Can I Cooperate Before Being Charged With a Crime??

Yes. You can cooperatively engage with federal prosecutors and agents before you are arrested, indicted, or otherwise charged. In some cases, this can help you avoid charges altogether. It can also lead to a deferred indictment or reduced sentencing exposure. We speak with prosecutors on our client’s behalf, and we may be able to secure a charging concession prior to our client’s participation in any debriefings.

Q: How Does Cooperation Work?

Cooperation typically involves providing information in an environment that helps the government’s case. In some cases, this may take the form of a detailed debriefing. If you agree to cooperate, you may be required to appear in court to testify at a later date. This can include facing cross-examination by opposing counsel.

But cooperation is not just about what you know; it’s also about what you don’t know. Cooperation may expose previously unknown criminal conduct. It also may expose others who have been involved in the investigation.

Q: What Are the Risks of Cooperating with the Federal Government?

Cooperation is a complex process and it is fraught with risks. Not only can it pose significant risks in the federal system; however, it can also present risks in a state court. It can lead to sentencing complications and other collateral risks such as civil liability.

Q: What Are the Risks of Refusing to Cooperate?

There are risks to refusing to cooperate in criminal investigations as well. It could lead to an indictment, pre-trial detention, or a trial in which you are convicted and face sentencing.

Q: What If I Agree to Cooperate But I Am Found to Have Tried to Influence or Intimidate a Witness?

You can be charged under 18 U.S.C. §1512 for any attempt to unlawfully influence, intimidate, or retaliate against a witness. Such an offense carries up to 20 years in federal prison.

What Must Prosecutors Establish Before Charging Me With a Crime?

While it is commonly stated that there are three conditions for charging, this is not a universal rule that applies nationwide. However, there are certain criteria that must be met for the charging authority to charge an individual with a criminal offense in a criminal case.

These conditions are:

• Jurisdiction: The first condition for charging is that the charging authority must have jurisdiction. In order for the charging authority to have jurisdiction, it must have the legal authority to take action in court. An example of when a charging authority has jurisdiction is when the suspected person is present within the boundaries of a court’s jurisdiction.
• Probable cause: The second condition for charging is probable cause. Probable cause is a set of standards that must be met for the charging authority to begin prosecution. The charging authority must be able to show a reasonable basis for the belief that the suspected individual is connected to the criminal offense.
• Statute of limitations and charging procedure: The third condition for charging is that the charges must comply with the applicable statute of limitations and charging procedure. The statute of limitations is a law that puts a time limit on how long before a prosecution is initiated. The charging procedure is the process through which the charging authority initiates the criminal case.

These are common criteria for charging in criminal cases; however, this is not a universal rule that applies nationwide. Even when a prosecutor or charging authority has the means to establish probable cause, the prosecutor still has the discretion to determine whether to file criminal charges. The prosecutor will only file criminal charges if the prosecutor believes it is in the best interest of the public to prosecute. Charging is a complex process, and, as a result, the prerequisites for charging vary by state statute and by local prosecutorial charging policy.

While the prerequisites for charging and conviction are similar, there is one primary difference: the standard of proof. To charge someone in a criminal case, it must be demonstrated that there is probable cause. To convict someone in a criminal trial, the prosecution must meet a higher standard of proof known as proof beyond a reasonable doubt. This means that the prosecution must leave the jury with no reasonable doubt that the individual being tried is the individual who committed the criminal offense.

While the charging procedure varies by criminal system, the charging procedure in a state system typically involves the charging authority filing a complaint, an information or a presentment. In the federal system, any individual who is being charged with a felony must generally be indicted by a grand jury unless the individual waives the indictment.

Q: Can I Refuse to Speak with Investigators?

Generally, yes. You may be able to decline to participate in a voluntary law-enforcement interview. It is important to note that while it might be common for people to take a “free ride” or be told to “come in and talk” by law enforcement, the advice from your defense lawyer should depend on the circumstances.

Unfortunately, an individual cannot just ignore a grand jury subpoena by simply asserting silence. The Fifth Amendment protects against compelled testimonial self-incrimination, but the Fifth Amendment does not categorically prevent compelled nontestimonial evidence, and this is subject to several conditions and legal exceptions.

