in determining whether they want to reach some agreement down the road.

The proffer is used on some occasions BEFORE any criminal charges are brought.  Other times, it happens AFTER the prosecutors already decided to and did obtain indictments.  When it happens prior to formal charges, the lawyer and client are using the session to either convince the prosecutors that no case should be brought, or that if charges are forthcoming they should be less onerous than what had previously been contemplated. If this proffer session takes place after an indictment, the client and lawyer are trying to use the session to convince prosecutors to reduce the charges and/or potential sentence.  It is almost unheard of for a federal prosecutor to simply drop charges after a proffer session.

The first step in the proffer is when the prosecutor provides a formal “proffer letter” for the client and the attorney to sign.  The letter contains a lot of words that seem to protect the client, but on closer inspection provide as much protection as a see-through nightgown on a rainy and windy night.

The only real protection in the proffer letter is that the prosecutors promise to not use anything that the client says.  However, there is a catch.  The prosecutors and the agents can make “derivative use” of what is said by the client.  For example, if the client says, “I have a bank account #123 at XYZ bank,”  at a later trial the prosecutor cannot call one of the agents attending the proffer session to testify to that fact.  HOWEVER, the agents can use that statement to go to XYZ bank, get a copy of the bank account records, and use those records to prove whatever is in that account.

The proffer letter also contains other pitfalls.  Recall, that the letter says the prosecutor will not use anything that THE CLIENT says.  However, what about statements by the lawyer for that client?  There are some judicial decisions holding that anything the lawyer says on behalf of the client is the “statement of an agent”, meaning it is the same as coming out of the client’s own mouth.  Bottom line, attorneys should be extra cautious about what they say during any proffer session.

Another horrible aspect of some proffer letters is a clause stating that the client’s statements can be used if the client takes an “adverse position” down the road.  I have seen prosecutors argue that by denying guilt at a later trial, the client is taking a position adverse to what he or she took during the proffer session, and therefore everything mentioned during that procedure is fair game.

The proffer session is full of pitfalls, not the least of which is that by going through with it the lawyer might have put his or her client in a worse position than they already faced.  However, in some situations the proffer can be a useful maneuver to make the case turn out better for the client.  As I say in just about everything I post and talk about; every client’s case is different.  There are no hard and fast rules.  What is really the most important thing is to understand and prepare for the pitfalls before going through with a proffer session.