Negotiating the Best Cooperation Agreement With Federal Prosecutors.

1. Specify the Statute

The federal government typically requests a sentencing departure for cooperator defendants under 18 U.S.C. § 3553(e). This is the only federal statute that allows federal judges to impose sentences below the statutory minimum, and it expressly requires a government motion.

2. Require a Government Motion

Regardless of whether the government provides a § 3553(e) or Section 5K1.1 sentencing benefit to a cooperating defendant, it must file a motion seeking a substantive departure. Without this motion, the sentencing judge lacks the authority to impose a sentence below the statutory minimum.

3. Request Section 1B1.8 Protections

The protection provided under Section 1B1.8 applies if (i) the defendant’s written agreement provides for protection “at the time of the agreement” and (ii) the defendant does in fact provide self-incriminating information concerning the unlawful activities of others pursuant to that agreement.

4. Ensure the Agreement is Binding on Prosecutors

A federal cooperation agreement is a contract. As a result, it binds both the defendant and the government that signed it, although the sentencing judge is not a party and retains discretion to determine the defendant's sentence.

5. Act Quickly

A timely cooperation agreement is essential. Under Section 5K1.1(a)(5), the federal sentencing guidelines require defendants’ cooperation to be “timely” to qualify for a sentencing reduction. This is one of the key reasons the first cooperator typically fares the best.

6. Do Not Go to Trial

Avoid taking your case to trial. The statistics prove that most cases are resolved without a trial:

• Plead Guilty: Roughly 90%
• Dismissal: Roughly 8%
• Take Your Case to Trial: Roughly 2%

Federal factfinders (juries or judges) convict roughly 83% of defendants in criminal cases.

Can cooperation reduce a federal mandatory minimum sentence?

The U.S. Sentencing Guidelines § 5K1.1

Under the U.S. Sentencing Guidelines § 5K1.1, federal judges are authorized to depart below a defendant’s guideline sentence “if the defendant has provided substantial assistance in the investigation or prosecution of another person.” If your sentence is subject to a statutory mandatory minimum, you can also use the substantial assistance provisions in the U.S. Sentencing Guidelines to seek a sentence reduction by negotiating a § 3553(e) departure.

How Does a § 3553(e) Reduction Work?

As discussed above, apart from the safety valve at 18 U.S.C. § 3553(f), the only way for a federal judge to impose a sentence below a statutory mandatory minimum is for the government to file a § 3553(e) motion. However, the size of the reduction granted under Section 3553(e) must be based solely on the assistance provided by the defendant, and not on any other factors.

How Do Federal Judges Value a Defendant’s Assistance under USSG § 5K1.1?

Section 5K1.1(a) lists five factors that judges must consider when assessing the value of a defendant’s assistance in seeking a substantial assistance departure:

• Usefulness: The value of the defendant’s assistance to the government, and how it contributes to the prosecution of other offenders.
• Truthfulness and Completeness: The degree to which the defendant was honest and cooperative with the government.
• Extent of Assistance: The degree to which the defendant assisted with the investigation.
• Danger or Difficulty: The risks involved in the defendant’s assistance.
• Timeliness: The timing of the defendant’s cooperation.

What is the Maximum Sentencing Benefit of a § 5K1.1 Departure?

Unlike many other provisions in the federal sentencing guidelines, Section 5K1.1 has no numerical ceiling. A federal judge can use a Section 5K1.1 departure to reduce a defendant’s guideline sentence to any amount, including probation.

What Percent of Federal Defendants Receive a § 5K1.1 Departure?

Based on the United States Sentencing Commission’s most recent data, about one in ten federal defendants receive a substantial assistance departure under Section 5K1.1. On average, these departures cut the guideline sentence in half. However, the rates of substantial assistance vary widely across the country. In federal districts where judges do grant substantial assistance departures, the rates vary from under two percent to over forty percent.

Can a Judge Reach Below a Statutory Mandatory Minimum without a § 3553(e) Motion?

Broad discretion is not a free pass. The sentencing judge’s general discretion under 18 U.S.C. § 3553(a) still doesn’t allow judges to reach below a statutory mandatory minimum sentence without a government motion under Section 3553(e). When facing a mandatory minimum sentence, a defendant who does not qualify for the safety valve under 18 U.S.C. § 3553(f) has only one option: a government departure motion under § 3553(e).

