Cooperation in RICO and Organized Crime Cases.

# Cooperation in RICO and Organized Crime Cases Many individuals believe in the applicability of the Pareto Principle, or 80/20 Rule, to federal RICO cases, but the Pareto Principle is not a rule of RICO defense. Again, there is no federal rule that grants any cooperators a 80 percent reduction in sentencing. However, it is true that providing assistance to the government can lead to several types of sentence reduction, and in some cases these reductions can be substantial. Even so, providing assistance does not guarantee that the government will file a substantial assistance motion, although it can significantly increase the likelihood of obtaining a reduced sentence.

For the most part, the specific provisions of each cooperation agreement will govern continuing assistance, and these agreements will typically lay out the conditions that must be met in order for the government to advocate for a reduced sentence on a cooperating defendant’s behalf. In most cases, these agreements require complete, truthful, and continuing disclosure, and they define cooperation as including participation in debriefings, appearing before the grand jury, and providing testimony at trial. This cooperation can also involve providing assistance to federal law enforcement or prosecutors in various other investigative matters as well.

The U.S. Marshals Service administers the federal Witness Security Program, which covers both federal targets and witnesses, as well as their immediate family members. Witness Security can provide protection through relocation to the Witness Security Program’s witness protection facilities and provision of a new identity for each eligible individual, while providing temporary financial assistance and other resources. Spodek Law Group provides legal representation for clients in matters involving witness protection and the federal Witness Security Program, and we also advise our clients about witness protection and the Witness Security Program during every phase of the federal RICO prosecution process. ## How Do Proffer, Cooperation, Plea, and Immunity Agreements Differ? A proffer session is sometimes referred to as a “queen-for-a-day” meeting. These meetings are common in high-stakes federal investigations, including RICO investigations. During a proffer session, the government agrees to listen to what a potential witness has to say without using that information to build a criminal case against that person. However, the protections afforded during proffer sessions come from the terms of a written proffer agreement, not from a federal statute. The Supreme Court’s decision in Kastigar v. United States, 406 U.S. 441 (1972), governs compelled immunized testimony; it does not govern voluntary proffers. Many proffer agreements will prohibit the government’s direct use of the information provided during a proffer in a later criminal case, while expressly permitting the government to pursue investigative leads discovered during the proffer.

A cooperation agreement covers the continued efforts of a cooperater after a proffer session. It will outline the cooperator’s ongoing obligations, including the requirement to participate in debriefings, appear before a grand jury, and provide trial testimony if needed. It will also outline the conditions that must be met in order for the government to advocate for a reduced sentence on the cooperator’s behalf.

Plea agreements are governed by Federal Rule of Criminal Procedure 11(c). These agreements are entered into with the court, which allows the parties to settle issues like sentence length, and they are binding in accordance with their terms. Plea and cooperation obligations can both be included in the same written agreement.

Immunity agreements and orders are governed by 18 U.S.C. Sections 6002 and 6003. Section 6002 bars the direct and derivative use of compelled immunized testimony. Section 6003 sets forth the stringent procedural requirements for granting immunity. This includes the requirement that immunity be requested by the government, ordered by a judge, and approved by a designated Department of Justice official. Each federal agency must have at least one official authorized to approve immunity in this manner, and the Department of Justice publishes a list of the officials authorized to grant immunity under Section 6003 in the Federal Register.