So, in many cases, you will have the option not to be interviewed.

If you answer any questions, it is vital that you only provide true and accurate answers. In criminal investigations, silence is generally better than giving a wrong answer. You don’t want to give the appearance that you are trying to hide something. By telling the truth, you establish that you are willing to cooperate, and you are demonstrating that your claims can be trusted.

If you are not willing to speak with investigators, you will want to do so without the appearance of attempting to hide something. By refusing to speak with investigators, you are making it clear that you are prepared to fight the allegations. However, this may create suspicion about you and could make you appear to be a suspect.

Q: What are the Miranda Warnings?

The Miranda warnings apply in custodial interrogations. This means you are in custody, a reasonable person in your position would not feel free to end the questioning and leave, and the officers are questioning you.

The Miranda warnings do not apply to doorstep questioning, which you will need to be aware of. The Miranda warnings only apply to the interrogation of someone in police custody. This means that if you speak with investigators or police officers and then they place you under arrest, you have not been read your Miranda warnings until after the arrest has been made.

As a result, it is possible that you may be able to refuse to speak with the police or investigators until the arrest has been made.

Q: What is the Fifth Amendment?

The Fifth Amendment protects against compelled testimonial self-incrimination. This means that you cannot be compelled to give a statement to a court, an investigator, or a police officer.

However, the Fifth Amendment does not forbid compelled nontestimonial evidence. This includes your finger and footprints.

In addition, the Fifth Amendment does not forbid taking a blood or urine sample from you.

Q: What Happens If I Make a Materially False Statement to Investigators?

Under 18 U.S.C. §1001, it is a crime to make a materially false statement in any matter within the jurisdiction of the executive, legislative, or judicial branch of the government. This includes:

• Falsifying records
• Concealing or covering up a material fact
• Making a false entry
• Using or altering any document, writing, record, or object with intent to deceive or defraud.

Q: How Can My Defense Lawyer Seek a Precharge Declination or a Dismissal of the Charges?

Our lawyers have a multitude of ways for them to seek a precharge declination for you or a dismissal of the charges. In some cases, exculpatory evidence may be available to show that you didn’t commit the crime. In other cases, charging defects and the expiration of a limitation period may justify the request for a dismissal of the charges. There are also cases in which suppressed evidence may not be sufficient to stop the government from pursuing a conviction at trial. Nevertheless, these cases may support an argument that the government should dismiss the charges.

While prosecutors or investigative agents are conducting investigations, our lawyers continue to conduct independent investigations as well. This helps them to know about and get to know all possible ways to fight your charges. The facts they learn during their investigation may prove useful not only during the precharge negotiations; but, during a plea bargain negotiation or cooperation agreement negotiation.

If we represent you during a criminal investigation, we will seek a precharge declination with the use of a written declination memorandum. If we can’t get a precharge declination, we may be able to negotiate a plea deal with the prosecution. However, we will only recommend this option if the prosecutor doesn’t have enough evidence to pursue a conviction at trial.

Once you get charged, we will seek to have your charges dismissed or to have your charges reduced to a less serious offense. In many cases, your lawyer can contact the prosecutorial attorney who is handling your case and present a compelling argument for your charges to be dismissed or reduced.

Depending on the circumstances of your case, your lawyer may be able to negotiate a plea deal. If this is an option, you will have time to review the plea deal, and you will decide whether to enter a guilty plea.

Q: Can You Get the prosecutor to make a charging concession to you in exchange for my cooperation with the government’s case?

If you make a mistake in a federal criminal investigation, one way out of trouble is to speak with the prosecution and cooperate in their case. There are two main reasons why you should do this: (i) it may help you avoid charges altogether; and, (ii) if the prosecutor still thinks that your charging is necessary, then it will reduce your sentencing exposure. To secure a charging concession for you, our attorneys may engage in an attorney proffer, or, you could volunteer to give a statement during an interview with prosecutors and agents. In the former case, our attorney describes to the prosecutor what testimony you would be able to deliver. In the latter case, it is you who delivers a statement to prosecutors and agents.

