How to Protect Your Family When Cooperating With the Government.

When assessing a target’s or defendant’s offer to cooperate, prosecutors assess the offer’s truthfulness, usefulness, reliability, and timeliness. It may also be necessary to address the person’s criminal exposure. Cooperation does not guarantee a sentence reduction or lighter charges; and, in certain circumstances, if a target’s or defendant’s early, unprotected statements prove, in part, to be untrue, they may increase a prospective defendant’s criminal exposure. Ultimately, securing the benefits of cooperation requires negotiating carefully with prosecutors on the target’s or defendant’s behalf to ensure that your offer of assistance will be accepted in order to either pursue a plea deal or avoid criminal charges altogether.

From providing witness security to accepting plea deals for criminal charges, there are various means for federal prosecutors to offer protection to individuals who have cooperated with the government. As specified on the website of the U.S. Marshals Service, Congress authorized witness security for federal law enforcement activities in 1970.

Along with the risk of exposure to your family members, cooperating with the government also exposes your spouse to prosecution for financial fraud, money laundering, and other crimes. Government agents may have access to proffer-derived evidence, including bank records, investment account statements, tax forms, and other documents that could expose your spouse’s financial records, transactions, or business relationships.

Your family members will not necessarily be exposed during your cooperation discussions with the government. If the government accepts your offer to cooperate and your spouse’s name comes up, prosecutors are more likely to seek ways to protect your spouse rather than pursue charges against them. However, ensuring your spouse is not exposed will require specific protections and the U.S. Attorney’s Office will not be able to give any assurances if your spouse’s name comes up during discussions unless they have a full understanding of the scope of your and your spouse’s involvement in the federal government’s case.

What protections must be written down before I cooperate?

1. Your Proffer Agreement

Most proffer agreements protect the information you disclose during the proffer conversation to a limited extent. Proffers rarely, if ever, afford complete immunity. Generally, a proffer is considered a statement, which means that federal investigators may use it to find evidence that they can then use against you or others.

2. Your Cooperation Agreement

If the government determines that your proffer is valuable, it will work with your counsel to negotiate a cooperation agreement. Cooperation agreements are formal contracts that set out in detail the assistance the government expects you to provide (and any assistance that you should know you will not be expected to provide), and any concessions that the government may agree to make, if you fulfill your obligation to cooperate.

Along with protection for yourself, your counsel can include protection for a spouse, child, parent, or other family member who is not in the government’s good graces. Prosecutors may negotiate nonprosecution promises concerning peripherally involved family members, spouses, or significant others.

Regarding the government’s obligation to present a substantial-assistance motion on your behalf (or on behalf of your family member), courts’ review of the government’s refusal to pursue prosecutors’ promises (or prosecution-related concessions) is generally extremely limited. The leading case is Wade v. United States, 504 U.S. 181 (1992), which states that “the government’s refusal to present a defendant’s substantial-assistance claims to the court would warrant discovery and a hearing if there were evidence to show substantial-assistance refusal as a result of unconstitutional motives or a lack of a legitimate governmental purpose.” Wade also notes that “the threshold showing required for such a determination is substantial.” The mere fact that a target or defendant has provided “valuable” assistance is, by itself, insufficient to warrant discovery or a hearing.

3. Any Material Promises that Induce a Guilty Plea

In certain situations, a target or defendant may be reluctant to agree to a guilty plea. Prosecutors may offer assurances, such as promising not to press additional charges or not to pursue a sentence above a specific range. While prosecutors are only obligated to present a substantial-assistance motion if the target or defendant fulfills their cooperation obligation, the Supreme Court has held that prosecutors can’t retract material promises that induce a guilty plea. Santobello v. New York, 404 U.S. 257 (1971), the Court held that “a prosecutor’s promise to a defendant to recommend a certain sentence if he will plead guilty is binding on the prosecutor, and the prosecutor must fulfill his promise.”

If prosecutors demand a guilty plea without offering material assurances, it may not be a prudent decision to plead guilty. When your counsel negotiates on your behalf, your counsel can communicate with prosecutors regarding the government’s obligation to fulfill its promise to limit the charges against you and your family members.

4. Immunity Agreements that Address Compelled Testimony

When you have the right to testify on your own behalf, the federal government can (under limited circumstances) compel your testimony. In such cases, however, you must be granted immunity. Under 18 U.S.C. §§ 6002 and 6003, the government can compel testimony only when it can affirmatively provide use and derivative-use immunity. This does not provide complete transactional immunity. Instead, this means that the government cannot use the information that it uncovers through compelled testimony (or information derived from the disclosure) in a subsequent prosecution.

