Co-Defendant Cooperation: How to Tell Who Is Talking.

Sealed docket entries are not reliable indicators of cooperation, as they can signify a range of non-cooperation-related matters, including presentence reports (PSR), sealed indictments, sealed subpoenas, or other non-public filings. While district practices vary, looking for filed motions and reviewing the eventual sentence are more reliable methods for discerning cooperation.

Government 5K1.1 Motion

A government 5K1.1 motion is one of the strongest and clearest forms of evidence of cooperation, as it is a public filing where the U.S. Attorney’s Office recommends a sentence below the mandatory minimum based on the defendant’s “substantial assistance.”

Post-Plea Continuances

Repeated continuances of a co-defendant’s sentencing date after they have pleaded guilty can also be a telling sign. In many cases, the government will postpone a defendant’s sentencing while that defendant continues to provide assistance in ongoing investigations, a practice often referred to as “holding on” the sentence.

A Sentence Far Below the Mandatory Minimum

While not an explicit admission of cooperation, a sentence far below the applicable mandatory minimum, without an explanation like a downward departure based on non-cooperation-related factors, can strongly suggest that a co-defendant provided substantial assistance to the government.

How Can Co-Defendants Communicate Without Creating Tampering Exposure?

The federal criminal justice system has specific procedures for co-defendants to communicate, and individuals who have been served with federal subpoenas need to be very cautious about communicating outside of these procedures. Retaliation is a separate offense from obstruction, and it carries substantial potential penalties.

• 18 U.S.C. § 1513 (retaliation against a witness, victim, or informant) criminalizes specified retaliatory conduct connected to a witness’s or party’s participation in an official proceeding or to information provided to law enforcement, including certain interference with a person’s lawful employment or livelihood.
• The potential sentence for violating Section 1513 depends on the circumstances involved, but it can include up to twenty years in prison for certain types of retaliation involving a witness who testified in a federal criminal trial or grand jury proceeding.
• When the federal government agrees to cooperatively pursue an investigation, it can rarely guarantee that every single participant will maintain confidentiality. Even when a participant is bound by an agreement to keep the investigation confidential, the government cannot ensure it that the participant will not reveal the investigation to a co-defendant.
• If a co-defendant contacts the government and discloses information about another co-defendant’s known criminal conduct, he or she cannot refuse to disclose the other co-defendant’s alleged criminal conduct. Doing so could jeopardize the cooperator’s cooperation agreement.
• Trying to discourage or deter a co-defendant from cooperating with the government can trigger additional sentence enhancements or even additional criminal liability for witness tampering or obstruction of justice. If a co-defendant wants to communicate with a colleague and does not want to expose himself or herself to unnecessary risk, he or she must do so by way of his or her legal counsel.

What Must a Defendant Disclose to Counsel Before Weighing Cooperation?

Cooperation generally proceeds in two stages: (i) the proffer and (ii) cooperation. In each stage, the federal government will set certain terms and conditions that a potential cooperator will need to satisfy in order to receive the benefit of reduced sentencing exposure. When considering whether to cooperate, you will need to work with your federal criminal defense attorney to determine what obligations will fall on your shoulders and whether you are prepared to fulfill them.

1. Proffering

The first stage of cooperation begins with the proffer. At the proffer stage, you will provide the government with a summary of everything you know about the allegations that the grand jury is investigating. If you provide a truthful and complete proffer, the government will decide whether it needs any further information and whether it wants to offer you a cooperation agreement. Proffer agreements typically mandate disclosure in the “truthful and complete” language that is standard in federal proffer agreements, so you must disclose all information that you have regardless of whether it is favorable or unfavorable. If you provide any false information during the proffer stage, you may be liable for perjury, making false statements, or obstructing a federal grand jury or criminal investigation.

2. Cooperating

If you provide enough information to the government during the proffer stage, the government will likely seek to enter into a cooperation agreement with you. In order to fulfill your obligations under the agreement, you may need to:

• Serve as an undercover informant.
• Testify before a grand jury or at trial.
• Sit for extensive debriefing sessions.
• Contact associates of the other defendants.
• Cooperate on an ongoing basis.
• Inform the government of any criminal conduct involving other participants.
• Help prove the other defendants’ knowledge or intent.
• Inform the government of any information that you learn through the course of the investigation.

