Life After Cooperation: Moving Forward After a Federal Case.

While federal cooperation can sometimes lead to a favorable outcome, it provides no guarantees. Even in a situation where the government agrees to support a downward departure or a request for a less-severe sentence, such a request requires a prosecutor’s motion. The U.S.S.G. states in § 5K1.1(a): “A departure under this section is available only if the government files a motion requesting a downward departure, and the court grants that motion.” As a result, the United States Attorney’s Office retains the sole discretion to decide whether to recognize the cooperator’s assistance as “substantial” and whether to file a motion on the cooperator’s behalf.

If the prosecutor decides that your cooperation was not substantial enough to merit a federal judge’s intervention, then the judge will sentence you according to the applicable guidelines. Also, even if the prosecutor does decide to file a substantial-assistance motion, the sentencing judge still has the authority to deny the request. Consequently, there are no circumstances in which cooperating with federal law enforcement guarantees a favorable outcome.

2. Are There Any Other Matters That Need to Be Considered?

While prosecutors only allow a limited range of issues to be settled in cooperation agreements, other important issues will often need to be resolved as well. One concern of this nature is whether it will be necessary for you to remain available to testify (or to testify at subsequent trials) after your sentencing. While this is normally required, this is an issue that will often need to be negotiated.

Another concern is that of personal safety, and this is not a matter that should be taken lightly. We will take this into account throughout our representation of you in your federal case, and we will be prepared to pursue witness protection if necessary. With witness protection, there are two possibilities: relocation or a new identity. In both cases, this option is available at the federal government’s discretion.

What can the government require after I am sentenced?

1. What Obligations Might I Still Have After My Sentencing?

One common obligation that arises after a cooperation agreement is a demand for a “full and truthful debriefing.” If the agreement requires you to provide testimony, then it will be necessary to maintain close contact with your prosecutors after your sentencing to make sure that you are present (or available via phone) whenever they may need you. This could mean testifying at a later date in a related criminal case or helping with the preparation of an appeal, and the extent of your obligations will largely depend on the specific language of your cooperation agreement and the practices of the district court.

2. How Can the Federal Government File a Post-Sentencing Motion to Reduce My Sentence?

As a result of the rules in Rule 35(b), the government has the authority to seek a reduction of a cooperator’s sentence in two distinct scenarios. The first scenario is under Rule 35(b)(1). According to this section, “Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.” With a motion under Rule 35(b)(1), the government may ask for a sentence reduction at any time within a year after sentencing.

The second scenario is under Rule 35(b)(2). According to this section, a prosecutor may seek a post-sentencing sentence reduction more than one year after sentencing if the defendant’s substantial assistance involved information not known to the defendant until one year or more after sentencing, information provided to the government within one year of sentencing that did not become useful until more than one year after sentencing, or information whose usefulness could not reasonably have been anticipated until more than one year after sentencing and that was promptly provided once its usefulness became apparent While federal court judges only permit Rule 35(b)(2) motions when the prosecutor can clearly prove that a defendant’s assistance is substantial, the possibility of such an outcome is an important aspect of federal law.

3. How Can the Government Reduce a Sentence Below the Statutory Minimum?

According to Rule 35(b)(4), a prosecutor can seek to have a cooperator’s sentence reduced below the statutory minimum, because “when acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute.”

4. What Happens if the Prosecutor or Cooperator Breach Their Agreement?

According to many federal cooperation agreements, a material breach on the cooperator’s part “shall relieve the government of any and all obligations it may have under this agreement.” With the government’s right to a material breach, the cooperator can face the full risk of a new and higher penalty. With the prosecution’s right to a material breach, however, the cooperator may have the right to a Rule 35(b) motion. When a prosecutor makes promises that are breached by the government, the cooperator may be entitled to a withdrawal of his or her guilty plea as a remedy. If this is not the desired remedy then, as a result of the Supreme Court’s ruling in Santobello v. New York, the court may seek to enforce “specific performance” of the promise if possible.

Can People Find Out That I Cooperated?

1. Where and How Can the Public Find Information About Federal Cooperation?

Yes, it is possible for others to discover that you cooperated in a federal case. Public court records such as unsealed plea agreements, sentencing memoranda, court transcripts, and docket entries may all make cooperation public.

