Can I Refuse to Testify After Signing a Cooperation Agreement??

Refusing to testify as contractually required under a signed cooperation agreement can constitute a contractual breach. However, a contractual breach alone does not lead to a finding of contempt. Contractual breach and judicial compulsion are separate and independent sources of legal consequences.

A signed cooperation agreement typically requires full, honest, and timely cooperation. This affirmative obligation involves providing all information requested and testifying whenever required. The agreement will establish the conditions on which the government’s promises to provide and protect the cooperating individual depend. Normally, the government will only agree to release you from a grand jury subpoena if you provide complete and truthful testimony, and then agree to do so in the future.

A federal proffer interview is an unsworn meeting. However, this does not mean that statements made during the interview have no legal consequences. You can still be prosecuted for making false statements in a proffer interview under federal law (18 U.S.C. Section 1001). Most proffer agreements also expressly allow federal prosecutors to use any information disclosed during the interview to pursue other investigations (even against you), and the government does not have to prove that they have “independent” information in order to pursue an indictment.

A proffer agreement and a plea agreement serve very different purposes. A proffer agreement generally governs the scope and use of your statements during a particular investigative interview. A plea agreement governs the charges you plead guilty to, sentencing and charging promises (such as a promise not to charge you with other crimes, or not to prosecute you unless you fail to cooperate), and any other benefits granted in connection with your guilty plea.

Can I Refuse an Interview or Ignore a Subpoena?

Unless there is some other legal obligation involved, you can generally decline to attend a voluntary interview with a prosecutor. You are not required to provide any information at the meeting, and you can end the meeting at any time. But if you are subpoenaed to attend a grand jury proceeding, you must appear, unless prosecutors withdraw the subpoena or a court quashes it.

Under Federal Criminal Rule 17(g), a person who fails to obey a subpoena without adequate excuse will be held in contempt of court. This gives federal prosecutors broad power to enforce subpoenas, and this power is one of the reasons why you need a skilled federal defense lawyer to assess the risks and benefits of participating in an investigation.

As we discussed above, a cooperation agreement imposes affirmative obligations, including the obligation to provide complete and truthful testimony as requested. While this obligation may be subject to exceptions, it generally applies even if prosecutors have not yet issued a subpoena, and it can serve as grounds for criminal charges in the case of a witness who has signed a plea agreement that requires cooperation.

In most cases, witnesses can refuse to answer particular questions on the grounds of attorney-client or other recognized privilege. While a witness may face consequences for refusing to answer the questions of a prosecutor or a judge during grand jury proceedings, witnesses subpoenaed to testify in federal criminal trials can refuse to answer questions for which they can assert a valid privilege.

Similar to criminal testimony, document subpoenas can be challenged on a number of grounds. Federal Criminal Rule 17(c)(2) provides that, on a motion made promptly, the court “may quash or modify” a subpoena if compliance “would be unreasonable or oppressive.”

In a state criminal investigation, state cooperation, immunity, privilege, and contempt rules may differ from federal law. If you are facing a state criminal investigation, be sure to seek advice from a lawyer who has experience in the relevant state jurisdiction.

With regard to confinement under Section 1826, confinement will end either when the witness or prospective witness complies with the court’s order or when the proceedings terminate. The duration of confinement may not exceed 18 months from the date of the proceeding or the date of the underlying offense, whichever is later.

When Can Privilege or Immunity Let Me Stay Silent?

The Fifth Amendment provides that, “No person . .. shall be compelled in any criminal case to be a witness against himself.” As witnesses have explained to our federal prosecutors in the past, a witness cannot simply “plead the Fifth” at the beginning of a criminal grand jury or trial, and can not then refuse to answer any and all subsequent questions. Rather, for each potentially incriminating question, the witness must affirmatively assert his or her privilege against self-incrimination. Even then, the witness will only be entitled to stay silent if his or her responses present a realistic danger of criminal prosecution. The U.S. Supreme Court has stated that the only “realistic danger” of self-incrimination is the “realistic danger of criminal prosecution, and that a realistic danger of prosecution does not necessarily entail ‘substantial’ or ‘appreciable’ risk.”

With respect to defendants, pleading guilty is an implicit waiver of the privilege against self-incrimination. By pleading guilty, defendants have waived any claim to privilege over any answers to questions about their conduct which, once answers are given, creates no realistic risk of additional criminal prosecution. With respect to witnesses, this waiver has no effect, and a witness who has pleaded guilty to any criminal offense is still entitled to refuse to testify if he or she has legitimate (and credible) reason to fear that testifying will create exposure to additional criminal liability. This is the case where the witness pleaded guilty to charges involving certain crimes he or she has not been charged with, or where he or she has pleaded guilty to federal charges but remains subject to prosecution for the same or similar conduct in the state court or by another sovereign.

