Can I Cooperate Without Testifying Against Others??

Yes. Voluntary cooperation can involve numerous activities that do not require testifying at all, or, at least, testifying in court. Cooperation can consist solely of debriefings, documents, identifications, investigative assistance, and so forth.

However, an ordinary cooperation agreement still contains the option to request testimony whenever the prosecution needs it, and, unless the cooperator has an excuse, this is not optional.

Unless they have a legal justification for ignoring their federal subpoena, ordinary witnesses must comply. They must testify at the time the subpoenas are issued, and unless it is justified.

Refusing to testify is a different story altogether. While prosecutors may sometimes coerce witnesses into cooperating, refusing to voluntarily cooperate is not contempt unless compulsory legal process is in play (e.g., a subpoena or court order).

The Supreme Court held in United States v. Mezzanatto that “a defendant may waive” some of the protections of Rule 410. This means that a defendant’s statements can be used in a later criminal proceeding.

The federal statute at 18 U.S.C. § 1001 prohibits “knowingly and willfully” making “any materially false, fictitious, or fraudulent statement or representation” within “the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.”

In Giglio v. United States, the Supreme Court held that prosecutors must disclose “any promise of immunity or other benefit” if it “relates to the witness’s credibility.”

A cooperator’s trial counsel may argue against the disclosure of these promises. However, courts will still allow these promises to come out in court proceedings, or even during cross-examination.

While Giglio requires disclosure, it does not protect witnesses from cross-examination. A cooperator’s expected benefits, and resulting bias, are frequently explored at trial.

Can My Cooperation Count If I Never Take the Stand?

If another defendant pleads guilty, it may eliminate the possibility of trial testimony. However, if the defendant refuses to plead guilty, or pleads not guilty, you may still be required to testify. If the case goes to trial, you could testify against a co-defendant, or, if convicted, against someone who helped with your crime.

Even without trial testimony, you may need to testify in front of a grand jury. This is not the only other possibility; testifying at a sentencing hearing is also common.

Proffer agreements do not provide automatic immunity. The protections afforded by a proffer agreement are the result of negotiations with the prosecutor. While it is usually a good idea to seek these protections, you should never assume a proffer is protected. Instead, you should only assume that protection exists if you have seen the written agreement and the agreement specifically states that the prosecution cannot use the information provided.

Another key aspect of a proffer agreement is that the government generally retains the ability to pursue leads derived from statements made during a proffer. So, while the government cannot use your statements as direct evidence against you, it can use the information you provide to find other evidence (e.g., through search warrants, witness interviews, etc.).

Material misstatements or omissions can forfeit the protection of a proffer agreement as well as the protections under a cooperation agreement. The protections offered in both agreements are based on the presumption that the cooperator will provide a “full and truthful account.”

While many SA motions include trial testimony, they do not always. Some cases depend almost entirely on non-testimony forms of cooperation.

Cooperation agreements have no uniform form, and their terms are highly varied. They are the result of negotiations and can vary across districts, prosecutors, and individual cases.

Under Section 5K1.1 of the Guidelines, a sentencing judge may grant a downward departure for “substantial assistance.” The judge decides whether a defendant’s assistance was substantial in the light of all circumstances. The Guidelines list “five factors” for the judge to consider:

• The utility of the assistance;
• The truthfulness and completeness of the assistance;
• The extent, duration, and importance of the assistance;
• Any risk the defendant undertook in providing the assistance; and
• The timing of the assistance.

When Can I Legally Refuse a Federal Subpoena to Testify?

The U.S. Constitution and the federal rules provide two legitimate ways to avoid testifying in response to a subpoena. These are quashing the subpoena under Federal Rule 17 and asserting the Fifth Amendment privilege against self-incrimination.

I. Quashing the Subpoena

Federal Rule 17, which governs the issuance of subpoenas by federal courts, permits a court to quash or modify a subpoena “if compliance would be unreasonable or oppressive.” Thus, if you are served with a subpoena and believe it is unreasonable, oppressive, harassing, or unduly burdensome, it may be possible to “quash” the subpoena.

However, quashing a subpoena is not as simple as that. To seek such relief, you must be able to present evidence that the subpoena falls within one of the categories specified in Rule 17. This often involves complex arguments about the relevance and necessity of the testimony sought.

II. Asserting the Fifth Amendment Privilege Against Self-Incrimination

The Fifth Amendment to the U.S. Constitution states: “nor shall be compelled in any criminal case to be a witness against himself.” This is broadly recognized as the “privilege against self-incrimination.”

Along with requiring that the witness is facing a threat of prosecution, the privilege only applies if the witness’s answers to specific questions are “incriminating.” A witness’s answers “tend to make the witness a subject of criminal prosecution” if they either provide evidence of the witness’s own guilt or “expose the witness to the possibility of a criminal prosecution” by creating a “reasonable fear of being forced to testify against himself.”