The first consultation is free and confidential, and it runs as long as your questions do.

Which Filing or Agreement Actually Documents Cooperation?

A proffer is a form of preliminary meeting between the government and a potential cooperator that frequently involves the defendant, the defendant’s defense counsel, at least one prosecutor from the U.S. Attorney’s Office, and one or more investigators with the federal agency or agencies that are conducting the grand jury investigation. The purpose of the proffer is to allow the government to gauge the information that is in the potential cooperator’s possession and the potential cooperator’s willingness to provide substantial assistance in exchange for a reduced sentence. Proffer agreements generally limit the government’s ability to use the defendant’s statements to try in a court of law (or to impeach their testimony if the case goes to trial). However, these agreements also typically permit the government to use the defendant’s statements to seek an indictment or to pursue an additional charge against the defendant.

Depending on the circumstances, co-defendants may see the following filings or agreements in the federal case docket:

• U.S.S.G. Section 5K1.1 Motion, For a defendant to qualify for substantial-assistance-related relief under Section 5K1.1 of the United States Sentencing Guidelines (USSG), the U.S. Attorney’s Office must file a motion with the sentencing court attesting to the defendant’s assistance. The district court is then free to impose a sentence below the minimum range recommended by the USSG, but not below the applicable mandatory minimum statutory sentence.
• 18 U.S.C. Section 3553(e) Motion, 18 U.S.C. Section 3553(e) allows the United States Attorney’s Office to request a sentence below the applicable mandatory minimum statutory sentence in cases where a defendant provides substantial assistance. To do so, the U.S. Attorney’s Office will file a motion to impose a sentence below the mandatory minimum statutory limit.
• Rule 35(b) Motion, Rule 35(b) of the Federal Rules of Criminal Procedure permits courts to reduce a defendant’s sentence post-sentencing. To do so, the United States Attorney’s Office will typically have to file a Rule 35(b) motion stating that the defendant provided substantial assistance to the government after sentencing.

How Much Sentence Relief and Protection Can Cooperation Deliver?

The district court is instructed to consider several factors and other pertinent matters when determining the extent of any sentence reduction under Section 5K1.1 of the Federal Sentencing Guidelines:

• The usefulness of the information supplied or the assistance provided
• The truthfulness of the information supplied
• The extent of the information provided
• The danger the defendant posed to himself or herself (or to others) in cooperating with the government
• The timeliness of the assistance provided
• The defendant’s cooperation in the face of danger
• The defendant’s lack of prior cooperation (if applicable)

What Are the Protections for Cooperating Defendants?

When people think about cooperating defendants in federal cases, their minds often immediately jump to the Witness Security (WitSec) Program. However, WitSec is a highly selective program and does not cover most people who choose to cooperate with the federal government. The United States Marshals Service reports that it has entered 19,000 witnesses and witnesses’ relatives in the program since 1971. While this may seem like a lot, this figure includes individuals who are protected by the United States Marshals due to the danger these individuals face for unrelated reasons as well.

When the federal government reaches out to a potential co-defendant, its primary interest is in securing testimony or information that is useful for prosecuting the allegations in the investigation. While prosecutors may have a personal interest in ensuring that potential cooperators remain safe, they cannot and will not commit themselves to protecting potential cooperators for free or even at full cost to the United States. While testifying before a grand jury and potentially testifying in court can expose cooperating defendants to significant risk, it can also deliver substantial benefits for those eligible to receive a cooperation agreement.

How Certain Is a Sentence Below the Mandatory Minimum?

Even in cases where the U.S. Attorney’s Office supports a sentence below the applicable mandatory minimum, the sentencing court still has a good deal of discretion. While it typically allows a U.S. Attorney’s Office to handle all sentencing recommendations in a single case uniformly, if there are reasons to reject a sentence, the district court will do so. This may happen if the judge feels that the recommended sentence is too low for what the defendant did, or if the federal government did not do enough to protect a witness.

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 888 348 8028.