A proffer agreement is an agreement you sign with the government when you decide to offer it information about a criminal matter. In exchange, you get “limited use immunity.” But what does this mean, exactly? And are you entirely protected from federal prosecution? As explained below, the answer to this latter question is No.

  1. Indirect Evidence May be Used Against You

Limited use immunity means that the government cannot directly use the statements you make to the government against you if they decided to prosecute you. Fair enough. What’s the catch?

Well, the government can use those statements against you indirectly. That is, statements you make during a proffer session can be used, indirectly, (1) to obtain other leads, (2) to cross-examine you if you decide to testify, including to rebut any evidence or arguments you may offer in your defense (during any stage of the prosecution), or (3) if you lie, as evidence that you committed perjury, made a false statement, or attempted to obstruct the government.

We focus on the first of these. The government (i.e. the prosecution) may use your statements to follow up on any leads it gets, or to conduct further investigations. Now, if those leads and further investigations result in new evidence you did not supply the government, then the government can use it against you.

Practically speaking, then, if you decide to enter into a proffer session (plea session) with the government for a tax crime, you will want to make sure you disclose all evidence that could potentially harm you. However, this must be balanced against being concise.

  1. Background: Mezzanatto—Supreme Court Rules on Proffer Agreements

The historical backdrop to proffer agreements comes from the seminal decision by the Supreme Court in United States v. Mezzanatto, 513 U.S. 196 (1995).

In 1995, the Court ruled that proffer statements may be used to impeach a defendant at trial. In that case, the defendant testified during trial in a way that contradicted his proffer statements. Consequently, the prosecution impeached him using his prior statements, resulting in his conviction.

Mezzanatto appealed the decision. He argued that, even thought the proffer agreement said otherwise, the statements he made during his proffer session could not be used against him at trial (for impeachment purposes); he argued that to do so would violate Federal Rules of Evidence 410 and Procedure 11(e)(6). These Rules are explained in further detail below—See Section E.

The Court disagreed with the defendant. It reasoned that a defendant’s procedural rights—Rules 410 and 11(e)(6)—are “presumptively waivable.” United States v. Mezzanatto, 513 U.S. 196, 201 (1995). Thus the prosecution may use proffer statements to contradict (impeach) you at trial.

Unfortunately, the decision left some things unclear. The Court ruled that a person’s statements made during a proffer session receive immunity protection—but, as just mentioned, that protection may be “waived” (given up) if the government wants to use the statements to impeach him or her. What the Court did not decide, however, was whether a person may waive that protection for other purposes. As explained just below, prosecutors have taken this indecision by the Court to their advantage.

  1. Statements to Rebut Arguments and Inconsistent Evidence (expansion of Mezzantto)

Since 1995, courts and prosecutors have used proffer statements against defendants for purposes other than impeachment. The Mezzantto Court addressed only the question whether such statements may be used for impeachment purposes.

For example, the Ninth Circuit allows the government prosecutor to use a defendant’s statements for the purpose of preparing its witnesses for trial. It did not seem to matter to the Ninth Circuit whether the proffer agreement specifically barred the government from using the defendant’s statements in the subsequent proceeding. See United States v. Chiu, 109 F.3d 624 (1997). http://law.justia.com/cases/federal/appellate-courts/F3/109/624/516313/

There is another way in which proffer agreements offer only “limited use immunity.” The government is allowed to use (directly) your statements against you (i.e. if the matter goes to trial) to counter inconsistent statements you make or to rebut arguments you make in court in your defense.

This point is underscored by a recent case. In United States v. Oluwanisola, 605 F.3d 124 (2d Cir. 2010), the 2nd Circuit found that a defendant is deemed to implicitly assert an inconsistent statement made in his proffer session, thus waiving his immunity right and allowing the government to use statements made during the proffer session, when the defense attorney asked certain questions that tacitly contained a statement that was contrary to the proffer statements. See Id at 131-34. Factually, the situation is a bit complex, but this case shows how broad the exceptions to proffer immunity can be.

  1. Proffer agreements give some protection, but those agreements must be “interpreted.”

As a contract, a proffer agreement must be interpreted using the standard hermeneutical principles of contract construction, including giving the agreement its plain meaning; interpreting it as a whole, and limiting interpretations to what is actually written on the page (as opposed to what is allegedly “implicit” to the agreement); avoiding interpretations that render a provision superfluous; and, if there is an ambiguity that is found in the document, rendering that ambiguity against the drafter which, 99% of the time, is the government itself. For our purposes, the last principle mentioned—interpreting ambiguities against the drafter—is probably the most important. That issue was taken up in United States v. Torres, 2008 WL 2977884 (S.D.N.Y, August 4, 2008), where the court said that “the Court resolves any ambiguities in the agreement against the Government” because “proffer agreements are unique contracts [that involve] special due process concerns for fairness and adequacy of procedural safeguards.”

  1. Effect of Waiving Evidence Rule 410

Federal Rule of Criminal Procedure 11(f) explains that whether a defendant’s statements made during a “plea discussion” are admissible as evidence in court is governed by Rule 410.

Proffer agreements have the effect of waiving a person’s rights under Federal Rule of Evidence 410. This Rule says that—except for some limited exceptions—statements made during “plea discussions” with a federal prosecutor cannot be used against you in a subsequent criminal prosecution. Rule 410 provides, in relevant part: “evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: . . . (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.”

  1. Risks and Benefits

What does the proffer agreement do to this Rule 410? It allows the prosecutor to use statements you made during your formal interview with him or her in ways that can later constrain your defense at trial. The risk of a proffer session is directly proportional to the risk that no immunity agreement or plea bargain is reached after the session. Without such an agreement, you could be indicted, and your defense could be stymied.

Despite this potential drawback, there are times when entering into a proffer agreement is actually a good thing. What if you were merely a witness to the crime? Or you think the government has a “slam dunk” case against you that is likely provable at court? In these cases, it may be better to sit down with the prosecutor during a proffer session to tell your side of the story—with the hope of some protection.

Potentially, a proffer session and agreement can result in (1) there being no charges against you, or (2) reduced charges. It could also (3) result in a “cooperation plea agreement” or, after being straightforward with the prosecution, it may (4) convince him to refrain from bringing a charge against you. These are good things.

  1. General Practical Advice

What follows is some “general practical advice,” which may or may not apply in your particular situation.

When you prepare for a proffer session, it is important to practice “role playing” with your attorney, where your attorney assumes the role of the government, asking the questions it would of you. Your attorney will often meet with the federal prosecutor prior to the proffer session to discern what areas of the case the government is interested in—and may even inquire as to the specific documents the government is keen on. Your attorney will spend a lot of time pouring over those documents, thinking about your case, and trying to discern what the government is after. From the client’s perspective this may seem a “waste” of time, but it is very important preparation. Often a battle is won not on the battlefield, but in the “war room” where the planning decisions are made before the battle itself. Your attorney will formulate practice questions after discussing with the prosecutor and reviewing the relevant documents.

This is also very important for your attorney to spend a lot of time reviewing documents and thinking about your case so that he can anticipate the prosecutor’s questions. Often proffer sessions occur early on in a case, before the defense attorney has a chance to fully understand all the facts; your attorney’s job is to fully learn (as best he or she can) about your case so he can anticipate the prosecutor’s questions (read: so that you are not blindsided by the government’s questioning!). Your attorney will then prepare you for the interview.

Therefore, practically speaking, in a proffer session you should be truthful and complete—but not “wordy.” Stay focused. It is important to be truthful, even to your embarrassment, because if you lie to the government you could also end up facing a federal criminal charge.