III. Factors that Do Not Warrant Asserting the Fifth Amendment Privilege

Witnesses frequently attempt to assert the privilege in situations that are not legally sufficient. Examples include:

• Fear of getting into trouble at their current or future job
• Feeling that they would be seen as a “snitch”
• Feeling embarrassed
• Having a bad reputation in their community or profession

While these are all very real concerns, they do not justify asserting the privilege against self-incrimination. Instead, they are grounds for seeking to quash the subpoena under Federal Rule 17 (if applicable).

IV. Process for Asserting the Fifth Amendment Privilege

The witness will generally be required to answer questions until they encounter one for which they believe they can legally assert the privilege. When this occurs, the witness will generally need to inform the court of their belief, and the judge will determine whether the privilege applies to the specific question in question.

V. Granting Immunity

If the prosecution believes the witness’s testimony is essential and cannot be obtained through any other means, the prosecution may be able to grant the witness immunity. This can happen in two ways:

• Voluntarily : The prosecution agrees not to prosecute the witness; or,
• Compulsory : Under 18 U.S.C. §§ 6002-6003, the prosecution may compel testimony.

This is referred to as “compelled testimony.” If the prosecution compels testimony under 18 U.S.C. §§ 6002-6003, they must provide what is known as “use-and-derivative-use immunity.”

VI. Use-and-Derivative-Use Immunity

Under 18 U.S.C. § 6002, use immunity protects the witness’s statements given during the compelled testimony from being used in a criminal prosecution. However, what about information that comes to light as a result of the testimony? This is where derivative-use immunity comes in. Under the same provision, “any information directly or indirectly derived from” the witness’s statements also cannot be used against the witness.

VII. The “Kastigar Rule”

When the government grants a witness use and derivative-use immunity, and subsequently tries to prosecute the witness, the court must ensure that the government is not using any evidence from the witness’s immunized testimony. This was the holding in Kastigar v. United States. This creates a very high burden for the government, which must prove that it has evidence to establish its case that is completely independent of the immunized testimony.

VIII. Limitations on Immunity

The protections of a grant of immunity under 18 U.S.C. §§ 6002-6003 are limited in two key ways:

• Immunity does not prevent prosecution for the crimes discussed during the immunized testimony;
• Immunity does not protect the witness from prosecution for perjury committed during their testimony.

What Happens if I Refuse to Provide Testimony My Prosecutors Have Requested?

I. Contempt of Court

If prosecutors are able to offer immunity to a witness and obtain a court order to compel testimony, refusing to provide this testimony constitutes contempt of court. This has two different branches: civil contempt and criminal contempt.

• Criminal contempt is designed to punish past disobedience and cannot be used to induce future compliance.
• Civil contempt is used to induce future compliance. A witness can be held in jail for civil contempt, but once he or she agrees to testify, his or her confinement ends.

Under 28 U.S.C. § 1826, “recalcitrant witnesses” who refuse without just cause to comply with a court order to testify or provide information may be confined until they are willing to testify, for no longer than the life of the court proceeding or the term of the grand jury, and in no event more than eighteen months.

II. Loss of Cooperation Benefits

Another risk is that refusing to provide testimony after agreeing to do so (unless there are legal grounds for refusal) can result in a loss of the benefits earned during the cooperation process. The prompt, full, and truthful cooperation that has already occurred may no longer count toward the sentencing guidelines, and the sentence may be higher than the cooperator originally expected.

III. Breach of Cooperation Agreements

If the prosecution does not seek to have the cooperator held in contempt, why does this happen? The reason is that prosecutors do not generally ask for a court order to compel testimony. Instead, they get the cooperator to agree to provide the testimony in a cooperation agreement. Because cooperation agreements are contracts, not court orders, violating the terms of the agreement does not lead to contempt.

If you have signed a cooperation agreement and pleaded guilty based on a promise of substantial assistance, but you then decide not to testify (without a legal excuse), the prosecutor will not be able to rescind your guilty plea. Instead, however, violating the terms of the agreement releases the prosecutor from the promise and allows him or her to seek whatever remedies are included in the agreement.

Some cooperation agreements allow for a full loss of benefits if the cooperator fails to fulfill his or her obligations. Some agreements might state that the loss of benefits should be based on the cooperator’s degree of compliance.

Ultimately, the remedies for a breach of a cooperation agreement depend on the terms of the agreement itself. This is just one more reason why negotiating a cooperation agreement requires an experienced lawyer.

Spodek Law Group, led by managing partner Todd Spodek, defends clients in federal criminal and white collar matters.

Can I Get Sentencing Relief Without Ever Testifying Against Anyone?

Yes. It is possible to get sentencing relief without ever testifying against another person in a court or grand jury proceeding.

When you see the “safety valve” mentioned on websites, you should make sure you are reading about the right one. The safety valve is not found under the government’s authority to seek downward departures under 18 U.S.C. § 3553(e); instead, it is found under the “Factors to Be Considered in Sentencing” section, as discussed in 18 U.S.C. § 3553(f).

