Can My Cooperation Be Used Against Me in State Court??

Can My Cooperation Be Used Against Me in State Court?

Federal proffer letters are contracts, and their protections depend entirely on their wording. Federal proffer agreements are often drafted with a federal-only scope, and they generally bind only the U.S. Attorney’s Office (and, usually, the presiding federal judge). Unless state authorities are specifically named, state prosecutors are generally not bound by them. If you volunteer proffer statements, these are distinct from statements you are compelled to make when you have received statutory immunity, which is why proffer agreements and statutory immunity agreements are different. The Supreme Court recently reaffirmed the principle that state and federal sovereigns are independent in a recent decision. That decision establishes that the federal government and the states are “different sovereignties” and that a federal prosecution and a state prosecution for the same conduct punish two separate offenses, so neither one bars the other. The decision thus permits separate federal and state criminal prosecutions arising from the same conduct, and the decision leaves the federal government and the states free to pursue either (or both) of the other’s charges. Just because you have pleaded guilty to federal charges does not mean you are off the hook for any related state charges. Although the state authorities might consider what happened in your federal case, a federal guilty plea does not automatically eliminate your state exposure. If you are faced with state and federal charges arising from the same conduct, federal charges are not categorically “worse” than state charges. The actual statutes involved, the potential sentencing enhancements available, the available evidence, and the applicable sentencing rules all play a role. All of this can determine which charges are most severe, and how to best defend against them. The fact that state courts are where the vast majority of criminal cases are adjudicated in the United States is also significant.

What Agreement Language Can Protect Me From State Authorities?

Many proffer agreements include a provision that says something like, “investigators may pursue any leads or clues in the information you provide.” While this statement may seem like common sense, this is a critical aspect of cooperation negotiations. If your proffer agreement contains this language, then your statements, even if they are fully protected as to direct and derivative use, do not prevent state authorities from using information they learn from you to develop their own, independent evidence. If this is the case, then this language provides the state authorities with more leverage to prosecute and convict you in state court.

In some cases, however, federal prosecutors will be willing to agree to impose restrictions on both who can see your statements and how your statements can be used. But this needs to be carefully negotiated, as U.S. Attorneys’ Offices generally try to avoid such restrictions. We can help you navigate these conversations with the U.S. Attorney’s Office.

Understanding Disclosure, Use, and Third-Party Recipients

A proffer agreement clause can independently regulate disclosure, direct use, derivative use, and the covered recipients of the statement. These four elements are and are not the same. For example, as we explain in detail in Section VI, an agreement requires the U.S. Attorney’s Office to keep a defendant’s statements confidential, and the agreement explicitly prohibits the government from using that statement in a future case against the defendant. But the agreement may not include any restrictions on state authorities accessing those statements. This is why you need to be extremely careful.

As discussed above, an agreement that requires the U.S. Attorney’s Office to obtain written consent before disclosure of a proffer statement to any state authority, and that denies the U.S. Attorney’s Office and other authorities the use of the statement if consent is not given, may offer more protection. However, this still requires state authorities to be bound by the agreement, which is not always the case.

Nonprosecution and Plea Agreements

The provisions of a federal nonprosecution agreement bind only the prosecutors and sovereigns that are covered by the agreement. Unless the agreement covers state authorities as well, it does not restrict the state authorities from using the information in the agreement or prosecuting individuals based on that information.

Similarly, a federal plea agreement binds state authorities only if its terms encompass state authorities as well. If the plea agreement only covers federal prosecution, the DOJ, U.S. Attorney’s Office, and other authorities are generally not required to seek the defendant’s consent before disclosing the terms of the agreement or any other information in the agreement.

The Importance of Local Experience Across the country, the U.S. Attorney’s Offices

in each federal district use different proffer forms and negotiate different types of waiver provisions. As a result, what makes sense to negotiate in a cooperation agreement in the Southern District of New York may not make sense in the Eastern District of Virginia. For example, while all federal prosecutors are familiar with a defendant’s potential liability to state prosecution, they have different views regarding the need to seek a defendant’s consent before disclosing a defendant’s proffer statement to state authorities. We represent federal cases, including hundreds of federal cooperation cases. We handle matters negotiating cooperation agreements and plea agreements in the federal courts. We know when and how to negotiate for the terms and protections you need.

