A federal criminal investigation is more than just navigating legal procedures and courtrooms; it’s a deeply personal and unsettling experience. It’s the constant worry that disrupts your sleep, the fear that shadows your every thought, and the anxiety that grips you as you face an uncertain future. Your life, as you knew it, feels suspended, replaced by a looming threat to your freedom and reputation. One path you might consider is a “proffer agreement”. At SKT Law, we understand the weight of these situations and are here to guide you through the complexities of this strategic option.
What is a Proffer?
A proffer is a structured conversation with the government, typically the prosecutor’s office, where you voluntarily provide information relevant to the investigation. This could include the part you played in the event, knowledge of others’ involvement, or the existence of any evidence.
“In essence, a proffer is a calculated opportunity to present your narrative,” explains Eliot Krieger, co-founder and managing partner of SKT Law. “It’s a chance to potentially reshape the narrative and influence how the government perceives your involvement.”
The government might offer you limited immunity in return for your cooperation, which means you have protection from having your statements being used directly against you. At first, hearing that you have limited immunity might seem like a lifeline, but be warned, it’s a complex legal tool that can be used against you if it isn’t carefully navigated. There are loopholes and exceptions that you need to understand fully.
Why Consider a Proffer?
Proffers can serve distinct purposes for both sides:
For the Government: Prosecutors utilize proffers for several key reasons. One, they want to gauge your willingness to cooperate with their investigation. Two, they need to assess whether the information you provide is valuable and credible. Lastly, it can also be instrumental in uncovering new leads and expanding their investigation.
For You: Think of a proffer as a chance to tell your side of the story to the government. It’s a way to potentially show them you weren’t as involved as they might think. It also gives your lawyer a sneak peek at the government’s hand, helping them build a stronger defense for you.
Potential Risks
While proffers can be advantageous, they also carry risks:
- Indirect Use of Information: The government may not be able to use your statements against you in court, but they can use them to uncover new evidence. For example, if you mentioned an unknown witness or location, investigators can follow up on that lead, and any new evidence they find can be used against you. Additionally, if your testimony at trial differs even slightly from your proffer statements, the government can use those inconsistencies to challenge your credibility, painting you as unreliable or untruthful.
- Loss of Negotiation Power: If the end outcome isn’t ideal, a proffer can significantly weaken your bargaining position in any subsequent negotiations with the prosecution. By revealing your hand and failing to secure a deal, you may be seen as having less leverage, making it more difficult to achieve a desirable outcome later on. This is especially true if you revealed weaknesses in your case during the proffer, effectively giving the prosecution more ammunition to use against you.
- Breach of Agreement: A proffer agreement is a contract, and like any contract, it requires honesty from both parties. If you provide false or misleading information during a proffer, you’ve breached that agreement. The consequences are severe. The limited immunity granted under the agreement is immediately revoked, and the prosecution can then use your statements against you. For example, if you lie about your involvement in a crime or attempt to mislead investigators about the location of evidence, you could face charges for obstruction of justice, perjury, or making false statements, in addition to the original charges.
The Proffer Agreement: Safeguarding Your Rights
Before a proffer session, you and the government will enter into a formal proffer agreement. The proffer agreement outlines the terms of the proffer and explains your rights and obligations. It is a complex contract, so it is essential that you have your attorney carefully review and explain this agreement to you before you sign it. This agreement typically includes:
- Scope of Immunity: Here you would find the precise boundaries of the immunity you’re being granted. The scope of immunity can vary considerably, and understanding the nuances between different types of immunity, such as “use” versus “derivative use” or “transactional” immunity, is vital. Your lawyer will carefully analyze this section to ensure you understand exactly what protection you have and, equally important, what is not protected.
- Confidentiality Provisions: These are rules for keeping the proffer session and the information shared private. It specifies who can attend, how the information can be used, and when, if ever, it can be disclosed to others. It’s important to keep in mind that while aiming for secrecy, complete confidentiality isn’t always guaranteed.
- Consequences of False Statements: This section outlines the consequences of what will happen if you provide any false or misleading information. There are severe consequences to breaching this provision; these can include the immediate termination of the agreement, loss of all immunity, and the potential for new charges based on your false statements, such as perjury or obstruction of justice.