When faced with the possibility of facing federal charges under a RICO statute, you should engage the help of a highly-experienced attorney. At Spodek Law Group, we represent federal defendants in a variety of circumstances, and we use our extensive knowledge and experience to defend our clients aggressively. Our experience defending against criminal charges includes both providing guidance regarding proffer agreements and cooperating with federal law enforcement agencies. We will do everything in our power to ensure your legal rights are protected throughout the federal RICO investigation process and beyond, and we will never allow the government to use any information against you without your informed consent. ## How Can Cooperation Reduce a Federal RICO Sentence? Section 5K1.1 is one possible way that defendants can seek a sentencing reduction. However, a reduction under Section 5K1.1 requires that the government file a motion for a guideline departure on the defendant’s behalf. If the government agrees to file a Section 5K1.1 motion, the sentencing judge then has the authority to depart from the United States Sentencing Guidelines to impose a lower sentence. According to Section 5K1.1, some of the factors that a sentencing judge can consider when determining whether a defendant has provided “substantial assistance” include (but are not limited to) (i) how useful the assistance provided by the defendant was to the government’s investigation of criminal activity; (ii) the extent to which the assistance provided by the defendant was truthful and complete; (iii) the extent to which the assistance provided by the defendant assisted the government in initiating criminal charges against other defendants; (iv) the risk of physical harm that the defendant incurred by assisting the government; and (v) the timeliness of the defendant’s willingness to provide assistance. If a defendant is facing a statutory mandatory minimum, however, a Section 5K1.1 motion alone will not be sufficient to overcome that minimum. In this case, a cooperator’s sentence can only be reduced below the mandatory minimum if the government files a Section 3553(e) motion. Like a Section 5K1.1 motion, a Section 3553(e) motion is discretionary. But if the government is persuaded to file a Section 3553(e) motion on a cooperator’s behalf, the sentencing judge then has the authority to impose a sentence that is below the applicable statutory mandatory minimum. While the government has general discretion to choose not to file a substantial assistance motion, the Supreme Court’s decision in Wade v. United States, 504 U.S. 181 (1992), permits a limited form of review in certain circumstances. Generally, the Supreme Court’s decision in Wade confirms that a prosecutor’s decision not to file a substantial assistance motion is not subject to review. However, Wade indicates that review can be permissible in cases involving prosecutorial refusals to file substantial assistance motions that are based on unconstitutional reasons (such as racial discrimination) or reasons that lack a rational governmental purpose.

Again, the protections of Wade only apply when there are no other mechanisms available to protect a cooperator. In practice, this means that you will only be able to seek review of a prosecutorial refusal to file a substantial assistance motion if you have no other way to avoid prison time. Cooperation can also lead to a sentence reduction after a sentence has been imposed. Federal Rule of Criminal Procedure 35(b) provides a mechanism for federal prosecutors to request a sentence reduction from the sentencing court based on substantial assistance after the sentencing order has been entered. Along with allowing the prosecutor to file a motion on the defendant’s behalf, Rule 35(b) also allows the sentencing judge to impose a reduction in the defendant’s sentence upon the prosecutor’s request, if the request is based on substantial assistance rendered by the defendant after sentencing. ## What Must Prosecutors Prove Under Each Federal RICO Subsection? Section 1962 of the RICO statute contains four distinct substantive and conspiracy prohibitions. Defendants facing criminal liability can be prosecuted under any of these four provisions, and in each case, prosecutors must prove their case beyond reasonable doubt. Under Section 1962(a), the government must prove that the defendant (i) invested, contributed to, or acquired an interest in an enterprise through a racketeering act, and (ii) that the defendant’s investment, contribution, or acquisition had the effect of furthering the racketeering activity of the enterprise. Under Section 1962(b), the government must prove that the defendant (i) acquired or maintained an interest in or a position of control within an enterprise, and (ii) that the defendant used racketeering to acquire or maintain his or her interest or position of control. Under Section 1962(c), the government must prove that the defendant (i) is employed by, associated with, or affiliated with an enterprise, (ii) that the defendant participated in the conduct of the enterprise’s affairs, and (iii) that the defendant did so by engaging in a pattern of racketeering activity. Under Section 1962(d), the government must prove that the defendant (i) conspired to violate Section 1962(a), 1962(b), or 1962(c), and (ii) that the defendant agreed to commit at least two acts of racketeering associated with the enterprise.

Again, if facing criminal liability for federal racketeering, the most common defense strategy is to show that all relevant elements have not been met. While some defenses can focus on which specific racketeering elements the government failed to prove, others can focus on more general concepts. For example, in RICO cases, mere association with accused criminals does not establish RICO liability. This means that if you have associated with criminals who have engaged in racketeering, that alone will not establish liability under the RICO statute.

In many RICO cases, defendants can also focus their defense strategy on arguing that the government failed to establish the necessary pattern of racketeering activity.” The Supreme Court’s discussion of the phrase “related to one another” suggests that, in most cases, it will be the conduct of racketeering activity that is committed through the enterprise or with a connection to an associated enterprise that establishes the relatedness between the involved racketeering activities. On the other hand, the Supreme Court’s discussion of “continuity” suggests that at least some temporal continuity must be shown.

