Federal Cooperation Agreements and What They Require.

In reality, a federal cooperation agreement rarely constitutes an enforceable contract. Usually, the government’s only enforceable promise is to evaluate the defendant’s assistance in good faith. Under Section 5K1.1 of the U.S. Sentencing Guidelines, sentencing relief is subject to the government’s discretion; the government must file a motion at the defendant’s sentencing requesting the relief it deems the defendant’s assistance justifies.

Section 5K1.1 provides for a departure below the defendant’s otherwise-applicable guideline sentencing range; it provides for sentencing relief, not immunity from prosecution.

How often do defendants receive substantial assistance departures? The U.S. Sentencing Commission reports substantial assistance departures in approximately 9 percent of federal sentencings each year.

How often do federal defendants avoid convictions and sentencings altogether? The statistics are equally stark: while about 90 percent of federal defendants are convicted, fewer than 2 percent reach trial.

Of those federal convictions, about 97 percent come from guilty pleas rather than verdicts. Acquittals occur in well under 1 percent of all charged federal defendants.

In cases involving drug and firearm charges, the risk of incarceration begins at the federal charging stage. Under 18 U.S.C. § 3142(e)(3), drug charges carrying a maximum term of 10 years or more and firearm charges carrying a maximum term of 20 years or more carry a rebuttable presumption in favor of pretrial detention. In drug and firearm cases, the presumption of detention effectively forces the government’s hand to either charge and detain the defendant or to offer a plea deal that will allow for pre-trial release.

Is a Federal Cooperation Agreement Legally Binding on the Government?

Yes. In the context of a cooperation agreement, the prosecution’s promise not to seek criminal penalties is judicially enforceable. This principle applies to all plea-bargains, and prosecutors generally cannot seek to convict the defendant on criminal charges to which he or she agreed to immunity. See Santobello v. New York, 404 U.S. 257, 261 (1971).

Does the Government have to Honor the Cooperation Agreement even if the Defendant Violates it?

No. When a cooperation agreement is executed with the government, the defendant is usually bound by the provisions that it requires. The defendant will usually be required to plead guilty, provide any information he or she has relevant to the criminal charges that the government is pursuing in the case, testify in support of the government’s case, and comply with other conditions as provided. While a defendant’s obligation to testify is typically considered an obligation rather than a condition, the government’s failure to honor the benefits of the plea is usually contingent on the defendant’s substantial assistance, and violation of the terms and conditions of the agreement is the typical ground for the government to rescind its obligations under the agreement.

What Enforcement Mechanisms are Available to Defendants in the Event of a Breach of a Cooperation Agreement by the Government?

While plea-bargaining agreements are enforceable, the remedies available are not automatically enforced. When a prosecutor breaches a plea agreement, a court will grant the specific performance remedy if available and will otherwise allow the defendant to withdraw the guilty plea.

When courts enforce plea agreements, they apply basic contract principles. Courts will attempt to discern the clear intent of the parties involved in drafting the agreement. While courts generally avoid going beyond the plain language of an agreement, if they are forced to interpret ambiguities in a cooperation agreement, they generally resolve ambiguities against the government as the drafter.

In many instances, while providing benefits for cooperation in criminal cases, the government will include a waiver as part of the cooperation agreement. If a defendant is unwilling to testify or otherwise fails to cooperate, the government can refuse to fulfill its obligations under the cooperation agreement, while the defendant will have waived the right to withdraw the guilty plea.

While courts that recognize the government’s right to rescind benefits following a breach by a defendant frequently require the government to prove a breach by a preponderance of the evidence, several circuits still require only a minimal factual showing.

How is a Breach of a Cooperation Agreement by a Defendant Proven?

A court generally decides contested claims that the defendant breached a cooperation agreement. Typically, the government bears the burden of proving a breach, but the level of proof that the government must establish can vary by court.

When Can the Prosecution Seek to Change the Terms of a Cooperation Agreement?

