A Brief Introduction About the Proffer Agreement
To define proffer, this serves to be the best way, and proffer means the meeting that takes place between the criminal defendant and the U.S Government. Such a meeting takes place usually in the U.S attorney’s office but not in court. So what is a proffer agreement from the above definition? Yes, it is written an agreement between an individual under investigation and the federal prosecutor, which will allow these persons to provide useful information related to the crime to the U.S Government with some assurances.
Another term used to define proffer is “Queen for a day.” This agreement also promises that their words will not be used against them in any later meetings of the same criminal investigation. But they are not completely immunity agreements. Though proffer agreement is a straightforward process, still different factors may guide you to go against proffer under various situations. To decide whether to get proffer or not, it is better to consult the experienced defense attorney.
Who Takes the Proffer Agreement?
The two leading personalities involved in the proffer agreement are subject and target. A question means the person who is working for this proffer in the law enforcement agency. His witnesses will turn into the target person as guilty of the crime. So the target is the individual under criminal investigation. Most of the white-collar investigations are dealt with the proffer sessions.
Once an individual enters into the proffer agreement, you need to furnish information in a proffer session, and people present in a proffer session include you, your federal attorney, Assistant U.S. Attorney (AUSA), etc. Even or more federal agents involved in your case attend the proffer session. Nowadays, some of the regulatory attorneys are also attending the proffer sessions when the U.S government needed to handle the other parallel civil and criminal investigations.
Purpose of the Proffer Agreement
The proffer session will usually take place in the local U.S Attorney’s office between the criminal defendant and the U.S Government. An individual accused of the illegal activities is represented by the Bar Counsel, whereas the U.S Government is represented by the public legal official along with other federal authorized agents.
According to the proffer definition, the session will not allow any number of immunity agreements to be represented by the defendant, but only a limited immunity agreement is permitted. Here comes the purpose of the proffer agreement; the session is mainly conducted to bring out and share all the verbal or written documents that are useful to the government to decide about the case.
One can also submit limited electronic information such as e-statements, e-records, emails, and other videos, etc. Such a proffer letter is applicable for an individual who doesn’t have any criminal records or violent history in the past.
When coming to the rules of the proffer, they are much simple. The central fact is the individual under criminal investigation has to share all the relevant facts and information regarding the case to the U.S Government. Proffer is different from other legal claims as it allows the defendant to talk about his mistakes openly to the session and also his knowledge about the crime. Such an individual should be careful like he should not overact to minimize his involvement or do too much of his role in the case.
Contents of the Proffer Agreement
A proffer letter can either benefit the subjects or targets of the case. In addition to this, such proffer will also carry some significant risks. In reality, it was estimated to be more than 95% of the people who are accused to be criminals are proved to the same and sentenced to some punishments.
This is because more than 90% of the people wanted to solve their cases by submitting plea agreements. So, the result is that the U.S Government is winning many cases. With 20 counts given by the Government for solving the case and finds the truth about the criminal in the first count, then the penalties will be much higher for the suspect. This will not only affect the suspect, but also the lawyers represented in the proffer also get charged in damage control mode.
This is a normal practice, But to avoid this, most of the time, the suspect will make some deal with the lawyer. Such lawyers will decide to sell the Government to the value and money given by the client or suspect. Thus client proffer agreement results in offering a vehicle to do that the illegal act. Such an offer will also help the client to get some better plea agreements prepared by the lawyer for getting the excellent result of the case.
But when the case is unsuccessful for the client, and the Government finds that you are submitting all false statements, the client will be charged with other additional crimes. So, the trial will create additional risks to suspect when he/she limited to go in the test.
Points to Consider While Preparing the Proffer Agreement
While preparing for the proffer agreement, there are certain things to be considered for the safety of the defendant. Here are tips to make for the best proffer agreement example.
