Is It Dangerous to Cooperate in a Federal Case??

The risks of cooperating are real, but they are not insurmountable. Whether it is a smart or safe decision depends on your specific circumstances. The risks of cooperating in a federal case include, but are not limited to:

• The fact that a lawyer cannot guarantee the government will reward cooperation
• The requirement for cooperation agreements to include complete, truthful, and continuing assistance
• The risk of retaliation against yourself or your family

When deciding whether to cooperate, your lawyer should evaluate the evidence at trial, your potential sentencing exposure, the value of the information you can provide, and the potential safety risks to you and your family.

How Federal Charges are Initiated

• Federal felony charges must be initiated through indictment, unless the defendant waives their right to be indicted.
• A federal grand jury is composed of 16 to 23 citizens who hear a federal prosecutor’s presentation of the government’s case before voting on whether to indict.
• To initiate federal felony charges, probable cause must be demonstrated via indictment, information, or complaint.
• No single offense category is objectively the hardest type of federal case to defend.
• While cases involving violence, fraud, or drug trafficking often present unique challenges, every case is different.
• Success in federal defense relies on identifying the most effective strategy for the specific evidence and facts at hand.
• Ultimately, the difficulty of a case is a function of the evidence available, the experience of the prosecutor, and the skills of your defense attorney.

What Can Prosecutors Use After a Federal Proffer?

The protections offered under a proffer agreement are generally designed to facilitate a cooperation conversation, not provide full immunity. This distinction is critical because it often means that the information you provide can be used in ways you may not expect, including:

• Information previously known to the government

• Information you provide during the proffer interview that is also provided by another cooperator

• Information you provide during the proffer interview that you learned from another individual (even if that individual is not a cooperator)

• Information obtained through use of the information disclosed during the proffer (this is referred to as “derivative evidence”)

• Information obtained as a result of the information disclosed during the proffer (this is referred to as “indirect evidence”)

• Information that would otherwise have been available to the government independent of the proffer

Why Are These Protections Not Enough?

The key to understanding the limitations of proffer protections is the fact that a proffer is not an interview. It is an offer to provide truthful and complete information in exchange for the promise not to use the information for prosecution or evidence. The protections you receive depend primarily on the exact terms and conditions that are negotiated into the written agreement. This is why negotiating the best possible proffer agreement is so important. Typically, prosecutors will only agree to a “use” immunity restriction, which limits their ability to use information disclosed in a proffer directly in court. However, this leaves open several other options, including:

• Pursuing leads based on proffered information
• Using the proffered information to get other cooperators
• Submitting the information to a grand jury for voting
• Using derivative evidence, indirect evidence, and independently available information

Can a Proffer Interview Go Wrong?

Unfortunately, it can. In fact, one of the risks of offering to cooperate is that you may disclose information that the government did not previously have, and that exposes a potential additional federal criminal offense for which you can be prosecuted. While that information should be protected under your proffer agreement, this is not always the case. Even if the information is protected, this disclosure can put you in the government’s crosshairs and make your defense attorney’s job much more difficult.

What Is a Lawyer Warning Sign?

In addition to advising an unprotected agent interview, which is a red flag, as discussed above, another significant warning sign is if a lawyer advises you to provide information to prosecutors in an exchange without a signed cooperation agreement. While a lawyer may want you to accept a negotiated plea deal, it does not make sense to accept it without first disclosing information to the government.

For many cooperators, this means facing the possibility of reduced sentencing and avoiding potential additional charges for those who decide to help the government.

How Much Can Federal Cooperation Reduce My Sentence?

The first thing to understand is that pleading guilty and providing “substantial assistance” to the government are two legally different actions. Pleading guilty to the crimes in your case is a way to resolve your liability for those crimes, while providing substantial assistance is a way to potentially reduce the penalties that you face.

When it comes to the guidelines, substantial assistance provided prior to sentencing is governed by U.S.S.G. §5K1.1. While most guidelines are advisory, §5K1.1 is a guideline provision that grants the federal sentencing judge discretion to impose a sentence below your guideline range if the government files a motion for a substantial-assistance departure.

A §5K1.1 motion must be filed by the government. If you are looking to secure a sentencing departure based on substantial assistance, your lawyer will negotiate with the federal prosecutor to determine what information you need to share and under what circumstances you are willing to share that information in exchange for a §5K1.1 motion.

Once a §5K1.1 motion is filed, the sentencing judge then determines the extent of any actual sentencing departure that you receive. While the judge will certainly take the government’s motion into account, it is not binding. The amount of the departure is within the judge’s discretion.

It is also important to note that a §5K1.1 motion alone cannot authorize a sentencing below a statutory minimum. If your case involves a mandatory minimum, then the government must file an 18 U.S.C. §3553(e) motion to cross below that minimum. This is another specific statutory provision that governs substantial-assistance departures.

