“Queen for a Day” or Risk of Peril? Considerations for Proffering with the Government
Imagine you’re a longtime employee of a company that operates in a highly regulated industry. Your employment has seen its ups and downs throughout the years, and you have witnessed many transitions: new policies and procedures implemented, new leadership appointed, and new rules and regulations of which your company must comply to remain in lawful standing with regulators. Occasionally, you’ve observed activity that might be questionable but you never thought much about it. That is, until you’re called into a meeting with your company’s lawyers who inform you that “the U.S. Attorney’s Office wants to meet with you.” What do you do next?
Government investigations often rely on interviews with current and former employees to collect information in furtherance of an investigation. Whether the government considers the witness a participant in unlawful conduct or a mere bystander, an invitation to meet with an Assistant U.S. Attorney (“AUSA”) can produce more than just anxiety; it can be perilous. The AUSA is meeting with the witness with the expectation that she will share information that will further the investigation, and to understand how the witness would testify if an enforcement action were brought. Depending on what is shared during the meeting, the witness’s statements can potentially expose her or her employer to risk of an enforcement proceeding or prosecution.
Enter the proffer or “queen for a day” agreement.
Proffer agreements set the terms of a U.S. Attorney’s Office interview and, most importantly, how the government may use information that it learns during that interview. Though a proffer agreement’s content and structure may vary from jurisdiction to jurisdiction, some key themes remain the same, and often are non-negotiable.
For the “proffering” witness the most important provision involves how her statements can be used. A key feature of proffer agreements is that they prohibit the government’s direct use of a witness’s statements in the government’s prosecution of that witness, i.e., in a later prosecution against that witness, the government cannot call an agent in its case-in-chief to testify to what the witness said.
There are, however, important limits to the protections of a proffer agreement. For example, if the witness was dishonest or intentionally withheld relevant information during the proffer session, the proffer agreement would not shield the witness from prosecution for lying to federal agents. Proffer agreements generally provide that if the witness is determined to have made false statements or omit relevant information during the proffer, she could face charges for obstruction of justice (18 U.S.C. § 1503) or making a false statement or declaration (18 U.S.C. §§ 1001, 1623). Moreover, if the witness subsequently makes statements or takes a position inconsistent with the statements she made during the proffer, then the government could use her statements to rebut that later, inconsistent statement or position. For example, if the witness is later prosecuted and testifies—or even if her lawyer makes an argument—that is inconsistent with her proffer statements, then the government may use her proffer statements to impeach the witness and rebut her “new” position. If the witness is later prosecuted, her testimony and arguments will be constrained to those made during her proffer, lest she be determined to have breached the proffer agreement, which may free up the government to have an agent testify to her proffer statements.
While the government might not be able to call a witness to recite a witness’s proffer statements in a later prosecution, it can make “derivative” use of statements and information it learns during the proffer. The government will use proffer statements to pursue leads, subpoena records, and interview others. Through those efforts, it may capture new and additional evidence that can be used against the proffering witness. All information that is derivative of the proffer is fair game for the government to further investigate and prosecute, but the witness’s statements made during the proffer session itself generally cannot be used against that witness, unless the statements were untruthful or later contradicted.
Proffer agreements are critical when meeting with the government, and witnesses should consider several factors before deciding to attend such an interview:
What is your “status,” and do you face any individual enforcement risk? Whether the government views you as a witness, Subject or Target may inform your willingness to cooperate with investigators, the topics discussed, and whether there is a need to address with the government other, more protective forms of immunity in exchange for information.
How does your position within a company relate to the issues being investigated by the government? Perhaps your role within a company gives you a perspective on issues that are important to the government’s investigation. If this is the case, then there may be opportunity to broach the possibility for more protective forms of immunity or cooperation credit down the line.
Do you run risk of being “untruthful” during the proffer session? “Tell the truth” seems like a simple instruction; however, the truth sometimes is in the eyes of the beholder. Memories of events may not always be clear, information may be omitted, or you may share information with the government that contradicts what is learned from another witness, all of which can complicate and impact defense strategy and lead to potential exposure. Care in telling the truth, not overstating, and not speculating during a proffer is crucial. Therefore, adequate and detailed preparation is essential before proffering with the government to prevent any semblance of untruthfulness during the proffer session.
Will a conversation with your attorney suffice? In preparing for a proffer session, you and your attorney may wish to seek an “attorney proffer” instead of an in-person proffer. An attorney proffer is a meeting between the government and defense counsel only, where the attorney effectively presents “hypotheticals” of what you would say if you were to meet with the government. An attorney proffer may be a better option to evaluate whether the witness should proffer, should seek some more protective form of immunity, or should enter a plea with or without cooperation. Done correctly, attorney proffers can be an important tool to foster an information exchange with the government, correct misimpressions, and possibly further negotiations about your treatment in the investigation.
Any meeting with a government official has its risks, but those risks can be mitigated by experienced counsel evaluating whether a “proffer agreement,” or some more protective form of immunity, is appropriate before meeting with a representative of the DOJ or federal agency. If you do receive a request to meet with the U.S. Attorney’s Office or to be interviewed by a federal agent, and decide to attend that meeting, a proffer agreement can and should be requested. But you must understand the limits of its protections. And these complex issues should never be navigated alone. Experienced counsel is a must if you are ever contacted for a meeting with a government official.