Cooperation in Federal Gun Trafficking Cases.

In most federal gun-trafficking cases, the primary mechanism for a sentencing reduction based on cooperation is a “substantial assistance” departure under $S 5K1.1$ of the United States Sentencing Guidelines. Unlike other sentencing deviations, a $S 5K1.1$ departure “ordinarily” requires a government motion.

While proving “substantial assistance” can lead to a reduced sentence, federal prosecutors are not obligated to seek a $S 5K1.1$ departure. Federal courts have been clear on this issue, noting that “proof of the defendant’s substantial assistance is not alone enough to compel the government to file a substantial assistance motion.”

Working with federal prosecutors involves weighing the risk of making promises you can’t keep against the risk of taking an offer that you can’t accept. While a proffer interview is often required, “it doesn’t itself obligate the prosecutors to seek a reduction in your sentence if you agree to cooperate.” Lying to federal agents and prosecutors is also a federal crime under 18 U.S.C. $S 1001$.

Congress recently enacted the Bipartisan Safer Communities Act (BSCA) on June 25, 2022. The BSCA expanded federal gun-trafficking law to include provisions like 18 U.S.C. $S 932 (Straw Purchasing) and 18 U.S.C. $S 933 (Illegal Transfers). While these laws can lead to harsh sentences, they also present opportunities for defendants to assist federal authorities and build a compelling argument for cooperation.

The two major additions made by the BSCA are:

• “Straw Purchasing” (18 U.S.C. $S 932): Targeting transfers made by “means that are wrong or contrary to the will of the person who takes possession” or through means “which are unlawful.”
• “Illegal Transfers” (18 U.S.C. $S 933): Targeting transfers with “knowledge or reasonable cause to know” of the transfer’s illegality. A “commerce nexus” is required for a conviction under $S 933$; but the government doesn’t need to show that the defendant himself crossed state lines.

What Sentence Can Cooperation Actually Reduce in a Gun Case?

With the enactment of the 2022 Act, federal gun-trafficking offenses became standalone offenses under 18 U.S.C. Section 932 (Straw Purchasing) and 18 U.S.C. Section 933 (Illegal Transfers). These offenses, among others, are no longer subject to the same sentencing exposure as previous law, but this is not correct.

Sentencing Exposure under Section 932 and Section 933

A violation of either Section 932 or Section 933 ordinarily carries a maximum sentence of up to 15 years. Aggravated violations of Section 932 or Section 933 can be punishable by up to 25 years. Importantly, neither Section 932 nor Section 933 establishes a mandatory minimum prison term.

Sentencing Exposure under Section 924(c)

In contrast to Sections 932 and 933, 18 U.S.C. Section 924(c) does have mandatory minimum sentencing, and it does impose consecutive sentencing. The core of Section 924(c) is a qualifying predicate offense. The crime of using or carrying a firearm is not enough by itself. The firearm must also be used or carried to facilitate another crime such as a drug crime, other crimes involving weapons, or even crimes that do not seem to involve weapons.

The statutory minimums for Section 924(c) are as follows:

• Five years under 18 U.S.C. Section 924(c)(1)(A)(i)
• Seven years under 18 U.S.C. Section 924(c)(1)(A)(ii)
• Ten years under 18 U.S.C. Section 924(c)(1)(A)(iii)

Section 924(c) imposes a mandatory minimum of five, seven, or ten years depending on the specific qualifying offense. This applies to all types of crimes that could be involved, and it imposes the consecutive sentence. A sentence under Section 924(c) is also not subject to the ‘federal offense’ sentencing guidelines, meaning it will be imposed on top of the defendant’s sentence for the predicate offense.

The law allows for the possibility of 25 years in this instance as well, but a 25-year sentence under Section 924(c) generally only applies in the case of an individual with a previously final conviction for an offense that also triggered a Section 924(c) penalty.

Sentencing Exposure under Section 922(a)(6)

Another related federal offense is making a false material purchase statement under 18 U.S.C. Section 922(a)(6). A violation of this statute carries a maximum sentence of up to ten years in prison, and it also has no mandatory minimum.

