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Proffer, Plea and Cooperation Agreements for Criminal Defendants

By Ronald W. Chapman II

When a criminal Defendant makes the decision to cooperate with the government, the negotiation of the Proffer, the Plea (Rule 11) and the Cooperation Agreement will generally determine the Defendant’s sentencing exposure at sentencing. These three documents are most prevalent in Federal white collar defense cases– including healthcare fraud. These agreements are generally uniform or standard in your particular district, but can be modified with some successful negotiation. Thus, successful negotiation of the various terms in these documents is imperative to achieving a lower sentence. Cooperation with the government begins with a “Proffer,” where the Defendant sits down with his attorney, the Assistant U.S. Attorney, and Federal Agents from the DEA, DOJ, IRS, ATF, etc., and discusses the Defendant’s involvement with the charged conduct (health care fraud, drug trafficking). After a successful Proffer, the criminal Defendant will likely receive a Cooperation Agreement.

Proffer Agreements

Federal Rule of Evidence 410 states that any statements made by a criminal defendant during Plea negotiations cannot be used against him or her. The government does not like this rule very much because the Defendant has no skin in the game when deciding to make a statement. With 410 protection, the criminal Defendant can make a completely false statement to Federal agents with impunity. Thus, the government began drafting Kastigar letters, or “queen for a day” letters, which essentially waive a Defendants protections under FRE 410 in exchange for the possibility of a Cooperation Agreement. Generally, this letter will allow the government to use statements made during the Proffer against the Defendant for impeachment, but not during the government’s case-in-chief or sentencing. However, the terms of this letter vary from district to district. This agreement may also permit the government to use proffered statements to rebut assertions made by the defense counsel.

Cooperation Agreements

After a successful Proffer, the government will likely extend a Cooperation Agreement. A basic Cooperation Agreement will require a guilty Plea and full cooperation of the Defendant in the investigation and prosecution of others in exchange for the prospect of a 5k1.1 downward departure Motion, and thus a substantially reduced sentence. Most agreements will require that the Defendant provide truthful information regarding all criminal activities of the Defendant and others involved in the offense. Sometimes, the government requests that the Defendant waive the right to counsel during debriefings. At the end of the cooperation and prior to sentencing, the government– if satisfied with the Defendant’s cooperation– will file a 5k1.1 Motion to request that the judge depart from the minimum guideline range for sentencing. Most Agreements make clear that the government will only file a 5k1.1 Motion if they are satisfied with the cooperation. The government will generally recommend a specific number of guideline levels to be reduced from the guidelines.

Plea Agreement (Rule 11 Agreement)

The Plea Agreement details the charge that the Defendant will plead guilty to, and possibly the sentence range agreed to by the government and the defense. Most Plea Agreements also contain waivers of various constitutional and statutory rights including: the right to appeal the sentence; the right to further discovery; the right to a jury determination of certain factual issues brought out at sentencing; the right to request, or suggest downward departure from the sentencing guidelines; etc. Plea agreements vary widely, and you can be rest assured that the government is continually including clauses in their “form” Sentencing Agreement that will restrict the Defendant’s ability to make them do any additional work during or after sentencing. However, depending on the Defendant’s bargaining position, many of these clauses are negotiable and can be excluded from a Plea Agreement or “Rule 11 Agreement”.

Defendant’s Breach

Many Defendants want to know what will happen if they breach either of the agreements outlined above by making false statements, refusing to plead guilty, etc. First, the Defendant is likely to face prosecution for the initial charges and 42 U.S.C. 1001 “false statements to the government” if false statements were made during the Proffer. Second, most statements elicited during the Proffer will restrict a defense attorney’s ability to make inconsistent arguments at trial. Third, statements made during the Proffer will be used to impeach the Defendant (if he/she testifies) and the Defendant’s witnesses. Finally, the effects of the Proffer will likely have increased the government’s knowledge of the offenses and created additional defendants/witnesses that can be called at trial. The effect of a failed Proffer is highly dependent on the trial strategy. If the Defendant is proffering statements consistent with his/her eventual trial strategy, the effect of a failed Proffer is limited. However, if the Proffer severely limits potential defenses, then the effect of a failed Proffer may eviscerate your defense. As you can see, the decision to Proffer and to engage in a Cooperation Agreement and Plea Agreement requires careful calculation and the advice of a very experienced white collar criminal defense attorney.