Unlike seeking downward relief under USSG § 5K1.1 and 18 U.S.C. § 3553(e), which both require a formal government motion, the safety valve does not require such a motion. To qualify for the safety valve, a defendant must meet several other statutory requirements, including one related to disclosure of information.

According to 18 U.S.C. § 3553(f)(5) a defendant must “truthfully, fully, and promptly disclose all relevant information concerning the offense and related courses of conduct to the government.” Importantly, this must happen by the time of the “sentencing hearing.”

Unlike testifying at a trial or during a grand jury proceeding, the disclosures required under Section 3553(f)(5) do not necessarily involve testifying against another person.

As discussed above, in addition to the safety valve, there are two other sentencing relief opportunities related to cooperating with the government. One is USSG § 5K1.1, which authorizes a downward departure from the Guidelines in the context of “substantial assistance” if the government makes a formal motion; and the other is 18 U.S.C. § 3553(e), which authorizes a departure under certain conditions if the government makes a formal motion.

As explained above, these two mechanisms require a formal government motion. While the government could make an SA motion based on “substantial assistance” that does not include testifying against another person, and the motion could also include a request to cross a mandatory minimum, this only applies in circumstances where the government is favorably disposed toward a defendant.

What’s the Difference Between the Safety Valve and a Substantial Assistance Motion?

One notable difference is that while a substantial assistance motion authorizes a downward departure from the sentencing guidelines, it does not, on its own, authorize a downward departure below a mandatory minimum. As the Supreme Court held in United States v. Booker, sentencing courts are not bound by mandatory minimums, so defendants can try to obtain relief below their mandatory minimums under the safety valve. A substantial assistance motion can also serve as grounds for sentencing relief, but, as discussed above, the government will need to make a motion under 18 U.S.C. § 3553(e) to obtain relief under 18 U.S.C. § 3553(e).

Can My Lawyer Be Forced to Testify Against Me?

Your lawyer may be compelled to provide testimony in some circumstances, and there is a fine line between disclosures a lawyer can refuse and those a lawyer can legally withhold. This is due to the attorney-client privilege, which:

• Belongs to the client;
• Is not waiveable by counsel without the client’s permission; and,
• Protects only confidential legal communications.

Under the attorney-client privilege, the attorney-client relationship is considered a confidential and protected relationship. The privilege covers any oral or written communication between a client and counsel that is made in anticipation of or in contemplation of seeking legal services and is kept confidential.

However, attorney-client privilege does not protect underlying facts that your lawyer learned through communication protected under the privilege. For example, if your lawyer learned about your criminal activity as a result of your communication, the underlying fact that you committed criminal activity is not protected. Also, if you give your lawyer a preexisting document and the document is not a confidential communication, it does not become privileged.

There is also a crime-fraud exception to the attorney-client privilege. This exception applies when communications are made in furtherance of future or currently existing criminal or fraudulent activity.

Yes, lawyers can be compelled to testify. If it is not a privileged disclosure, a lawyer can be compelled to provide testimony. That said, lawyers can also assert a client’s privilege. If a lawyer gets a subpoena and believes the information requested is privileged, the lawyer can assert the privilege. At this point, the lawyer can seek to quash the subpoena and the attorney’s testimony will be protected if the attorney-client privilege applies.

The decision whether attorney-client privilege protects the information requested ultimately rests with the court.

While the legal content of a lawyer’s representation does not fall within the attorney-client privilege, your lawyer’s identity and fee information may. If your lawyer does not fall into any of the exceptions to the attorney-client privilege, the lawyer does not need to disclose your identity or the fee information. However, these disclosures can also be privileged if they relate to a specific case or a future criminal case.

What Does the Silent Witness Rule Actually Mean?

The term “silent witness” is used to describe two completely different legal concepts. One concept relates to the admissibility of recordings. Under the silent-witness theory, the government does not need an eyewitness to testify to authenticate a recording of recorded events. To qualify, however, a recording must be the product of a reliable recording process and this must be proven through evidence (e.g., by an expert).

The term “silent witness” also describes a procedure in cases involving classified information. In cases involving classified information, the government, prosecutor, or witness may refer to redacted or coded evidence in a public proceeding. Jurors will have the materials before them and can see and hear what is there. However, those present during the proceeding will not be able to fully see or hear the material.

The “silent witness rule” does not give a witness a right to remain silent in court.

For example, a federal defendant can decide not to testify at trial. However, the defendant will not be exempt from the burden of trying to avoid the burden of proof in most trials.

In Griffin v. California, the Supreme Court held that commenting on a defendant’s refusal to testify at trial during a criminal proceeding is prohibited. However, if you have entered a guilty plea, it is not necessarily the case that there is no risk of self-incrimination. For example, a defendant who pleads guilty to one count of a multi-count indictment still retains the right to silence regarding the other counts he or she is still charged with.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.