Can the Government Revoke My Cooperation Agreement??

The written agreement itself defines what conduct triggers revocation of the agreement.

In most cases, revocation means that the prosecutors treat the cooperation obligations and promised benefits as terminated.

Here too, the federal rules do not establish a single procedure for revoking cooperation agreements.

Instead, cooperation agreements are commonly interpreted under contract-law principles.

As we explain in our FAQ about cooperation agreements in federal court, Rule 11(d) only governs situations in which the defendant seeks to withdraw his guilty plea.

This is different from termination, which effectively ends the parties’ prospective obligations and benefits under the agreement.

It is also different from rescission, which seeks to unwind an agreement entirely.

In a rescission action, the successful party seeks to be restored to the position it held prior to forming the agreement.

Finally, withholding a sentencing motion is also not necessarily equivalent to terminating cooperation under all circumstances.

For example, this may not relieve the defendant of his continuing obligation to provide any remaining information.

As a result, federal law does not establish a uniform definition of revocation or termination of cooperation agreements.

What happens when prosecutors say I breached my agreement?

What are my obligations under my cooperation agreement?

Under most cooperation agreements, cooperators must provide truthful and complete information. They must also commit no future criminal offenses and make all efforts to avoid becoming targets of investigations. However, prosecutors may also impose other obligations.

What constitutes a breach of my cooperation agreement?

A cooperator’s breach of his cooperation agreement often is defined as failing to meet a cooperation obligation. With this in mind, some of the most common examples of conduct that could lead prosecutors to declare a breach include:

• Committing another crime
• Providing materially false or incomplete information to federal investigators or prosecutors
• Committing material omissions
• Minimizing involvement
• Deliberately misleading federal investigators, prosecutors, or a court

Note that while all of these are examples of conduct that could lead to a declaration of breach, prosecutors only have the authority to declare a breach if the applicable agreement explicitly authorizes revocation under the circumstances in question.

What happens if prosecutors revoke my cooperation agreement?

If the agreement expressly authorizes revocation under the circumstances in question, prosecutors will be able to revoke the agreement when appropriate. Generally, revocation means that the government will no longer offer the promised benefits listed below, and the defendant will no longer have a duty to comply with the obligations of the agreement:

• The government will no longer recommend a sentence.
• The government will no longer offer concessions with respect to any future charges.
• The government will no longer file a motion for departure under Rule 35(b) or U.S. Sentencing Guidelines § 5K1.1
• The government will no longer file a motion for dismissal of all remaining charges.

In order to revoke a cooperation agreement, prosecutors must generally demonstrate that the defendant has failed to meet his obligations. The government generally bears the burden of proof to establish that a defendant breached a plea agreement by a preponderance of the evidence.

And if the parties have a material factual dispute regarding whether the defendant breached his agreement, a material factual dispute will typically require that the government provide notice of a planned revocation, and an evidentiary hearing in which the court can make findings regarding the dispute.

Lying during cooperation also has potential consequences. While generally a cooperator’s only obligation is to tell the truth, lying will typically result in false statement charges or obstruction charges. Here, too, however, there must be specific contractual or statutory provisions that justify criminal prosecution.

Finally, if you are facing criminal charges and enter into a cooperation agreement, it will typically include specific language that preserves the plea’s validity if you enter it. If you enter a guilty plea and later breach your cooperation agreement, you cannot withdraw your plea. However, if your cooperation agreement provides that your guilty plea will remain valid, your guilty plea must typically remain in place if you breach your cooperation agreement.

Can a judge force the government to seek a reduction?

Under U.S. Sentencing Guidelines § 5K1.1, a “substantial assistance” departure can only be applied if the government files a motion seeking the departure. Section 5K1.1 alone cannot authorize sentencing below a statutory minimum, which often requires a government motion under 18 U.S.C. § 3553(e).

Reviewability of Prosecutorial Decisions

In Wade v. United States, the Supreme Court generally held that motions seeking substantial-assistance departures are within the government’s exclusive jurisdiction. Even though judges can evaluate whether a la-cooperator’s assistance has justified a sentencing reduction under § 5K1.1 or § 3553(e), Wade holds that the courts cannot force the government to file these motions. If you are not facing a mandatory minimum, and if you can demonstrate that your assistance has justified a sentencing reduction under § 5K1.1, the judge still needs the government to file a motion in order to apply this departure. If the government refuses to file a motion, there is little that a judge can do. However, the Supreme Court also held in Wade that district courts may review the government’s refusal to file these motions and may grant relief if the refusal was based on an unconstitutional motive (such as in retaliation for a defendant’s assertion of his rights). Here, too, however, a significant practical hurdle is a requirement to prove the government’s improper motive with sufficient specificity.