Federal prosecutors have discretion to seek charges for all of these offenses. Because many of these offenses carry such substantial prison time, it is important to understand your options for reducing your exposure if you face charges or are being investigated in connection with gun trafficking. Cooperation can be an effective way of avoiding long prison time, provided that your attorney ensures that your cooperation is valuable and your contributions are protected.

What protects me when I proffer or sign an agreement?

Proffer Letters

A proffer letter is an agreement between the federal government and the defendant to permit a trial lawyer to talk to a federal agent or prosecutor. The proffer letter will typically have restrictions on how the results of the interview can be used. The exact protections that are available with a proffer interview depend entirely on the specific proffer letter that you negotiate with federal prosecutors.

Some federal government attorneys’ offices include restrictions against use of a defendant’s proffer statement in the government’s “case-in-chief.Similarly, the scope of the protection that the government can (and will) give you is also subject to negotiation during the proffer process. The proffer letter will determine whether there are restrictions against use of the information derived from your proffer, or derivative use of your information to build a case.

The most-referenced proffer protections are as follows:

• Derivative use of a defendant’s statements, Information derived from the proffer interview cannot be used to develop and pursue additional charges, but it may be used to prove a previously-determined charge.
• Case-in-chief restriction, This restriction limits the government’s ability to use a proffer statement in its case-in-chief, although it may be used at trial for purposes of impeachment (under certain conditions).

United States Sentencing Guideline (U.S.S.G.) $S 1B1.8

Protection from adverse sentencing inferences is provided in United States Sentencing Guideline $S 1B1.8$, which provides protections if the government and the defendant enter an agreement that stipulates to the defendant’s assistance. However, Section 1B1.8 protections are only available when the government makes the specified agreement.

Section 1B1.8 is not without its exceptions. In several different circumstances, this section does not apply, such as (i) where the government had “actual knowledge of the offense” or “other information” that could independently be used to establish that the defendant committed the crime, (ii) when the defendant provides information that has been determined, in a court of law, to be false, (iii) when the defendant fails to fully comply with the terms of his assistance, or (iv) if the defendant’s assistance is at the center of the sentencing hearing.

Cooperation Agreements

Cooperation agreements typically follow a proffer interview if the proffer interview went well. A cooperation agreement will specify the nature and scope of the assistance you must give the government. Depending on the terms of your agreement, the cooperation agreement will also specify any conditions for the government to file a motion for a downward departure.

Plea Agreements

A plea agreement, entered into under Rule 11 of the Federal Rules of Criminal Procedure, will govern the requirements of your guilty plea and incorporate all negotiated terms of your case. This typically includes the government’s sentencing recommendation and promises made by the government.

A Note on Prosecution for Disclosed Conduct

A critical point is also that Section 1B1.8 does not confer immunity from prosecution for the conduct a defendant discloses during an attempt to assist in federal law enforcement efforts. Instead, Section 1B1.8 only bars adverse inferences of sentencing. To obtain immunity from prosecution for the disclosed conduct, the federal prosecutors must specifically agree to it in the proffer or cooperation agreement.

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 my lawyer investigate before I offer cooperation?

What is Attorney-Client Privilege?

Attorney-client privilege is a legal rule that protects communications between a client and his or her attorney from disclosure. Generally speaking, the privilege only applies when a client is seeking legal advice from his or her attorney in confidence.

For this reason, it is critically important for clients who intend to offer cooperation to have full and frank and honest communication with their attorneys, even if (or especially when) the facts of the client’s offense are particularly damaging. You can’t help your lawyer provide the best representation and most effectively seek to avoid trial and/or avoid conviction, or a conviction with the most-onerous penalties possible, if you withhold information about your case or mislead your lawyer about your case.

What is the “80/20 Rule”?

The “80/20 Rule” is just a shorthand for a workload heuristic. It’s a concept that some federal prosecutors use when deciding how much of their time to spend working on their various criminal cases. In general, prosecutors have to spend most of their time on cases that they cannot win easily. The “80/20 rule” is not a legal rule, at least not a rule of law that defines the nature of a case.