Negotiating for the Right Dishonesty Clause Even

when agreement provisions only limit the use of the statement itself, the provisions on dishonesty can also be important. The “dishonesty” clause in a proffer agreement determines what the government can do when it believes you lied during the proffer. Depending on the language used, the government may be able to (i) use and disclose your proffer statement, (ii) independently prosecute you, or (iii) withdraw any immunity it granted and refuse any benefits it was negotiating. Even in a federal proffer, this information is valuable evidence that state prosecutors could use to pursue charges against you in state court.

How Do Joint Task Forces Share My Cooperation?

Joint federal-state investigations complicate the issue of whether state officials are contractual outsiders to cooperation agreements. For example, a state prosecutor might also serve as a Special Assistant U.S. Attorney (SAUSA), wearing two hats. Even if the state prosecutor is technically a contractual outsider, he could potentially use information learned in his federal role to prosecute state charges against you. If this state prosecutor is a federal prosecutor, he could also advise state prosecutors about potential leads to investigate. Even if your proffer agreement prohibits the government from sharing your proffer statements with state authorities, this does not stop federal agents from sharing “information” obtained from you during the proffer session with state authorities. This is true unless (i) your proffer agreement says otherwise, or (ii) the federal agents are sworn state-law enforcement officers, and the information they provide is proffer-protected information obtained from you. As discussed below, a proffer session can involve not only your statements but also evidence provided to you by federal authorities.

Grand Jury Proceedings

Federal grand jury proceedings are governed by Rule 6(e) of the Federal Rules of Criminal Procedure. Rule 6(e)(3)(A)(ii) permits an attorney for the government to disclose grand jury material to government personnel, including state and local personnel, that the attorney considers necessary to assist in performing the attorney& #x27;s duty to enforce federal criminal law. However, Rule 6(e)(3)(B) provides that a person who receives grand jury material under this exception may use that information only to assist an attorney for the government in performing that attorney's duty to enforce federal criminal law. But a state prosecutor could potentially argue that your related state prosecution is federal law enforcement or, alternatively, argue that the information is needed to assist in federal law enforcement. This may be the case even if the information was never used for federal law enforcement purposes. State Proceedings While federal agents can potentially share information obtained from you with state authorities, can U.S. Attorneys’ Offices do the same in the absence of an agreement that prohibits it? DOJ personnel are generally not allowed to release “official information” to anyone outside the DOJ, and DOJ employees are not allowed to appear in state proceedings without the appropriate authorization under 28 C.F.R. Part 16. As a result, DOJ attorneys may not, at least in their personal capacities, be able to disclose your proffer statements to state authorities during a trial or at any other time, without authorization from the DOJ.

Proffer Sessions and Third Parties What is a “proffer statement,” and what is “information”?

“Proffer statements” refer to the statements you made during the proffer session. But a proffer session typically includes more than just the speaker. It involves prosecutors, investigators, defense counsel, the speaker, and potentially witnesses, victims, or third parties as well. During the session, a proffer may be provided not only by the speaker but also by the other parties involved. For example, the third party could provide a recording to investigators or, or other information. So, while your proffer agreement may prohibit the disclosure of your proffer statements, it may not apply to the statements others make during a proffer session.

Does Federal Immunity Protect Me from State Prosecution?

Statutory Immunity

Use and Derivative Use Immunity

Section 6003 Immunity If you have received statutory or voluntary use- and-derivative-use immunity, can you still be prosecuted?

Yes, you can. Use-and-derivative-use immunity prevents the government from prosecuting you based on your statements or any information derived from your statements. However, it does not prevent the government from prosecuting you based on independent evidence. For example, if the government has a whistleblower who can testify against you, this testimony would constitute independent evidence, and the government could use it in court. If the evidence came from someone who is not the federal agent that interviewed you, the prosecutor could then argue that the witness is not a “derivative source” of the federal agents’ knowledge, and that the witness is an independent source.

Do State Constitutions Require Immunity?

Most state constitutions expressly protect the right against self-incrimination, but a few, New Jersey& #x27;s and Iowa's among them, contain no such clause, and in those states the privilege rests on common law, statute, court rule, or a due process provision instead. Some state constitutions require immunity and others only protect the privilege against self-incrimination. As a result, state courts may not be required to uphold the federal constitutional minimum regarding immunity.

