Introduction

A proffer session can be a useful tool for individuals facing federal charges. It offers an opportunity to share information with prosecutors in hopes of receiving leniency in sentencing or a reduced charge. But while proffers can be beneficial, they come with serious risks. Missteps in a proffer session can lead to new charges, eliminate plea deal opportunities, or even result in a harsher prison sentence than originally anticipated.

If you or a loved one are considering a proffer, it’s critical to understand the risks and take steps to mitigate them. The stakes are high, and a single mistake can have long-term consequences.

1. A Proffer is Not a Guarantee of Immunity

Many defendants assume that participating in a proffer session means they will be fully protected. This is not the case. A proffer agreement only provides limited protection, meaning the government cannot directly use your statements against you, but there are exceptions.

Prosecutors can use the information you provide to build a case using independent sources. If they find evidence that contradicts your statements, they may argue that you lied, which can lead to additional charges.

2. Lying in a Proffer Can Lead to Perjury or Obstruction Charges

One of the biggest risks of a proffer is making false statements or material omissions. Federal law—18 U.S.C. § 1001—makes it a crime to lie to federal agents. If prosecutors believe you have misrepresented facts, they can:

• Charge you with perjury or obstruction of justice.
• Use the proffer statements against you in court.
• Withdraw any plea deal or leniency they may have considered offering.

Even an unintentional mistake can be viewed as a lie, which is why careful preparation with an experienced attorney is critical before a proffer session.

3. Breaking a Proffer Agreement Can Worsen Your Sentence

If the government determines that you failed to cooperate fully or violated the terms of the proffer, they may revoke any benefits that were promised. Worse, they can use the information you provided against you at sentencing.

For example, if you admit in a proffer to a broader role in a crime than the government initially suspected, and the deal falls apart, they can use the details of your admission to seek sentencing enhancements under the U.S. Sentencing Guidelines.

4. The Government Holds All the Power

Proffer agreements are not binding contracts for leniency. Prosecutors hold the final authority to decide whether your cooperation was valuable enough to warrant a benefit. Even if you provide information that leads to convictions, the government may still decide that your cooperation wasn’t substantial enough to justify a sentencing reduction.

Prosecutors Can Decide Not to Recommend a 5K1.1 Motion

A 5K1.1 motion allows a judge to reduce a sentence for substantial assistance. However, only the prosecutor can file this motion, and if they believe your cooperation wasn’t sufficient, you could end up with zero benefit from the proffer.

5. Proffer Statements Can Lead to Additional Investigations

A proffer session often leads prosecutors to open new lines of inquiry. If they discover additional criminal conduct based on your statements, they can investigate further and bring new charges against you.

Additionally, if you implicate others during your proffer, prosecutors may call you as a witness in future cases, which could expose you to retaliation or further legal complications.

6. Proffers Can Create Conflicts with Co-Defendants

If multiple defendants in a case are considering proffers, there is a risk that statements will conflict. If prosecutors detect inconsistencies between your version of events and what others have said, they may:

• Assume you are lying and revoke any deals.
• Pressure you into testifying against co-defendants.
• Charge you with additional crimes based on conflicting accounts.

7. The Government Can Use “Derivative Evidence” Against You

Even though the government cannot directly use your proffer statements against you in court, they can use the information you provide to gather independent evidence.

For example, if you admit in a proffer that you hid financial records in a certain location, prosecutors cannot use your statement directly—but they can obtain a search warrant and use any evidence they find to prosecute you.

8. Future Legal Strategies May Be Limited

If your case goes to trial, your proffer statements could limit your defense options. Prosecutors can use them to rebut defenses that contradict what you said in the proffer. This could prevent you from arguing innocence or presenting certain mitigating factors at sentencing.

9. Cooperation is a Long-Term Commitment

If you enter a proffer and later decide not to testify or cooperate further, prosecutors may see this as a breach of agreement and retaliate. Some cooperation agreements require ongoing assistance, meaning you may be called to testify in the future, even if you want to move on with your life.

10. Your Words Can Affect Others

A proffer isn’t just about your case—it often involves information about other individuals. What you say can lead to new investigations, arrests, or plea deals for others. This can create personal and professional consequences, particularly if you have business associates or family members who are implicated in your statements.

Mitigating the Risks of a Proffer

1. Hire an Experienced Federal Defense Attorney

Before agreeing to a proffer, consult a lawyer who specializes in federal criminal defense. A good attorney will:

• Negotiate clear terms for your protection.
• Help you understand what the government expects.
• Prepare you thoroughly so you do not make unintended admissions.

2. Be Honest But Cautious

Tell the truth, but avoid guessing or exaggerating. If you do not remember something, say so instead of making assumptions.

3. Clarify the Benefits Beforehand

Before entering a proffer, work with your attorney to determine:

• What type of sentencing recommendation is likely?
• Will the government file a 5K1.1 motion for cooperation?
• What protections are in place if the proffer does not lead to a deal?

4. Do Not Agree to a Proffer Without a Clear Strategy

A proffer should never be an impulsive decision. It should be part of a well-thought-out legal strategy with clear objectives and safeguards.

Final Thoughts

A proffer can be a powerful tool, but it is not without dangers. If you are considering cooperation, take the time to fully understand the risks and benefits. A misstep in a proffer can cost you your freedom, and your credibility.

At White Collar Advice, we guide clients through proffers, ensuring they make informed, strategic decisions. Schedule a call with us today or join our weekly webinar to learn how to navigate the federal system safely and effectively.

Justin Paperny