Cooperating in Public Corruption Investigations.

Cooperation can be a smart choice if it has the potential to lead to reduced charges or a favorable sentencing recommendation. Even if cooperation is not likely to lead to federal leniency, it may still have strategic benefits. Cooperating prosecutors will typically have information that you will need in order to effectively protect yourself and, if applicable, to reduce the criminal charges and penalties faced by your fellow targets.

Why Should I Be Concerned About the Risks of Cooperation?

When you cooperate, the federal government will generally expect truthful and complete disclosure to prosecutors and federal investigators. While you should rely on the advice of your counsel regarding what you can and should disclose, generally, if the information you possess can help the federal government build its case against others, you will not be able to keep it to yourself.

What are Some of the Key Issues That Need to Be Addressed in an Agreement?

If the U.S. Attorney’s Office is willing to consider your cooperation, it will be important to address a number of key issues in an agreement. Examples of key issues include:

• Truthfulness;
• Evidence preservation;
• The risk of waiving claims of privilege;
• Whether statements can be used in court; and,
• Parallel criminal and civil investigations.

Can I Cooperate Even if I am Not the Main Target?

Yes, individuals who have not been indicted and arrested can still enter cooperation agreements. These individuals include:

• Private contractors;
• Company employees;
• Accomplices; and,
• Family members and associates.

Which Agencies May Be Involved in a Public Corruption Investigation?

Many different federal law enforcement agencies can be involved in public-corruption investigations. These include:

• IRS Criminal Investigation (IRS-CI);
• Homeland Security Investigations (HSI);
• Office of the Inspector General; and,
• State, local, and tribal law enforcement agencies.

How does a federal public corruption investigation unfold?

What is the FBI’s Role in Public Corruption Investigations?

The FBI is the principal federal agency that is responsible for investigating public corruption. In this role, it will work closely with the U.S. Attorney’s Office and the Department of Justice’s (DOJ) Public Integrity Section. However, in some cases, other federal law enforcement agencies may have primary responsibility for public corruption investigations.

What is the Public Integrity Section’s Role in Public Corruption Investigations?

The Public Integrity Section of the DOJ is responsible for prosecuting public corruption crimes that are sensitive in nature, such as cases involving members of Congress, federal judges, and other high-ranking public officials. In these cases, the Public Integrity Section will work closely with the FBI and the U.S. Attorney’s Offices.

What Are the Main Federal Public Corruption Offenses?

The federal public corruption offenses are organized into categories rather than being one standalone federal crime. The main public corruption offenses are bribery, extortion, election fraud, theft of government property, tax evasion, fraud, witness tampering, and obstruction of justice. Each category encompasses a wide range of related crimes with a variety of statutory elements, penalties, and evidentiary requirements.

How Long Will My Public Corruption Investigation Last?

Federal law does not specify a deadline for the completion of public corruption investigations. However, if the investigation is going forward in the federal government’s case against you, then it is important to be mindful of your right to a speed trial. This right is limited in scope, and it only applies after the federal government has filed charges against you.

When Will I First Learn of the Investigation?

At the investigative stage, many cases will remain covert. However, in some circumstances, you will learn of the government’s public corruption investigation when federal prosecutors issue a subpoena, federal agents conduct a search of your home or office, or federal agents conduct an interview of you or someone you know.

What Types of Evidence Do Federal Prosecutors Seek in Public Corruption Investigations?

Federal prosecutors will seek various forms of evidence in public corruption investigations. This includes:

• Bank records;
• Emails, text messages, and phone records;
• Government contracts;
• Bidding records and procurement files; and,
• Financial statements and payment records.

Which Prosecutors Will Decide Whether to File Charges?

If federal prosecutors present evidence of a public corruption offense, then they will make the decision to file criminal charges. This decision will lie with the U.S. Attorney’s Office prosecuting the case within its federal district. However, the Public Integrity Section of the DOJ will be involved in high-profile cases involving senior officials.

What should I do before offering to cooperate?

What is the Difference Between Cooperation and Mandatory Compliance?

Cooperation is different from mandatory compliance with a grand jury subpoena or other compulsory processes. If you receive a grand jury subpoena, you will need to comply unless your attorney can convince the government to modify or withdraw the subpoena or otherwise convince a judge to quash it. If you receive a subpoena from the Office of Inspector General or a civil investigative demand from the DOJ, your attorney may have additional options to prevent compliance as well.