Are There “Harder Cases to Win” than Others?

There is no official federal government list or ranking of federal crimes for which the prosecutors would have the “hardest case to win.” Instead, it is up to the lawyer to make their own assessment. The government’s prosecution has to prove its case beyond a reasonable doubt. To do this, the prosecutors must be able to do all of the following:

• Offer admissible evidence of each of the applicable statutory elements of the crime
• Do so in a manner which does not trigger the applicable Fifth Amendment or other pertinent constitutional protections
• Ensure that the credibility of the relevant government witnesses is sufficient to make the government’s case

Again, none of these conditions automatically make a case difficult to win, but your lawyer should determine whether they make your case difficult to win.

Can Pre-Proffer Verification Help?

Pre-proffer verification is the process of comparing your account of the pertinent facts and circumstances to the relevant records, documents, and other information that you know about. If you have access to the government’s discovery materials, it is possible to compare your account of the pertinent facts and circumstances with the government’s evidence.

The best possible result of pre-proffer verification is that your account of the pertinent facts and circumstances are consistent with (and can be corroborated by) the government’s evidence, records, documents, and other information.

Should Your Lawyer Be Representing Other Defendants?

While it is possible for a lawyer to represent multiple defendants, doing so raises various ethical issues. Under ABA Model Rule 1.7, the material limitation imposed on a lawyer’s ability to represent a client in a case may also create a conflict of interest, specifically a “concurrent conflict of interest.” This is true whether the material limitation is due to another client’s interests, the lawyer’s own interests, or a restriction imposed on the lawyer by third party.

What is the “Materially Divergent Interests” Issue?

Multiple defendants in a case can enter into cooperation agreements that materialy diverge. For example, two defendants may both need to cooperate, but they may both want credit for the same role in the conspiracy. For example, they may both claim they were the primary source of information. If the defendants cannot resolve their dispute, they may both be in competition for “credit” for cooperation, or one (or both) of them may even attempt to shift blame onto the other defendant. These are examples of conflicts that may arise between co-defendants and that can create competing or materially divergent interests.

Who decides whether my cooperation earns a sentencing reduction?

Who Decides How Much the Sentence is Reduced?

The law is as follows:

• Under the First Sentencing Reform Act of 1984, federal judges have the authority to sentence a defendant beneath the applicable mandatory minimum sentencing exposure if the government files a motion for a rule 3553(e) sentence reduction.
• In all other cases, federal prosecutors determine whether to file a §5K1.1 motion for a downward departure. If the federal prosecutors do file a §5K1.1 motion, the federal judge decides whether to grant a reduction in sentencing, and to what extent the judge grants the reduction.

What Factors Does the Government Take into Account When Making a Cooperation Motion?

Section 5K1.1 of the U.S. Sentencing Guidelines lists several key factors for assessing a defendant’s “substantial assistance,” and these include:

• The usefulness of the defendant’s assistance to the government.
• The truthfulness of the defendant’s assistance to the government.
• The extent of the defendant’s assistance to the government.
• The danger of the crimes and people the defendant provided information on.
• The timeliness of the defendant’s assistance to the government.

The federal government takes these five factors into account when determining if it wants to file a cooperation motion for a substantial assistance reduction in sentencing.

Can I Challenge the Government’s Decision Not to File a Cooperation Motion?

While federal prosecutors have wide-ranging discretion to deny a defendant’s cooperation request, defendants have a constitutional right to procedural due process under the Fifth Amendment to the U.S. Constitution. Wade v. United States, 504 U.S. 181, 185-86 (1992), the U.S. Supreme Court established that a federal court can review the government’s decision to deny the defendant’s cooperation request to determine if the federal prosecutors’ decision has unconstitutional motives or if the federal prosecutors’ decision is completely devoid of rational basis. If either of these are the case, the Supreme Court established that the court must grant the requested remedy to remedy the defendant’s lack of procedural due process.

Can the Government File a Cooperation Motion After Sentencing in a Federal Case?

