In the World of Corporate Criminal Investigations, What’s a Proffer?

A proffer is an opportunity for an individual to tell the government what he or she knows about the subject of an investigation.  They occur frequently in white collar investigations. 

Proffers can be written or an in-person interview.  Prosecutors almost always prefer an interview, which allows them to ask follow-up questions and to evaluate credibility and demeanor.  From the individual’s perspective, however, a written proffer is preferable, allowing for more thoughtful answers and minimizing the likelihood of surprises.

A proffer is less formal than grand jury testimony.  The individual will usually meet with a prosecutor and an agent at a governmental office.  Typically, the prosecutor asks questions while the agent takes notes, which he or she will use later to prepare a written summary of the interview.  (In the FBI, that interview summary is known as a “302” – the number for the form on which the agent writes the summary.)

An individual giving a proffer is free to have a lawyer present, who can participate in the interview as necessary.  For example, a lawyer might ask clarifying questions if a particular response leaves prosecutors confused or creates a misimpression.  Because a proffer is voluntary, the individual can also unilaterally end the discussion at any time.

Although a proffer is an informal process, the terms of the proffer are often heavily negotiated.  Usually, the agreed upon terms are written into a contract, the “proffer agreement.”  Among other terms, the proffer agreement will typically limit the government’s use of the information provided during the proffer.  For example, the government might agree that, if the person is later charged with a crime, it will not introduce at trial any statements made during the proffer.

A proffer is not without risks.  Although the government will typically agree to some limits on how it can use information learned during a proffer, those limits are not absolute.  In some cases, the government can use that information to build or strengthen a criminal case against the person giving the proffer.  And, although an individual cannot be charged with perjury based on statements made during a proffer, it is still a felony to lie to the government during a proffer session.

For example, a co-founder of fashion-accessory company Dooney & Bourke was convicted for false statements he made in FBI proffer sessions about an associate’s bribes to foreign officials.  Further, statements made during a proffer can generally be used to “impeach,” or contradict, a defendant’s inconsistent testimony at a trial or hearing. 

Individuals agree to proffers in white collar criminal cases for different reasons, including:

• An individual might have received a subpoena to testify before the grand jury. He might give prosecutors a proffer in the hope that providing the information informally can avoid the need for a grand jury appearance. 
• An individual might give a proffer in the hopes of convincing the government that she should not be a target of the investigation.
• A proffer can be an opportunity to show prosecutors that the individual has information valuable to the government’s case, and to convince the government to offer that individual immunity for his testimony.
• A proffer can sometimes be a prelude to plea negotiations, or an effort to convince the government to charge a less serious offense.

For the government, a proffer is an opportunity to size-up a potential witness or defendant, to assess his or her credibility, and to learn what that person knows.  For the individual providing the proffer, the decision to do so is a big one.  It means giving up the powerful protection of the Fifth Amendment right to refuse to consent to government questioning that could lead to answers that are incriminating.  So whether to provide a proffer is often subject to much debate between counsel and client.

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