When federal prosecutors and the prosecutor’s office cannot obtain the testimony they seek from a witness who has been granted immunity, they can ask the court to compel the witness’s cooperation over the witness’s Fifth Amendment objection. This can be done if the witness is granted use immunity under 18 U.S.C. Section 6002, the federal statute that governs immunity grants to witness by the Attorney General of the United States.

With respect to use immunity, a compelling disclosure of, “No information or statement, or either a portion thereof, derived from a person’s coerced testimony can be used against him in any federal criminal proceeding of any kind . .., and any information derived from a witness’s testimony after a witness has been granted use immunity under 18 U.S.C. Section 6002 . .. cannot be used against him in any criminal proceeding, federal or state.”

Under Section 6003, federal prosecutors who have successfully immunized a witness must be careful to protect the witness against all forms of unintended use of his or her compelled testimony. With respect to witnesses who have validly asserted immunity claims during federal criminal investigations, federal prosecutors must ensure that they can prove that any criminal evidence against them was derived independently.

If a witness has been validly immunized and continues to refuse to testify, the witness may be held in contempt. If the witness is a defendant in a criminal case, this can result in a continuance and incarceration until the witness testifies. If the witness is not a defendant in the criminal case, the witness may face incarceration under Section 1826 of Title 18 of the U.S. Code.

What Happens If My Refusal Breaches the Agreement?

The consequences of a breach of cooperation agreement will depend on the language of the agreement. If you have refused to cooperate as part of a proffer agreement, the government can typically use the information that you provided during your proffer interview. Many proffer agreements include a breach clause which says the government can use all of your proffer statements, including those you had previously protected. As explained above, a cooperation agreement requires truthful and full cooperation. If you have already pleaded guilty and have received a sentence below the statutory mandatory minimum (if any) because of the government’s sentence-related promises, the government’s sentence-related promises are also generally conditional upon your subsequent cooperation.

In order to receive a sentence reduction for substantial assistance under a guilty plea agreement, the defendant will need to fulfill his or her contractual obligations (if any) and the government will need to file a substantial assistance motion under Section 5K1.1 of the Federal Sentencing Guidelines. While the government has a substantial level of discretion under Section 5K1.1, the government’s willingness to file the motion typically depends on the defendant’s compliance with the provisions of the plea agreement.

In order to receive a sentence reduction below a statutory mandatory minimum, the government also needs to file a motion under Section 3553(e) of the United States Code (or a different statute, as the case may be). With respect to the government’s decision to file the Section 3553(e) motion, it too typically will depend on whether the defendant has met the requirements of the defendant’s plea agreement.

Ultimately, however, in either case, once the government files the substantial assistance motion and/or the Section 3553(e) motion, it is up to the federal sentencing judge to determine whether to grant the requested sentence reduction. Sentencing judges are independent actors, and there is no guarantee that any sentence reduction obtained with respect to a cooperation agreement (if any) is on the table.

Rule 35(b), Post-Sentencing Reduction

Once the sentencing is completed, the government can still request a sentence reduction for a defendant who provides information to help secure the conviction of others or help with the investigation of others. Rule 35(b) of the Federal Rules of Criminal Procedure, which governs Rule 35(b) requests, contains two provisions:

• Rule 35(b)(1), The government can file a Rule 35(b) motion within one year after the sentencing date if the defendant’s substantial assistance was provided before sentencing.
• Rule 35(b)(2), The government can file a Rule 35(b) motion beyond one year after sentencing if the defendant’s cooperation involves:

- (i) the identification of information about an unrelated and uncharged crime;

- (ii) the identification of a crime which had previously gone uncharged by the government;

- or, (iii) information about a crime which was uncovered by the government using information provided after sentencing.

If any of this describes your situation, it is worth talking it through with counsel. Spodek Law Group can be reached at 212-300-5196.

What Should I Avoid Doing While I Testify?

Witnesses need to be careful not to make knowingly material false statements while testifying. Depending on the circumstances, making a knowingly false statement while under oath can be a federal felony under 18 U.S.C. Section 1621 (which makes it a crime to commit “perjury” during any proceeding), or it can lead to contempt charges if it constitutes a violation of the witness’s oath to “tell the truth, the whole truth, and nothing but the truth.” While prosecutors will generally not be able to prove a violation of 18 U.S.C. Section 1621 unless they can show that a witness willfully and knowingly lied, an honest mistake is not perjury because the offense requires willful falsity.

While witnesses should do everything they can to answer prosecutors’ and judges’ questions to the best of their knowledge, they should avoid making guesses. Instead, you can simply and truthfully say that you do not know or do not remember, and you cannot be accused of lying. You should also avoid volunteering information beyond the scope of the prosecutors’ and judges’ questions, and you should avoid volunteering information that is speculative in nature.

Witnesses should also be mindful of any sequestration orders. Under a sequestration order, witnesses are prohibited from hearing or discussing other testimony, and witnesses can be charged with contempt for breaching sequestration orders. If you are at risk of breaching a sequestration order, do not hesitate to discuss potential issues with your lawyer in advance.

What can proffer statements be used to impeach my testimony?