Yes. In fact, Federal Rule of Criminal Procedure 35(b) expressly authorizes the government to file for a reduction in sentencing based on post-sentencing assistance.

Rule 35(b) motions have to be filed before the relevant deadline. The current deadline for filing a Rule 35(b) motion is “generally within one year after the sentencing is imposed.”

What are the Roles of Federal Prosecutors and Federal Judges in the Criminal Process?

Federal prosecutors and federal judges serve distinct roles within the criminal process. Prosecutors decide on charging defendants, deciding on pleas, and presenting evidence at trials. Conversely, federal judges’ roles are:

• To preside over legal disputes between the defense and the government.
• To impose authorized sentences.

Federal judges do not (and cannot) decide to charge defendants, they do not decide whether to file a guilty plea, and they do not file motion for a downward sentencing departure under §5K1.1 of the sentencing guidelines. While federal judges do not decide whether the government should offer or a defendant should accept an offer to cooperate, they are often the final decision-maker with respect to granting sentencing reductions and accepting guilty pleas.

What are the Risks?

There are risks to cooperating with the federal government as well. When you offer cooperation to avoid the penalties of the most serious gun-related offenses, there are risks to consider. Here, we break down the possible risks of cooperation, how they can be addressed (or partially addressed), and the legal realities that cooperators must face:

• Exposure to retaliation. Under the Federal Sentencing Guidelines Section 5K1.1, it expressly recognizes that there is potential for danger to the defendant when he or she helps the government. It also recognizes that there is potential for danger to a cooperating defendant’s family as well.
• Disclosure of information. Federal judges must disclose information to the defense counsel and the defendant’s legal team that can impact a witness’s credibility. This is the general concept of the Giglio, a Supreme Court ruling that mandates disclosures. While information concerning the benefits a witness received in exchange for their testimony does not necessarily have to be disclosed, information concerning benefits that can potentially encourage a witness to commit perjury may have to be disclosed.
• Immigration consequences for immigrants. The federal government agrees to seek no sentencing reduction based on substantial assistance in exchange for cooperating with the prosecutors. However, cooperation does not itself confer lawful immigration status, and it does not confer immunity from removal.
• Involuntary disclosure. While the federal government can protect some information that a cooperator provides through its cooperation agreements, agreements do not immunize relatives. They may be subject to subpoena under various circumstances. While this is not a common risk that a cooperating defendant has to worry about, it is a risk that is possible.
• Retribution and revenge. Retribution or revenge for cooperation is not uncommon, especially in high-profile federal cases. While the federal government will do everything it can protect cooperators and those closely associated with cooperators, there are still risks for them.

How Can the Federal Government Protect Cooperators?

While there are potential risks when cooperating with the federal government, there are protections as well. These protections include:

• Federal Witness Protection Program. Admission into the Federal Witness Protection Program is not automatic for federal cooperators. To qualify for the program, the federal government determines if the cooperator meets the necessary qualifications.
• Federal Witness Security Program. Under 18 U.S.C. Section 3521, the program allows the government to provide protection for any individual who “is at risk of harm because of his or her participation as a witness, potential witness, or a victim in a criminal case.” This includes the witness’s family members and close associates.
• Use of the government’s secrecy or confidentiality protections. In criminal cases, the judge can restrict the access to materials that a defendant provides in exchange for government protection under their cooperation agreement. Some federal judges will permanently seal materials when appropriate, others will enter protective orders for particular periods of time. The federal courts have the discretion to permanently grant anonymity, although the right of the defendant to be tried in an open court can override the right to protect the cooperating witness’s identity.

What Are the Limits of Federal Protection for Cooperators?

Can I Keep My Identity and Name Private?

Federal judges will protect cooperating witnesses’ identities when appropriate. However, while the judge can potentially grant a permanent degree of anonymity, it is not possible to guarantee anonymity. When a cooperator’s testimony comes up in a case, the defendant’s right to have his or her legal counsel confront witnesses can lead to disclosure. While the prosecutor’s office can keep a cooperator’s identity and name confidential, a federal judge can determine that disclosure is warranted.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.