As noted, the sentencing guidelines are advisory. This means that a federal judge can impose a sentence outside the guideline range on its own, even without a substantial-assistance motion. While there are many factors that are outside the prosecution’s control, this does not mean that negotiating with the government is unnecessary. The prosecutor also determines the charges for which you face sentencing exposure, the enhancements that apply to your case, and your potential sentencing range. In addition to filing a §5K1.1 or §3553(e) motion, the government can reward substantial assistance by:

• Agreeing to the most favorable federal charges to which you can plead guilty
• Selecting a charge with no mandatory minimum or a lower sentencing range
• Agreeing not to pursue a potentially harmful sentencing enhancement
• Withdrawing charges for which you will no longer face sentencing exposure

As a result, prosecutors have considerable control over the potential federal charges you can face, and it makes sense to seek assistance for negotiations with the government if you have substantial information to offer in exchange for favorable treatment.

What Are the Risks of Becoming a Federal Cooperator?

While substantial assistance can offer meaningful benefits, it is not without risks as well. The risks of cooperating in a federal case are multifaceted, and each aspect of your cooperation strategy will need to be designed with these risks in mind. Broadly speaking, the risks of cooperating include:

• The government may use the information you share to prosecute you for additional charges
• The government may not reward your cooperation
• The government may share the information you share with other individuals
• The information you share may lead to your cooperation agreement being breached
• Third parties may discover that you have cooperated with the government and retaliate

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

What Happens if Either Side Breaches the Cooperation Agreement?

If the government breaches its side of the cooperation agreement, there are a couple of circumstances under which the government’s breach of contract has judicial consequences:

• Withholding a promised sentence departure
• Withholding the benefits of a promised plea bargain

Generally, this only applies if the prosecutors breached an agreement with you. If the government breaches a cooperation agreement that involves the actions or words of another individual, you will need to show that the government’s breach of contract with the other individual is unlawful or constitutes a violation of your constitutional rights.

Can the Government Withhold a Promised Sentence Departure?

Under a decision from the Supreme Court known as Wade v. United States, filing a substantial-assistance motion is a “matter of prosecutorial discretion.” This means that, even if you have substantially assisted the government, it is not entitled to the benefit it is looking for if the government refuses to file a substantial-assistance motion. While the government is generally able to do this even in the face of a cooperation agreement, Wade and subsequent cases have clarified that a prosecutor’s refusal to file a substantial-assistance motion can be reviewed when it is based on an unconstitutional motive.

However, as Wade, “the federal government’s right to exert its substantial-assistance discretion must be protected.” This means that, in order to justify an inquiry into the government’s reasons for not filing a substantial-assistance motion, the government’s decision will typically need to be supported by a substantial threshold showing of evidence. The higher, the threshold, the more difficult it will be to seek an evidentiary hearing or discovery from the government. For this reason, when negotiating your cooperation agreement, it is important to keep your goals in mind and negotiate for the strongest possible language of protection against the government’s exercise of its substantial-assistance discretion.

Can the Government Withhold the Benefits of a Promised Plea Bargain?

If the government refuses to follow through with the benefits of your promised plea bargain, it may have the right to pursue these charges to the fullest extent. This is true if the government does not have to provide you with any cooperation benefits for it to proceed with its criminal prosecution under the terms of the original indictment, information, or complaint. However, this does not necessarily mean that your guilty plea will be effective if the benefits offered under your plea deal are withdrawn. If your guilty plea was entered based on the representation that the government would not prosecute you for certain offenses, then the government may be bound to fulfill this promise and may not be able to pursue the charges you are facing for those offenses.

In Santobello v. New York, the U.S. Supreme Court held that when the government makes a promise in order to induce a guilty plea, and then the government then breaches that promise, the government cannot force you to fulfill your plea. If the prosecutor promises a certain result in exchange for your guilty plea, and then the prosecutor refuses to fulfill the promise, you will be able to withdraw your plea and demand a new trial. Alternatively, the court can order the government to satisfy the specific performance of the bargain, or the government can choose not to pursue the charges.

What if I Breach My Cooperation Agreement?

If you breach your cooperation agreement, your lawyer can negotiate with the government to determine whether you will still be eligible to receive the benefits of cooperation. While you may lose the ability to receive a sentence departure or a withdrawal of charges, it is important to discuss the specific terms and conditions of your cooperation agreement with your lawyer before you give up your hopes of receiving the benefit of cooperation. A cooperation agreement can reserve sole discretion to the prosecutors to determine whether you have sufficiently provided assistance under the terms of the agreement, and this provision will be enforceable in court.

Will My Cooperation Become Public and Put Me at Risk?

