Can Cooperating Early Prevent Federal Charges??

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• “

How Can Counsel Seek Declination Without Client Cooperation?

When Can Exculpatory Evidence Be Used to Seek Declination?

How is Federal Charging Law Different from Federal Trial Law?

How is “Probable Cause” Different from “Proof Beyond a Reasonable Doubt”?

How Much Evidence Does the Federal Government Need to Bring Criminal Charges?

Does the Department of Justice Have a Mandatory Charging Policy?

What Does the Department of Justice’s Charging Policy Say?

What Additional Considerations Does the Department of Justice Include When Making Federal Charging Decisions?

Can You Just Invoking Your Constitutional Rights?

Do You Need a Court Order to Dismiss or Decline Federal Charges?

What Changes After Federal Charges Have Already Been Filed?

If the federal government has already filed federal charges against you, then your defense attorney’s strategy will shift toward preventing trial. While that may involve working with the federal government to reach a favorable plea agreement, it can also involve working to end the case without a trial. With federal charges on the table, the federal government’s evidence will be crucial, and, if any evidence is not admissible under the rules of evidence, the prosecution may not have a case that can withstand a motion for summary judgment or a trial. As a result, suppression of all the federal government’s evidence will be a key goal (if it is an important part of your defense).

What is “Charge Stacking”?

Another key aspect of the federal government’s prosecution will be, if there are multiple federal charges against you, “charge stacking.” This is the practice of bringing multiple separate charges that all stem from a single event. For example, the government may charge a defendant with conspiracy, wire fraud, and money laundering. When federal charges arise out of conduct committed over a lengthy period of time, there may be even more counts. Charge stacking is common; and, even though you may only go to prison for one of these crimes, the potential of several federal sentencing violations increases the federal government’s leverage in plea bargaining.

What are the Three Types of Charges?

When the federal government starts a prosecution by filing criminal charges, there are three ways this can be done. Most federal felony prosecutions begin with a federal grand jury indictment. Federal felony prosecutors can also file a federal criminal information, usually in cases where the defendant agrees to waive their right to an indictment from a grand jury. The federal government may also start with a criminal complaint, which requires the prosecutor to make a probable cause showing to a magistrate judge.

What is a Rule 5.1 Hearing?

In some cases, a Rule 5.1 preliminary hearing is held after the federal government files a criminal complaint. However, a Rule 5.1 hearing only addresses whether there is “probable cause” that you committed a crime (i.e., that the criminal charges are warranted). As a result, a Rule 5.1 hearing will not lead to an acquittal before trial.

What is Rule 48(a)?

If the federal government files a criminal complaint, information, or indictment against you, it cannot simply decline federal charges after that. Under Federal Rule of Criminal Procedure 48(a), prosecutors cannot dismiss a criminal complaint, information, or indictment without court permission. This, too, means that early termination of the case will require your defense attorney to argue for a favorable result in court.

What are the Risks of Multiple Charges?

Along with the risks of having multiple counts in a criminal case, whether in a single case or in separate cases that all arise from related conduct, there are two other serious risks:

• Multiple Counts and Statutory Exposure.

The risk of multiple counts is that they increase your total statutory exposure. This is a significant issue in cases where one count falls under section 924(c) of the federal criminal code. Unlike sentences imposed under other sections of federal law, which generally run concurrently, a sentence imposed under section 924(c) generally must run consecutively to any other imprisonment.

• Multiple Charges and Plea Bargains.

Multiple charges also have the risk of giving the federal government more leverage in plea bargaining. With each additional charge, the prosecutor has more bargaining power to use during plea negotiations. This is because the government can use the threat of additional penalties under different statutes.

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

What Can Go Wrong During a Federal Proffer?

While most federal proffer agreements contain some protection for the defendant’s statements, the scope of these protections depends on the specific language used in the signed agreement. Many proffer letters limit the use of statements to rebut statements made during a plea or defense, while providing that the government may use statements and derivative information in accordance with the following restrictions:

What is a Use Restriction?

A use restriction generally means that the government cannot directly use statements to prove the defendant’s culpability beyond a reasonable doubt. It prevents the government from using your statements in its case-in-chief. It doesn’t, however, prevent the government from using the statements to impeach your credibility (if you lie on the stand at trial), or in some other circumstances.