Can I Refuse to Answer Questions During a Voluntary Interview?

Generally, federal agents cannot compel answers during an ordinary voluntary interview. However, you should still discuss with your attorney whether you have the ability and obligation to answer specific questions. Your attorney will need to determine which of your truthful answers could possibly implicate you in a crime and determine your strategy for responding to investigators’ questions.

What Should I Do About Preserving Evidence?

Once you learn that you are under investigation, you must immediately take steps to preserve all evidence that could be relevant to the case. If you destroy records that you know are relevant (or should know are relevant), you can face criminal charges for obstruction of justice, regardless of whether you are facing charges for bribery, extortion, or any other crime.

What Should I Do if Federal Agents Search My Office or Home?

When federal agents search your office or home, they will be using the authority of a search warrant. This is not the same thing as voluntary cooperation, and the warrant is authorized to allow for the seizure of any records that may be used in the government’s prosecution, even if you do not want to turn them over. While you are under no obligation to voluntarily cooperate with agents executing a search warrant, you should still seek to do so in order to avoid an unnecessary confrontation.

What Should I Do if I Receive a Target Letter?

If you receive a target letter, it means that federal prosecutors believe they have substantial evidence linking you to a crime. You should contact an experienced criminal defense lawyer right away to discuss your next steps.

What About the Fifth Amendment?

Individuals have a constitutional right to invoke the Fifth Amendment and refuse to answer questions in federal grand jury proceedings and interviews if their truthful answers could possibly implicate them in a crime. However, while invoking the Fifth Amendment is a powerful defense against criminal liability, in some cases it may also pose a significant risk of criminal liability.

Can prosecutors use what I say during a proffer?

Can the Federal Government Use My Proffer Statements Against Me?

Participating in a proffer does not provide you with immunity or a plea agreement. While an individual generally cannot be forced to give evidence that incriminates them, United States v. Mezzanatto (1995) established that defendants can knowingly and voluntarily waive this privilege for the purposes of a proffer agreement. Specifically, the court held that, provided the waiver is knowing and voluntary, the government may use statements made during a proffer to impeach a defendant who testifies in court.

Can Proffers Be Used to Find Other Evidence Against Me?

If a proffer agreement does not provide statutory immunity, then it can permit investigators to pursue derivative evidence that may be incriminating. For example, if you admit that you are aware of incriminating documents that are in your possession (and to which the government does not have access), then you may be required to provide those documents under penalty of contempt. With a proffer agreement, you should also be cautious about mentioning third-party involvement. The evidence you disclose during a proffer could expose others to potential liability as well.

Do I Need Immunity in Order to Cooperate?

In some cases, federal prosecutors may use 18 U.S.C. § 6002 to compel your testimony despite your potential Fifth Amendment objection. Once federal prosecutors issue a § 6002 immunity order, you can no longer invoke the Fifth Amendment to refuse to testify. As a result, the information you disclose can be used to establish the guilt of others and could lead to criminal charges against others as well. Section 6002 forbids the government from using immunized testimony against the witness except for five statutory exceptions.

How Does Statutory Immunity Differ from Prosecution Immunity?

Statutory immunity protects against both use and derivative use, or, as defined by statute, use of the immunized testimony, the witness’s testimony, documents, or other evidence in any proceeding including criminal prosecutions, grand jury proceedings, or others if the government has evidence of the crimes you disclosed. However, unlike prosecution immunity, statutory immunity does not protect a witness from federal prosecution for every transaction disclosed.

Is Everything You Say during a Plea Negotiation Protected under FRE 410?

While Federal Rule of Evidence 410 provides protections for guilty-plea negotiations, there are some exceptions. For instance, Rule 410 does not categorically exclude statements given under an accepted guilty plea. Therefore, even if you have a plea agreement, you will still need to be extremely careful during any remaining negotiations in case they are needed for impeachment or a trial.

Todd Spodek and the attorneys at Spodek Law Group handle federal cases of this kind from New York, Brooklyn, Queens and Los Angeles.

What benefits can a cooperation agreement actually guarantee?

What are the Basic Terms of a Federal Plea Agreement?

Under Federal Rule of Criminal Procedure 11(c), a federal plea agreement may include provisions regarding:

• The defendant’s waiver of certain rights;
• The defendant’s admission of guilt;
• The specific offenses that the government will charge;
• The federal charges and penalties that the government will recommend; and,
• The government’s recommendation for probation or incarceration.