The Third Circuit’s Approach

Although Wade has been influential, some circuit courts have taken a more nuanced approach. In United States v. Isaac, the Third Circuit Court of Appeals held that if the government promised to evaluate a defendant’s cooperation for substantial-assistance purposes in good faith, the defendant is entitled to a determination of whether he has met his obligations under the agreement. If the government promises the defendant a substantial-assistance evaluation and the defendant satisfies his contractual obligations, the government then needs to provide a substantive explanation for refusing to file a § 5K1.1 or § 3553(e) motion. However, the Third Circuit then limited this rule in United States v. Forney, 9 F.3d 1492 (11th Cir. 1993). In this case, the defendant entered into a plea agreement that stated the government would “consider” filing a substantial-assistance motion, but the Third Circuit found that this did not create the same contractual commitment that warranted a court’s review of the government’s subsequent refusal to file the motion.

Is revoking my agreement a form of prosecutorial misconduct?

Federal law does not establish a universally binding four-category taxonomy of prosecutorial misconduct. However, recent years have seen Supreme Court cases and opinions in the U.S. Circuit Courts of Appeals expand on what constitutes prosecutorial misconduct in criminal prosecutions.

Breach of Agreement and Pleasures of Santobello

In Santobello v. New York, the Supreme Court considered whether a prosecutor could be forced to adhere to the terms of a plea agreement. The Court held that prosecutors must honor their promises in plea agreements: “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” The Court then identified plea withdrawal and specific performance as possible judicial remedies for enforcing prosecutors’ promises.

Selective Prosecution and Retaliation

Other cases establish a wide array of other examples of prosecutorial misconduct and their potential consequences. In United States v. Armstrong, the Supreme Court held that establishing a claim for selective prosecution requires evidence of both a discriminatory effect and a discriminatory purpose. In Blackledge v. Perry, the Supreme Court held that prosecutors cannot bring charges against a defendant as retaliation for exercising the right to appeal. If the government prosecutes its witness in retaliation for the witness having gone to court, then prosecutors may face civil liability for this retaliation as well.

False Testimony and Inadvertent Breaches

In Napue v. Illinois, the Supreme Court held that a prosecutor “violates the Due Process Clause of the Fourteenth Amendment when he knowingly presents false testimony to a jury and the false testimony is material to the verdict.” This includes presenting false testimony by government witnesses. Santobello v. New York, 404 U.S. 257 (1971) “If a government breach does not render the plea agreement inoperative, then the plea bargain’s purpose is likely to be fulfilled by simply forcing the government to uphold the bargain’s terms.”

Brady Violations

In Brady v. Maryland, the Supreme Court held that the government cannot suppress a defendant’s material exculpatory evidence without violating the defendant’s due process rights under the Fourteenth Amendment.

If any of this describes your situation, it is worth talking it through with counsel. Spodek Law Group can be reached at 212-300-5196.

Can prosecutors use what I said during a proffer?

A proffer letter usually precedes any formal cooperation agreement, and it will typically promise limited evidentiary protections. In most cases, it will not promise sentencing leniency. The proffer letter also addresses the evidentiary protections that apply under Federal Rule of Evidence 410. These protections do not apply in many circumstances, and a defendant will typically need to execute a proffer agreement waiving the pertinent Rule 410 protections before providing any statements. Rule 410 and the corresponding rule under the Federal Rules of Criminal Procedure, Rule 11(f), both limit the government’s ability to introduce statements obtained during plea discussions. However, as noted, a proffer letter’s use of “limited” or “qualified” privileges will mean that any use of a statement falls outside of Rule 410’s protections. Thus, the government may be able to use your proffer statements for other purposes.

Can a judge exclude my proffer statements?

The ability to exclude a defendant’s proffer statements will depend heavily on the precise waiver language used in the proffer agreement. If the prosecutors introduce a proffer statement in an instance that falls outside of the agreement’s permitted uses, then the court may enter a protective order that precludes a jury from hearing the statement.

What are the evidentiary protections for statements made during plea discussions?

For most defendants, the best evidentiary protections against statements obtained during plea negotiations come from Federal Rule of Evidence 410. The rule provides that evidence of “the following is not admissible against the defendant who made the plea or participated in the plea discussions: (1) a guilty plea that was later withdrawn; (2) a nolo contendere plea; (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.”

