How to Get a Non-Prosecution Agreement Through Cooperation.

A federal non-prosecution agreement is a prosecutor’s promise not to pursue charges provided that you meet specified conditions. It is essentially a contract: you agree to fulfill the conditions specified in the NPA in exchange for the promise that you will not be charged with the offenses covered by the agreement.

1. Determining Whether You Are Eligible for an NPA

While an NPA can be a powerful tool in resolving a federal criminal investigation, no defendant has a legal entitlement to obtain one. There is no legal requirement for the DOJ or other federal agencies to offer an NPA regardless of the circumstances.

2. Determining What Information the Government Values

If you are considering seeking an NPA, one of the most important factors to consider is the value of information you have in your possession. To secure an NPA through cooperation, you must show the government that the information you have is unique, corroborable, and helpful to its investigation. New, corroborated information generally carries more value than evidence that is already known to the federal authorities. Even the same piece of information can carry more value if you are in a position to provide a strong source to back up its veracity.

3. Protecting the Information You Have

4. Protecting Your Attorney-Client Privilege

5. Assessing the Risks of Your Prosecution

6. Negotiating the Scope and Protections of the NPA

7. Determining the Terms of the NPA

8. Negotiating Your Duties Under the NPA

9. Determining the Consequences of Breach of Your NPA

10. Negotiating the Remedies for Inadvertent Breach

11. Ensuring Compliance with the NPA and the Government’s Cooperation Expectations

How is an NPA Different from Other Types of Federal Cooperation Deals?

A federal non-prosecution agreement differs from a deferred prosecution agreement (DPA) primarily in that NPAs generally produce neither filed charges nor a criminal conviction. A DPA, by contrast, typically suspends prosecution of a filed criminal charge; while a DPA may be entered into prior to filing, it will eventually lead to the filing of charges. After a DPA is entered into, Rule 48(a) of the Federal Rules of Criminal Procedure requires court permission to dismiss the filed charges.

Unlike a cooperation plea, which necessarily leads to a conviction (usually followed by a request for a substantial-assistance departure), securing an NPA generally serves to avoid a conviction in all but extraordinary circumstances.

While prosecutors can grant defendants transactional and use immunity during investigations, prosecutors rarely grant immunity without some form of agreement in return. Transactional immunity bars prosecution for the specified crimes covered by the grant of immunity; use immunity bars only the use of protected information in prosecution for the specified crimes covered by the grant, while leaving the possibility of prosecution using independent, non-protected evidence.

Rule 11 of the Federal Rules of Criminal Procedure governs plea agreements, and it does not apply to NPAs or pre-charge proffer sessions.

The federal prosecutor’s decision to decline a charging recommendation is different from entering into an NPA. A declination is a charging decision rather than a contractual promise, and it does not create continuing contractual obligations or duties.

Under U.S. Sentencing Guidelines § 5K1.1, a downward departure is available only if the government makes a motion with the U.S. District Court explaining that the defendant provided substantial assistance. An NPA generally avoids the need for such a motion by resolving the investigation without filing criminal charges.

How Should My Lawyer Offer Cooperation to Federal Prosecutors?

1. Determining the Appropriate Type of Cooperation Agreement

2. Initiating the Process and Scheduling an Interview

3. Delaying Disclosure to Maximize the Usefulness of Cooperation

4. Being Truthful (and Thorough) About the Information in Your Possession

5. Determining Whether Your Cooperation Will be Helpful to the Prosecution

6. Assessing the Prosecution’s Confidence in Its Ability to Secure a Conviction

7. Assessing the Prosecution’s Interest in Pursuing the Case

8. Determining Whether Prosecution is Warranted

9. Determining Whether a Federal Prosecution is Warranted

What Protections Should I Demand Before a Federal Proffer?

Most proffer letters contain language that restricts the federal prosecutor’s ability to directly use your statements against you in a subsequent criminal prosecution, subject to certain (negotiated) exceptions. This is a key difference between federal prosecutors in the DOJ and other federal agencies and those at the state level. While state prosecutors rely heavily on formal “use immunity” protections for interviews, federal prosecutors can and do negotiate broad restrictions on direct use in their proffer letters.

Even where proffer letters include language prohibiting direct use, they typically leave open the possibility of using your statements to derive leads to other evidence. Federal prosecutors generally use derived information and independently obtained evidence without any prohibition. Even if prosecutors agree not to introduce statements at trial, they may still be able to use statements made during interviews to impeach your testimony, provided that they have independent corroboration.

3. Avoid Lying to Prosecutors

Crucially, making false statements during a federal proffer session is a crime under 18 U.S.C. § 1001. Even with a proffer letter in place, you must be truthful about the information you possess (and the information you have not obtained). Even if a proffer session ultimately does not lead to federal charges, lying to the federal authorities can put you at significant risk.

