Cooperation in Multi-Defendant Federal Cases: Strategy Considerations.

A cooperation agreement with the federal government rarely, if ever, guarantees any particular sentence. As a result, this should not be the only factor in deciding whether or not to cooperate.

Timing

Cooperation can begin before charges are filed, after indictment, or even after sentencing.

Scope of Assistance

Cooperation is a broad concept. A defendant may cooperate by providing documents, testimony, recordings of communications, or investigative leads. It can involve aiding in investigations, prosecutions, and even appeals.

Deadline

While there is no deadline under any federal statute or rule for initiating cooperation discussions with prosecutors, it is often best to initiate these discussions (and negotiate terms) as soon as possible. This may provide additional time for your defense attorney to help you determine whether cooperating is in your best interests. Our attorneys can guide you through these negotiations and advise you on how to protect yourself while assisting the government.

Plea Requirement

Cooperation also does not invariably require a guilty plea.

Rewards for Assistance

Prosecutors can reward cooperation in several ways. While they have no authority to grant a specific sentence, they can make favorable charging decisions, dismiss counts, or recommend a particular sentence to the court.

Rule 11(c)(1)(C) Plea Agreements

Prosecutors can also offer Rule 11(c)(1)(C) plea agreements. If the court accepts a Rule 11(c)(1)(C) plea agreement, the agreement then binds the court to its disposition. This means the court has a more substantial role in accepting the agreement (and that rejecting the agreement is also a possibility).

What Protections Does a Federal Proffer Agreement Actually Provide?

Protections Come From the Contract Terms

Unlike many other aspects of the federal criminal justice system, the legal protections provided by a proffer agreement arise primarily from the specific terms of a written contract between you and the federal government. No statutes or federal rules of criminal procedure provide for protections or benefits upon offering assistance in a criminal case, so you must negotiate for protection when you (or your lawyer) deal with the government.

Difference From Cooperation Agreement

A proffer agreement is different from a cooperation agreement in two significant ways. (i) The legal protections it provides are different (generally speaking, less comprehensive), and (ii) it is negotiated and executed at a different stage in the federal investigation and litigation process.

Investigative Leads Derived From Proffer Statements

Generally, most proffer agreements allow investigators to use leads derived from proffer statements. While investigators generally will not be able to use your proffer statements in a criminal trial, they will generally be able to seek, obtain, and use other evidence to support their investigation of a crime that you disclose during your proffer session. In other words, while you may be protected, any individuals or businesses that you identify in your proffer statement may not have similar protections.

Impeachment Use of Proffer Statements

Historically, defendants have tried to use proffer agreements to bar the government from using their proffer statements as impeachment evidence. However, in United States v. Mezzanatto, the Supreme Court stated that prosecutors and defendants are free to negotiate a waiver of this protection. As a result, most federal proffer agreements provide that proffer statements can be used in court for impeachment purposes.

In today’s federal investigation and prosecution environment, the benefits of offering assistance are very clearly defined. While statutory and contractual protections exist, they provide limited protection, and they can be extinguished very quickly if the individual offering assistance does not strictly comply with the terms of the agreement. The most reliable way to maintain protections and maximize the benefits of offering assistance is to deal with a skilled and seasoned federal defense lawyer.

Formal Statutory Immunity vs. Contractual Proffer Protections

A proffer agreement is different from formal (statutory) immunity under 18 U.S.C. § 6002. Formal immunity is offered on a case-by-case basis by a prosecutor, and if it is offered and granted, it has significant implications in a criminal proceeding. While formal immunity generally bars the government’s use of a subject’s statements for both direct and derivative uses, a proffer agreement’s contractual protections are usually much narrower than those granted by formal immunity.

Sentencing Credit Under U.S.S.G. § 1B1.8

U.S.S.G. § 1B1.8 is a sentencing guideline titled “Use of Certain Information,” which limits the government’s use of self-incriminating information provided by a defendant who agrees to assist in the investigation or prosecution of another person. As long as the government offers, and you accept, the specified agreement, the guidelines’ criteria apply. However, Section 1B1.8 contains several exceptions to the reduction of a defendant’s offense level. For example, if the defendant breached the agreement, if the information the defendant had was already available to the government, or if the defendant committed perjury during the proffer process, the information disclosed could be used in determining the defendant’s applicable guideline range.

What happens when one codefendant decides to cooperate?

Conflicts of Interest

When one codefendant in a multi-defendant case decides to cooperate and others do not, it creates significant issues regarding conflicts of interest, joint representation, and disclosure of joint defense confidences.