How can I proffer without making my case worse?

1. Request Protections under USSG § 1B1.8

Under the U.S. Sentencing Guidelines, the government must follow the guidelines’ rules for credit. Specifically, Section 1B1.8 protects cooperating defendants by limiting the use of the defendant’s own admissions against him or her. If you negotiate a cooperation agreement that includes these protections, the information you share will be subject to the guidelines’ rules, which means your admissions are generally not used against you when calculating the guideline sentence.

As discussed above, federal judges can depart from the federal sentencing guidelines in specific scenarios. Generally, they can only apply Section 1B1.8 when it is negotiated within the defendant’s cooperation agreement.

2. Try to Negotiate a “Hereditary” Plea and Sentencing Agreement

In 1995, the U.S. Supreme Court’s ruling in United States v. Mezzanatto allowed the parties to negotiate a waiver to Federal Rule of Evidence 410, which generally prevents the prosecution from using plea-negotiation statements in a criminal case. In most cases, though, defendants are not forced to sign away Rule 410’s protections. Negotiating a “hereditary” plea and sentencing agreement can allow you to control the risks.

3. Scrutinize the Proffer Letter’s Rebuttal-Use Clause

Most proffer letters contain a “rebuttal-use” clause, which means a defendant must give the prosecution’s team the opportunity to “rebut” the case’s defense evidence if they are “in materially inconsistent” with the defendant’s statements to the prosecutors. This clause is often far too broad. At Spodek Law Group, we routinely negotiate with prosecutors to narrow the rebuttal-use clauses so our clients’ proffers cannot be used against them.

4. Limit the Derivative-Use Clauses

Proffer letters generally also allow for derivative-use. This is a provision that makes a defendant’s statements inadmissible directly; however, any “derivatives” that come from those statements can be used. For example, the information that comes from any lead that is discovered via the defendant’s statements can be used to further the investigation.

In other words, a proffer letter is not a form of immunity. As discussed above, immunity must be granted either under Section 5K1.1 of the Sentencing Guidelines, a judicial order under 18 U.S.C. §§ 6002-6003, or the U.S. Constitution.

5. Let Your Attorney Proffer Information for You

Many times, a cooperator’s attorney will proffer information on behalf of their client. The attorney will describe information their client has; and the prosecutors can then decide whether it is necessary for the client to be debriefed. As long as the attorney never discloses a “specific fact,” this is a safe and efficient alternative to a full proffer.

6. Limit or Delete the Rebuttal-Use Clause

Negotiation of the proffer letter is key. Experienced defense counsel will often fight to narrow or even remove the proffer letter’s “rebuttal-use” clause. This is critical. As the statute discusses in Section-7 above, most prosecutors rely on an attorney’s proffer statement to evaluate the defendant’s usefulness. Even if you give up your rights to some protections, keeping those rights protected is crucial.

7. Settle the Count and Guideline Before Your Debrief

In most cases, once the defendant has decided to cooperate, the counts and guideline will be settled before the defendant comes in to speak to the prosecutors. Experienced defense counsel will fix these stipulations before they allow their clients to speak, so that they have clear knowledge of what it takes for a plea deal.

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

Can prosecutors refuse sentence credit after I cooperate?

1. Wade v. United States (1992)

Generally, federal judges defer to the discretion of the prosecutors’ decisions regarding cooperator sentence departures. As stated in Wade v. United States, “judicial review [of a prosecutors’ refusal to file a § 5K1.1 motion] is limited to an inquiry into whether the prosecution has acted out of an unconstitutional motive.”

Under Wade, merely stating that your assistance was “substantial” does not entitle you to a hearing, and it does not force the government to give any information regarding the reasons why the government refuses to move forward with a § 5K1.1 motion. Therefore, prosecutors can refuse to honor the agreement they negotiated with the defendant. This is why a negotiated good-faith clause in your plea agreement is vital.

2. Negotiating a Good-Faith Clause

A good-faith clause is a provision that states the government will act “in good faith.” Not all prosecutors will agree to include a good-faith clause, but if your counsel can negotiate a good-faith clause, then it serves to widen judicial review and provide protection against a frivolous denial of the promised sentencing benefit.