The prosecution can seek to change the terms of a cooperation agreement before the court, but generally the burden is on the prosecutor to provide the justification for the modification and show that the modification would be just.

The prosecution’s motion to amend the agreement is filed in the case, and the defendant typically has an opportunity to present evidence and objections. A court generally has discretion to permit or deny the prosecution’s motion to amend.

Can the Prosecution Refuse to File a 5K1.1 Motion in a Federal Criminal Case After a Defendant Has Provided Substantial Assistance?

Under Wade v. United States, 482 U.S. 634 (1992), the prosecution’s decision not to file a 5K1.1 motion is not reviewable except for cases of unconstitutional prosecution. The Court in Wade noted, “a claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing. . .. A defendant has a right to the latter procedures only if he makes a substantial threshold showing of improper motive.”

Can Cooperation Get My Sentence Below a Mandatory Minimum?

In Melendez v. United States, 518 U.S. 120 (1996), the Court held that a motion for assistance under Section 5K1.1 cannot pierce a statutory minimum. Thus, while cooperation offers some forms of relief, there is only one mechanism that is authorized to penetrate the mandatory minimum in federal sentencing, and that is a motion under 18 U.S.C. § 3553(e).

While cooperation is one way to avoid the mandatory minimum, another strategy is to attack the mandatory minimum sentence itself, though this may not always be available. With respect to drug charges, for example, a prior-conviction notice under 21 U.S.C. § 851 raises the mandatory minimum under 21 U.S.C. § 841(b)(1)(A) from 10 years to 15 years, and the minimum under § 841(b)(1)(B) from 5 years to 10 years. A prosecutor’s withdrawal of a § 851 prior-conviction notice restores the lower, unenhanced mandatory minimum.

• According to Sentencing Commission data, what does substantial assistance provide in federal sentencings? The Sentencing Commission released a report which showed that in 2017 substantial assistance departures reduced sentences by approximately 47.8% from the recommended range, and by approximately 40.7% for median reductions.

• A substantial part of the value of cooperating with the government comes from being “the first one through the door.” Information held by the first cooperator is highly valuable; and once that information is in the hands of the government, additional cooperators can no longer sell the same information to the government.

• While prosecutors generally must file a motion for assistance, some courts have given credit for cooperation that does not meet the statutory definition of substantial assistance, such as for uncompensated cooperation. In these cases, the court weighs the uncompensated cooperation among the seven factors under § 3553(a), which the defendant can then use to seek a below-guidelines sentence.

• To assess a defendant’s assistance, Section 5K1.1 lists the following five factors: (i) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered; (ii) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (iii) the nature and extent of the defendant’s assistance; (iv) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; and (v) the timeliness of the defendant’s assistance.

• The Rules of Criminal Procedure also provide a remedy in Rule 35(b). In most cases, Rule 35(b) requires a motion for substantial assistance to be filed within a year from the defendant’s sentencing date. In practice, however, many districts allow much later filings.

What Protection Do My Proffer Statements Actually Have?

Under Federal Rule of Evidence 410, federal prosecutors are prohibited from introducing statements made during plea negotiations except in cases where the defendant has waived this protection. However, many prosecutors’ proffer agreements include these waivers. Even when these waivers are not present, proffer agreements generally only protect the defendant’s statements for the government’s case-in-chief, and leave open the possibility of using the statement in rebuttal or for purposes of impeachment.

As a result, once the defendant takes the witness stand to testify on his or her own behalf, the government will usually be able to use the defendant’s proffer statement to impeach the defendant. This rule of law was upheld by the Supreme Court in United States v. Mezzanatto, 513 U.S. 196 (1995).

Defense attorneys should not use proffer statements as a shield to allow the defendant to testify that he or she committed no crimes while admitting others. While this will likely be a strategy for the prosecution, defense attorneys must also be mindful of not providing the government the tools it needs to use the statement against the defendant. In some circuits, using the proffer statements to argue for innocence or a particular factual scenario can give rise to admissibility of the proffer statement under the “opens the door” rule.

