A proffer is a written agreement that occurs after a meeting with federal authorities during which the defendant provides valuable information in hopes that this cooperation will result in a more lenient sentence. A federal proffer can take at least three different forms, which are discussed below.
In the federal system, punishment is often very harsh, even for non-violent or low-level offenses. That’s because federal judges often rely on a guideline that recommends a range of punishment that is typically on the high end. One of the biggest ways to potentially reduce a federal sentence is through something called a “5K Motion.”
A 5K Motion – which refers to 5K1.1 of the United States Sentencing Guideline – is filed by a prosecutor after he or she agrees to a downward departure from the recommended guideline range. So how do you get such a powerful motion from the very people who are prosecuting you? By providing “valuable information” to the government through a “federal proffer agreement.”
This article explains a federal proffer, which is sometimes referred to as being “queen for a day.” Think about a federal proffer as an agreement to cooperate with the government in exchange for an unknown benefit – but one that could substantially lower your sentence.
Most people use the word general proffer to describe a meeting between a defendant, his lawyer, federal agents, and a federal prosecutor where the defense is providing information to the government. Prosecutors are not always present, but federal agents are almost always present.
Another type of proffer is the reverse proffer. Some people describe this meeting as the government “showing a little bra strap.” In other words, the government will show just enough of the case to let the defendant know they have a solid case. There is no benefit to the client here other than not risking a trial.
Finally, there are sometimes attorney proffers. This is a situation in which the attorneys (defense and prosecution) sit down and talk in hypothetical terms about what a trial or a plea might look like. The defense attorney will get a sense of how strong the case is.
Both reverse proffers and attorneys proffers happen to facilitate pleas. In other words, the government is hoping the meeting will lead to a plea as opposed to the time and expenses of a trial.
This article focuses mainly on the general proffer.
There are two major benefits of a proffer:
The information you provide in a proffer cannot be used against you in most circumstances. However, there are some exceptions or caveats:
You are considered “Queen for a Day” because you can admit things the feds did not know about and be immune from prosecution. Let’s take a drug dealer who is proffering. Federal agents may know a lot about the dealer’s drug offenses, but nothing about the dealer’s tax fraud. The drug dealer in a proffer could admit to years of tax fraud and immunize themselves against any future prosecution for tax fraud by just talking about it in the proffer meeting. In other words, proffers allow people to tell the government about their involvement in crimes with the assurance this information cannot be used against them in any later proceeding.
However, prosecutors will not give immunity for admissions of violent acts such as murder.
Generally, the defense attorney and defendant attend a proffer. Sometimes prosecutors will also sit in on a proffer.
The most important aspect of a proffer is the expectation that a defendant will be honest. As you might expect, this means telling the truth – but it also means more than that. It means not remaining silent if you know something. It means being forthright and upfront. The agents shouldn’t have to pry the information out of you. You also have to make the agents believe you are telling the truth. Sometimes lack of knowledge can come across as you trying to protect someone. That’s the last thing you want. It’s just as important to impress the agents that you are being honest as it is for you to actually be honest.
The quickest way to mess up a federal proffer is to lie or have the agents think you are lying. In fact, lying to a federal agent is a crime, which can result in additional charges being filed against you. Another quick way to mess up is to minimize your conduct. Beyond upsetting the agents, it also runs contrary to your goal – tell them everything because what they didn’t know they can’t now against you later.
The Government can file a 5k1.1 motion that essentially unlocks the sentencing range. This results in a dramatically lower sentence.
Typically, if your statement leads to someone else being arrested or someone else pleading instead of going to trial, that is considered “valuable information.” Similarly, if you testify against someone at trial, that is generally going to be considered “valuable information.” Ultimately whether something is considered “substantial” is up to the prosecutor. Only the government can file a 5K1.1 motion or a Rule 35 motion. More on Rule 35 below. Further, it is never required that the government file such a motion. It is always discretionary.
The federal district court judge is the only one who can decide how much credit the defendant gets for their substantial assistance.
The judge can impose any sentence he or she deems appropriate – even probation, although that almost never happens. A judge can even sentence below a mandatory minimum, but only if the government’s motion gives the court the authority to do so.
Within a year of sentencing, the government can file a Rule 35 agreement that has the same benefit as a 5k1.1 motion before trial. This allows the court to reduce a sentence if the defendant, after sentencing, provides substantial assistance in the investigation or prosecution of another person.
A federal proffer should happen as early as possible in your criminal case. To get the most benefit, you need to be the first one (or one of the first ones) to the trough. With that said, you can proffer at any time and even after sentencing because you might have information that the Government still deems valuable.
You would generally only consider proffering if:
There are also situations when a federal proffer may happen before any case is filed. The attorneys at Varghese Summersett have secured non-prosecution agreements in some instances where our clients successfully proffered before filing.
One risk, as outlined above, is if the federal proffer doesn’t go well. Beyond that, obvious risks come with essentially “being a snitch.” Cooperating with the feds could put yourself or your family at risk. While the feds try to protect your identity by redacting your name in court documents, co-defendants can often figure out who you are. Finally, because speed is of the essence when it comes to proffering, you and your attorney must review the evidence and discuss it as quickly as possible. This often puts the attorney in a “drop everything else” mode to give your case the attention it needs – a proposition that can be very expensive.
You have to be an open book – and have to be certain that you will not go to trial.
Agents will meet you and your attorney at their office or your attorney’s. There will be a written proffer agreement. If you do not have a written proffer agreement and an attorney present, your conversation is basically just a confession. Your attorney needs to go over the federal proffer agreement with you. It must be in writing. Take the time to understand any grants of immunity and the limitations of that grant.
First and foremost, talk to your attorney. Talk about the types of information the feds are looking for and what they value (federal arrests.) Then start thinking about what you can share. Think of names and locations. Look through your devices or social media for evidence the government may want. If you have documents or financial records that may help, get copies. Come in with a humble attitude. Do not minimize facts, even if you disagree with the government’s narrative. There is no incentive in going in with anything other than an open mind and prepared to be an open book.
Understand that a proffer is never an agreement for complete immunity. It may, however, make a drastic difference in sentencing. You should never contemplate talking to agents or the Government alone. Proffers only exist with attorneys and through written proffer agreements.
If you are under federal investigation, you must contact a highly experienced federal attorney. Our team has vast experience brokering proffering agreements and defending federal cases. Call 214-903-4300 for a free consultation with a seasoned federal defense attorney. We have offices in Dallas and Fort Worth.