In certain situations, it can be in a criminal defendant’s best interests to cooperate with the government. At the The Criminal Defense Firm, we generally advise our clients to cooperate in two specific types of circumstances:
- The first is when the evidence against our client is so overwhelming that it simply cannot be rebutted. For example, if a client sold stolen government property to undercover agents, the entire transaction was caught on tape, and our client has already admitted to his involvement, this is a situation where we would likely recommend cooperation.
- The second is when our client would face significant risks if his case went to trial, and he can receive significant credit for his cooperation. This credit could mean not being charged with a crime, being charged with a lesser offense, or minimizing (or eliminating) the possibility of going to prison.
In both cases, the most common way to cooperate is by way of a proffer interview.
Understanding Proffers in Federal Criminal Prosecutions
A proffer is a meeting between a criminal defendant and the government that typically takes place at the local U.S. Attorney’s Office. At the meeting, the defendant is represented by counsel, and the government is represented by the prosecutor and the agents who investigated the alleged criminal activity. Proffer meetings are normally subject to a limited immunity agreement, which allows the defendant to share information, records, emails, videos, and documents that may be of use to the government.
Proffers are not available for violent crimes, or to individuals with a history of violent criminal conduct.
Disclosure of Information
A proffer is unique in that the defendant essentially incriminates himself by openly talking about his role in, and his knowledge of, the crime. The rules for a proffer are simple: The defendant is expected to share everything that he knows about the crime in question and the people involved. The defendant must tell the truth and must not withhold any relevant information. He also must not attempt to minimize his involvement or exaggerate other individual’s roles in the offense. A proffer is not an opportunity to blame others or present oneself as an innocent bystander the forum for this approach is at trial.
Effect of False Statements
If it turns out that the information that a defendant provides during a proffer is inconsistent with the evidence that the government obtains through other sources, then the defendant’s proffer disclosures may be used against him at trial. The government can use the information disclosed during the proffer to refute the defendant’s statements on the stand with the goal of impeaching him through cross-examination. The government can also use proffer information at sentencing, and false statements or material omissions made during the proffer are subject to prosecution under 18 U.S.C. Sect. 1001 (false statements to a federal agent) as a separate federal offense.
Benefits to the Defendant
A proffer agreement is not a promise of absolute immunity, but rather an agreement between the parties for a certain level of use immunity.In exchange for the defendant providing valuable and true information, the government agrees to provide the defendant with several important benefits. While the proffer agreement will explain that no firm promises can be made regarding the outcome of the defendant’s case, in the agreement, the government will commit to not use the information provided by the defendant in court, except under very limited circumstances.
Understanding “Derivative Use”
Importantly, even with a proffer agreement in place, the government can still make what is known as “derivative use” of information disclosed during the proffer. This basically means that the government can pursue any investigative leads suggested by the information provided. Information obtained from this derivative use can then be used against the defendant in future proceedings.
The Criminal Defense Firm | Experienced Federal Defense Attorneys Representing Clients Nationwide
If you are under federal investigation or facing federal charges, and you are considering cooperating with the government, it is critical that you speak with an attorney before doing anything that could harm your defense. The experienced defense attorneys and former federal prosecutors at the The Criminal Defense Firm can effectively advise you whether a proffer makes sense in your personal circumstances.
To speak with one of our senior attorneys in a free, confidential consultation, call 866-603-4540 or request an appointment online today.
Dr. Nick Oberheiden is a national litigation and trial criminal defense attorney who practices exclusively in the area of federal law.