- Waiver of Rights: By participating in a proffer session you will likely be required to waive certain fundamental constitutional rights. This section is a critical piece of the proffer agreement and means that you are agreeing to answer the government’s questions truthfully and completely, even if those answers might incriminate you.
Preparing for a Proffer: A Critical Step
Thorough preparation is paramount if you’re considering a proffer:
- Retain Expert Legal Counsel: Your attorney will play a vital role in negotiating the terms of the proffer agreement with the government, ensuring your rights are protected, and that the agreement is as favorable as possible. They will also be your shield during the proffer session, advising you on how to answer questions truthfully while safeguarding your interests and preventing you from inadvertently harming your case.
- Comprehensive Review: Preparing for a proffer requires a collaborative and exhaustive review of all relevant documents with your attorney. This is a team effort, where your detailed knowledge of the facts is combined with your attorney’s legal expertise. Together, you will examine the proffer agreement, analyze the evidence against you, and explore potential defenses.
- Maintain Honesty: The importance of truthfulness during a proffer session cannot be overstated. Remember, the proffer is not just a single event. Any inconsistencies, even a minor detail, can severely damage your credibility and undermine your entire defense.
- Develop a Strategy: Developing a comprehensive proffer strategy involves working closely with your attorney to carefully consider what information you will share, how it will be presented, and how it aligns with your overall defense strategy.
The Proffer Session: What to Anticipate
The proffer session is a formal meeting with you, your attorney, the prosecutor, and possibly law enforcement agents. Keep in mind:
- Listen Carefully: During the session, your attorney will be your advocate, but you also have a critical role to play: listening attentively to every question. Make sure you understand the question completely before answering. Your attorney can help you interpret complex or ambiguous questions, but ultimately, you are responsible for ensuring you comprehend what is being asked.
- Remain Composed: No matter how stressful the proffer session gets, make a conscious effort to remain calm and collected. Here’s how: listen carefully, take deep breaths, pause before answering, and don’t be afraid to ask for clarification or a brief break. Your composure is crucial for clear thinking, accurate answers, and maintaining your credibility. Remember that showing you are in control of your emotions will keep you in control of the proffer.
After the Proffer: Possible Outcomes
Following a proffer session, you’ll likely face a period of uncertainty while the government evaluates your cooperation and decides how to proceed. Here are some potential outcomes:
- Dismissal of the Investigation: In the most favorable outcome, the information and cooperation you provide during the proffer might lead the government to dismiss the investigation against you entirely or, if charges haven’t been formally filed, to decline prosecution. This typically occurs when your cooperation significantly advances their investigation, exposes the greater culpability of others, or reveals that your involvement in the alleged criminal activity was minimal or entirely innocent. It may also occur if your information allows the government to dismantle a larger criminal enterprise, and they no longer feel the need to prosecute you in order to achieve justice.
- Plea Negotiations: A common outcome after a proffer is the offer of a plea deal from the government if your cooperation is acknowledged and rewarded, but you still face some consequences for your involvement in the crime. This usually involves you pleading guilty to a lesser charge, or fewer charges, than originally faced. In exchange, the government agrees to recommend a reduced sentence or other concessions to the judge. Accepting a plea deal means admitting guilt and forgoing your right to a trial. Your attorney will help you decide if it is better to take the charges to trial.
- Continued Investigation: A proffer session doesn’t always lead to an immediate resolution. The government might choose to continue its investigation for a variety of reasons. They may not be fully satisfied with the information you provided, perhaps feeling it was incomplete or lacked sufficient detail. Alternatively, new questions or concerns might have emerged from your proffer, or they may need time to corroborate your statements with other evidence.
Navigating the Aftermath: You Have Support
A proffer session can be emotionally draining. Remember, your attorney is there to provide guidance, answer any questions you have, address your concerns, and help you navigate the complexities that lie ahead. “The waiting period after a proffer can be a challenging time,” says Krieger. “At SKT Law, we’re dedicated to providing our clients with the necessary support and guidance every step of the way.”
Contact SKT Law Today
If you’re under federal investigation and considering a proffer, having the right legal team can make all the difference. Our attorneys at SKT Law have a deep understanding of federal criminal law and a proven track record; we’re ready to put our experience to work for you. Your future is too important to risk. Contact us today to schedule a consultation. We’re here to help you make informed decisions and work towards the best possible outcome.