Can a defense attorney represent their own spouse?

1. Conflict Identification

In Florida, all attorneys are required to identify and disclose actual and potential conflicts of interest. This includes any relationship, past or present, that may compromise the attorney’s duty of care or a client’s confidence. Defense counsel has an obligation to promptly disclose any conflicts to clients who may be affected by the conflict.

2. Personal Relationships

Personal relationships can create conflicts, as well, and in these cases, separate legal representation will be necessary. Similarly, defense counsel should not accept representation in matters that they cannot handle in an adequate manner, either because they will not have enough time and resources to handle the case, or because they do not have sufficient experience on the legal matters that the case will present.

3. Client Communications

Defense counsel should also keep clients reasonably informed about material case developments. Similarly, defense counsel must keep their clients involved in all of their legal decisions. For example, in federal criminal cases, defense counsel cannot accept plea agreements without their clients’ express authorization.

4. Florida Bar Rule 4-1.7(a)(2)

Florida Bar Rule 4-1.7(a)(2) discusses personal-interest conflicts, stating, “A lawyer shall not represent a client if the representation involves a concurrent conflict of interest, and a concurrent conflict of interest exists if: . .. (2) the representation involves a personal interest that is likely to materially limit the lawyer’s representation of the client;” and, “A lawyer may represent a client despite the existence of a concurrent conflict of interest if: . .. (2) the personal interest conflict is reasonably waivable, and, unless prohibited by other applicable law or the rules of professional conduct, the lawyer obtains the informed consent of the client, confirmed in writing.” Florida Bar Rule 4-1.7 also notes that a lawyer may only accept a waivable personal-interest conflict if he or she “reasonably believe[s] the lawyer will be able to provide competent and diligent representation to the client.”

The rule prohibits personal-interest conflicts in the situation of a joint defense agreement involving a client whose interests conflict with those of the attorney representing him. The rule prohibits lawyers from representing clients whose interest would materially limit the lawyers’ ability to provide competent and diligent representation, and, it prohibits lawyers from representing clients whose interests are in opposition to those of the lawyer’s current or former clients. Additionally, joint representation of clients is not permissible under Florida Bar Rule 4-1.7(a) when either client asserts claims against the other client in the same proceeding. In such cases, joint representation must end, and either the competing clients or the lawyer will have to withdraw from the representation.

If you have questions about your attorney’s ethics, or, if you suspect your attorney has a conflict of interest, you can report this to the Florida Bar or other relevant authority. At Spodek Law Group, we are committed to upholding the highest ethical standards in all of our legal matters and all of our attorney-client relationships. If you have questions about how this applies to your case, we are available to discuss it with you at your convenience.

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 I not tell my defense attorney?

1. Information that is and/or is not protected by attorney-client privilege

In your initial defense interview, your defense counsel should explain attorney-client privilege. Generally, potential clients should disclose all information related to their case, even unfavorable information, so that their defense counsel has an opportunity to make informed decisions.

Attorney-client privilege covers communications made in confidence for the purpose of obtaining or providing legal advice. The privilege extends to both written and oral communications and also applies to communications made to the lawyer’s legal team members.

Generally, the attorney-client privilege does not apply to (i) communications made in furtherance of a crime or fraud, (ii) communications to third parties who do not have an expectation of confidentiality, and, (iii) communications with a lawyer for the purpose of obtaining business advice. As discussed above, the privilege does not protect communications that are made in furtherance of a crime or fraud. Similarly, the privilege does not protect communications shared with third parties. Attorney-client privilege does not apply to communications for purposes unrelated to obtaining legal advice; and, as a general rule, communicating with an attorney does not satisfy the requirement of confidentiality if the client shares a third party.

With regard to the attorney-client privilege, the relevant question is whether the communication was made to an attorney for the purposes of obtaining or providing legal advice in confidence. The privilege does not turn on whether federal investigators can get the communication or whether the client’s records are seized. In fact, if you do not want federal investigators to have a record of your conversations with your defense attorney, the communication of a client to his or her attorney (and the attorney’s response) will be confidential under the attorney-client privilege.

2. Information regarding the potential to have federal investigators retrieve a text message

With regard to your attorney’s ability to provide advice while taking steps to protect against federal investigators’ ability to uncover it, you do not want to use an insecure communication method (e.g., text messaging). The use of an insecure communication method does not, by itself, waive attorney-client privilege, but it does introduce a risk that investigators could obtain a copy of the communication. Once the communication is recovered by federal investigators, it will be subject to the attorney-client privilege, but you would not want to rely on a court’s protection of this privilege when it is not necessary. If you have concerns about the ability of federal investigators to retrieve certain communications, you should not send the communication until you have been able to discuss this issue with your defense counsel.