4. Assess the Ability to Prevent Derivative Use

While statutory immunity under 18 U.S.C. § 6002 (the “immunity” often discussed in media reports and law enforcement television dramas) bars the government from using your compelled testimony or any evidence derived from it against you, it is not an absolute bar to prosecution, because the government may still proceed on evidence drawn from a wholly independent source; and these protections are typically reserved for situations in which they are necessary to compel your testimony. In negotiations for an NPA, ordinary proffer letters tend to offer protection against the direct use of the information disclosed, although they do not typically prohibit the “derivative use” of such information.

5. Review and Negotiate the Proffer Letter

One important advantage of working with a skilled defense lawyer in federal investigations is that your lawyer can review and negotiate the proffer letter before you are questioned. An experienced defense attorney can ensure that the proffer letter includes all necessary (and appropriate) protections, and he or she will only advise you to proceed after they are confident that your interests are adequately protected.

6. Seek Protection Before Disclosing Incriminating Information in an Attorney Proffer

If your lawyer conducts a “lawyer-to-lawyer” proffer, be extremely careful about disclosing potentially incriminating information. Any protection an attorney proffer receives comes only from the specific protections that prosecutors expressly agree to provide. Unless you are confident that your statements are fully protected, an attorney proffer may not be appropriate.

7. Address the Protection of Rule 410 of the Federal Rules of Evidence

A proffer session or interview could, under certain circumstances, potentially be protected under Rule 410 of the Federal Rules of Evidence. However, in United States v. Mezzanatto, the U.S. Supreme Court expressly held that Rule 410’s protection does not apply when parties agree to waive this protection in a proffer agreement. Rule 410 does not protect every interview that a prosecutor calls a “proffer session.”

Todd Spodek is the managing partner of Spodek Law Group, a second generation criminal defense firm that has been practicing since 1976.

What Should I Tell My Lawyer Before Cooperating?

1. Give Your Lawyer All the Facts and All Your Concerns

The attorney-client privilege is a cornerstone of our legal system. This privilege generally permits (and requires) your attorney to receive all the information necessary to advise you, including details of any misconduct that you committed in the past. Your attorney, in turn, is generally prohibited from disclosing this information to anyone without your express (or implied) consent. However, keep in mind that the attorney-client privilege protects only confidential communications; it does not cover the underlying facts about your conduct.

2. Discuss Any Legal Issues You Have Had with Your Company’s Attorneys

Confidential communications with attorneys and their assistants, paralegals, and investigators are generally privileged. However, as noted above, the privilege applies only to communications made in confidence for the purpose of obtaining legal advice or representation. As a result, discussions with your company’s attorney regarding a proposed crime or tort will not be protected by the attorney-client privilege. If you are concerned about potential issues, you should discuss them with your defense attorney before engaging with company attorneys.

3. Only Meet with Your Attorney and Those Who Need to be Present

Unnecessary third parties’ presence during your meetings with your attorney can defeat confidentiality and the attorney-client privilege in some (and many) cases. It is important that you meet with your attorney privately and that you do not reveal your attorney’s advice to anyone without your attorney’s specific guidance.

4. Consider Whether Your Company’s Attorney Really is Your Lawyer

Your company’s attorney represents your company; he or she does not represent you unless your company’s attorney separately and expressly agrees to do so. If your company’s attorney does not represent you, you cannot control your company’s attorney-client privilege and you cannot waive it. In many cases, an employee who is involved in a company’s alleged criminal activity can inadvertently waive the corporation’s privilege without knowing the corporation has a privilege to be waived. As a result, corporate counsel may be entitled to disclose everything you told them when they interviewed you on behalf of your company.

For example, say you are suspected of having participated in some form of employee misconduct at your company. Your company’s attorneys interview you about this matter, and then you decide to seek representation with federal authorities in exchange for an NPA. This doesn’t automatically protect you if the government wants to obtain your interview with your company’s attorneys. If your company has a privilege to keep that information confidential, then company counsel can disclose the information to the federal prosecutor during the investigation if the corporation retains the privilege.

5. Think About What You Will Do in Court

While cooperating in order to seek an NPA, it is important to remember that you will eventually have to prove the assertions you made to the government under oath. Even though you have an NPA, opposing counsel will be able to cross-examine you using any prior inconsistent statements you made during proffer sessions, and they will be able to attack your credibility as a witness as well. While your defense attorney can help protect against this, it is one of the important factors to consider when seeking an NPA.

What Must My Federal Non-Prosecution Agreement Cover?

Cooperation agreements must define what (if anything) qualifies as sufficient cooperation. The negotiated terms may include requirements regarding the types and sources of disclosure, types of testimony, types of documents that must be produced, and the nature and extent of any continuing-assistance duties. As a result, you will not know whether you have sufficiently fulfilled your duties under the cooperation agreement unless it defines those duties and requirements with reasonable certainty.