While court filings are public, there are limits to the information they can contain. Federal Rule of Criminal Procedure 49.1 requires that parties redact certain types of personally identifiable information from their public court filings. This includes social-security numbers, taxpayer-identification numbers, birth dates, the name of any individual known to be a minor, financial-account numbers, and home addresses.

Another method of protecting a cooperator’s identity is by sealing the filing. Sealed filings are not available to the general public through a court’s PACER (Public Access to Court Electronic Records) portal.

In some cases, it may also be necessary to seek protective orders. Protective orders can restrict co-defendants’ possession or disclosure of discovery materials, which is important because discovery materials that are related to the cooperation of individuals may reveal information about co-defendants’ identities.

2. How Can I Get Access to Sealed Cooperation Filings?

When someone wants to see the contents of a sealed filing, he or she will generally need to obtain court authorization. It is usually necessary to obtain permission before accessing sealed court documents, and court authorization is usually necessary before presenting the contents of such files in court.

3. How Can Federal Prosecutors Obtain an Indictment Based on a Cooperator’s Testimony?

Once you provide prosecutors with information that they can use in a federal criminal prosecution, prosecutors will then take the information to a federal grand jury. A federal grand jury consists of 16 to 23 members. If the grand jury decides that the prosecutor has demonstrated probable cause to indict, it will return a true bill. An indictment is a document that formally states the federal criminal charges that the government is pursuing against its targets.

What should I do about cooperation-related threats?

1. What is the Witness Security Program?

The Witness Security Program addresses those who face “exceptional” threats. An exceptional threat is “one that is seriously endangering the life or safety of the cooperator in connection with the cooperator’s participation in the U.S. government’s prosecution or investigation of a criminal matter.”

2. When Can a Cooperator Enroll in the Witness Security Program?

According to 18 U.S.C. § 3521, “The Attorney General may provide for the relocation and other protection of a witness or a potential witness for the Federal Government or for a State government in an official proceeding concerning an organized criminal activity or other serious offense, if the Attorney General determines that an offense involving a crime of violence directed at the witness with respect to that proceeding, an offense set forth in chapter 73 of this title directed at the witness, or a State offense that is similar in nature to either such offense, is likely to be committed.”

3. What Are the Requirements for Participation in the Witness Security Program?

Participation in the Witness Security Program requires the execution of a memorandum stating that you understand the expectations and grounds for removal from the program. The memorandum states “that participants in the program are expected to comply with all program rules.” It further explains that the program may be terminated if “the Attorney General has reason to believe that a participant has made a materially false statement to the Department of Justice or any other member of the Witness Security Program,” “the participant has breached the program confidentiality rules,” “the participant has materially failed to cooperate,” or “any other situation that the Attorney General has reason to believe makes the participant’s continued participation in the program untenable.”

4. How is This Program Different from Other Forms of Witness Protection?

Unlike other forms of witness protection, the Witness Security Program is available only to those who are facing an “exceptional” threat. Additionally, although identity change is a protection measure, it is not necessarily automatically provided to anyone who is admitted into the program. Instead, “the U.S. government will make the decision to change a participant’s identity at its discretion.”

5. What Should I Do About Threats Which Are Not Considered “Exceptional”?

If you receive threats in connection to your federal case, even if you do not need to enter the Witness Security Program, you can still report them by calling 1-800-CALL-FBI or visiting tips.fbi.gov. As we discussed, it will also be critical to preserve any messages, usernames, dates, times, and screenshots that you may have so that the federal authorities can properly assess the level of threat to you, your family, and your associates.

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

How do prison credits affect my actual release date?

1. Why Is Parole No Longer Available in the Federal System?

There are no parole provisions for individuals who committed a federal offense on or after November 1, 1987, the effective date of the Sentencing Reform Act of 1984. Parole is a program that was created by Congress and administered by the U.S. Parole Commission, but it was abolished for individuals who commit federal crimes on or after November 1, 1987. In general, federal inmates can expect to serve at least 85% of their court-imposed prison sentence.

2. What Are Good-Conduct Credits, and Can They Be Lost?

Good-conduct credits are one type of good-time credits that can reduce your time in prison. According to 18 U.S.C. § 3624(b), “a prisoner may receive credit toward the service of the prisoner’s sentence of up to 54 days for each year of the prisoner’s sentence imposed by the court.”

