Proffer Agreements in Federal Criminal Cases

          It is often the case that the evidence against persons charged with federal crimes is overwhelming while the sentences imposed are severe.  Because of that, many people who are charged with federal crimes are more interested in entering into a plea agreement with the prosecutor (who is called an Assistant United States Attorney) than they are in having a trial where their guilt or innocence is decided by a jury consisting of twelve members of the community.

          One frequently-employed way of getting a reduced sentence in a federal case is for the accused (who is referred to as the defendant) to provide substantial assistance to the prosecutor and to other law enforcement agents.  Such assistance often consists of providing information about co-defendants or about other crimes that the defendant has knowledge of.  Defendants (and their lawyers) tend to find such arrangements to be nerve-wracking because of the possibility that the information provided by the accused to law enforcement may later be used by the prosecutor to charge the defendant with additional crimes. 

          It is partly because of that concern that proffer agreements exist.  These written agreements typically provide that the statements made by a defendant during his meeting with law enforcement agents may not be used against him at his trial unless he says something to the jury that differs from what he told the agents.  It is common for such agreements to explicitly state that a defendant is being offered only limited use immunity for nonviolent crimes, not derivative use immunity or transactional immunity.

          Earlier this month, the Eleventh Circuit Court of Appeals decided the case of United States of America v. Schwartz which addresses the issue of proffer agreements.  This case is significant because it narrows the protection that proffer agreements were traditionally thought to have provided.  In the Schwartz case, the prosecutor sent a proffer letter to the lawyer for one of the defendants which gave the defendant limited use immunity in exchange for the information that he would provide to law enforcement agents.  After the defendant agreed to this arrangement, he spoke with agents on four different occasions.  One of those agents then went before a grand jury and testified as to what the defendant had stated at the four meetings.  The grand jury, in turn, returned a superseding indictment against that particular defendant.  Later, when the accused learned of what had occurred, he filed a motion asking the judge to dismiss his indictment because the prosecutor used what he believed were immunized statements to obtain the superseding indictment.

           On appeal, the Eleventh Circuit Court disagreed with the defendant in part because the proffer letter did not directly address whether the defendant's immunized statements could be presented to a grand jury.   In addition, the proffer letter stated that the accused waived his right to have a Kastigar hearing in the future.  A Kastigar hearing, which has its origin in the United States Supreme Court case of Kastigar v. United States, is a hearing to decide whether the prosecution presented immunized testimony to a grand jury in violation of a person's privilege against self-incrimination that is guaranteed to all of us by the Fifth Amendment to the U.S. Constitution.

           The upshot of the Schwartz case is that lawyers for clients who are charged with federal crimes must scrutinize the language contained in proffer agreements so that their clients do not unwittingly provide prosecutors with evidence that is later used against them in court.

If you were arrested for a federal crime in Florida, call me, attorney Ron Chapman, at 561-832-4348 to discuss your case and see how I might be able to help you.