As discussed above, many proffer agreements allow the use of your statements during the proffer interview for purposes of impeachment. A witness is impeached when their testimony is shown to be inconsistent or misleading. If your testimony contradicts your proffer interview statements, the government will likely use your proffer statements as grounds to impeach your testimony during trial. Federal criminal trials are not televised or recorded, and so while you will be given the opportunity to testify in court and have a court reporter keep a transcript of all statements made during trial, you should remember that everything that you say and all questions you answer during the trial will be subject to scrutiny.

How will my cooperation interview be documented?

During your cooperation interview with the FBI or other federal investigators, the federal agent conducting the interview will make notes of the information you provide. These notes will then be used to prepare an FBI Form 302, also known as a “302.” An FBI Form 302 does not provide a verbatim account of a witness’s statement; rather, it summarizes the agent’s recollection of what the witness said.

What if I Am Afraid of Retaliation?

Fear of retaliation or threats from others do not normally excuse non-compliance with a lawfully issued subpoena. However, federal law contains protections designed to shield witnesses and information providers in federal criminal investigations.

18 U.S.C. Section 1512 prohibits intimidation, threats, and other forms of corrupt persuasion directed at anyone testifying (or attempting to testify) in a federal criminal proceeding.

18 U.S.C. Section 3521 gives the Attorney General the authority to provide protection to witnesses in proceedings related to a “serious offense.” In these cases, the Attorney General can provide protection, which can include witness relocation, as long as it is clear that the target is at “realistic” risk of violence.

Witness protection is not an automatic benefit of cooperating or signing a cooperation agreement with the federal government. In order to obtain protection under Section 3521, witnesses must meet the criteria laid out in the statute. While cases involving violent crimes will most often meet the “serious offense” criteria, they are not the only cases that can trigger protections under the statute, and white-collar crimes can qualify as well.

18 U.S.C. Section 1513 criminalizes retaliation in a criminal proceeding, and it includes retaliation for giving information to law enforcement during an investigation. With respect to witness retaliation that does not fall under this statute, 18 U.S.C. Section 1514 allows federal prosecutors to seek restraining orders protecting against harassment of witnesses.

The U.S. Marshals Service administers a Witness Security Program which can involve protection for witnesses (and their families) whose lives are endangered. If you have serious concerns about retaliation, you should talk to your lawyer.

What if Prosecutors Break Their Promises First?

While the issues discussed above reflect the typical relationship between witnesses and prosecutors in federal criminal investigations, the relationship between prosecutors and the parties to plea agreements (or other cooperation agreements that limit criminal exposure) can present different considerations, especially where prosecutors themselves attempt to change the scope of the promises they made.

Although plea agreements are contracts, U.S. courts assess them under contract law principles that have been refined and constrained by constitutional fairness and due process requirements. As the U.S. Supreme Court noted in the landmark case, Santobello v. New York (1971), which involved a prosecutor’s failure to honor a material plea promise, this is a situation in which “judicial intervention is a means of ensuring that the prosecutor does not use the plea as a device to force the defendant into an unfair or even unconstitutional arrangement.”

If the government declines to file a motion rewarding the substantial assistance of a defendant who has accepted responsibility (i.e., pleaded guilty to his or her crimes), the court’s authority to review that decision is narrow. Wade v. United States, 504 U.S. 181 (1992), if the government’s decision to refuse is motivated by an unconstitutional motive or other “irrational” basis, the court can intervene and order the government to file the requested motion.

The decision of whether a breach has occurred must also be assessed by the court, not the prosecutor’s office. While the burden of proof for establishing a breach may vary depending on the circuit or district court that is hearing the case, the prosecutors must ultimately provide sufficient evidence to justify the penalties they are requesting for the alleged breach. This includes issues such as the appropriateness of a breach hearing, when a witness has the right to request one, and the type of evidence that the government needs in order to prove that a witness refused to comply with a cooperation agreement.

Once a breach has occurred, specific performance can potentially be obtained as a remedy, depending on the type of obligations that were imposed. In a sentencing context, this could mean a request for resentencing before a different judge.

In some cases, the remedy for a prosecutor’s material breach of a plea agreement is withdrawal of the guilty plea. The federal courts have discussed this remedy in many cases, and this can be applicable where the prosecutor does not strictly abide by a substantive promise made in the agreement and that substantially affected the defendant’s willingness to plead guilty.

Can my plea agreement be enforced by other prosecutors in other cases?

Can my cooperation agreement make federal prosecutors perform the substantial-assistance motion if my testimony helps with a different case?

If your cooperation agreement includes an express promise for the government to perform the substantial-assistance motion based on a satisfactory and good-faith effort to provide substantial assistance, prosecutors’ discretion to refuse to file the motion may be limited in some cases. While this is typically only relevant for the case for which you cooperated, some courts have applied the principles that protect defendants against the government’s breach of its plea agreement to enforce an obligation to file the substantial-assistance motion where cooperation has helped with a different case.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.