The Supreme Court’s 2019 Dual Sovereignty Decision The Supreme Court decided the case, 587 U.S. 678 (2019),

by a seven-to-two vote, with one Justice writing for the majority and two Justices dissenting separately. So, if you have any questions about this case and if the Justice Department’s Petite Policy applies to your case as well, we will be able to help you. Our senior legal counsel has experience defending against a state prosecution, and we can advise you in detail based on your unique circumstances and the specific case you are facing.

The U.S. Attorney’s Office has to convince you that its investigation was the most important, and that you agreed to the state prosecution as well. If so, you are not going to get a sentence modification.

Petition for Immunity

If you are being threatened with prosecution based on your compelled immunized testimony, this requires a federal judge to decide if the evidence that is being presented is independent from the evidence that obtained during the immunized testimony. As we discussed in Section VI, we call this “the independent-source problem.” Once the government’s prosecutors establish that the other evidence is not a “derivative” of your immunized testimony, your immunity will no longer protect you against prosecution in state court based on that other evidence.

The federal government may be bound by the Petite policy, but the Petite policy doesn’t bind state prosecutors. As a result, federal immunity doesn’t always protect against state prosecution.

How Can I Challenge State Evidence Obtained from My Proffer or Other Efforts to Cooperate?

Use of Witnesses, Records, and Other Non-Statement Evidence

If you have successfully negotiated for a proffer agreement that is enforceable in state court, you will be able to shield yourself from a state prosecutor’s use of your proffer statements. However, this does not necessarily protect you from other forms of evidence. For example, if your proffer generated a witness or record that is not itself protected by your agreement, a state prosecutor may still be able to use that witness or record. For the state prosecutor to do so, he will need to be able to show that the testimony or record is independent of the evidence obtained from your proffer. If the state prosecutor can establish this, then you will have no grounds to challenge the admissibility of that testimony or record.

Suppression of State Evidence With

respect to the timeliness of challenging a state prosecutor’s use of federal evidence, each state has its own rules regarding suppression and deadlines. Similarly, the available remedies depend on the state procedural law. If you are facing prosecution for state offenses based on evidence obtained during your proffer session or other efforts to cooperate, we can help you determine what state procedural law governs in your state, and what legal options you have available for filing an appropriate motion.

Discovery in State Criminal Proceedings Similarly,

discovery in state criminal proceedings is governed by state procedural law. While Federal Rule of Criminal Procedure 16 governs discovery in federal criminal court proceedings, it does not apply in state proceedings. If you are facing state charges based on your federal cooperation efforts, our experienced defense counsel will be able to help you find whatever discovery options are available in your state to ensure that you have the information necessary to make informed decisions.

Prosecution’s Affirmative Duty to Disclose Favorable Evidence

The Brady rule may still apply in your case as well. Under Brady, a prosecuting authority has an affirmative duty to disclose all “evidence favorable to an accused which is material to either guilt or punishment.” This obligation is not limited to evidence that is strictly favorable in the sense of having a potential to prove the defendant’s innocence. It also extends to any evidence that the prosecutors must turn over if it is exculpatory or impeaches a witness’s testimony. If a state prosecutor has access to evidence that is known to the investigators acting on the state prosecutor’s behalf, the state prosecutor must provide access to this evidence to the defendant regardless of the state’s laws or policies.

Burden for Proving a Breach of a Cooperation Agreement

In various countries, federal courts use the same standard for deciding whether a prosecutor or agent has breached a cooperation agreement. In the United States, federal courts require the government to prove that the defendant or agent breached the terms of the agreement by a preponderance of the evidence. If the federal government can satisfy this burden, federal prosecutors can then seek to use your protected information to prosecute you in state court.

Exclusion of Proffer Statements, Impeachment, and Other Options

If your agreement prohibits the state prosecutors from using your proffer statements, then there may be grounds to have your statements excluded. If the state prosecutor is using your proffer statements contrary to an enforceable agreement, there may be grounds to have your statements excluded under an appropriate motion. Conversely, if you have breached your agreement, the Supreme Court held in one case that a defendant is entitled to a remedy based on the nature of the breach. Specifically, if the breach results in a breach of a promise made by the prosecuting authority, then the remedy may be to withdraw the plea. Conversely, if the prosecutors breached the agreement, the remedy may be specific performance. Finally, while your proffer agreement prohibits the government from using your proffer statements in a case against you, your proffer statement could still be used to impeach your testimony during a case in state court. An agreement that authorizes impeachment may permit this use, as it may be in the state prosecutors’ interests to attack your credibility as a witness.

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& #x27;s attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.