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
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!
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
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.
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.
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.