Ineligible prisoners are those who have a term not exceeding one year, those serving a life sentence, and those with sentences that do not meet certain criteria. But even eligible prisoners can lose good-time credits, and even ineligible prisoners can earn some good-time credits by engaging in particular educational and rehabilitative program efforts in prison.

3. What are First Step Act Credits?

First Step Act credits are good-time credits that federal prisoners can earn by participating in programs that reduce recidivism in the community. While First Step Act credits are available under 18 U.S.C. § 3632(d)(4), they are available to prisoners who are not at high risk for recidivism, and they are available to prisoners who meet other statutory requirements as well.

4. What is Earned-Time Credit and When Can It Be Used?

Earned-time credit is an additional type of good-time credit that you can earn while participating in qualifying rehabilitative and educational programs. Earned-time credits can be used to enter “pre-release custody,” and they can also be used “to offset the amount of time on supervised release.” In both cases, however, you must be eligible to use earned-time credits under 18 U.S.C. § 3624(g).

5. Can I Get a Pardon or Commutation If I Receive Prison Time on Cooperation Charges?

Pardon or commutation are both forms of presidential clemency. With a pardon, you may not serve any time at all, and with a commutation, your prison sentence can be significantly reduced. But, as with other forms of relief in the federal justice system, presidential clemency is a discretionary relief, and you should speak with a federal criminal defense lawyer who understands the process and will know how to maximize your chances of receiving presidential clemency.

Can I end federal supervised release early?

1. What Is Supervised Release?

Supervised release is a term of federal supervision that courts commonly impose in addition to a term of imprisonment. Your supervised release is scheduled to begin after the imprisonment portion of your sentence. With supervised release, a court-appointed probation officer monitors your actions and conduct in order to determine if you are breaking the law or violating the conditions of your release.

2. How Can You Apply for Early Termination of Supervised Release?

Under 18 U.S.C. § 3583(e)(1), “the court may, at its discretion, terminate a term of supervised release if it is satisfied that a reduced or eliminated term is warranted by the defendant’s conduct and the interests of justice.” While this statute permits courts to terminate supervised release after one year, this is not an option for certain types of federal offenders.

3. What Factors Will Determine the Outcome of an Application for Early Termination of Supervised Release?

To determine whether early termination is warranted, courts will generally consider all pertinent factors under 18 U.S.C. § 3553(a). While there is some precedent for courts considering factors related to the cooperator’s efforts, generally, a request for early termination will depend on the cooperator’s conduct during his or her supervised release. Even when a cooperator has complied perfectly with his or her supervised release, judges have the discretion to deny an application for early termination.

4. What Are the Conditions of a “Reasonable Grounds to Believe Early Termination Is Warranted” Probation Officer Recommendation?

According to the federal judiciary’s early-termination policy, probation officers should ordinarily recommend termination after 18 months of supervised release for offenders who (i) have a “low risk of recidivism,” (ii) have no outstanding restitution or fines, and (iii) “have no compelling reasons for continued supervision.” However, as with many other aspects of supervised release, you must ensure that you meet all other statutory requirements.

5. What are the Implications of Granting a Motion to Terminate Supervised Release Early?

Granting a motion to terminate supervised release early ends supervision, which means you no longer have to satisfy conditions such as the home confinement or drug testing requirements of your plea agreement. This also means you are no longer at risk for an increased sentence as a result of violating your supervised release conditions. However, early termination only ends your supervision; it does not end the legal implications of the underlying conviction.

6. Is the Early-Termination Policy of the U.S. District Courts’ Probation Officers Binding on Judges?

While the federal judiciary’s early-termination policy guides probation officers’ practice, it does not bind sentencing judges’ decisions. When you file a motion to terminate supervised release, you will need to argue that your supervised release termination is consistent with your sentencing memorandum, and that you have an affirmative right to terminate supervised release before the end of your scheduled term.

Can immigration and restitution consequences continue after release?

