How Long Does the Federal Cooperation Process Take??

While it is possible to get to the resolution of an agreement to cooperate, it generally takes longer to conclude a case through cooperation than through other means. This is typically because the timeline of the cooperation process follows the timeline of the target cases in which you have volunteered to help the government, rather than your case (or your plea), which will likely go to resolution much sooner.

Here is a rough example of the timeline of cooperation:

• An attorney-defendant meets with prosecutors at a proffer session. At this stage, you are still thinking about offering cooperation, you have not yet plead guilty, and you are still subject to the same consequences you would be if you pleaded guilty at the first opportunity.
• You decide to cooperate in exchange for a deferred or suspended sentence. Your attorney negotiates and enters into a cooperation agreement with prosecutors. You then plead guilty to a criminal charge at a negotiated sentence.
• You assist the prosecution of others. In these cases, the government is likely to keep your case open through deferred sentencing until the resolution of the case(s) you are involved in. This process can take months or years depending on the prosecutor’s willingness to enter a motion for sentence reduction.

That being that, it will be too early to say how long the cooperation process will take to result in a sentence reduction. This time is also measured in months or years, with the end date of the process being when the sentence reduction is approved.

How Does the Trial Process and Speedy Trial Act Affect the Timeline for Resolution?

Indictment-to-trial estimates are not a measure of the time from initial proffer until sentencing. Also, the timeline is influenced by the Speedy Trial Act. The Act requires an indictment within 30 days of an arrest and a trial within 70 days of an indictment or first appearance. Additionally, the trial cannot begin less than 30 days after the defendant first appears through counsel unless the defendant consents in writing to the contrary. However, due to the ends of justice continuances under §3161(h)(7), this 70-day clock gets suspended routinely.

Why can a cooperator’s sentencing be delayed for months? Why does the cooperation agreement explicitly state that sentencing will take place after all other criminal proceedings in the government’s target case conclude?

The sentence reduction is the main reason for cooperating, but the cooperation has no defined date for when the cooperation will end and the sentence reduction motion will be filed. Instead, it depends on the target cases’ outcome. A cooperation agreement that says a sentence is reduced if the government thinks a target’s sentencing is over makes you wait until there is a target’s sentencing for the agreement to be in effect. But, the case can be over before it actually concludes.

What Is a Typical Cooperation Timeline and Why Are Not All Aspects of it Defined?

While cooperation agreements outline all obligations and outcomes, no specific timeline is provided. Here is a breakdown of why.

• Cooperation may not be a one-off interview. Multiple debriefings spread across several months are usually required, depending on the number of targets you implicating in the investigation.
• Cooperation’s value is determined by its investigative usefulness. If all individuals you implicate decide to plead guilty, your testimony is no longer needed, and the case should end as soon as your attorney requests the termination of your cooperation.
• In some cases, the cooperation process involves resolving the criminal case in which you plead guilty. These are cases where the prosecution takes time to gather more information, even though your cooperation is no longer necessary.
• Cooperation obligations can persist. While the investigation’s value collapses upon a guilty plea, your cooperation obligations are not resolved just because you’ve testified at the trial. You could be required to testify during retrials and appeals if a defendant’s sentence is reversed.

Are Cooperators Bound to Remain in Pretrial Detention?

Federal sentencing allows for pretrial detention and credits the time served under 18 U.S.C. §3585(b), so the prosecution is able to obtain a sentence reduction even if the case stays in its current stage. However, cooperators’ time are also bound to remain in protective segregation if they are in pretrial detention while they are cooperating.

Is Sentencing Mandated Immediately Upon Entry of a Plea in a Case or When Guilty?

The federal rules of criminal procedure state that sentencing should occur without unnecessary delay, but it does not say when it should happen. With criminal plea agreements, the guilty plea is entered, and the date for the sentence is set during a sentencing hearing.

Generally, cooperation involves the cooperation of the attorney-defendant during the period of the sentencing hearing. Therefore, it will be resolved after the criminal case, as specified in the cooperation agreement.

Do All Federal Prosecutors Agree with Cooperation?

Not all federal prosecutors agree with cooperation agreements. Due to charging priority, some prosecutors decide to accept cooperation agreements and others not to. This is common if a prosecutor takes over a case. They must be given a chance to evaluate whether the cooperation agreement is in their best interests. If they decide not to approve the agreement, they could try to file motion of charge extension, or even bring the case to trial. While cooperation is one of the best ways to avoid federal sentencing guidelines, it does not ensure that you are safe from the law. It is important to make sure that all prosecutorial conditions are met and that the federal prosecutor is approved to pursue a cooperation agreement in your case.

When Can Prosecutors File Each Federal Cooperation Motion?