The first thing is to trust your lawyer. Don’t feel embarrassed to share the fundamental ideas regarding your case to him, as he might have faced similar situations before in his experience. So, it is crucial to tell him all the necessary information related to the case which will help you. The second thing is staying calm and sincere throughout the proffer session. You must accept the crimes or mistakes committed by you, as it will help you to communicate with your lawyer and also assist him effectively.
Another thing is humility. This strategy might you that when the prosecutor finds that you are accepting the responsibility for your mistakes and not overacting like not committed any errors. This will help to get a favorable decision. The next thing is essential; you require someone’s emotional support other than a lawyer for handling the case.
Some cases will keep on going on for a lengthy period, so you should not be worried about it but should stay happy with other activities. Listen to the questions carefully and then answer the best. Also, get prepared for additional or some unexpected problems. Plan in such a way that you have enough time to spend in the proffer session but not hurrying for your other personal commitments. This will lead to nervousness, and the prosecutor decides it to be untruthfulness.
Negotiation Strategy
Some individuals will try to engage in plea negotiations with the U.S Government without having any proper proffer agreement. The U.S attorney’s office will draft the proffer letter for the defendants’ review. They will also allow the little space for negotiation, but anyone to consider the rules of the proffer carefully in making plea negotiations. When the negotiations lead to the success of the defendant, it will result in a lower sentence. When the proffer session ends successful with the plea negotiations, the defendant will get a Cooperation Agreement.
Benefits & Drawbacks of the Proffer Agreement
Pros:
- Proffer is just like a safety agreement or prerequisite to the immunity agreement.
- Proffer sessions will help to learn the strengths and weaknesses of both the defendant’s and the prosecutor’s side.
- The U.S Government can make use of suspect’s access at trial for enhancing the witness’s bargaining position.
- The defendant will come to a better deal after thing about the sentencing guidelines.
Cons:
- Based on the information gathered in the proffer session, it may not lead to an immunity agreement.
- The suspect may accept the criminal activities committed by him in case such cases are difficult to prove by the U.S government. In such a situation, the proffer should be in a hypothetical form and such agreement may prevent your client to use for his side.
- Some of the untruths or omissions of documents may be for haunt witnesses. A Witness will be questioned about the agreement or witness decided to be accused of criminal acts when the suspect failed to proffer. This is possible when the statements submitted by the witness are not true.
- The Prosecutor has the only right to get some information from the witness and when the prosecutor finds to convince the witness, you don’t have to proffer anything. This is allowed when you don’t trust the prosecutor.
What Happens in Case of Violation?
There is a considerable risk when the U.S government comes to know that your information, evidence, arguments, and other representations admitted by you are not accurate in the proffer session. When they came to understand such shreds of evidence are untrue, they will raise the proffer against the individual who made such false statements.
The Government will use the proffer session by asking several cross-questions to the criminal to achieve truth from him and disprove the information provided by the suspect. Because of this, proffer information is used against the person in trial. When they find the suspect is going against the agreement, they will use the proffer information to provide the punishment for the defendant, as he/she deserves the crime committed.
At the proffer meeting, the Government will force the false documents or materials or statements made by the suspect by pointing towards the law of 18 U.S.C. Section 1001(1). This section charges necessary things to the person who made false statements to the federal agent. Such threats and charges made by the Government using the above the law will make the defendant feel fear and also make him accept the truth of the criminal act committed by him/her.
If you are a defendant who requires the proffer session to co-operate with the U.S Government, you should find an experienced defense counsel. Such a defense counsel should have handled similar proffer sessions before, and he should have the knowledge and the whole procedure involved in the proffer agreement. It is also necessary for you to furnish all the information relevant to the case to your attorney for helping him to handle your case very well. Sometimes choosing the right attorney will guide you whether you are eligible to enter the proffer agreement so that the defendant will win the case.
In case, if he finds the government will get the success, he will advise you not to enter this agreement. He decides after understanding the risks involved in the future with this proffer. Thus proffer agreements are some tricky things, but from the above article, it is clear about one fact that whatever happens, you must tell the truth even it is embarrassing. Thus, shortly telling the truth will help you to avoid some significant risks of the proffer agreement.