The Proffer Letter:
The First Landmine in Federal Criminal Defense Practice
Assistant United States Attorneys (AUSAs) often take the position that a proffer letter, or a “Queen for a Day” agreement, is intended to protect a defendant who ultimately chooses not to cooperate with the government. Stated another way, as the Seventh Circuit Court of Appeals did in United States v. Threw, 861 F.2d 1046 (7th Cir. 1988), “the purpose of [a proffer letter], according to the government, is to ensure that in the event a cooperating defendant decides not to plead guilty, any information he may have ‘proffered’ to the government cannot later be used against him at trial” or sentencing, with some exceptions. It is those exceptions that call into question a proffer letter’s true purpose. In my view, the purpose of a proffer letter, from the government’s perspective, is to ensure that a defendant pleads guilty, because if he goes to trial after proffering, he is going to sentencing as well.
A typical two-page proffer letter in the District of Maryland contains the following language (liberally summarized):
The Government will not introduce proffer information directly against your client in any criminal trial, except under the following circumstances:
- If your client lies during the proffer;
- If your client is a witness and contradicts his proffered statements;
- If a witness on behalf of your client contradicts the proffered statements; If your client’s lawyer says something at trial or sentencing that contradicts what your client says during the proffer; or
- If your client contradicts his proffered statements at sentencing.
The parties are then required to sign the agreement.
Given all of these exceptions, to include the fact that the government can make derivative use of the proffered statements, a defense lawyer must conduct a careful analysis of the facts of the case, the history of the client, as well as the sentencing guidelines, before accompanying him to a meeting with government counsel to provide the government with information the government may or may not already have. Sadly, this is not often done because of the perceived benefit of being the “first one in the door.”
In federal court, often after a defendant has had his initial appearance or detention hearing, an AUSA will call counsel and ask if “your guy is interested in talking to us?” In a multi-defendant case, the AUSA may follow-up with “the same offer is going out to others, so the first one in the door may get the best deal.” What may open a door for one client may close a door for another.
Let’s look at a recent example in the District of Maryland involving a defendant we will call John Smith (not his real name, which should not be objectionable since he was charged with, among other things, aggravated identity theft). The facts set forth in the indictment strongly suggested that Mr. Smith had knowingly signed money orders in another’s name and cashed them at a US Post Office. Mr. Smith, along with his then-counsel (not the undersigned), received one of those aforementioned phone calls and within 24 hours, Mr. Smith, his counsel, and two law enforcement agents were meeting with the AUSA in her office, with all of the protections afforded by a typical proffer letter, which, as previously indicated, were not many. In his proffer, Mr. Smith explained that he signed the money orders but did so at the direction of another person, his co-defendant, who had assured him he was authorized to do so. The government did not entirely believe Mr. Smith, insisting that he knew that the money orders were stolen. Mr. Smith decided that he wanted to go trial, but he had unwittingly given the government the one piece of evidence that no witness, no video and no handwriting expert had provided: Mr. Smith had acknowledged he had signed the money orders.
At that point, Mr. Smith’s options were limited. First, he fired his lawyer. Next, he considered what exactly his remaining options were. Had he not proffered, he would have had the option of arguing that the government could not prove beyond a reasonable doubt that he had signed the money orders, cell tower information simply not being enough. Now, in light of his statement to the agents and the AUSA, any such position at trial would result in the government having the ability to introduce the substance of his proffer. Mr. Smith’s lawyer at trial would have been unable to challenge key evidence, such as cell tower information, because that would have arguably opened the door to Mr. Smith’s admissions. Ultimately, Mr. Smith pled guilty to a deal that might have been more beneficial but for his initial efforts to justify his actions.
The one weakness of the government’s case was overcome by the defense lawyer’s rush to “bring in his client.” Had the lawyer done a careful analysis, he might have concluded that the government’s case had some significant weaknesses. Or, he might have challenged Mr. Smith beforehand to ensure that he was being completely candid and truthful with the government. He did neither of these things, and it was to the detriment of his client. In essence, the door had been slammed shut on the likelihood of success at trial.
If a lawyer represents an innocent client, then an “attorney proffer” may be appropriate in an effort to avoid indictment, stopping short of letting the client speak directly to the AUSA. In my view, a lawyer should advise his/her client to proffer only if the evidence of guilt is overwhelming and the consequences of a conviction are great, thus providing the client with some hope of a better sentence. In cases in which government lawyers have filed a complaint, setting forth in great detail the evidence against a client, it may be easy to conclude early on that the client should be the “first one in the door.” Usually, that is not the case, though, and such analysis requires time and collaboration with the client, as well as a willingness to devise a strategy that consists of more than merely signing at the bottom of a two-page document.
 The government had used cell tower records to place Mr. Smith’s phone in the vicinity of both the co-defendant and the postal office at the time the money orders were cashed.