Q: How Do You Protect Me While Seeking a Charging Concession?

While the goal of seeking a charging concession is to avoid charges, it will not be a matter of protecting you against all possibilities of criminal liability. As a result, it is essential to have a defense lawyer’s guidance during precharge negotiations. The steps taken to protect you will depend on the circumstances and the severity of your potential liability.

In some cases, it may be that our defense lawyer will only provide documentation or third-party witnesses without you being interviewed. These steps are intended to help you make a plea bargain and ensure that you are not unduly exposed to civil liability or civil fines.

If you decide to enter a guilty plea, you may need to be interviewed by the prosecution and federal agents. In this scenario, you will be expected to answer a series of questions from prosecutors and agents. The interview typically takes place with a defense lawyer present. In some cases, you may be asked to provide a detailed statement on a voluntary recording. This may involve answering a long series of questions and providing detailed information. If you are willing to be interviewed, you may need to disclose information that you didn’t want to share. Our lawyers will be able to protect you from disclosing self-incriminating information.

If you are willing to accept a plea deal or cooperate with federal prosecutors and agents, you need to know about all possible outcomes. The outcome of your case could range from no charges to multiple criminal charges, and you could face prison time or substantial fines. You could also potentially be sued in a civil case. With our legal defense attorneys, you will get an expert legal team that will do everything necessary to protect you and preserve your freedom.

Todd Spodek is the managing partner of Spodek Law Group, a second generation criminal defense firm that has been practicing since 1976.

What protections should I obtain before giving information?

Q: Is a Proffer Agreement Equivalent to an Immunity Agreement?

No. While the terms of a proffer agreement and an immunity agreement are similar, a proffer agreement is not automatically equivalent to an immunity agreement. The specific terms of a proffer agreement will define the particular protections that participants are eligible to receive. These terms will also define the permitted uses of the participant’s statements.

Q: Does a Proffer Agreement Provide Immunity from Prosecution?

Generally, no. While a proffer agreement is intended to protect participants against self-incrimination, it is not automatically equivalent to an immunity agreement. Proffer agreements are intended to allow participants to disclose incriminating information to the prosecution under limited use immunity, with protections that are narrow in scope and generally do not bar the government from following investigative leads derived from the statements.

Q: What is Transactional Immunity?

Transactional immunity is a form of immunity that bars prosecution for the underlying offense. Transactional immunity is rarely available for those facing federal criminal prosecution. Under federal statutory immunity, only use and derivative-use immunity are available.

Q: What is a Nonprosecution Agreement?

A nonprosecution agreement is a written contract between a targeted individual and one particular prosecuting office. The nonprosecution agreement bars the identified prosecuting office from pursuing charges for a designated offense in exchange for the individual’s agreement to provide information or testimony.

Q: What Is Included in a Typical Proffer Letter?

Typical proffer letters state that while the government may not use the participant’s statements, it may pursue any “derivative investigative leads” that the participant provides. This means that, while a participant’s statements might not be used against the participant in court, the leads he or she provides could still expose the participant to criminal charges and federal prosecution.

Q: Can I Get the Case Agent to Give Me an Immunity Agreement?

While case agents will negotiate with potential cooperators, case agents cannot bind prosecutors regarding immunity, charging, or sentencing. If a potential cooperator wishes to receive immunity, he or she will need to seek a prosecutorial charging or immunity commitment from an authorized prosecutor.

Q: How long Does a Prosecution Have to File Charges?

As mentioned above, the statute of limitations in a criminal investigation is the time period that a prosecution must be initiated. In most cases, a prosecutor has five years to file charges. However, the length of the statute of limitations varies based on the particular criminal offense charged. For certain crimes, prosecutors may have the opportunity to file charges even after the statute of limitations has passed.

Q: Is it Better to Cooperate in State or Federal Court?

In many cases, state and federal governments possess overlapping jurisdiction over the same conduct. If you are the target of an investigation, this means that you could be prosecuted in either state or federal court.