One aspect of cooperating is the potential for that cooperation to become public, even after the prosecution of your case is over. When facing an open-court trial or sentencing proceedings, federal prosecutors will use the information provided by you or other cooperators to further their prosecution. While this is true for all cases, it becomes even more of a risk for cooperators because judges will frequently file sealing orders under specific conditions. However, these orders do not guarantee the permanent confidentiality of you as a cooperator.

A key provision under the U.S. Sentencing Guidelines, which expressly allows federal judges to consider any “danger to the defendant as a result of assistance provided,” is Section 5K1.1. When cooperating leads to the risk of injury or death, prosecutors may be able to request witness protection under the U.S. Marshals Service’s Witness Security Program.

Of course, becoming a part of the Witness Security Program is a major decision. For most, entering the Witness Security Program involves relocation, changing your identity, and enduring severed relationships. It is a sacrifice that few people are willing to make unless they feel like their lives or the lives of their family members are at stake. In addition to the Witness Security Program, witnessing the effects of federal law enforcement may put you in a position where you can seek protection from the government through federal court protective orders or sealing agreements.

How Can Cooperator Identities Become Public?

Along with other ways that cooperators may be exposed, a cooperator’s identity can become known through one or more of the following:

• Federal Rule of Criminal Procedure 49.1 does not require redacting a cooperator’s status when pleading guilty in public court records, and while it does not explicitly authorize the government to reveal that status, it allows it.
• Pleading guilty in open court may reveal a cooperator’s identity and actions if the prosecutor discusses it during the proceedings.
• Open-court testimony may reveal a cooperator’s identity if the prosecutor or another government agent references the testimony provided by the cooperator.
• Publicly available federal court records such as filed plea agreements, sentencing memoranda, and open-court testimony may reveal a cooperator’s identity unless sealed by the court.

What Should I Keep in Mind Before Making a Cooperation Decision?

The decision to cooperate in a federal criminal case is a high-stakes decision, and it is a decision that has the potential for significant negative outcomes. When weighing the possible benefits of receiving a reduced sentence or facing charges with a lower sentencing range, it is important to consider potential downsides as well, such as:

• The likelihood of retaliation
• The likelihood of receiving the benefits of cooperation
• The certainty of the information you provide being useful
• The amount of evidence at trial
• Your potential sentencing exposure

These are significant considerations, and you should have an open conversation about these concerns with your lawyer when thinking about the possibility of cooperating in your federal criminal case.

Can Cooperation Still Reduce My Sentence After Sentencing?

Along with the possibility of substantial assistance prior to sentencing, there is also the possibility of which you receive relief after sentencing for providing substantial assistance to the government. This is governed by Federal Rule of Criminal Procedure 35(b), and while the substance is very similar to the rules and protections that govern substantial assistance prior to sentencing, there are also some important differences.

In order to qualify for relief under Rule 35(b), you must also provide a substantial-assistance motion. This means that you must work with your lawyer to engage in a similar negotiation process with the government as required in order to qualify for relief prior to sentencing. Rule 35(b)(1) provides that a substantial-assistance motion must be filed “within one year of the imposing of the sentence,” but it also has an exception. Rule 35(b)(2) permits the government to file a substantial-assistance motion later if:

• The information the defendant provides is “unknown to him and the government at the time the court imposing the sentence made the sentencing decision”;
• The information the defendant provides is “unknown to the government at the time the court imposing the sentence made the sentencing decision,” and although the defendant knows the information timely, it did not become useful until more than one year after sentencing;
• The information the defendant provides is provided “promptly” and its usefulness was not reasonably anticipated when the defendant first learned the information.

How Does Rule 35(b) Differ from Rule 35(b)(1) and Rule 35(b)(2)?

Rule 35(b)(1) provides that the government may be able to seek a substantial-assistance departure if it files a motion for the sentence departure within one year of the date the court imposes the sentence. Rule 35(b)(2) then provides that the government may be able to seek a substantial-assistance departure after a year if any of the following are true:

• The defendant’s provided information was unknown to the defendant and the government at the time the sentencing decision was made.
• The defendant’s provided information was unknown to the government at the time the sentencing decision was made.
• The defendant’s provided information was provided promptly, and its usefulness could not have been reasonably anticipated at the time the defendant learned the information.

What Are Additional Differences Under Rule 35(b)?

In addition to the difference under the sentencing guidelines, Rule 35(b) differs from §5K1.1 and 18 U.S.C. §3553(e) in two other significant ways. First, Rule 35(b) can authorize a reduction below a statutory minimum. While judges cannot otherwise reduce a defendant’s sentence below a statutory minimum, Rule 35(b) provides them the authority to do so. Second, while the government generally must file a substantial-assistance motion before sentencing, under Rule 35(b), the government is generally able to maintain the ability to file a substantial-assistance motion after sentencing, even if it did not file one at sentencing.

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.