Can the government introduce proffer statements for impeachment purposes?

In United States v. Mezzanatto, the Supreme Court held that defendants can knowingly, voluntarily waive the protections of Rule 410 with respect to impeachment purposes. Proffer agreements typically include such a waiver provision. If the government introduces a proffer statement to impeach your testimony that contradicts any earlier disclosures, then it may be permissible under Rule 410 and the waiver provision of the proffer agreement.

Must prosecutors accept my cooperation or my relative’s help?

Can prosecutors refuse to accept my cooperation (or my relative’s help)?

Yes, prosecutors can refuse to accept a defendant’s cooperation, and this also applies to assistance provided by a defendant’s relative. In Weatherford v. Bursey, the Supreme Court noted that while some defendants may be able to negotiate plea agreements, “it is not a constitutional requirement” that prosecutors accept a defendant’s plea offer. Additionally, no federal rule requires prosecutors to enter into a cooperation agreement before they receive information from a defendant who has volunteered to cooperate.

Can a judge force the government to grant me credit for the information I provide?

This is a more complex question. Rule 35(b) is a rule governing post-sentencing reductions for substantial assistance. It provides that, “[u]pon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.”

When interpreting this rule, the Supreme Court has emphasized that substantial assistance must be provided by the defendant: “The Rule’s only use of ‘the defendant’ is in its reference to substantial assistance provided by ‘the defendant.’ It does not mention assistance provided by a defendant’s relatives, close friends, business partners, or any other third party.” This means that third-party assistance does not create an automatic entitlement to a Rule 35 motion. Nevertheless, some defense lawyers attempt to convince the government to grant a Rule 35 motion based on the assistance provided by a defendant’s relatives.

Can I get a sentence reduction based on the safety valve?

The federal safety valve provisions appear in 18 U.S.C. § 3553(f). As a result, this is very different from a Rule 35 motion for substantial assistance, and a failure to file a Rule 35 motion under 18 U.S.C. § 3553(e) does not necessarily limit a defendant’s eligibility to the safety valve.

Can prosecutors or lawyers pressure me to cooperate without guaranteeing protection?

As a result, prosecutors and defense lawyers who encourage or pressure their clients to cooperate must be careful not to mislead their clients or threaten their clients’ freedom if the government will be unable to provide protection. For example, cooperating can make defendants and their family members targets for retaliation or violence. While cooperation agreements contain provisions regarding protection, these provisions will not automatically grant admission to the federal witness-security program. It is critical for defendants to seek protections that are appropriate for the circumstances at hand.

Do I have to make an informed decision about cooperation?

Yes, ABA Model Rule 1.4 states that “a lawyer shall provide a client with the factual information that is reasonably necessary for the client to make informed decisions regarding the representation.” With respect to the defendant’s obligation to enter into a plea agreement and provide information, Rule 11(b) of the Federal Rules of Criminal Procedure states that in order for the court to determine that a defendant’s plea is voluntary and knowledgeable “the court must address the following with the defendant: . .. (2) the government’s offer and the defendant’s plea agreement, if entered; (4) the voluntariness of the plea and whether it was made under any force, threats, or other improper pressure.”

Under Bordenkircher v. Hayes, Supreme Court Justice White explained that prosecutors can threaten to seek the maximum statutory penalties for offenses not currently charged in order to obtain guilty pleas “as long as it is not based on unconstitutional intent or motive.”

If the government’s offer falls through, am I sure my information is protected?

The extent of the government’s protections depends on how it obtained the information. 18 U.S.C. § 3521 authorizes the Attorney General to provide protections if the government is “convinced that, as a result of his or her participation in the criminal justice system, the person’s life or safety will be endangered.” If a defendant is in danger, the Attorney General has a broad mandate under § 3521 to provide whatever protection that is necessary. This includes potential protection after a cooperation agreement is revoked, because revoking a cooperation agreement is not per se an “unlawful act” under 18 U.S.C. § 3521(f).

However, as the Attorney General takes only those actions deemed “consistent with the United States’ interest and convenience,” he or she will decide on a case-by-case basis. As we discuss in our witness-protection-program FAQ, there is no automatic entitlement to the federal witness-security program, and seeking protection will require direct communication with the Attorney General’s Office.

What are some of the practical implications of cooperation?

Beyond interviewing with prosecutors and federal agents and providing any information you have, cooperating also often involves reporting crimes and testifying at trial.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.