We are, of course, talking about the exercise where you and the government agree to certain conditions governing your client's meeting with, and debriefing by, prosecutors. The written agreements governing these proffer sessions now are known as "queen for a day" or "Mae West" (as in "Why don't you come up and . . ." -- get the picture!) letters or simply proffer agreements.

Though the language varies among judicial districts, a typical, though "bare bones," agreement, resembles the following sample letter from the Northern District of Texas, is as follows:

Dear Defense Counsel:

You have indicated that your client, Mr. X, desires to provide information that could relate to violations of federal law. This letter agreement is intended to govern the government's use of the information provided by Mr./Ms. X.

As we have previously discussed, Mr./Ms. X has important information relevant to existing civil and potential criminal investigations.

All discussions with you and Mr./Ms. X are governed by Rule 410 of the Federal Rules of Evidence, as modified herein.

(1) No statements that either you or Mr./Ms. X make during these discussions can be used as evidence against him in any criminal proceedings except the government may use such statements for the purpose of cross examination, impeachment and rebuttal should your client testify at any proceeding contrary to this proffer.

(2) The government is free to use as evidence against Mr./Ms. X, if otherwise admissible, any information which may be directly or indirectly derived from such statements.

(3) Finally, notwithstanding the protection afforded in this letter, Mr./Ms. X can be prosecuted for perjury, giving a false statement or obstruction of justice should he knowingly provide false information.

This letter contains the entire agreement between the United States Attorney for the _______ District of ______, you and your client. Nothing in this agreement shall be construed as the acceptance by either party of a plea offer or agreement by the government to forego prosecution of Mr./Ms. X.

The Agreement is signed by the government attorney, the defendant and the defendant's counsel, and, if all goes well, your client tells the government what he/she knows, in exchange for which, your client receives some form of leniency, e.g., a plea to a lesser charge, sentencing considerations under U.S.S.G. 5K1.1, letter immunity or, ideally, court-ordered immunity from prosecution.

Unfortunately, such proffers do not go well, and your client is left in a worse position than if he or she had never come forward in the first place. Often the government prosecutor does not think that your client's information is worthy of leniency and/or that the information, while true, is not what the prosecutor wanted to receive as it contravenes the theory of prosecution. In other cases, the prosecutor simply believes your client is not being truthful. Accordingly, every lawyer who takes the client to the government for a proffer should be aware of the pitfalls.

Virtually every version of a proffer agreement, including the sample from the Northern District of Texas, seeks to overreach by requiring the client to waiver the protections afforded by Rule 410 of the Federal Rules of Evidence (and the equivalent Rule 11(e)(6) of the Federal Rules of Criminal Procedures). Defense counsel should advise their clients that they are giving up important rights for the opportunity to seek leniency.

Rules 410 and 11(e)(6) provide that statements made in the course of plea negotiations which do not result in a plea of guilty are inadmissible in any civil or criminal proceeding, with two exceptions. The first exception is when another statement made in the course of the same plea negotiations has been introduced and "the statement ought in fairness be considered contemporaneously with it." The second exception is in a prosecution for perjury or false statement "if the statement was made by the defendant under oath, on the record and in the presence of counsel."

The sample agreement from the Northern District of Texas is unusual in that it not only undercuts the client's protections under Rule 410, it also provides that any statements made during the proffer session by either the client or counsel can be used to impeach the client.

While this provision goes further than the routine abrogation of Rule 410, the Supreme Court has held that a client can waive his rights under Rule 410, just as a client can waive his Speedy Trial Act protections or right to a jury trial. See United States v. Mezzanatto, 513 U.S.196 (1995). Based on Mezzanatto, the courts will no doubt agree that the "admission of plea statements for impeachment purposes enhances the truth-seeking function of trials and will result in more accurate verdicts," Mezzanatto, 513 U.S. at 204, even if the plea statements are made by counsel rather than the client.

In the mid-1980s, the Criminal Enforcement Office of the Tax Division at DOJ took the courageous and appropriate position that any statements of counsel made at a conference would not be used as vicarious admissions, but some U.S. Attorney's Offices do not agree. Remembering the Hippocratic oath, "First, do no harm," defense counsel should carefully analyze proffer agreements to determine whether his/her statements can be used vicariously against the client.

While virtually every proffer agreement in the federal system seeks to abrogate Rule 410, the District of New Jersey's standard proffer agreement goes even further, perhaps emboldened by Mezzanatto and its progeny. That Agreement seeks to ensure that none of the parties consider the proffer meeting to be a plea bargaining session, and that if a court ever determines that it was a plea bargaining session, then the defendant waives any rights he or she may have under Rule 410 or Rule 11(e)(6).

Thus, the operative paragraph in that district's proffer agreement reads as follows:

It is understood by Mr./Ms. X that this debriefing may ultimately result in a plea bargain. However, this agreement does not constitute a plea bargaining session. This debriefing will determine whether there is a basis for a plea bargain to occur. If this agreement is subsequently construed as a plea bargaining session, Mr./Ms. X knowingly and voluntarily waives any right he has pursuant to Fed.R.Evid. 410 and Fed.R.Crim.P. 11(e)(6), which would prohibit the use against him of statements during plea discussions.