What Qualifies as Substantial Assistance under U.S.S.G. § 5K1.1?

The United States Sentencing Guidelines establish that a defendant must provide “substantial assistance” to earn a substantial-assistance reduction under U.S.S.G. § 5K1.1. The United States District Court for the District of Columbia explains that five factors are key: the assistance’s significance, usefulness, completeness, reliability, and the assistance’s extent, risk, and timeliness.

What Does U.S.S.G. § 5K1.1 Entail?

Under U.S.S.G. § 5K1.1, if a defendant’s assistance is substantial, then a United States District Court may, upon an appropriate motion, go below the applicable guideline range. Specifically, a defendant may receive a substantial-assistance reduction in their sentencing calculation. However, receiving the reduction requires a government motion.

What Happens if There Is a Mandatory Minimum Sentence?

If there is a statutory minimum for the crime you face, then under 18 U.S.C. § 3553(e), the judge can sentence you below the statutory minimum in some cases. Like § 5K1.1, this also requires a government motion.

What Does Federal Rule of Criminal Procedure 35(b) Entail?

Under Federal Rule of Criminal Procedure 35(b), you can still seek a sentencing reduction after sentencing if you provided substantial assistance. This rule allows for reductions in the amount of time a convicted defendant must serve in prison if they provided substantial assistance to the federal government.

Do Cooperation Agreements Guarantee Sentencing Reductions?

Sentencing reductions under U.S.S.G. § 5K1.1, 18 U.S.C. § 3553(e), and Federal Rule of Criminal Procedure 35(b) all require a government motion. However, the specific amount of any authorized sentencing reduction will be determined by the presiding judge. If a cooperation agreement doesn’t guarantee the specific terms of your guilty-plea sentence, you can negotiate for them directly from the federal prosecutors handling your case.

Are There Other Benefits of Cooperating With the Government?

While cooperators often seek favorable treatment in their own criminal cases, they can also have other benefits from cooperating. They may be able to seek protections for themselves, their family members, or their colleagues as well. You may also want to seek protections for third parties involved in your case.

What If My Cooperation Is Incomplete, False, or Late?

If you enter into a cooperation agreement with federal prosecutors, you will need to meet all of the requirements listed in the agreement. If you are not fully forthcoming, or if you are not timely in cooperating, you could run the risk of being unable to receive the benefits promised to you under the agreement. For example:

• Incomplete or Inconsistent Testimony. Material inconsistencies between testimony before the grand jury, during investigations, and at trial can jeopardize any promises you have negotiated.
• False Statements and Perjury. In order to avoid prosecution under 18 U.S.C. § 1001 (a federal statute prohibiting material false statements), grand jury perjury under 18 U.S.C. § 1623 (which makes the act of knowingly and willfully making a false material statement of fact during a grand jury proceeding illegal), and other criminal offenses, a cooperator must be truthful in all cases.
• Unreliable and Not-Fully-Corroborated Testimony. Federal prosecutors will challenge a cooperator’s credibility if they cannot sufficiently corroborate the testimony with documents and other records.
• Untimely Cooperation. Under U.S.S.G. § 5K1.1, timely cooperation is one of the factors federal judges consider in determining the amount of a substantial-assistance reduction.
• Material False Testimony, Perjury, and Obstruction of Justice. Knowingly making false material testimony before the grand jury or in court violates 18 U.S.C. § 1623, and a cooperator’s credibility can be attacked with evidence of a plea agreement in which the defendant’s sentencing depends on testifying against others. U.S.S.G. § 3C1.1 can be used as a reason for a sentencing enhancement as well.
• Failing to Testify Before the Grand Jury or in Court. Finally, cooperators may have to testify both before the grand jury and at trial. If the cooperator is not available to testify in federal court, then the government will be unable to make a strong case in its prosecution against third parties, and this can also jeopardize the cooperator’s ability to receive an acceptable sentence.

Can shared counsel or internal interviews put me at risk?

Can I Share Counsel or Participate in an Interview Without Putting Myself at Risk?

Can I share the same counsel as my company or other individuals in the investigation?

Under the ABA Model Rule 1.7, a conflict of interest exists if the representation of one client unreasonably prevents or materially limits the lawyer’s ability to represent that client without violating the rules of professional conduct or a legal duty to another client. The rule mentions a few significant risks that can cause a lawyer to have a concurrent conflict when representing multiple clients (such as in a criminal case). Those risks include the possibility of:

• Reputational harm;
• Loss of professional opportunities;
• Personal distress;
• Financial liability;
• Incarceration; and,
• Termination of employment.