But the amount of time that passes between the involved racketeering activities varies significantly depending on the circumstances at hand. Ultimately, in each RICO case, the question of when you are able to build an effective defense depends on various factors. Our defense team at Spodek Law Group works with our clients to build custom-tailored defense strategies in light of the specific facts and circumstances of our clients’ cases, and we have used the methods and knowledge gained from our experience in federal racketeering defense to successfully defend numerous individuals and corporations in RICO cases. ## What Defenses Can Defeat a Federal RICO Charge? Many potential RICO defenses rely on arguing that the government did not prove some of the key elements required for criminal liability beyond reasonable doubt. While reasonable doubt about any required RICO element can be sufficient to defeat RICO charges, in practice, this will require a thorough examination of the government’s evidence. In criminal RICO cases, defendants can also contest the existence of the alleged enterprise, challenge whether the alleged predicates form a qualifying pattern, dispute their knowledge of or agreement with the alleged conspiracy, contest whether the alleged predicates were connected to the alleged enterprise, and raise other defenses that focus on the substantive requirements of the RICO statute.

While many potential RICO defenses focus on the substantive requirements of the statute, RICO defendants can also raise various procedural defenses. For example, the evidence obtained through an unconstitutional search or wiretap can be grounds for seeking a motion to suppress the resulting evidence. In addition, other defenses that are available in various other contexts can serve as affirmative defenses to a RICO charge as well. For example, in appropriate circumstances, duress can provide a complete defense to RICO charges. However, to establish a duress defense, an individual will have to establish several demanding elements of proof, and in most cases, a duress defense will not be a viable defense to racketeering charges.

Some other potential defenses to RICO charges include pleading the fifth amendment, establishing a statute of limitations defense, arguing for extradition, and claiming that an act was committed by a government informant. These are just a few of the possible defenses that could be used in a RICO case, and at Spodek Law Group, our RICO defense lawyers use their knowledge and experience to assess which specific defenses are available in each client’s case.

If you are facing criminal charges under the RICO statute, then it is possible that you are also facing criminal charges under another criminal statute. And, unlike the RICO statute, there is no statute that officially identifies RICO as the “hardest crime to defend.” Indeed, in practice, if the RICO statute is cited in a complaint or indictment, RICO is usually one of a number of criminal offenses that are included in the charging documents. At Spodek Law Group, we have the experience and knowledge that is necessary to efficiently handle any a number of federal charges, including racketeering, fraud, conspiracy, and many other offenses. While federal prosecutions present a unique set of challenges, we have experience which extends from the investigations stage through grand jury and the courtroom, and we use the knowledge and experience we gained during our work in federal criminal defense to help our clients achieve the best possible outcome. ## How Can the Defense Challenge a Cooperating Witness? In criminal cases that involve cooperating witnesses, there is a broad range of options for the defense to challenge the witnesses’ credibility. When cross-examining a cooperating witness, defense lawyers will often ask about the witness’s promised or expected sentencing benefits. Along with this, federal juries will often be instructed that they can consider this fact when evaluating the credibility of a cooperating witness’s testimony.

In criminal RICO cases, federal defense attorneys will also use the federal rules of evidence in order to impeach the credibility of cooperating witnesses. For example, Federal Rule of Evidence 613 governs examination about prior inconsistent statements, and Federal Rule of Evidence 609 permits impeachment of a witness through a prior conviction if that conviction is qualifying. A federal prosecution team is also required to disclose any information that it possesses that could bear on a cooperator’s credibility (such as information demonstrating the cooperator’s bias or a fact that would be probative of the cooperator’s untruthfulness) pursuant to the Supreme Court’s decision in Giglio v. United States, 405 U.S. 150 (1972).

In criminal cases involving joint defense teams, there are a number of additional challenges involved. When the defense team is the same for two or more defendants, the judge has to make an inquiry on the record into the defendants’ conflict-of-interest issues pursuant to Rule 44(c) of the Federal Rules of Criminal Procedure. These conflict-of-interest issues do not completely go away even when defendants enter into a joint-defense agreement. Joint-defense agreements are intended to ensure that the defenses of the defendants are cohesive, but the existence of a joint-defense agreement does not alter the duties of the defense attorneys toward their clients in cases in which one of their clients becomes a cooperator.

In cases involving cooperators, defense lawyers will also seek to impeach the cooperators based on the cooperators’ proffer agreements. While proffer agreements generally prohibit the government’s use of the information from a proffer, these agreements commonly include provisions that allow for impeachment if the cooperator later offers materially inconsistent testimony. For example, the federal government’s standardized proffer agreement explicitly states, “nothing in this agreement shall limit the government’s ability to impeach [the witness] during testimony based on [the witness]’s proffer statements, in whole or in part.”

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