The bad news is that a court interpreting this language, even if it found that the proffer session was in fact a plea bargaining session, probably would also conclude that the client had waived his or her rights "absent some affirmative indication that the agreement was entered into unknowingly or involuntarily." See Mezzanatto, 513 U.S. at 210.

Be cognizant of the provision in virtually all proffer agreements which provides for "derivative" use of your client's statement and information. The typical agreement states that the government "is free to use" as evidence against your client any information which may be "directly or indirectly derived" from the statements at the proffer session. What does that mean? For guidance, consider these cases in which the government's derivative use of information obtained during a proffer was challenged:

• United States v. Johnson, 1999 WL 378318 (E.D. La., June 10, 1999) - In this case, the court noted that "the government can [] grant varying degrees of immunity in informal agreements with individuals." Moreover, the agreement specified that the government would not offer the defendant's statements into evidence in its case-in-chief but could use the information derived directly or indirectly for the purpose of obtaining and pursuing leads to other evidence.

• The court concluded that there was no problem with the government placing defendant's statements in the search warrant application because this was proper "derivative use" and did not constitute "placing the statements into evidence" or "cross-examining her with the statements," presumably the only things that would be precluded by the signed agreement. See also United States v. Chiu, 109 F.3d 624 (9^th Cir. 1997)(where the government clearly granted only direct use immunity, the use of defendant's statements to prepare other witnesses comports with the terms of the agreement).

• United States v. Pielago, 135 F.3d 703 (11^th Cir. 1998) - The agreement at issue stated that "no information or statement provided" by the defendant could be used against her, but that the government could pursue and use any and all investigative leads derived from her statements or information, not an uncommon provision in these proffer agreements.

• While noting that ambiguities in proffer agreements "should be resolved in favor of the criminal defendant," and that the government "used" her statements against her in obtaining an indictment and a guilty plea from a co-conspirator who subsequently testified against her, the U.S. Court of Appeals for the 11^th Circuit applied contract principles and allowed the use of the derived evidence. Though the agreement generally forbade the government from using the defendant's statements or information against, the court ruled that the agreement specifically permitted the government to use evidence derived from the information and statements that she gave. In a strong dissent, Judge Phyllis Kravitch noted that unlike many proffer agreements that bar only the defendant's "statements" from being used in the government's case-in-chief, the agreement in this case explicitly prohibited the use of "statements or information" against her.

• United States v. Threw, 861 F.2d 1046 (7^th Cir. 1988) - This case presented an interesting situation that put the defendant and counsel in a difficult position. In a proffer agreement, the government agreed not to use any statements made or information provided by the defendant against the defendant "in any criminal case." However, as part of the plea agreement, the defendant agreed that the U.S. Attorney's Office would fully apprise the court and the probation office of the nature, scope and extent of the defendant's conduct and that all information provided to the U.S. Attorney's Office during the course of the defendant's cooperation. The information obtained during the proffer was turned over to the probation office and resulted in a substantial increase in defendant's sentence.

• While the court agreed that the result was troubling, it concluded that the government's use of the information obtained during the proffer did not require that the defendant be resentenced. In a stinging dissent, Judge Hubert Will wrote that the proffer letter and plea agreement created a terrible "Catch 22" dilemma and noted that the "United States government should be above such trickery." The dissent went on to state that "proffer letters are subject to abuse and should not be utilized as a substitute for a grant of derivative use immunity."

• Patel v. United States, 19 F.3d 1231 (7^th Cir. 1994) - The proffer agreement provided that the government could make derivative use of information obtained in "subsequent" proceedings against the defendant. The defendant argued that the word "subsequent" precluded the use of the information in the government's case-in-chief. The court disagreed, but suggested that the letter could have been "drafted more artfully to remove any doubt as to the terms of the agreement."

The only good news for the defense in the entire proffer arena is a recent case from the Central District of California, United States v. Sudikoff, 36 F. Supp.2d 1196 (C.D. Ca. 1999), which held that documents and information relating to the government's proffer sessions with "accomplice witnesses" may have to be disclosed to the defense. The District Court stated:

Any information that reveals any variations in the proffered testimony of an accomplice witness testifying pursuant to a leniency agreement is relevant to the witness's credibility and therefore must be disclosed . . . In addition, any information that reveals the nature of the negotiation process that led to the leniency agreement is relevant to the witness's motives to testify and must be disclosed.

So much for the good news.

The overall lesson to remember is that even though your client may have little choice but to swallow hard and sign a "queen for a day" agreement with the government, you should beware!

BIOGRAPHICAL INFORMATION

Martha Purcell Rogers handles white collar criminal defense, with an emphasis on health care fraud and tax fraud matters.