Rule 35(b) gives prosecutors a way to request a sentence reduction of a defendant’s prison term if the prosecutor files their motion within a year after the sentencing in federal court. However, the one-year mark is important, as after one year, prosecutors can only request a sentence reduction if they obtained information from the defendant that they did not obtain before and had significant value.

As described, Section 5K1.1 and Rule 35(b) serve the same purpose: the request for a reduction of the defendant’s prison term based on providing substantial assistance to the prosecution. They differ in when they are used. Generally, prosecutors cannot seek a substantial assistance reduction under Section 5K1.1 of the U.S. Sentencing Guidelines after a defendant’s sentence has been handed down. Instead, prosecutors can only file Section 5K1.1 motions prior to sentencing, after which the applicable mechanism shifts to Rule 35(b).

When Does Section 3553(e) Come Into Play?

With federal crimes, mandatory minimums can be a considerable problem for many defendants. Prosecutors do not have the discretion to seek a sentence below the statutory mandatory minimum without filing a Section 3553(e) motion. A Section 3553(e) motion requires that, upon due consideration of the various factors listed in the statute, the sentencing court determines that the statutory mandatory minimum is greater than what is necessary for the statute’s purposes (e.g., deterrence and sentencing based on the severity of the offenses committed).

In Melendez v. United States (1996), the U.S. Supreme Court held that Section 5K1.1 does not allow sentencing courts to impose terms of imprisonment less than that required by a mandatory minimum. Only motions under Section 3553(e) authorize sentencing courts to impose sentences below the statutory mandatory minimum based on substantial assistance.

What Are the Legal Requirements for Prosecutors to File These Motions?

Prosecutors have broad discretion when filing motions for sentence reductions under Section 5K1.1, Section 3553(e), and Rule 35(b). Generally, prosecutors have absolute discretion to determine when (or if ever) to file these motions. The only exception is provided in Wade v. United States (1992). In Wade, the U.S. Supreme Court found that judicial review of a prosecutor’s decision not to file a sentence reduction motion is only permissible in rare cases in which a defendant presents clear evidence of an unconstitutional prosecutorial motive.

The possibility of a Wade hearing is highly theoretical. The burden to demonstrate an unconstitutional motive lies with the defendant, and a Wade hearing will only be granted if the defendant provides a “substantial threshold showing” of impropriety by the prosecutor. Given the broad discretion afforded to prosecutors, this threshold is rarely met.

How Do These Motions Affect Defendants’ Prosecution?

Section 5K1.1, Section 3553(e), and Rule 35(b) all require that the government first initiates the process by filing a motion with the court. Defendants cannot initiate these requests independently. This means that in each of these cases, the defendant remains completely dependent on the prosecutor to make a favorable determination on whether the defendant’s assistance was substantial. Prosecutors hold an extra set of “trump cards” by controlling all three mechanisms, each offering varying degrees of sentence reductions. While these motions are a powerful tool for defendants who cooperate, prosecutors have absolute discretion in determining if a motion will be filed.

Todd Spodek and the attorneys at Spodek Law Group handle federal cases of this kind from New York, Brooklyn, Queens and Los Angeles.

What Can Go Wrong During Repeated Cooperation Debriefings?

For some cooperators, there are numerous risks. In United States v. Mezzanatto, 513 U.S. 196 (1995), the United States Supreme Court upheld Rule 410 proffer protection waivers. Since then, federal prosecutors have been asking prosecutors to waive their protections in order to make the agreement effective. With these waivers, prosecutors can introduce a cooperator’s proffer statements into evidence even though these statements are still used for purposes of investigative leads and impeachment.

As a result, proffers that were previously considered protected statements are not for defendants who waive Rule 410 protections. While prosecutors can use these statements for investigative leads and for impeachment in court, the consequences of breaching a cooperation agreement are very different. With a breach, the prosecutors can go even further, using these statements to support a criminal case.

Are Federal Agents Allowed to Summarize What the Witness-Defendant Proferred to them?

There are FBI agents’ summarizes, known as FD-302 debriefing memoranda. These summaries are typically used as evidence of the defendant’s statement, rather than the statements themselves. However, over the course of several debriefings, witnesses can make inconsistent statements. With each FD-302 obtained by the defense through a Jencks Act request, the risk of impeachment increases.

Could Falsifying Statements During a Cooperation Debriefing lead to More Serious Charges?

Yes. When you provide information during a cooperation debriefing, you certify to the federal government that the information is true and accurate. If it is discovered that you knowingly provided false information, you can be charged with an additional federal offense for providing false statements to agents of the government. Furthermore, the federal sentencing guidelines contain a provision for obstruction of justice and allows for a two-level enhancement under §3C1.1.

