Government Proffers: Best Practices for White Collar Practitioners

To proffer or not to proffer? This question can be one of the most nerve racking parts of a criminal case. While the goal is always the same, to get the best possible result for your client, there is no universal strategy that will guarantee success in every situation. Instead, there is a continuum of potential strategies that range from taking conciliatory to hard lines approaches with the Government. However, just because there is no “go to strategy” for these situations, every attorney can develop a successful strategy by employing a structured analytical approach to the facts and circumstances of the case.

Context of the Proffer

When deciding whether to proffer your client you should first take into consideration the context in which their testimony is being requested. Specifically, is the Government requesting a proffer through:
-A Grand Jury Subpoena
-Government Enforcement Action
-Pre-Indictment Letter from the Government
-Direct Contact with law Enforcement
-Post-indictment Letter from the Government

Each of these scenarios provides a different starting point to begin your analysis.  In the context of the Grand Jury testimony, the Government is likely still investigating the matter and collecting evidence to support a criminal prosecution. In the Pre-Indictment context, its possible that no other suspects have cooperated, but the filing of an indictment could be inevitable. In the post indictment context, it’s likely that your client is not the first person to cooperate. If the matter is a Government enforcement action, there is the potential that the matter may not be taking the criminal path and early cooperation could prevent being drawn into a civil matter. Regardless, you need to make sure you have a solid and clear understanding of the prosecutorial environment that you and your client are wading into.

Analysis of the Government’s Case

The decision to proffer should also take into consideration your analysis of the Government’s case and your client’s potential criminal liability. For example, you must determine whether the Government views your client as potential target of their investigation, the subject of their investigation or a potential witness. Depending on the Government’s view of your client, you can determine whether cooperation is likely to result in an indictment or a decline of charges. Furthermore, you must also determine what evidence the Government possesses against your client. This will help you determine if your Client’s testimony is the last puzzle piece the Government needs to prosecute, could change the Government’s position on your client, for better or for worse, or if the matter could potentially disappear if your client refuses to cooperate.

Posture of the Other Parties

The decision to proffer must also consider how the other parties have, or are likely to, react in this matter. Your client’s potential co-defendants may have decided to hang together and create a united front against cooperation. They may also be trampling over each other in a race to testify against their former colleagues. While your client does not need to follow step with his potential or current co-defendants, his reaction in relation to theirs could have additional consequences. Breaking rank in the first context could make your client the odd man out and interfere with any strategy potential group strategy to resolve this matter. Standing firm in the second context could make your client the “last man standing” in the matter, as his former co-defendant’s line up to testify against him.

Protections

Finally, the decision to proffer should depend on what protections have been put in place to assure that your client will benefit from his cooperation and not talking himself into future criminal liability.

Fifth Amendment Rights

Your client is always free to assert his Fifth Amendment right against self-incrimination and refuse to testify. As outlined below, asserting the Fifth Amendment will not always save your client from testifying as the Government and the Court can circumvent this right through the ordering of a statutory immunity agreements. However, if considered as part of your global strategy, the assertion of this right can be your client’s first step to achieving a desired immunity protection.

Statutory Immunity

Statutory immunity is granted by the Court upon the request of the United States attorney for the district for an order requiring the individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination. See 18 U.S.C.A. § 6003(a). In order to request this order, the AUSA must have the approval of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any designated Assistant Attorney General or Deputy Assistant Attorney General, and must believe that: (1) the testimony or other information from such individual may be necessary to the public interest; and (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.

The immunity provided by statutory immunity falls under the umbrella of use/derivative use immunity. According to 18 U.S.C.A. § 6002(1) “no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.” This immunity prevents your client’s testimony from being used against him, but does not prevent his prosecution if any criminal acts testified or alluded to during the proffer can be proved through entirely independent sources.

Informal Immunity Agreements

The government has the option to grant varying degrees of “informal immunity” through cooperation agreements with individuals in circumstances short of them claiming their Fifth Amendment privilege. In these situations, the Government is not bound by any of the above procedures and requirements to obtain statutory immunity. In general, the Government may offer two different types of immunity. First, is the previously discussed use/derivative agreements, which are usually referred to as “Queen for a Day” deals. Second, the Government has the option to offer transactional immunity, which provides the much great protection of full immunity from prosecution for any offense to which the testimony relates. While transactional immunity would always be preferred over any other form of immunity, it is far less likely to be offered or gained.

Whichever immunity is offered, the agreements with the prosecutor are considered contracts between your client and the Government and, as such, any later disputes will be interpreted by the Court using the general principles of contract law. Moreover, since these are considered contracts, agencies that are not parties to the agreement cannot be bound by its terms and conditions. State prosecutorial agencies would not be prevented from levying charges against a Defendant, even if his agreement with the federal Government called for complete immunity from prosecution.

The terms and condition of a proffer agreement are entirely at the discretion of the Government and they usually have provisions that reserve their right to use immunized testimony in limited circumstances. The most common of these circumstances is when the immunized individual later testifies to information that differs from his proffer statement. In those situations the proffered testimony may be brought in for impeachment purposes. Similarly, the immunized testimony may also be used if he later perjures himself.

Strategy

Once all of the above factors are considered you must make a final determination on how to proceed with your strategy. While there are infinite forms that your strategy could take, there is a continuum that it will likely fall somewhere on. At one end of the continuum is the conciliatory position, where your client is willing to offer his testimony. In these circumstances, regardless of the type of immunity offered, there is likely an understanding that the Government has decided not to prosecute your client and that they only need the information he might possess. This position requires confidence in your understanding of the Government’s case, the evidence against him and a sense of trust with the prosecutor you are dealing with.  At the opposite end of the continuum is the hard lined position, where your client asserts their Fifth Amendment rights and refuses to budge under any circumstances. In these situations the Government is required to seek statutory immunity if they require your client’s testimony. This position may be taken solely by your client, or in concert with the other accused parties in the matter.

 

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