It is also important for defendants to understand that most of the protections that govern the use of proffer statements under Rule 410 arise from the terms of the proffer letter or other negotiated agreements; they do not arise from the Sentencing Guidelines. While a defendant’s disclosures under § 1B1.8 of the Sentencing Guidelines are generally prohibited from being used to increase a cooperator’s guideline range, this is with the exception of crimes that the government already knows about prior to the execution of the proffer agreement.

At the same time, there is the danger of making false statements during the proffering process. Although a proffer letter does not establish the defendant’s cooperation as a valid, binding contract, if a defendant intentionally and willfully makes false statements during his or her meeting with federal agents, such actions are chargeable under 18 U.S.C. § 1001. This federal offense carries a penalty of up to five years of incarceration.

In summary, there is almost no guarantee of protection when talking to prosecutors in federal criminal cases. Even if a defendant signs a proffer agreement, the government’s ability to introduce statements made in violation of the agreement as evidence in the defendant’s case is widely accepted. While an agreement to not introduce such information is important, any agreement does not remove the liability for any intentional and willful false statement.

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.

How is a Federal Cooperation Agreement Different From Federal Immunity?

1. Section 5K1.1 Is Not Transactional Immunity

Transactional immunity is the form of immunity that grants a person immunity for all crimes that have been discussed or investigated. Section 5K1.1 is not transactional immunity; and, as we discuss above, it does not guarantee sentencing relief or even protection against future prosecution.

2. Formal Immunity Under 18 U.S.C. §§ 6002 and 6003

There are two other forms of federal immunity: formal use immunity and informal letter immunity. Formal use immunity requires a court order under 18 U.S.C. §§ 6002 and 6003. Under 18 U.S.C. § 6002, this type of immunity is “use-and-derivative-use immunity,” which means prosecutors are prohibited from using statements made while under the government’s immunity to prosecute the person who made the statements, and they are also prohibited from using any information discovered using the witness’s immunized statements. Use immunity is not transactional immunity, and prosecutors may still prosecute people for crimes for which they gave use immunity, provided they can show that the evidence they’re using was obtained independently of their use-immunity subject’s testimony.

3. Proving Independent Source Evidence

When prosecutors seek to prove that the evidence obtained from a subject with use immunity was obtained from an independent source, they must satisfy the standard in Kastigar v. United States, 406 U.S. 441, 460 (1972). Prosecutors must prove that every item of evidence obtained independently does not in any way depend on the immunized testimony of the witness.

4. Informal (“Letter”) Immunity

Informal “letter” immunity is provided in exchange for assistance in criminal matters. It is the least common type of immunity offered, because it is the least protection available. Letter immunity is not transactional immunity, nor is it formally binding on any court or federal district prosecutor’s office. However, prosecutors will generally honor letter immunity.

5. Non-Prosecution Agreements (NPAs)

In exchange for substantial assistance in criminal matters, the government can grant a non-prosecution agreement (NPA) as well. An NPA does not provide immunity, but it is binding within the prosecuting district, and prosecutors can use a defendant’s non-prosecution agreement as a defense in a criminal case involving an attempt to prosecute. Justice Manual 9-27.600 provides the following four-prong test for weighing the benefits of treating a person’s assistance as substantial: (i) how did the person’s assistance contribute to the government’s case; (ii) how is the person’s assistance relative to the person’s prior conduct; (iii) how is the person’s assistance relative to others’ assistance; and (iv) did the person accept responsibility?

6. State Prosecution and a Federal Case

When charged with similar offenses by state and federal authorities, a prosecution at the state level does not automatically bar a prosecution at the federal level. In Gamble v. United States, 139 S. Ct. 1960 (2019), reaffirmed the principle that states and the federal government are separate sovereigns and that prosecutions by each can constitute separate punishments for the same act, provided there is a statutory authorization to do so.