How should I plan for my family’s immediate risks?

U.S.S.G. § 5K1.1 is a sentencing guideline that mandates an assessment of a defendant’s willingness to provide assistance to the government. In addition to the defendant’s willingness to cooperate, a federal judge must consider the danger posed by providing assistance, and, if the government believes it necessary, a federal judge must also ensure that there is a full understanding of any danger to the defendant, the defendant’s family members, and others.

Along with the risks presented when communicating with federal investigators, cooperation can also be exposed to the public during a defendant’s sentencing proceeding or through court filings. In such cases, for a target’s or defendant’s risk exposure to be diminished, a court must seal the filing and other records. This requires satisfying a specific legal standard. Sealing diminishes public access to the filing, and it also diminishes the likelihood of other parties’ becoming aware of a target’s or defendant’s cooperation; but, sealing is far from guaranteeing operational secrecy. As a result, targets and defendants may need to seek protection through the U.S. Marshals Service’s Witness Security Program (WITSEC).

Admission to WITSEC is discretionary rather than an entitlement, and authorities may arrange temporary relocation or secure housing for targets, defendants, and their families that are not otherwise warranted for full admission to witness security. Along with mitigating risks related to physical security, a target’s or defendant’s counsel should also address immediate risks in providing advice about pleas that include cooperation. These immediate risks include the risk of forfeiture, the risk of deportation for the target or defendant (if he or she is not a U.S. citizen), the risk of deportation for any of the target’s or defendant’s non-U.S. citizen family members, the potential for bankruptcy or other financial consequences, and the potential for civil consequences.

Regarding forfeitures, the relevant statutes for criminal cases are 21 U.S.C. § 853 and 18 U.S.C. § 981, and other statutes that apply to similar scenarios contain analogous provisions. Section 3521 contains no categorical exclusion for witnesses in white-collar prosecutions. For example, even in federal criminal cases involving healthcare fraud, securities fraud, tax fraud, and bribery, a target’s or defendant’s counsel should assume that forfeitures and other consequences are possible. In addition, in cases that involve the risk of deportation, the relevant factors are similar to those that apply to forfeitures. Even if a pardon was granted for a prior crime, the potential for criminal charges can trigger the risk of deportation for both the target or defendant and any of their non-U.S. citizen family members. Lastly, targets and defendants must also be prepared to face civil liability. As discussed above, criminal liability often triggers civil liability, and even though many criminal cases will not result in civil enforcement actions, they are still possible. Consequently, targets and defendants should work closely with their counsel to mitigate financial consequences like forfeitures, immigration consequences for themselves and their family members, and civil liability.

What is Florida’s 33-day rule after an arrest?

When federal investigators encounter a target or defendant that refuses to discuss a case until they obtain counsel, they may try to use the time that has been spent on the case to create additional pressure for the individual to talk to them. This occurs in both white-collar cases involving healthcare fraud, securities fraud, and tax fraud and drug-related cases. This pressure may lead the target or defendant to reveal incriminating facts or make statements that are not completely accurate. Even when federal investigators may be acting in accordance with applicable rules and procedures, this pressure can still pose unnecessary risks.

Due to the potential for facing separate prosecutions in state and federal courts, prosecutors from the federal and state sovereigns are permitted to discuss cases when the same conduct is subject to criminal prosecution in both systems. This often leads to double jeopardy concerns under the Double Jeopardy Clause of the Fifth Amendment. As a result, in cases of simultaneous federal and state charges, defense counsel will work toward resolving both cases and negotiating a plea for each case.

For arrestees that are held in custody, Florida Rule of Criminal Procedure 3.134 requires that prosecutors file charges within 30 days of the date of the arrest. If formal charges are not filed by day 33, and prosecutors show no good cause for delaying the charges, a court will typically order the arrestees’ own-recognizance release.

If prosecutors show good cause for delaying the charges, the releasable date shifts forward by 10 days. Rule 3.134 thus requires a prisoner’s release on day 40 if formal charges remain unfiled.

In some cases, 18 U.S.C. § 3607(c) creates a narrow federal drug-record expungement mechanism. However, for other cases, federal convictions cannot be expunged through standard nondisclosure procedures. To avoid the risks of criminal charges, targets and defendants must proactively avoid making unnecessary admissions or disclosures to federal investigators. Instead, targets and defendants should work with their counsel to reach a resolution as a result of an investigation.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.