Joint representation between codefendants is common in multi-defendant cases. In a typical joint defense, defendants share costs and have access to the same information, and they often share confidences to help build a better overall defense strategy. However, if a defendant chooses to cooperate with the government, this arrangement can conflict with the other defendant’s interests. Federal Rule of Criminal Procedure 44(c) recognizes the inherent conflict in representing two defendants in a joint federal case, and it mandates a thorough inquiry into the conflict of interest before concluding whether joint representation may be appropriate.

Testimonial Confessions in Joint Trials

The Bruton ruling also limits the government’s ability to use cooperating defendants’ testimony at joint trials. In recent years, the Bruton ruling and subsequent rulings have made the decision to keep cases joined for trial more complex, and this is especially true in cases involving multiple defendants.

Joint-Defense Confidences and Privilege

Joint defense agreements are designed to protect the qualifying privilege (i.e., the attorney-client privilege) that is shared between defendants. However, common-interest arrangements preserve the defendant’s existing privilege, and they do not create an independent privilege on their own. One question that often arises in a multi-defendant criminal case is whether joint-defense confidentiality protections survive when one of the members of the joint defense group decides to cooperate.

United States v. Henke illustrates a significant risk of joint-defense confidentiality. In that case, the court revoked the convictions of multiple defendants because a shared confidence was used to implicate one of them. More importantly, the court found that the use of the shared confidence impaired the defendant’s ability to cross-examine a government witness. This case illustrates the inherent risks of sharing confidences with others when a member of your joint defense group may be negotiating cooperation with the government.

Disclosures and Impeachment

Prosecutors are bound by constitutional disclosure requirements under the Due Process Clause of the Fifth Amendment. These include two main types of disclosure: Brady and Giglio.

• Brady (The “Brady Rule”): Prosecutors must disclose evidence that is favorable to the accused and material to guilt or punishment, including evidence known only to others acting on the government’s behalf, such as investigating agents.
• Giglio (The “Giglio Rule”): Prosecutors must disclose information that may impeach the credibility of a government witness.

In multi-defendant cases, both requirements will trigger disclosures. Cooperation benefits, the sentencing expectations of cooperators, and the content of cooperator interviews all have the potential to qualify as material under Brady and Giglio. For defendants, disclosures under these rules provide an opportunity to cross-examine cooperators and seek to discredit their testimony. This is a Sixth Amendment protection that may allow a defendant to show that a government witness’s testimony is biased due to benefits the witness received (or expects to receive) in exchange for cooperation.

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

Can Cooperation Get Below a Mandatory Minimum Sentence?

Section 5K1.1 and Substantial Assistance

Section 5K1.1 is a sentencing guideline that permits a sentence below the guidelines’ range if the government files a motion (a “5K1.1 motion”) on the basis of a defendant’s substantial assistance in a federal investigation or prosecution. However, a 5K1.1 motion alone is not enough to cross the threshold of a statutory mandatory minimum.

Section 3553(e) of the Sentencing Statute

Crossing the threshold of a statutory mandatory minimum requires a separate finding under Section 3553(e) of the federal sentencing statute. Section 3553(e) authorizes a court, upon motion of the government, to impose a sentence below the statutory minimum “so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” Here, too, if the government moves for a sentence below the statutory minimum to reflect the defendant’s substantial assistance, these assistance-related considerations become central.

The Sentencing Judge’s Role and Appellate Review

At sentencing, the court will not consider the benefits of cooperation until the government files a 5K1.1 motion. The sentencing judge then determines the extent of the departure. The sentencing judge may grant the requested sentence, a different sentence, or no reduction at all. As noted in Wade v. United States, the judge’s role in the process is subject to appellate review for the same (though far less common) reasons as other aspects of the sentencing process, such as unconstitutional motives.

When the government makes a specific substantial-assistance promise in a plea agreement, the government is also bound by that agreement. Courts may choose to enforce such promises by denying the government’s request for a plea agreement to affect sentencing as soon as the defendant’s assistance-related obligations under the agreement (or the terms within the agreement itself) are met.

Section 5K1.1 Considerations

Section 5K1.1 lists five important considerations for determining substantial assistance. While listed as reasons a court may impose a sentence below the guidelines’ range (though a court can impose a below-guidelines sentence for any reason that reflects a true sentencing judgment), these consider each defendant’s assistance in context of the overall federal investigation or prosecution:

• The court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered
• The truthfulness, completeness, and reliability of any information or testimony provided by the defendant
• The nature and extent of the defendant’s assistance
• Any injury suffered, or any danger or risk of injury to the defendant or his family, resulting from his assistance
• The timeliness of the defendant’s assistance.

While these considerations are a starting point in evaluating assistance, substantial-assistance determinations can be an extremely complex area of federal sentencing, and they often lead to long and challenging negotiations.

