Criminal Defense Lawyers

How Cooperation Agreements Work in Federal Prosecutions

How Cooperation Agreements Work in Federal Prosecutions

Cooperation agreements, sometimes called plea agreements or immunity agreements, are common tools used by federal prosecutors to gain information and testimony from defendants in exchange for potential sentencing concessions. Let’s take a closer look at how these agreements work.

Overview of Cooperation Agreements

A cooperation agreement is a contract between a defendant and the government where the defendant agrees to provide substantial assistance to the government’s investigation and prosecution of others in exchange for the possibility of a more lenient sentence for the defendant. The agreements allow prosecutors to gain insider information and testimony that can help make cases against more significant players in criminal enterprises.In one Reddit thread, commenters note that cooperation agreements usually require the defendant to provide complete and truthful information and testimony about any criminal activities they are aware of. The defendant also typically agrees to take the stand and testify for the government if needed.According to analysis on Avvo, in return for this cooperation, the government agrees to file a motion under Section 5K1.1 of the Federal Sentencing Guidelines requesting that the judge impose a lower sentence than they otherwise would due to the defendant’s “substantial assistance.”So in short, cooperation agreements trade information and testimony from the defendant for the potential of a reduced prison sentence.

Why Prosecutors Offer Cooperation Agreements

Federal prosecutors have a few key motivations for offering cooperation deals:

• To gather information and evidence against more significant targets
• To turn members of a criminal organization against each other
• To save government resources by avoiding lengthy investigations and trials
• To incentivize defendants to provide fuller and more truthful information

U.S. Attorney offices have great discretion on who they offer deals to and under what terms. They generally look for defendants who have substantial insider information about criminal networks that can lead to bigger busts or take downs of entire organizations. The more valuable a defendant’s information and testimony is deemed to be, the greater sentencing concessions the defendant may receive.

The Cooperation Process

The cooperation process typically involves several key steps:

• Proffer Session: Defendant’s attorney arranges an informal interview, called a “proffer session,” between the defendant and prosecutors. The defendant outlines what information they can provide if a deal is struck. This helps prosecutors assess the value.
• Signing the Agreement: If satisfied, prosecutors will formalize a cooperation agreement spelling out the defendant’s requirements and the concessions the government will recommend. The defendant agrees to waive certain rights.
• Cooperation Period: During this period, the defendant provides testimony and information as needed, such as identifying targets, participating in controlled buys, testifying before grand juries, and potentially testifying at trial. Meetings typically take place in the U.S. Attorney’s office or FBI field office.
• Government Files 5K Motion: Once cooperation is complete, if prosecutors feel the defendant provided “substantial assistance,” they will file a 5K1.1 motion detailing the cooperation and recommending a reduced sentence.
• Sentencing: At sentencing, the judge will decide what consideration to give the government’s 5K motion in determining the defendant’s final sentence.

Key Features of Cooperation Agreements

Cooperation agreements contain certain standard provisions spelled out by the courts over the years:

• Waiver of Rights – Defendant waives certain constitutional rights, like the right against self-incrimination and right to a trial. This enables prosecutors to fully debrief the defendant.
• Complete Truthfulness – Defendant agrees to provide completely truthful information and testimony at all times during cooperation period.
• Confidentiality – Defendant agrees to keep the cooperation agreement and activities confidential until such time as the government approves disclosure.
• Breach Provisions – Agreement spells out actions by defendant that would breach the agreement and release government from its sentencing recommendations.
• Government Discretion – Agreement notes that the government has sole discretion over whether and how to file a 5K substantial assistance motion based on its evaluation of the defendant’s cooperation.

These provisions are designed to extract as much valuable cooperation as possible from defendants while also giving the government sole control over sentencing recommendations.

Considerations in Signing a Cooperation Agreement

Deciding whether to sign a cooperation deal involves assessing risks and rewards:Benefits

• Substantially reduced prison sentence
• Avoid mandatory minimum sentences
• Peace of mind and outcome certainty

Risks

• Significant cooperation requirements and waiving of rights
• Still no guarantee of leniency (judge’s discretion)
• Danger if identity as informant is exposed
• Severe penalties if you breach agreement

Given the high stakes, most defense attorneys recommend consulting an experienced federal criminal defense lawyer before signing any cooperation deal. An attorney can help negotiate agreement terms and advise if the deal is advisable compared to alternatives.

Results of Cooperation Agreements

Cooperation agreements can greatly reduce sentences but results still vary case-by-case:

• For minor crimes or defendants with limited knowledge, a cooperation agreement may shave only a few months off a sentence.
• For major crimes with defendants who enable big busts, reductions can amount to many years or even decades in some drug trafficking and organized crime cases.
• In rare cases, certain criteria may qualify a defendant for a complete sentence reduction under Federal Rule 35(b).

According to Sentencing Commission data, the average sentence reduction for federal defendants who sign substantial assistance motions is about 40 percent. But again, actual sentencing is still at the judge’s discretion no matter the cooperation provided.

Working With Defense Lawyers on Cooperation Deals

Because cooperation agreements require waiving constitutional rights, judges will want assurance that the defendant fully understands what they are signing. Most federal judges thus strongly advise that all defendants explore cooperation deals in partnership with an experienced criminal defense lawyer.Defense lawyers can provide legal expertise at every stage as explained by this LawInfo article:

• Helping assess if cooperation is advisable for the case
• Negotiating favorable cooperation terms when possible
• Advising the defendant throughout the cooperation process
• Ensuring prosecutors fulfill commitments at sentencing
• Argue for maximum sentencing reductions before the judge

Having strong legal guidance maximizes the potential rewards of cooperation while also protecting the defendant’s rights.

Resources

For more information on federal cooperation agreements, please consult these additional resources:How Federal Cooperation Agreements Work – Overview at FindLawCooperation Agreements – Details at LawInfoFederal Cooperation: An Insider’s View – Instructional video from a former prosecutor