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Federal investigation/federal crime (proffer)

Chicago, IL |

As a target of a federal investigation in a federal crime do you have to worry about proffer statements that you have with the ausa and fbi when it comes to the travesty of relevant conduct? Just curious about this.

Attorney Answers 6

Posted

When you make statements in a proffer session, you are usually granted a limited form of immunity. Provided you tell the truth, they can't use those statements against you in their case in chief. But they often can use them to develop other leads and for impeachment if you change your story. If YOU are the target of a federal investigation, find a good federal lawyer and follow their advise. Oh, and yes, relevant conduct IS a travesty!

No legal advice is given here. My responses to questions on Avvo are never intended as legal advice and must NOT be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions & Answers forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. I am only licensed in the States of California and New York and the District of Columbia

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Posted

Yes, this is very serious. Proffer statements come in all flavors and immunity may not be comprehensive enough. Do not walk into a proffer session without an attorney. As far as relevant conduct, you may not be indicted under an immunity agreement for these acts, but it sure will show up during sentencing. Be smart and have an attorney review your testimony before the session. If it has already passed, call that attorney and get an exposure review. Take Care!

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Posted

The benefits of a proffer may be significant: the government may decline prosecution, reduce anticipated or pending charges, or recommend leniency at sentencing and after that sentence is imposed. However, proffer agreements generally do not protect subjects, targets, or defendants from the government's use of derivative information (evidence not directly disclosed during a proffer but found as a result of the investigation of information provided), and they never protect subjects, targets, or defendants if untruthful or incomplete information is given, or from information that is already known to the government. Therefore, I recommend that you retain an attorney who will communicate with the government regarding the status of the investigation, and determine whether the extent of the relevant conduct is already known to the government. If it is not known, you may be able to insulate yourself from its impact pursuant to the proffer agreement and U.S.S.G. § 1B1.18 in the event of a conviction, or alternatively, you may be able to mitigate its impact by the value of the cooperation that you provide.

Joshua Sabert Lowther, Esq.
NATIONAL FEDERAL DEFENSE GROUP
jlowther@nationalfederaldefense.com
http://www.NationalFederalDefense.com
866.380.1782

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3 comments

Stephen F Wallace

Stephen F Wallace

Posted

This is good stuff - U.S.S.G. § 1B1.18 - typo - which guideline did you mean?

Joshua Sabert Lowther

Joshua Sabert Lowther

Posted

Thanks for catching that! I meant 1B1.8.

Stephen F Wallace

Stephen F Wallace

Posted

I learn everyday from your posts. Thanks.

Posted

Yes, statements made in a proffer can be used as relevant conduct. Typically, a proffer letter permits the government to make derivative use of statements, and keep building a case against a target. The decision to make a proffer is not an easy one, and requires careful assessment by an attorney with experience in federal criminal law.

It is rare, in my experience, that a target can help himself/herself by making a proffer, and the proffer letter, also known as a Queen for a Day letter, offers very limited protection. In order for the proffer to be successful, the client/target must be completely honest with counsel, and counsel has to judge whether the benefit of speaking to the government outweighs the risk. Good luck.

The response I have provided is general in nature, and does not create an attorney-client relationship. My practice is based in Rhode Island, and the law and practice in other states or jurisdictions may be different.

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Posted

I think you are asking whether the Government can use your proffer as relevant conduct at the time of sentencing. This is an extremely complicated question that you must discuss with your attorney, who knows all of the facts of your particular case.

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Posted

Yes. You absolutely have to worry about it. It is true that a proffer can't be used against you (so long as you don't violate the terms of the proffer), but -- and this is crucial -- the AUSA can use the proffer to contradict any mitigation arguments you might make at sentencing. Not all U.S. Attorneys are the same and it is important to know who you are dealing with. Additionally, the Judge is overwhelmingly important.
However, usually when you are at the proffer stage, you are trying to mitigate existing damage and being truthful is the most important thing -- if you are proffering then the AUSA already has you highlighted as a target. When in a hole, the first rule is to stop digging.

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3 comments

Asker

Posted

What if the situation is the following: defense counsel and defendant sat with ausa for proffer session and then the case was reassigned to a different ausa will that proffer still continue to work in the same fashion although it was conducted with a different ausa? When you say "not all U.S. Attorneys are the same and it is important to know who you are dealing with" do you mean the following (some ausa's can be very vindictive, operating on a power trip, lack empathy, or just generally untrustworthy)?

David James Zugman

David James Zugman

Posted

Assistants are people and like all people they can be vindictive, mean, viscous, or untrustworthy...But also like all people, they trade on their reputation and it's important for them to see themselves as fair dealers (and for the judges to share that opinion.) Usually when a case gets handed off that is a good thing for the defendant because the new assistant does not feel as invested in the case, but that can be a really horrible problem if the prior AUSA was sympathetic or was otherwise a good fit for the case. Unfortunately, some times it can just be bad luck to get a new and worse AUSA (same can happen with the judge, juror, lead investigator...) This doesn't mean you are totally out of luck, but it does mean that you need to be very careful about this situation.

David James Zugman

David James Zugman

Posted

That should be "vicious" not "viscous". I don't know any viscous AUSAs...

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