When is it Too Late to Cooperate?

Not Only the First Cooperator

Can you still cooperate if another defendant in your case has already done so? While a common perception is that there are fewer benefits for later cooperators, this is not necessarily true. For example, neither Section 5K1.1 (Sentencing Guidelines) nor Section 3553(e) (the federal sentencing statute) reserve assistance-related sentencing relief for the first cooperator.

Cooperation After Sentencing

What about if you provided assistance after sentencing? In that case, any reduction in your prison sentence would come under Federal Rule of Criminal Procedure 35(b). The rule provides, in pertinent part:

(b) Reductions in Sentence. After sentencing, the government may move to reduce a sentenced defendant’s term of imprisonment upon a showing of substantial assistance.

(1) Time Limit. The government must file its motion within one year of sentencing. (Rule 35(b)(2) provides limited exceptions for filing a motion after a year has elapsed, which apply where the defendant’s substantial assistance involved information not known to the defendant until at least one year after sentencing, information that did not become useful to the government until more than one year after sentencing, or information whose usefulness could not reasonably have been anticipated until more than one year after sentencing and that was promptly provided once its usefulness became apparent.)

(2) Substantial Assistance. The rule provides that the government must show that the defendant, after sentencing, provided substantial assistance in “investigating or prosecuting another person.”

(3) Sentencing Considerations. In evaluating whether the defendant has provided substantial assistance, the court may consider the defendant’s presentence assistance.

(4) Minimum Sentence. A reduction under Rule 35(b) can fall below a statutory minimum, and the rule imposes no additional findings requirement for doing so.

Which Cooperator Gets the Best Deal?

Are there any rankings for which cooperator gets the best deal? No federal dataset ranks the sentence reduction a defendant receives based on the order of defendants who offered assistance to the government.

Can Cooperators Share Sentencings?

Generally speaking, a defendant’s sentence reduction under Section 5K1.1 will be individualized. A defendant’s sentencing judge must not determine a sentence based on what the cooperator has received. This ensures that each defendant’s reduction is based on the value of the assistance given by the cooperator.

Who is Credit for Substantial Assistance given?

Rule 35(b)’s text explicitly attribute the substantial assistance to the sentenced defendant. To reduce a defendant’s sentence after sentencing, the government must show that “substantial assistance was provided by a sentenced defendant” as defined in Rule 35(b)(2). This does not apply to an unindicted co-conspirator, but it may apply to an uncharged co-defendant, who will still be considered a “sentenced defendant” for the purpose of this rule.

Is the Federal Safety Valve the Same as Cooperation?

Section 3553(f) vs. Section 3553(e)

The federal safety valve is codified at 18 U.S.C. § 3553(f), and its implications for drug trafficking offenses differ markedly from the substantial assistance relief discussed above under Section 3553(e).

Timing, Requirements, and Truthfulness

One significant difference between the safety valve and substantial assistance is that, while safety-valve disclosure must be complete and truthful by the time the sentencing hearing commences, the relief it provides does not require the subsequent prosecution or conviction of another person. In other words, if a defendant’s disclosure is complete and truthful, the fact that the defendant does not have useful additional information that the government does not already possess is generally not enough to defeat his or her safety-valve eligibility. This, too, is a key distinction from substantial assistance, which requires a showing of “substantial assistance” in the investigation or prosecution of another offense.

Safety Valve Eligibility

When can a defendant expect to qualify for safety-valve relief? In the recently decided case of Pulsifer, the Supreme Court reaffirmed the principle that, in order to qualify for a sentence reduction under the safety valve, defendants must satisfy all applicable criminal history limitations set forth in Section 3553(f)(1) of the federal sentencing statute.

Along with these criminal history limitations, other conditions (and exceptions) also affect safety-valve eligibility. For example, a defendant is ineligible for safety-valve relief if the underlying offense involved serious violence, the use of a qualifying firearm, or if the defendant’s role in the underlying offense was as an organizer or supervisor.

Acceptance of Responsibility

Section 3E1.1 is the pertinent provision of the U.S.S.G. regarding “acceptance of responsibility.” An acceptance of responsibility under Section 3E1.1 is conceptually different from offering substantial assistance. As a result, a reduction under the safety valve does not itself constitute acceptance of responsibility under the guidelines, and the two are not mutually exclusive.

The reduction provided under the safety valve generally equals a two-level reduction under the U.S.S.G.. While the safety valve does not reduce the defendant’s offense level directly under Section 3E1.1, it currently provides for a reduction (generally two levels) under U.S.S.G. § 2D1.1(b)(18).

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.