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Proffer agreements are analyzed under commercial contract law frameworks, but given solicitude for federal constitutional rights

Proffer agreements, are analyzed under contract law per United States v. Carrillo, 709 F.2d 35, 36 (9th Cir. 1983). A cooperation agreement is analogous to a plea bargain agreement and therefore this agreement may be analyzed in terms of contract law standards. In construing the terms of an agreement the government and defendant's obligations, courts employ traditional contract law principles. With regards to proffers, courts are mindful to remember that the contract is part of an ongoing criminal proceedings where additional restraints may apply. Proffer agreements part of criminal proceedings are unique contracts and all ordinary contract principles are supplemented with this concern for defendant’s rights to fundamental fairness under the Due Process Clause. United States v. Farmer, 543 F.3d 363, 374 (7th Cir. 2008). In construing a proffer agreement between the government and defendant, courts must follow a three step approach. 
First, the court must ask whether the terms of the agreement on their face are construed in a clear and unambiguous manner. If they are, then the court will not look to extrinsic sources to determine their meaning. If not, then courts turn to the facts of the case to determine what the government laid out and what defendant reasonably understood to be the terms of the agreement. Finally, if ambiguities still remain, a court ought to resolve those ambiguities against the government. United States v. Plascencia–Orozco, 852 F.3d 910, 919 (9th Cir. 2017).


Like a commercial contract, federal proffer agreements following the traditional black letter rules yield to the substantive and procedural requirements of both federal and state rules of criminal procedure intended to safeguard the rights of the accused. Breazeale v. Victim Services, Inc., 878 F.3d 759, 769 (9th Cir. 2017). 
First, this “contract” right is constitutionally based and reflects specific concerns that differ from commercial contracts and cover a greater breadth of concerns than regular contract law. Second, with respect to federal prosecutions, the courts’ concerns reach even farther than just protection of the defendant’s constitutional rights. It also encompasses concerns for the honor of the government, public trust in the administration of justice, and the effective administration of justice vis a vis the federal judiciary. United States v. Thompson, 403 F.3d 1037, 1039 (8th Cir. 2005). Accordingly constitutional and supervisory concerns dictate holding the Government to a greater degree of responsibility for imprecise language or ambiguities in plea agreements than the federal defendant and far greater than parties in a commercial contract dispute. This is particularly appropriate where, the Government presents a written agreement for the same reasons that underpin a private contract.

Because defendant arrives at a plea agreement at the expense of his constitutional rights, federal prosecutors are held to high standards of both promise and performance. United States v. Rivera-Rodriguez, 489 F.3d 48, 57 (1st Cir. 2007) Meeting this obligation requires more than oral promises. Federal precedent demands not only explicit repudiation of the government’s assurances, but also in the interest of fairness, be read to forbid "end-runs" around their promises. United States v. Saxena, 229 F.3d 1, 6 (1st Cir. 2000). Because of this, courts construe agreements in federal criminal cases strictly against the government which is usually the party that drafts these proffers and plea agreements thus conferring it advantages in bargaining power.  



Principles of contract law allow defendant to cure a breach of the terms
The contract law principal requires that the breaching party be given notice of its breach and adequate opportunity to cure it. Where the government is seeking to deprive defendant of a liberty interest but may be predicated upon a perceived breach of an ambiguous agreement, lack of notice or an opportunity to cure results in a fundamental denial of due process. Unlike in commercial contract law, when a breach causes no harm and all that the inured party is entitled to by way of remedy are nominal damages, when the federal government committed a serious breach of a plea agreement, it can call for remand for re-sentencing. The breach must be material or substantial, and just a mere technical error. Hartjes v. Endicott, 456 F.3d 786, 790 (7th Cir. 2006).