1. Can Noncitizens Deported Because of a Federal Conviction Find Legal Protection with Federal Immigration Courts?

For noncitizens, there are both two possible outcomes to a federal investigation: either you are charged with a federal crime (or you receive a plea agreement that does not result in a federal conviction) or you are released without charges. While a federal conviction will likely result in an investigation by the U.S. Citizenship and Immigration Services (USCIS) and potentially an investigation by Immigration and Customs Enforcement (ICE), however, you may still be able to seek protection with U.S. Immigration Court.

The U.S. Citizenship and Immigration Services is an agency of the U.S. government that works with others within the U.S. Executive Branch, and it will work with immigration attorneys. With a successful application for protection, you may be able to stay in the U.S. without the risk of being deported or facing inadmissible status.

2. Can Noncitizens Fight Deportation in Immigration Courts?

Depending on the circumstances involved, you can potentially avoid deportation even if you are found to be a noncitizen who is deportable under 18 U.S.C. § 1227(a)(2). Immigration law is extremely complex, and there are many different types of legal defenses that will apply in individual cases. When working with an experienced immigration defense lawyer, you may be able to secure a stay in the U.S. even if you have committed a federal crime that makes you deportable.

3. Can Federal Restitution Obligations Be Discharged in Bankruptcy?

While federal restitution is generally not dischargeable in bankruptcy, it is important to remember that many types of debt (such as private loan payments) are dischargeable. However, federal criminal restitution is listed as a non-dischargeable debt under U.S.C. § 523(a)(13), meaning you will still have an obligation to pay it, even if you file for bankruptcy.

4. Can You Get a Reprieve for Your Restitution Obligations After Your Prison Sentence?

While a material breach of a restitution order gives prosecutors the authority to enforce the judgment in full, the federal government allows defendants who have restitution judgments to make payments according to their ability to pay (such that they do not “endure a loss of basic needs as a result of a restitution order”). If you seek a payment plan from the probation office, you will be able to make payments when you have the ability to make them, and your payments will go towards your total amount due. While you can have a restitution judgment that remains for the rest of your life, you can minimize the penalties for not being able to pay.

5. Can You Get Your Voting Rights Back After a Federal Conviction?

Although U.S. Law does not make blanket voting restrictions on federal offenders, voting rights restoration are largely dependent on the laws of your state. As a result, you will need to speak with a federal lawyer who knows how to file your voting registration application with your local election officials or your state’s voter registration office to get your voting rights back.

How can I rebuild work and correct federal records?

1. How Will a Federal Conviction Affect My Career Opportunities?

For most federal offenders, a federal conviction will create difficulties in employment and occupational licensing. The consequences for professional licensing depend on the specific license in question, the specific offense for which the individual was convicted, and the jurisdiction in which the licensing was pursued. For example, a federal felony conviction can result in a professional license being revoked in many circumstances.

As a result of these complications, employers will often ask about criminal convictions on employment applications. While you should always be honest when answering these questions, you will also want to be cautious not to give information that is not warranted.

2. Are Reentry Programs Available for Federal Offenders?

Reentry programs are available to help federal offenders transition back into society after a federal criminal case. Many programs provide job training and job placements, while others are focused on housing and social services. Some programs offer assistance with education or mental health and substance abuse counseling, and you can find out about available programs by reaching out to your local probation office.

3. Can I Seek Expungement of My Federal Record?

While expungement and sealing are potential options for state offenses in many cases, the expungement or sealing of a valid federal conviction is extremely uncommon. In most circumstances, the federal government will not wipe you’s clean, and expungement or sealing is typically only an option if the underlying case was dismissed or the prosecution determined that the defendant did not commit the offense.

4. Can I Challenge My FBI Criminal History Summary?

A federal criminal record is not something that can be erased, and so, the federal records in your FBI identity history summary cannot be eliminated. However, under 28 C.F.R. § 16.34, you can file a request for a “correction of a record” if you can demonstrate that the record “is incomplete or is erroneous.”

5. How Do Criminal Record Background Checks Work?

Criminal record background checks are a common feature of federal cases, and the results can vary depending on the database covered by the background check company, the scope of the search, the state laws governing background check reporting, and the accuracy of the government records. If your federal record is inaccurate, then correcting it with the FBI can potentially improve your background check results.

6. How Can I Address an Extended Gap in My Career History?

Along with a criminal record, an extended workforce absence can present difficulties during job hunts, and so, you may need to address both challenges in your career reentry process.

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.