3. Determining the Financial and Equitable Terms of the NPA

While most corporate NPAs include financial provisions (restitution, forfeiture, penalties, etc.), most individuals who receive NPAs will not face financial requirements. However, NPAs can impose a wide range of substantive obligations. For example, the negotiated terms of a corporate NPA may include requirements related to remediation and changes to internal policies and procedures. While individuals who seek NPAs for criminal activities are less likely to have these types of obligations, they are not unusual. When negotiating your NPA, you will need to consider whether the obligations it seeks to impose are reasonable and just.

Federal NPAs, unlike most deferred prosecution agreements, do not typically receive judicial approval, and they rarely involve routine judicial supervision. As a result, they are enforced by their parties contractually, not by courts.

While a federal NPA is binding in criminal cases, its effectiveness depends on what (if anything) the government and the defendant agree to. The parties can make the NPA completely confidential or have it be fully transparent. They can make the NPA an “admission-free” agreement or allow it to contain detailed admissions of wrongdoing. These admissions can have significant implications beyond the criminal law; and you should consider how your statements can be used in any pending or future civil, regulatory, licensing, or employment matters.

If the NPA contains an integration clause, you will not be able to rely on the oral assurances of the federal prosecutor when seeking to hold the government accountable for the promises it made to you prior to the execution of the NPA.

An NPA’s coverage can be limited in any number of ways. The parties can negotiate coverage limited to one or more specified offenses, conduct that occurred within a specified time frame, one or more specified persons or entities, or one or more federal offices or agencies. While the government will often seek to limit its obligation to not prosecute to the “reasonable expectations” it has regarding your conduct in exchange for your cooperation, these reasonable expectations could be broad or they could be narrow.

An NPA may toll the statute of limitations applicable to prosecution. As a result, the government will not be barred from prosecuting you for a violation of the NPA’s obligations even while your cooperation remains ongoing. The government will not want to be limited to prosecution within the statute of limitations when dealing with possible violations of the NPA, and you and your defense attorney will want to limit the government’s authority to hold you accountable for violations of the NPA indefinitely.

What Happens If Prosecutors Claim I Breached the NPA?

If the federal prosecutors claim that you breached your obligations under a federal non-prosecution agreement, the consequences depend on the agreement’s terms. A material breach of the agreement can excuse the government from its non-prosecution promise. The government, in turn, can then seek to impose criminal or civil penalties for any offense for which it had previously agreed not to prosecute you. In many cases, a post-breach waiver may also require you to waive any statute of limitations defenses that you would have otherwise had in a prosecution.

2. Ensuring That You Know How a Breach is Determined

While prosecutors and defendants can agree to several different mechanisms for determining whether you have breached your NPA, some federal prosecutors prefer to reserve sole discretion for determining whether you have breached your NPA (or to reserve the right to “unilaterally” determine whether you have breached it). While federal prosecutors will not typically agree to let you decide whether you have breached the NPA, a negotiated NPA should include reasonable provisions to prevent prosecutors from unfairly denying you the benefits of the NPA. This may include provisions that require:

• The government to provide written notice of the alleged breach (with a reasonable opportunity to cure the breach before the NPA terminates);
• The government to give you an opportunity to show “good cause” for your alleged breach (and to rebut any evidence the government uses to support its breach allegation); and/or,
• The government to show proof of a breach by some standard of evidence (e.g., clear and convincing evidence).

3. Limiting the Consequences of an Alleged Breach

NPAs can make various provisions regarding the consequences of a breach. While some NPAs explicitly deny the possibility of using admissions contained in the NPA in the event of a breach, others expressly authorize this (or leave the door open for such a possibility). With an agreement that allows the direct use of admissions in a subsequent prosecution, you will need to be very careful about what you agree to say as a “fact” in your NPA, as these statements may be used against you in court if the federal prosecutors claim that you breached the agreement.

4. Selecting the Appropriate Standard of Proof for a Breach

NPAs may specify the appropriate standard of proof (i.e., “clear and convincing evidence” or a “preponderance of the evidence”) for proving a breach of the agreement. When negotiating your NPA, you will want to consider whether these standards of proof, along with the mechanisms for enforcing the NPA, are sufficient to protect you.

5. Seeking Dismissal if a Federal Prosecution Violates an Enforceable NPA

If a prosecutor brings a criminal charge in violation of an enforceable NPA, one of your legal options may be to seek dismissal based on the terms of your NPA. This can be a challenging approach, and it will typically require clear-cut evidence of the existence and breach of an enforceable agreement.

6. Understanding the Limits of Your Prosecution Protections

When you fight to hold federal prosecutors to the terms of an enforceable NPA, you will need to do so within the constraints of the Constitution and the applicable statutes. However, prosecutors’ discretion to pursue criminal charges is not unlimited; and your defense lawyer can hold prosecutors accountable for failing to honor an enforceable agreement as appropriate.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.