While some conflicts are waivable, you should speak with experienced counsel to see whether any risks prevent you from sharing counsel.

Can I participate in internal interviews without putting myself at risk?

If you have any concerns about potential criminal liability, you should be very cautious about participating in an internal interview and, more importantly, about what you disclose. While you may be required to cooperate with your employer, your employer’s attorney-client privilege does not protect you. Instead, your company (or an entity conducting the internal investigation) likely has control over the attorney-client privilege. Unless the attorney or investigator you are speaking to has agreed to protect the privilege, anything you say in the interview could be disclosed to the federal government.

What is Upjohn protection?

Upjohn protection is a form of attorney-client privilege that protects communications between company employees and the company’s legal counsel. To qualify for Upjohn protection, the communication must be in the scope of the employee’s duties and must be made to obtain legal advice for the company. Not all documents created during an internal investigation are protected by Upjohn protection. An experienced lawyer will be able to assist you with identifying the appropriate protections.

Can the DOJ condition a company’s cooperation credit on a waiver of the attorney-client privilege?

The DOJ’s Justice Manual expressly prohibits prosecutors from conditioning cooperation credit on a waiver of the attorney-client privilege (Justice Manual § 9-28.710). Although prosecutors cannot condition a company’s cooperation credit on a waiver of the privilege, they can still seek a waiver on a case-by-case basis. While the U.S. government generally prefers that companies waive the privilege in cooperation cases, you can still work with your lawyer to preserve your privilege to the extent possible.

Does a company’s resolution protect individual defendants?

A company’s resolution will typically only apply to the company. However, in some cases, it will also expressly protect individuals, including employees and former employees. If you participate in an internal interview, you should ensure that any protections afforded to you in your company’s resolution are adequately preserved.

Can conflicts of interest be waived?

As mentioned above, most concurrent conflicts of interest can be waived. However, Under Model Rule 1.7(b), lawyers must obtain informed written consent to waive concurrent conflicts unless the waiver would not create material limitation on the lawyer’s ability to represent the client.

Is cooperation safer than pleading guilty or going to trial?

Is It Safer to Cooperate Than to Plead Guilty or Go to Trial?

Which Type of Public Corruption Case Is the Hardest to Win at Trial?

At the trial stage, most cases will involve challenging allegations of corrupt intent. A public corruption trial will likely center on what intent your defendant had, what alleged exchange agreement existed, and whether your defendant actually engaged in the corruption scheme. When the federal government lacks an explicit exchange agreement, then establishing your defendant’s corrupt intent and evidence of the alleged exchange agreement will prove harder. There is no legal rule that identifies one particular type of case as harder to win at trial, as the amount of evidence available will vary with each case.

Will a Corruption Charge Trigger Collateral Proceedings?

Charges for public corruption typically trigger proceedings for other issues as well. These can include:

• State and federal licensing and certification boards;
• Employers and state and federal employment benefits;
• Ethics panels;
• Civil lawsuits from companies, former employers, or others; and,
• Immigration authorities.

What Are the Risks of Pleadings Guilty or Going to Trial?

At trial, prosecutors must prove each of the charged elements of an offense beyond a reasonable doubt. The federal government may, also, prove multiple other offenses if they have the evidence. Conversely, pleading guilty to corruption offenses under Federal Rule of Criminal Procedure 11 requires a waiver of your trial rights, including your right to a jury trial, your right to confront testifying witnesses, and your right to a trial that is expedited.

Does a Cooperation Agreement Guard Against Collateral Liability?

No, generally, a cooperation agreement will not bind licensing boards, employers, immigration authorities, or other entities. It is not even clear if it binds the DOJ itself, even though prosecutors’ signatures bind the executive branch by federal law. As a result, cooperators may need to engage in parallel negotiations with their employers, the Office of Professional Responsibility, and other entities.

How Can I Claim Prosecutorial Misconduct in a Public Corruption Case?

There is no universal four-category classification for prosecutorial misconduct, so there are no generally controlling rules for making a claim of prosecutorial misconduct. Even though the four specific categories are not defined, defendants are still able to seek criminal penalties in the case that a prosecutor knowingly and willful made false material testimony or failed to disclose a required Brady material.

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.