What is a Derivative Use Restriction?

A derivative use restriction prevents the government from using “information derived from” your statements to pursue “any investigative or other enforcement purposes” that could ultimately result in the government being able to use your statements against you. However, as discussed below, many proffer letters limit the scope of this restriction.

What Information is Subject to a Derivative Use Restriction?

If the government’s investigative agents or prosecutors use information derived from your proffer statements to pursue “derivative leads,” the information obtained from pursuing those leads is typically considered “derivative information” that is protected by the proffer agreement. For example, if you admit to knowing someone who could provide information in the government’s case-in-chief, and the government then contacts that person, any statements the government obtains from the person (and information the agent obtains in investigating the person) will be considered “derivative information.”

What is Not Derivative Information?

There are two important distinctions you need to keep in mind. First, while any information the government obtains from your proffer statement is considered derivative, information the government already has (or would have obtained without your statement) is not “derivative information.” Second, information that you provide to federal agents is not derivative information.

For example, if you admit to knowing someone who could provide information in the federal government’s investigation and the government contacts that person, any information the government obtains is considered derivative information, and its use will be barred by your proffer agreement. But, if the government has already contacted that person or contacted that person by means of independent information, then the information obtained from that person is not “derivative information.” Additionally, information the government obtains from your proffer statement that it can then use to impeach your testimony will not be considered “derivative information” that is protected by a proffer agreement.

What Happens if the Government Rejects a Defendant’s Proffer?

If the government does not accept a defendant’s proffer, this does not mean that the defendant’s statements are without limitation. The government will still be bound by the derivative use restriction in the proffer agreement. With that said, while a defendant’s proffer statement itself is inadmissible, a defendant may be permitted to use the statement (if they choose) to rebut a defense, such as claiming to have immunity or providing statements inconsistent with those the defendant provided in the proffer. However, the government will also be able to use the statement if you provide any false or deceptive statements to federal investigators.

Can a Defendant’s Proffer Be Used to Prosecute for 18 U.S.C. §1001?

One interesting aspect of federal proffer agreements is how they address the crime of providing a false or deceptive statement to federal investigators (18 U.S.C. §1001). If you say something false or deceptive during a federal proffer, the government can’t use that statement against you; however, the government can still prosecute you for the commission of the offense itself.

What Protections Can Prosecutors Actually Promise for Cooperation?

There are a number of different “protections” (if that’s even the right word) the federal government can offer to someone in exchange for cooperation. While early, counsel-guided cooperation can sometimes work to get a declination or the benefits of an immunity or nonprosecution agreement, none of the information presented so far should make you think that early cooperation will magically make the criminal investigation go away.

What is a Declination?

A “declination” is the federal government’s decision not to pursue criminal prosecution in a specific criminal case.

If you’ve learned about a pending federal criminal investigation through a grand jury subpoena or target letter, then one of your defense attorney’s goals in a criminal case like this will be to convince the federal government to seek a declination. While this is not a formal agreement in most cases, you can make a favorable deal to accept a declination.

While there are two different federal agencies and two different federal prosecutor offices involved, the federal investigation is conducted by a single task force. When that task force makes a prosecutorial recommendation that you are not criminally responsible, the DOJ’s chief prosecutor at the relevant DOJ office will be the one who makes the final declination decision.

What is a Non-Prosecution Agreement (NPA)?

A non-prosecution agreement (or “non-prosecution arrangement,” or NPA) is a form of precharge cooperation. When prosecutors offer an NPA, they intend to resolve all of the potential charges against a specific individual without formally filing a charging document. NPAs are not court-approved agreements; in fact, there is no requirement for a court order under the federal rules of criminal procedure.

As a result, a prosecutorial office’s obligations under an NPA generally depend on the specific language used in the agreement as well as on whether the promising prosecutor has authority to bind the office.

If the federal government does not provide immunity to a defendant in exchange for cooperation and you are facing extradition or trial in foreign court, do you have a right to refuse to testify? We will discuss this further in our discussion of U.S. attorney proffer agreements and witness immunity agreements.

What is a Deferred Prosecution Agreement (DPA)?

In a deferred prosecution agreement, the government’s decision to pursue prosecution against a specific target of a federal investigation will be postponed for an agreed-upon length of time. This means that the government may file a charging document, but if you meet the conditions of the DPA and demonstrate respect for the law, you should have no further issues with the case. This is one potential outcome of engaging in cooperation with the federal government in lieu of a formal declination.