Are There Constitutional Requirements and Penalties for Cooperating with a Prosecution?

Witness-defendant cooperators are subject to the Giglio rule. The Giglio rule requires the prosecution to disclose any promised benefits to cooperating witnesses. To avoid any potential issues with a criminal trial, prosecutors must disclose any promises, inducements, or benefits given to a cooperating witness before that witness testifies.

With the Jencks Act, witness statements are withheld from the defense until a witness finishes testifying during direct examination. Once this process is complete, the witness’s prior statements to the government are produced and can then be used for impeachment.

What Are the Risks of Cooperation?

The risks of cooperation involve providing false testimony and risking your identity. The Witness Security Program allows individuals to be relocated under the administration of the U.S. Marshals. Witness relocation under 18 U.S.C. §3521 must follow strict protocols to ensure that the witness’s safety and identity are protected.

How long can an uncharged federal investigation remain open?

The Speedy Trial Act imposes no deadlines or time limits before an indictment is filed. Until there is an indictment, there are no time limits imposed by the government to investigate, seek grand jury indictment, or secure prosecution.

Grand juries sit for 18 months. They can be extended six more months under Rule 6(g). As a result, the government generally can keep an investigation going for at least 24 months. This timeline may be longer if grand jurors are subpoenaed, the grand jury doesn’t meet immediately, or an extension is required by the court under the grand jury’s impanelment. Due to Grand Jury Secrecy Rule 6(e), this process is done in complete secrecy without notice to the target of the investigation.

What is the statute of limitations for federal crimes?

With most federal felonies, there is a statute of limitations period imposed by 18 U.S.C. §3282. This statute says the limitations period is five years unless otherwise provided. Thus, the government must seek grand jury indictment before five years pass following the time the offense is committed. This period can be suspended up to three years in order to obtain evidence located in foreign countries, which may require formal request and approval under 28 U.S.C. §3292.

Regarding conspiracy allegations, the date the conspiracy began does not matter. The limitations period runs from the date of the last overt act in furtherance of the conspiracy. As a result, the prosecution can extend the limits to include early overt acts that occurred years prior, potentially before the conspiracy itself began.

In conspiracy cases, sealed indictments can also be a tool to stop the limitations period before a target finds out he or she is facing charges. As a result, an indictment that has been sealed for months or years can finally go forward when evidence from previous cooperators is finalized.

What if the government takes years to secure a grand jury indictment?

Due to these facts, pre-indictment delay is generally not a defense to prosecution. A person who is facing charges can only assert pre-indictment delay is unconstitutional if they can prove actual prejudice to their defense, that the government’s pursuit of the indictment was based on a deliberate tactical advantage, and that this combination caused the prosecution. As noted above, the evidence of pre-indictment delay is hard to obtain and even harder to substantiate. It is far more common for the prosecution’s delay of the indictment to be viewed as legitimate investigative steps or to follow the statutes of limitations.

How Often Does Cooperation Actually Reduce a Federal Sentence?

Recent federal sentencing data shows that approximately 1 in 10 sentenced federal defendants receive a substantial assistance reduction. While not an obvious statistic, this demonstrates the fact that cooperation is relatively common in federal criminal cases. Substantial assistance departures have historically, on average, cut a defendant’s sentence in half.

Section 5K1.1 expressly requires that the court take into account the timeliness of the cooperator’s assistance. If you are one of the first cooperators and you give the government an unknown investigative lead, you earn far more credit than the latter cooperators who provide a confirmation of what the agents already know. This fact reinforces the adage that you should approach your case with the assumption that you are the one who is in good standing to cooperate with federal prosecutors.

What is the Relationship between the Sentencing Guidelines and Federal Judge’s Decision Making Power?

The Sentencing Guidelines were created to equalize sentencing based on defendants’ backgrounds and the offense committed. But in the 2005 United States Supreme Court’s decision in Booker v. United States, the Court held that the Guidelines are advisory rather than binding. This means that federal judges can depart and deviate from the Guidelines as long as they explain their reasons with the sentencing court. This shift in federal criminal practice means that federal judges now have more discretion than ever before.

What Percentage of Federal Defendants Reach a Final Outcome for Their Criminal Case?

Recent data shows that approximately 90% of federal defendants plead guilty and accept responsibility. About 8% of the federal cases are dismissed by the prosecution without a guilty plea and 2% of defendants go through a jury trial process.

Thus, the majority of defendants who think about facing criminal charges should make decisions based on a plea-guilty approach rather than one of contesting the charges before a jury. However, pleading guilty is not the only option available for individuals who want to avoid federal sentencing and prison. With cooperation, it is the same thing: once again, the defendant can take advantage of the federal prosecutor’s approach in their best interests.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.