Federal Criminal Defense: “To Proffer or Not to Proffer – That is the Question”

New Jersey Criminal Lawyers Schwartz Posnock

A Criminal Law Article

By NJ Criminal Lawyer, David A. Schwartz, Esq.

Very often, a client who has been deemed a “target” of a federal criminal investigation will be given the opportunity to engage in a proffer session with the Assistant United States Attorney and the investigating officers. Whether you participate in a proffer session is an important decision which may impact the outcome of your case. It is not a decision to be taken lightly.

Proffer sessions take various forms. Usually, a proffer session will be a target’s chance to convince a prosecutor that he has significant information of criminal conduct by others (either in the same investigation, or in any other circumstances) such that he may earn the right to seek leniency based on his cooperation. Other times, the proffer may be what is termed an “innocence proffer,” which, as you might expect, is designed to convince the prosecutor that you are not criminally responsible and that you should not be prosecuted. Finally, there is a “reverse proffer” (alternatively called “show and tell”), where the Government discloses some of the evidence in its case to the target, to induce the target to enter into plea negotiations, and/or to engage in a cooperation proffer and a guilty plea.

Should You Proffer?

Unless you and your lawyer can affirmatively answer this question, with a clear idea of what you may gain from proffering, then you don’t a have a good reason to engage in a proffer. You don’t proffer simply because you think it may not hurt your case. Only proffer if the potential benefits are clear.

Considerations in Deciding Whether to Proffer

Does the Government have enough evidence to successfully prosecute you and obtain a conviction against for a federal offense? This is often a very hard question to answer, but with very careful vetting by your lawyer, you may be able to conclude that by proffering, you may add to the Government’s quantum of evidence. At most proffer sessions, you will be asked about your own involvement in the underlying investigation. Although there may be a Proffer Agreement in place, these agreements give very limited protection for the information you provide during the proffer. The standard Proffer Agreement allows the government to make indirect use of the information you provide.

If there is a good likelihood that the government lacks sufficient evidence to convict you, you may determine not to proffer.

Do you have significant information of criminal conduct of others? Cooperating with the Government usually starts with a proffer, where you are expected to tell everything that you know about the alleged criminal conduct of other individuals. The Government is almost always interested in strengthening their cases and learning of criminal activity that they otherwise know nothing about. To get the Government interested in your cooperation, the information of other crimes and criminality needs to be strong and direct. Although at times, you may be able to get some favorable consideration for providing “historical context” information, the real benefit to you will be in providing information that leads to others being charged with crimes.

Can You Convince the Government that You Should Not Be Charged?

The answer to this question can best be answered after your attorney has an initial conversation with the federal prosecutor and after you and your attorney discuss the evidence and your potential involvement. The conversation that your lawyer has with the prosecutor will reveal the offenses that the Government thinks you committed, the time-frame and a general overview of the evidence against you. This won’t be as revealing as a “Reverse Proffer” or “Show and Tell,” but it should give you enough to engage in a meaningful conversation with your lawyer. Only you really know what you may have done that could constitute a violation of a federal criminal law. By fully and completely revealing your activities to your lawyer, an informed decision can be made as to whether to engage in an innocence proffer.

Is There Any Reason Not to Attend a “Reverse Proffer”?

No. You have nothing to lose and a lot to gain by attending this type of proffer. You will learn even more about the strength of the Government’s case against you. The AUSA will likely show you documents, play audio recordings, and discuss other evidence that the Government has against you. You are not normally asked to speak at the Reverse Proffer. Instead, you have the opportunity to listen and learn, and then to discuss your next move with your lawyer. If you are convinced that there is a reason to proffer, you and your counsel will schedule a proffer session at another time. A Proffer Agreement will most likely be entered into before you proffer. There are, under limited circumstances, times when you may want to “proffer” without a proffer agreement. Information that is disclosed in the context of a plea discussion is entitled to more protection than the information disclosed in a proffer session. However, federal prosecutors are aware of this and may insist on a Proffer Agreement, in order to preclude you from claiming these additional protections.

The Traps in Proffering Are Numerous.

Most often, the damage is done when the individual proffering tells a lie or provides false information. Providing false information can constitute a crime and may cause you to be charged with an additional offense. Any benefit that you may have sought by cooperating will vanish. Giving less than complete information during your proffer can also work against your interests, as it makes the Government prosecutors suspicious of you and your information. If the Government lacks confidence in your truthfulness, it may opt not to work with you as a cooperator, as its own vetting process is very rigorous.

Complete Truthfulness is the golden rule. If you decide to proffer, you should commit yourself to telling the complete and absolute truth when you proffer. If you can’t make that commitment, don’t proffer.

If you start to proffer and the questioning gets into areas you did not anticipate, can you end the session? Yes. There is no requirement that you have to answer all of the questions asked of you in a proffer session. You can stop at any time. You can consult with your lawyer at any time. However, this is where the prior vetting process is the most useful. If you stop a proffer, you will immediately raise the suspicion index and the Government prosecutors will almost certainly begin to consider your involvement in other aspects of the investigation. If you can’t give truthful – and beneficial- answers to every possible area of questioning that you may be confronted with, then you have not answered the initial question posed in this article.

Your attorney should take extensive notes during the proffer session. This will be for the purpose of recording what you said, so there is no dispute later on if there is a question about your truthfulness. Further, your attorney will want to capture everything you said to make sure that you get credit for all of the information you provided during the proffer.

Do you have a clear answer to the question: Will attending a proffer session help my case? The experienced New Jersey federal criminal defense attorneys of Schwartz & Posnock will assist you in making this determination. We practice in all New Jersey federal courts, including the United States District Courts in Newark, Trenton, and Camden, as well as the United States Court of Appeals for the Third Circuit. Our offices are conveniently located in Monmouth County, Essex County, Union County, and Middlesex County. Call us today for a consultation at 732-544-1460, or you may simply email us.

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