Proffer Interviews in Federal Criminal Cases
Hollywood often portrays a cooperator as someone who wears a wire and goes undercover for federal agents. While this happens, and we have navigated some clients through such arrangements, the far more common method of cooperation is rarely discussed or portrayed on the screen: the proffer interview.
What is a proffer interview?
Put simply, a proffer interview, also known as a “king for a day” or “free talk,” takes place when a criminal defendant agrees to speak with federal and local law enforcement agents to provide information that might be useful in making cases against other persons.
While these interviews can be an avenue to significantly reduce a federal sentence, there are perils and pitfalls that can cause substantial harm to a defendant. The decision to cooperate with authorities should be made after consulting with an attorney who has expertise in the practice of federal criminal law and a full understanding of a defendant’s case and particular circumstances.
Before discussing the benefits and costs of a proffer interview, it is important to point out that speaking with law enforcement officials without an attorney present is a dangerous proposition. Most of the time, interviews with law enforcement officials without an attorney present end up being confessions that seal a person’s fate. If there was any room to establish innocence or challenge guilt, many people facing charges succumb to the sophisticated interrogation techniques of law enforcement officers. As stated before, the decision to participate in a law enforcement interview is an important one with massive legal consequences and should only be done with the advice of an attorney. Moreover, interviews, if they are advisable, should only take place with that attorney present.
The Perils of Proffers
First and foremost, successful proffers require a cooperator to admit his or her own guilt. It is very rare that a person could dispute his own guilt but convince authorities that they have reliable and credible information about other people. Typically, proffers and 5k1 departures accompany guilty pleas. That means that people who dispute their own guilt should generally avoid participating in a proffer interview. Further, if there is a significant legal defense then a proffer should be avoided.
Also, many defendants elect not to participate in law enforcement interviews for various reasons. First and foremost, some defendants do not want to be viewed as a snitch or have an affinity for the people for which they would be telling agents about. This is a normative position that is ultimately in the defendant’s hands. However, it is important to recognize that many people in the federal system cooperate and such loyalty is often misplaced. It is also important to consider that most defendants put themselves in their situation and serious thought should be given whether protecting a person who has broken the law of their own volition is worth foregoing an opportunity for a defendant to help himself.
Certain people express qualms about cooperating because they fear for their safety. While movies and television often show violent consequences for cooperation, such incidents are not as common in real life. Having said that, not all safety concerns are frivolous. It is important to understand that the federal Bureau of Prisons, as well as other federal law enforcement agencies, are generally equipped to address such concerns and provide safety to cooperating defendants. Once again, such possibilities should be seriously considered before refusing to cooperate.
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Finally, it is also important to recognize that proffer agreements are not just casual bargains sealed with a handshake. They often are accompanied with a proffer letter specifically outlining the scope and limitations of the agreement. Below are a few of the more significant aspects of most federal proffers.
There is a limited immunity allowed during proffers. This means that none of the information provided in a proffer can be directly used to convict a defendant or enhance his sentence. This is why it is referred to as a “free talk.” However, this provision does not apply to any admissions of commission of violent offenses. It is also important to recognize that indirect or derivative use of proffers can be used against a cooperator.
For example, if Cooperator A says that she is aware that Co-defendant B deals drugs and federal agents make a case against Co-defendant B that does not prevent agents from using information from Co-defendant B against Cooperator A. Imagine Cooperator A states that she knows Co-defendant B likes to deal marijuana in Arkansas but neglects to tell agents that she also has dealt methamphetamine to Co-defendant B several times in the past. If agents arrest Co-defendant B and learn about the methamphetamine deals, they are free to include that in the prosecution of Cooperator A.
This limited immunity should not be confused with transactional immunity. Proffer agreements do not provide a shield to prosecution or a get-out-of-jail-free card. Only the statements within the proffer are shielded from use in court, not the actions underlying the statements.
(The fact that agents did not witness any of the deals between A and B does not prevent inclusion of such information in the aggregation of drug quantity. This is called using “ghost dope.)
Honesty is paramount. Any deception during an interview can obliterate the interview and cost a defendant the benefit of a 5k1 departure. Further, deception could forfeit the immunity protection that proffers typically entail.
Finally, most proffers are only agreements with the prosecuting agency that makes the agreement. It is important to remember that there are 94 federal districts in the U.S. They are not able to bind each other or prevent prosecution in other districts. This means that if information is given during a proffer that is pertinent to the jurisdictional boundary of a different federal district, the proffer agreement technically does not provide immunity protection for the statements within the interview.
Reasons to Proffer
The benefits of proffer agreements are substantial. First and foremost, they are the primary mechanism to achieve a 5k1 downward departure. Simply admitting guilt and entering a plea of guilt will not allow for a downward departure. Defendants must provide information that leads to the successful prosecution of others.
Second, proffers may be the only way for detained defendants to actually be released while their case is pending. This does not happen often but successful proffers could lead to a recommendation by prosecutors for pretrial release (pretrial here is meant as a reference to the time between arrest and sentencing and not an indication that successful proffers occur in situations where defendants take their case to trial.)
Also, proffers allow cooperating defendants to begin building a relationship with case agents. Remember, these agents are the primary source of information to probation officers when such officers are drafting a pre-sentence report (PSR) for the judge. For defendants facing a federal sentence, the PSR, and its accompanying information are the most significant source of information a federal judge relies upon when assessing sentence. Cooperating defendants oftentimes enjoy diluted PSRs that do not necessarily paint the cooperator in as poor of a light as could be the case otherwise.
Ultimately, the decision to enter into a proffer agreement is one of the most significant aspects of any federal criminal representation. The importance of this decision cannot be overstated. Effective defense attorneys put serious thought into rendering advice in this area. Persons facing federal charges should get such advice from experienced attorneys familiar with the case facts, wishes of the client, and available defenses.
Downward Departures under 5k1 of the United States sentencing guidelines are perhaps the most powerful weapon possible to lower punishment for those convicted of a crime in a federal court. To qualify for this type of sentence reducer, a criminal defendant has to have “substantially cooperated” with federal authorities. Thus, the operative question for persons trying to cooperate becomes, “What specifically must a person do to be deemed to have “substantially” cooperated?”
If you have been charged with a federal offense or are considering a proffer interview, call to hire our attorneys anywhere in the United States: (817) 203-2220. You can also contact us online:
Also published on Medium.