Neither a state prosecution nor a federal prosecution is categorically better for every defendant. The forum decision will depend upon various factors. When comparing the two, it will be necessary to consider:

• Charges: What charges could be pursued in state versus federal court? What is the likelihood that both jurisdictions will pursue criminal charges?
• Minimum sentences: Does the criminal offense carry a mandatory minimum sentence under state or federal law?
• Sentencing Guidelines: Are there guidelines that will apply to sentencing under state or federal law?
• Bail: What are the risks of a denial of bail in state versus federal court?
• Collateral consequences: Could a conviction result in deportation, license revocation, a substantial fine, or civil liability?

These are all pertinent factors when deciding whether to seek a precharge declination in state court or in federal court.

Q: How Can a Criminal Conviction Affect Noncitizens?

A criminal conviction can have a significant impact on a noncitizen’s eligibility for admission into the United States, as well as a noncitizen’s ability to remain in the United States. A criminal conviction may render a noncitizen removable under 8 U.S.C. §1227(a)(2), or it could make the noncitizen ineligible for admission under 8 U.S.C. §1182(a)(2). Our lawyers are available to help you or a family member make informed decisions in a case involving immigration-related issues.

While licensed professionals may be able to avoid criminal charges through cooperation, they must be prepared for the collateral consequences of a criminal conviction. These consequences include licensing board disciplinary proceedings and other legal proceedings. Licensing boards may suspend or revoke a professional’s license if the professional is convicted of a criminal offense.

Q: Does Criminal Forfeiture of Proceeds Apply to Federal Criminal Offenses?

Yes. Criminal forfeiture of the proceeds of a criminal offense is authorized under 18 U.S.C. §982 for specified federal offenses. In order to be eligible for criminal forfeiture, a defendant must be convicted of a criminal offense first.

While not mandatory for all criminal offenses, restitution to victims is required for all criminal offenses involving specified property crimes, such as fraud or theft, under the Mandatory Victims Restitution Act.

Under 18 U.S.C. §3521, the U.S. Marshals Service provides protection for witnesses who are endangered as a result of participating in a federal criminal trial.

Q: How Much Sentencing Benefit Can Cooperation Actually Provide?

The value of a person’s assistance depends on several factors. All participants will need to be honest and provide truthful information to law enforcement. He or she will need to provide information that is useful, complete, and corroboratable.

If you are preparing to cooperate in a criminal investigation, you will want to speak with your lawyer about your potential sentencing benefit. While your lawyer will do everything possible to maximize your benefit, it is important to remember that government agents cannot guarantee what your judge will eventually decide.

Under U.S.S.G. §5K1.1, the government can file a motion for a downward departure on the basis of the defendant’s substantial assistance. While a 5K1.1 motion alone does not authorize a sentence below a statutory minimum, a motion filed under 18 U.S.C. §3553(e) can be used to seek such a departure.

Under Rule 35(b)(4), a Rule 35(b) motion can also be used to seek a sentence below a statutory minimum. However, this is only possible when authorized by the government. This rule is primarily used in cases in which a federal judge is not allowed to enter a verdict in order to resolve a charge without a conviction.

Q: What are the Sentencing Guidelines?

If you are facing sentencing in a federal court, there are good odds that the sentencing guidelines apply to your case. However, the sentencing guidelines have been advisory since United States v. Booker. This means that while judges will still take the guidelines into account, they have the authority to impose a sentence outside the range set forth in the guidelines. If you are facing sentencing, you will need a lawyer to protect you and to help you achieve the lowest sentence possible.

Q: Is There Any Benefit to Cooperating After Sentenced?

Rule 35(b) provides the government with the ability to file a motion for a reduction of a sentence if the defendant provides substantial assistance. While a Rule 35(b) motion is only available in criminal cases where a defendant has already been sentenced, it is still possible for a defendant to get the benefit of a sentencing reduction based on his or her assistance.

Cooperating with the government can lead to a sentence reduction in many cases. If you decide to cooperate, you will want to have an experienced lawyer provide guidance through the entire process to help you maximize your benefit.

The risks and benefits of cooperating vary from case to case. If you are facing prosecution, you will want to have an experienced lawyer advise you about the pros and cons of taking the opportunity to cooperate.

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.