Understanding Legal Terms: Proffer Agreement letter
To be “Queen for a Day”…
Would you accept that offer?
If your attorney tells you he or she will get you a “Queen for a Day letter, you might think that it sounds like a good thing – who would not want to be a queen for a day? However, in the context of a federal criminal investigation, it may not be such good news.
The expression derives from a somewhat tasteless old radio and TV show that ran in the ’50s and ’60s wherein a female contestant would talk about what a horrible life she has had. If, in fact, her life was worse than the other contestants, it would be her lucky day and she would become “Queen for a Day” and get a list of prizes. The famous tagline was:
“This is Jack Bailey, wishing we could make every woman a queen, for every single day!”
In a federal criminal investigation, the United States Attorney’s Office refers to someone coming in to talk under a form of immunity as being, colloquially, a “Queen for a Day.” In that situation, your life might become significantly worse after your special day if it is not handled correctly. Basically, these “Queen for a Day” agreements, which are more properly called “proffer agreements,” essentially allow people to tell the government what information they have about a crime without those words being used against them.
Typically, one would enter into such an agreement because their attorney is concerned that they might incriminate themselves in a crime. They might just be a witness, although usually one would be a “Queen for a Day” if they are a “subject” of the investigation (meaning that they have criminal exposure, but there is not clear evidence linking them to the commission of a crime) or the “target” of the investigation (where there is such clear evidence linking them to the crime).
The “queen for a day” letter is a form of immunity, but it is extremely limited. While it may be better to go in to a proffer session with such an agreement then to go in without anything, subjects or targets must understand both how the agreement is protective but also how it could open them up to prosecution.
It is the form of immunity called “derivative use-immunity.” This means that the government cannot use one’s actual words against them unless they lie (and they can then use their words for impeachment). However, and very importantly, the government can make derivative use of their statements, meaning they can use information provided in a proffer session to conduct further investigation that they can use against the individual.
So, for example, assume you walked in and told the Assistant United States Attorney (“AUSA”) (under “Queen for a Day” protection) that you embezzled money from a federally insured bank by doctoring the books of the bank and during that proffer session, you describe exactly which records were doctored and how the government can find them. The AUSA cannot use your words against you in trial to argue that you confessed to the crime. The “Queen for a Day” letter protects you against your incriminating words. However, now the AUSA and federal agents can find the records in the bank because you told them where to go, and use those records to try to indict and convict you without using your “confession.”
So, why would anyone want such limited immunity? There are a few times when it would be appropriate. If you clearly did a crime, the government has the evidence against you and you want to cooperate against others. The proffer agreement allows you to speak to the government (without confessing the crime). Since the government already has (or was going to have) the evidence against you anyway, you are sometimes better off trying to cooperate, making the government’s job easier and lowing your exposure. If you want to enter into a plea agreement and cooperate in any manner, you must be able to speak to the government and becoming a “Queen for a Day” is often the only way to do it.
However, if you plan on fighting the case and going to trial, it would make no sense to tell the government anything with or without the proffer agreement. The determination of whether to become a “Queen for a Day,” or whether you are better off not talking at all, requires extensive discussion with an experienced white-collar criminal defense attorney. Making the wrong decision can have drastic consequences.
Another circumstance where you might want to become “Queen for a Day,” is where you are just a “subject” (not a “target”) of an investigation but truly did nothing wrong. In such a situation, you need to be able to explain to the government your role. In such a case, typically, you (and your attorney) are confident that no additional evidence will come up that could make your criminal exposure worse. For example, in a case where a client was in the middle of a money laundering scheme of which he was completely uninvolved, the client became a “Queen for a Day” early on so he could explain his role to the AUSA and make it clear that he was only a witness and should never be a target. In that case, it worked extremely well, and the government actually ended up seeing him as a victim of the crime. The “Queen for a Day” allowed him to tell his story.
The decision whether to volunteer to have proffer session is one that must be made very carefully and only with an experienced federal defense attorney who understands what is at stake, and the risks and benefits of walking into the U.S. Attorney’s Office to talk of illegal acts. If handled incorrectly, one can start out as a “subject” of an investigation and walk out a “target.” Moreover, there are few things in life more intimidating then walking into a conference room in a federal building with agents from FBI, IRS and DHS, and some Assistant United States Attorneys, peppering you with questions about a federal crime where their intention is to prosecute someone for that crime.
Although Jack Bailey was wishing “we could make every woman a queen, for every single day,” if the government asks you to be a “Queen for a Day,” it won’t be your lucky day and you might just prefer to pass.