Example Proffer Agreement

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A proffer agreement, sometimes referred to as a “queen for a day” letter, is a written agreement between federal prosecutors and individuals under criminal investigation which permits these individuals to give the government information about crimes with some protection against prosecution.

Before concluding a cooperation agreement or bestowing immunity upon a criminal defendant, federal prosecutors typically necessitate that the individual “proffers” or presents the details that they will offer in return for more lenient treatment. According to Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(f), declarations made during plea negotiations with the government are, in most instances, not permissible as evidence.

Proffer agreements outline the rights and responsibilities of involved parties, including the prosecution’s right to utilize the defendant’s declarations or the defendant’s duty to maintain honesty. While these agreements can serve as safeguards for the defendant’s rights, they can also provide the prosecution with an upper hand they always have during plea negotiations.

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In Maryland, as in other states, proffer agreements are used as a tool for gathering information during the investigation of a crime. They are typically used in federal cases but may also be used in state cases.

 

Example Proffer Agreement

Here’s are 2 simplified examples of what a proffer agreement might look like:

EXAMPLE 1:

This agreement is made on May 11, 2023, between the United States Attorney’s Office for the District of Maryland (the “Government”), and ___, (the “Defendant”) and his/her attorney ___.

  1. Proffer Session: The Defendant agrees to attend and participate in an interview, known as a proffer session, with attorneys and agents of the Government. The Defendant agrees to answer all questions completely and truthfully.

  2. Use of Statements: The Government agrees that it will not use Defendant’s statements made during the proffer session directly against Defendant in any criminal case, except as provided below.

  3. Exceptions: The Government may use Defendant’s statements made during the proffer session:a. For the purpose of cross-examination, should Defendant testify inconsistently with the proffer session statements in any criminal case;b. For the purpose of rebutting any evidence or arguments offered on the Defendant’s behalf that are inconsistent with the proffer session statements;

    c. In a prosecution for perjury or obstruction of justice based on statements made by the Defendant during the proffer session.

  4. No Immunity: Nothing in this agreement provides any immunity to the Defendant. The Government retains the right to prosecute the Defendant for any criminal activity, including the matters discussed during the proffer session.

  5. Continued Cooperation: The Defendant agrees to continue to cooperate with the Government as requested, including providing additional information and testifying truthfully in any proceedings.

  6. Honesty: The absolute honesty and transparency are explicit essential conditions to the commitments made by this Office as specified in this letter. Therefore, if it is ever determined by this Office that Defendant has intentionally withheld significant information or has not been entirely truthful and open, this Office reserves the right to use any statements or any other information provided during the meeting against you for any intended purpose. In the event of such a conclusion, this Office will inform you prior to utilizing such statements or other information.

EXAMPLE 2:

Re: United States v. John Doe

Dear Mr. Smith:

This proffer letter is based on statements made by your client, John Doe, during an interview conducted by myself and agents from the Internal Revenue Service, and the Federal Bureau of Investigation, on Monday July 1, 2023, at 9:00 a.m., (“the interview”), the following terms and conditions apply:

  1. In the event that Mr. Doe faces criminal prosecution, the government will not use any of the statements he made during the above referenced interview against Mr. Doe at trial or for purposes of sentencing, except as provided below.
  2. If any of Mr. Doe’s statements during the interview are false, the government may use them against him in a prosecution for perjury, or obstruction of justice.
  3. The government may make derivative use of and may pursue any investigative leads suggested by statements made during Mr. Doe’s interview, and any evidence or information obtained from pursuing those investigative leads may be used against Mr. Doe for any purpose.
  4. The government may use Mr. Doe’s statements and any information provided by Mr. Doe to cross-examine him at trial and to rebut any evidence or arguments offered on his behalf.
  5. This proffer letter is not a plea agreement and if it is construed as a plea agreement Mr. Doe knowingly and voluntarily waives any right he might have under R. Evid. 410 or Fed. R. Crim. P. 11(f) to prohibit the use against Mr. Doe of statements made or information provided during the interview.
  6. This proffer letter does not obligate the government to enter into any plea discussions with Mr. Doe or to file any motion regarding cooperation provided by him. Furthermore, this proffer letter does not constitute the provision of complete information to the government concerning Mr. Doe’s involvement in an offense, within the meaning of Section 3E1.1(b)(1) of the Sentencing Guidelines.
  7. No statements made by Mr. Doe during the interview shall be used to determine the applicable Sentencing Guidelines range, except as set forth in the final sentence of this paragraph. However, the government may use such statements and any other information provided by your client to pursue investigative leads and may use any evidence or information generated by that investigation directly against Mr. Doe to determine the applicable guideline range.
  8. The government may disclose to any Probation Office and the Court any statements made and information provided by Mr. Doe during the interview and may use such statements and information to determine where within a given guideline range your client should be sentenced.

Very Truly Yours,

Jack Prosecutor

Assistant U.S. Attorney

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Writing Proffer Agreements

Proffer agreements lie at the intersection of contract and criminal law. These agreements are influenced by basic contract principles during their formulation while their disputes are resolved under the framework of criminal procedure. So drafting proffer agreements necessitates a comprehensive understanding of contract law and a meticulousness that may not be commonplace among criminal law practitioners. Lack of precision during drafting could lead to disputes regarding the interpretation of the proffer agreement’s terms.

Negotiating Terms

Although the basic parameters of proffer agreements and how they work is well established, nothing is necessarily set in stone. The prosecutors always have the discretion to agree to various changes, or special terms and conditions to accommodate or incentivize the subject. It’s always a good idea to make an effort to negotiate with the prosecutor on some of these terms.

One particular area where there may be room for negotiation is the use of the subject’s statements under proffer for sentencing guideline purposes. Some proffer agreements give prosecutors the right to use the subject’s statements against them for purposes of applying sentencing guidelines, or weighing what the appropriate sentence should be for a criminal conviction. This is a right that can be used as a bargaining chip and written out of the agreement.

Benefits Of Proffer Agreement

A proffer agreement does not give the witness blanket immunity from prosecution, but it does give them some limited or preliminary”use immunity.” This is typically all the prosecutors are willing to offer before they actually hear what the subject will say and what information he or she can testify to. The end goal for most witnesses when agreeing to a proffer is to convince the prosecution to agree to give them full immunity in exchange for an agreement to testify.

In this respect, the proffer agreement gives the subject the ability to basically audition for the role of cooperating witness. If the audition goes well, the subject will likely get the role as witness which will come will full immunity. If the audition does not go well, the proffer agreement gives the subject protection from the audition being used against them.