7. The Justice Department’s “Petite Policy”

While Gamble v. United States affirms a broad federal prosecution right, in many cases the Justice Department has adopted a more limited policy. Commonly referred to as the “Petite policy,” this is the policy limiting the ability of federal prosecutors to prosecute a person who has been prosecuted by the state for the same underlying facts. Under the Petite policy, federal prosecution is permitted only if (i) federal sentencing laws warrant prosecution, (ii) justice has not been attained, and (iii) federal prosecution is in the public interest. A federal prosecutor must obtain authorization from the U.S. Attorney General to proceed with a case that is identical to the state case.

Does a Cooperation Agreement Bind Prosecutors in Other Districts?

A cooperation agreement binds only the U.S. Attorney’s Office that signs the agreement. Other offices have the discretion to either honor the agreement or to prosecute the cooperating defendant. If the cooperator is willing to abide by the agreement, but the prosecutor’s office decides to ignore the agreement, that will generally trigger protection from the U.S. attorney’s office which signed it. A cooperator who accepts a cooperation agreement withoutexpress inclusion of all other federal prosecuting offices will be subject to a lawsuit for breach of contract in order to protect the terms of the cooperation agreement.

1. State Prosecutors and Civil Regulators

In general, state prosecutors and civil regulators can continue pursuing cases against you. A cooperation agreement with the federal government does not create immunity from civil regulation and enforcement.

2. Deportation and S Visas for Non-Citizens

If a non-citizen provides substantial assistance to federal authorities, he or she can request an S visa. These visas have a statutory cap and can only be granted to a limited number of informants each year. However, providing substantial assistance may not prevent deportation, as this is not a condition of most federal criminal prosecutions.

3. Cooperators Sentencings

Cooperators may face additional sentencing delays, as sentencings are commonly postponed until the completion of the cooperator’s testimony in criminal cases against other defendants. While this can prolong the duration of the sentencing, it also increases the cooperator’s likelihood of receiving sentencing relief, as their cooperation is more likely to be found substantial.

4. Cooperation Agreements for Those Who Are Not Defendants

Even if a potential defendant chooses to cooperate, a cooperation agreement may not necessarily protect that potential defendant if the decision to cooperate is made after a criminal case has been filed by the government. In that case, the decision to cooperate will typically carry far less weight, since the person will have already committed an offense for which they can be prosecuted.

5. Cooperator Protections and Civil Litigation in Texas and Other States

While some people choose to seek out information on cooperator protection programs after cooperating with federal authorities, most federal cooperators can seek protections through both the Attorney General’s Office and their state’s Attorney General’s Office.

In Texas, however, if the government decides to release the identities of cooperating defendants in civil lawsuits, this is generally allowed as civil litigants have a right to access information through the discovery process.

Will Other People Find Out That I Cooperated?

The standard practice for federal criminal cases is to file a sealed addendum for each plea; this process masks the fact that the defendant is cooperating.

In Giglio v. United States, 405 U.S. 150 (1972), the Supreme Court held that “the government has an affirmative obligation to disclose, upon request, an agreement with a witness to testify in exchange for a benefit.” As a result, anyone whom the cooperator implicates in his or her testimony or disclosures will typically find out about the deal.

The U.S. Marshals Service administers the Witness Security (WITSEC) program in conjunction with the Department of Justice. Admission into the WITSEC program is permitted only with the Attorney General’s approval under 18 U.S.C. § 3521. According to WITSEC, the program has protected more than 19,000 witnesses and their family members since it was created in 1971.

The Bureau of Prisons (BOP) also houses cooperating inmates in separate, highly secured units. The purpose of a protective witness unit is to reduce the risk of retaliation. While this is less risky than general population, it does not eliminate the danger for testifying cooperators.

The duty to provide information under the terms of a cooperation agreement is not limited to testifying against co-defendants. While cooperators generally testify against co-defendants, cooperators must also come forward with any relevant information that they have, including any crimes committed by relatives, friends, and other associates.

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 212-300-5196.