New Language In Pittsburgh Proffer Agreement Increases Risks For White Collar Criminal Defendants In Western District Of Pennsylvania

For those persons in the midst of a federal "white collar" criminal investigation, an oftentimes crucial - and always difficult - decision is whether to "proffer" to the government. That decision just became tougher in any investigation conducted in the Western District of Pennsylvania, because the Pittsburgh U.S. Attorney's Office recently made a small but important change to the language of its standard proffer agreement.

Because every case is unique, an experienced "white collar" criminal defense attorney should be consulted prior to engaging in any proffer.

In a white collar criminal investigation, a proffer can occur before an indictment is handed down by a grand jury. Proffers are postured as informal, "off the record" meetings, and typically occur between the government (generally the Assistant U.S. Attorney ("AUSA") and one or more federal agents) and a person in whom the government has taken an interest. But such meetings are hardly inconsequential - proffers can be vital to the resolution of a criminal matter. Usually the person being interviewed is either a "target" of the investigation - someone the prosecutor regards as a potential criminal defendant because the government has substantial evidence linking the person to the commission of a crime - or a "subject" of the investigation - someone whose conduct is within the scope of the grand jury's investigation, but who has not yet been classified by the government as either a "target" or a "witness." A "witness" is someone who has information relevant to the investigation, but who is not under suspicion.

In the proffer, the person answers questions from the AUSA and the investigating agent (from, e.g., the FBI or the IRS) in the hopes of showing either that he engaged in wrongdoing and should be considered for immunity or a plea agreement, or that he had no involvement in the crime and should not be charged. A proffer is often a prerequisite to a plea agreement: the government wants to know what it's getting before entering into a deal. No court reporter is present; the only record of the meeting is the handwritten notes taken by the person's attorney and the investigating agent. After the proffer, the government reduces the agent's notes into a proffer statement, which is typically contained in an investigative report traditionally referred to as a "302" - short for FBI Form FD-302.

Before any proffer, the government presents a proffer agreement that the person being interviewed...