What is Section 6003 Immunity?

Section 6003 immunity is statutory immunity. Under this section of the federal law, the federal government must submit a written request to a federal court seeking a court order to compel testimony. This is in addition to any other required procedures for obtaining witness immunity from testimony. A judge will then decide whether the request is warranted and, if so, will issue an order compelling testimony.

Unlike Section 6002 immunity, Section 6003 immunity does not allow for the prosecution of the federal witness if the witness declines to testify despite the court’s order.

What is Section 6002 Immunity?

Section 6002 immunity bars the government from using the witness’s testimony or any evidence derived from the witness’s testimony against the witness in a criminal case. However, Section 6002 explicitly permits a criminal prosecution if the government possesses admissible evidence that was obtained independently of the witness’s compelled testimony.

Will Cooperation Waive My Fifth Amendment Protection for All Future Subjects?

Cooperation in federal investigations may take multiple forms, including proffers, informations, and statements given to federal grand juries. While providing some information to federal agents, prosecutors, or a grand jury does not lead to a blanket waiver of Fifth Amendment protection in all future cases, it can lead to problems during future investigations.

What Happens if Cooperation Does Not Prevent Charges?

While the primary goal of cooperation with the federal government in the early stages of a criminal case is to avoid federal charges, failing to do so does not mean that cooperation provides no benefit. If federal charges are filed, cooperating can still have the potential to significantly reduce the defendant’s criminal exposure. For example, substantial assistance may give rise to a sentencing departure under United States Sentencing Guidelines Section 5K1.1.

Under USSG §5K1.1, federal judges can impose a sentence below the statutory minimum for a specific offense. A 5K1.1 assistance departure is made upon a motion by the government certifying that the defendant provided substantial assistance in the investigation of another person or a group of people. However, prosecutors may also file a motion under 18 U.S.C. §3553(e). This section provides prosecutors with the statutory authority to seek sentences below the mandatory minimums of federal criminal charges when a defendant has provided substantial assistance.

With the decision to move for a substantial-assistance departure or a 3553(e) sentence remaining with the prosecutor, the following factors come into play:

Can a Judge Review the Prosecutor’s Refusal to File a Motion for Substantial Assistance?

As a general rule, judges in federal courts cannot review a prosecutor’s decision not to file a motion for a substantial-assistance departure or a 3553(e) sentence. However, if a defendant’s attorney can demonstrate that the prosecutor’s refusal was based on an unconstitutional motive, then judicial review will be warranted. For example, unconstitutional motives can include racial animus, religious bias, or any other form of discrimination or illegal government action. With that said, a prosecutor’s subjective failure to make an “appropriate” motion is insufficient to trigger judicial review.

Can a Cooperation Agreement Trigger Judicial Review of the Prosecutor’s Refusal to File a Motion for Substantial Assistance?

In addition to unconstitutional motives, a defendant’s cooperation agreement can also trigger judicial review of a prosecutor’s refusal to file a substantial-assistance motion. Cooperation agreements that explicitly include a motion requirement can create a contractual right to seek motion enforcement in court if the prosecutor does not fulfill their obligations.

Can a Defendant Get a Sentence Below the Mandatory Minimum if They Never Cooperate?

The answer is yes, but with a caveat. While providing substantial assistance can lead to a sentence below the mandatory minimum, there are a few other scenarios that can also justify such a sentence. One such scenario is when a judge finds the “safety valve” in 18 U.S.C. §3553(f) applicable. This section of the federal criminal code allows judges to depart from the mandatory minimums for nonviolent drug offenders. The safety valve does not require substantial assistance, and instead, it focuses on the nature of the criminal offense, the offense’s relationship to the defendant’s history, and the defendant’s criminal record.

Can a Judge Vary Below the Sentencing Guidelines Without a Substantial Assistance Motion?

Yes. While judges are generally not permitted to disregard statutory minimums without legal authorization (i.e., a substantial-assistance motion, an approved agreement, or a safety-valve finding), they can vary below the sentencing guidelines based on many other factors. With that said, there are various ways for defendants to seek sentencing departures in federal criminal cases, regardless of whether they cooperate.

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.