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Queen For a Day: The Risks of Proffer Agreements

A “Proffer agreement,” more informally known as “queen-for-a-day” agreement, is a routine tool used in federal criminal practice.[1] However, before you decide to enter into a proffer agreement with the government, you should take a careful look at some of the hidden pitfalls and perils associated with these agreements and weigh your options carefully.

What exactly is a proffer agreement?

A proffer agreement is a written agreement between federal prosecutors and an individual (usually the target of an investigation or a defendant), in which the individual agrees to provide information to the prosecution at an informal debriefing (also known as a “proffer session”). In return, the government promises not to use the proffer statements against the individual at any subsequent trial.[2] However, if the individual lies during a proffer session, the government may offer those statements against him or her. More about this “impeachment” catch is discussed below. Often times, the government also reserves the right to use the information to further its investigation.

Typically, it’s understood that one enters into a proffer agreement with the hope that it will later lead to an immunity agreement or plea bargain if the government is satisfied with the information provided.

What are the risks associated with proffer agreements?

Proffer agreements carry with them unique and inherent risks that require serious consideration. Because proffer agreements are not formal immunity agreements or plea bargains, they do not offer the same protections if the government decides to act on the information turned over to them. While the government may not use proffer session statements against the individual in its case-in-chief, the government can use the information provided to follow leads and conduct further investigation. If those leads and further investigations lead to new evidence, the new evidence can be used to indict and convict the individual who gave the information in the proffer session[3]—a particularly dangerous pitfall.

Additionally, as previously mentioned, nearly all proffer agreements contain clauses that allow the government to use false or misleading statements made during proffer sessions for impeachment purposes (that is, to discredit the witness’s testimony). Thus, if any part of the testimony or information provided during a proffer session is deemed to be misleading or outright untruthful, the entire proffer agreement can be admitted against you at trial. This can put you and your defense in an uncomfortably compromised position, all in an effort to keep the damaging proffer statements away from the ears and eyes of the jury.

What factors should you consider before entering into a proffer agreement?

Whether you should ultimately enter into a proffer agreement is not a light decision. However, some factors to consider in making the decision include:

  • Likelihood of indictment;
  • Strength of defense;
  • Willingness to disclose the whole truth;
  • Timing;
  • Financial ability; and
  • Effect of an indictment.[4]

Ultimately, the decision to proffer or not is up to you, but it should not be made without the assistance of a qualified and experienced white collar criminal defense attorney. If you have been contacted by a law enforcement agency about an interview, a qualified white collar criminal defense attorney can help you decide if entering into a proffer agreement is a good option.

 

[1] Richard B. Zabel, James J. Benjamin Jr., ‘Queen for A Day’ or ‘Courtesan for A Day’: The Sixth Amendment Limits to Proffer Agreements, 15 White-Collar Crime Rep. 1 (2001).

[2] Id.

[3] Proffer Agreement Law and Legal Definition, USLegal, Inc., https://definitions.uslegal.com/p/proffer-agreement/.

[4] Kenneth C. Picking, The Risks and Benefits of Proffer Agreements in Parallel Proceedings, A.B.A., April 4, 2012, http://apps.americanbar.org/litigation/committees/criminal/email/winter2012/winter2012-0402-risks-benefits-proffer-agreements-parallel-proceedings.html.


Cazayoux Ewing Represents Case Against the Federal Government


Original post: Louisiana Record on March 10, 2017 by Michael Abella

LAFAYETTE – A Lafayette Parish resident alleges she was injured in a motor vehicle accident with a federal employee.

Crystal Gerard filed a complaint on March 3 in the U.S. District Court for the Western District of Louisiana, Lafayette Division against the United States of America alleging that the government entity failed to perform its obligations.

According to the complaint, the plaintiff alleges that on Jan. 29, 2015, she filed a Federal Tort Claim Act claim against defendant due to an injury she allegedly sustained in a vehicular accident caused by Robert Bannon, an employee of defendant’s Department of Agriculture, Forest Service. As a result of the accident, she alleges she has suffered physical and mental pain, lost wages and medical expenses.

The plaintiff holds United States of America responsible because on Sept. 26, 2016, the Office of the General Counsel for the Department of Agriculture allegedly denied to pay her claim.

The plaintiff requests a trial by jury and seeks judgment against defendant in an amount which is just and reasonable in the premises, plus interest, all costs of these proceedings and all other relief that may be just and equitable. She is represented by Donald J. Cazayoux Jr. and J. Lane Ewing Jr. of Cazayoux Ewing LLC in Baton Rouge and Yul D. Lorio and Kevin P. Tauzin of Tauzin & Lorio, Attorney at Law in Lafayette.

U.S. District Court for the Western District of Louisiana, Lafayette Division Case number 6:17-cv-00348

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