3. Government Reliance on Santobello v. New York (1971)

In general, plea agreements are binding and irrevocable. As the U.S. Supreme Court stated in Santobello v. New York, when the government promises specific benefits for a guilty plea and the defendant takes the plea in reliance on it, “such promise must be fulfilled.”

With a plea agreement, both the government and the defendant contractually bound themselves.

As the Court further states:

“[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”

The Court additionally states that if the agreement is not fully honored, the case must be remanded so the court can decide whether the circumstances call for specific performance of the agreement, with resentencing before a different judge, or whether the defendant should instead be allowed to withdraw his guilty plea.

4. Plead Agreements as Contracts

Plea agreements are generally viewed as contracts. Therefore, many contract law rules apply. This means that in the event of ambiguity, the ambiguity is typically read against the drafter of the contract, and the government is the drafter in almost all cases.

Still, it is possible for prosecutors to breach plea agreements. However, unlike other breach-of-contract cases, the remedy is not money damages. Under Santobello v. New York, if the government breaches the agreement, the court will either order specific performance of the promise, with resentencing before a different judge, or permit the defendant to withdraw his or her guilty plea.

5. Determining Breach of the Plea Agreement

The party alleging a breach of contract generally bears the burden of proof, and plea agreements are no exception. In most circuits, a defendant claiming the government breached a plea agreement bears the burden of proving that breach by a preponderance of the evidence.

6. Unilateral Declaration of Breach

Some plea agreements allow the prosecutors to determine if there has been a breach of the plea agreement on a unilateral basis. A unilateral declaration of breach by a prosecutor is dangerous and is one of the first areas to fight against. Any clause giving the prosecutors the unilateral right to determine if there has been a breach should be negotiated out.

What consequences remain outside my federal cooperation agreement?

1. Other District or State Charges

Many defendants do not realize that a federal cooperation agreement generally only binds the signing United States Attorney’s Office. It does not bind the Justice Department as a whole or the U.S. Attorney's Offices in other districts, although it does bind every prosecutor within the signing office, including those who did not personally sign it.

The following consequences remain outside the scope of a typical plea agreement:

• Other Districts, In the event you need to provide cooperation to prosecutors from other districts, you need to ensure the agreement covers the other district(s) as well. You can either request the agreement that you negotiated be cross-district or have you ensure that the other prosecutors in the other district(s) will not bring criminal charges against you for the same conduct and agree to extend your immunity.
• State Prosecutors, Plea agreements between the federal government and the defendant also don’t prevent state authorities from prosecuting you for your conduct under state laws. In these cases, as well, you must ensure your attorney discusses potential immunity with state authorities before you enter into the cooperation agreement with the federal government.
• Cross-District and Cross-Agency Coverage, This means that the government’s immunity and promised sentencing benefits (if any) would apply to charges that could potentially arise from other U.S. Attorneys’ Offices and agencies. Negotiating a cross-district or cross-agency coverage letter that says the government promises not to prosecute you (except for the charges in the plea) and promises any benefit will apply is the key to avoiding additional criminal charges.

2. Restitution

The Mandatory Victims Restitution Act (MVRA) gives a federal court the authority to order defendants who have engaged in criminal conduct to pay restitution to the victims of the crimes. With a plea agreement, you can generally make no promises regarding restitution. Restitution is mandatory in most cases and cannot be waived under any circumstances in order to obtain a plea agreement.

3. Immigration

Also, cooperating with the federal authorities does not protect noncitizens against removal or other immigration consequences. Informants and cooperating witnesses who do not have legal status must seek an “S” visa. However, “S” visas are capped at 200 per fiscal year, and most prospective “S” visa holders have to wait months before they obtain the necessary visa.

5. Forfeiture

Forfeiture can also be outside the scope of most plea agreements. Forfeiture may include a home, a vehicle, cash, or other items acquired through a criminal conspiracy. With a federal cooperation agreement, the only benefit that a defendant can usually negotiate is a forfeiture limitation. With this type of plea agreement, the defendant agrees to forfeit everything acquired, though the amount is limited to a specific figure.

6. License Revocation, and Duty to Register

In cases of professional misconduct, licensing boards may revoke the defendant’s license. Similarly, the duty to register as a sex offender remains after cooperation. If a defendant, for example, has a prior registration requirement, that remains outside of a cooperation agreement.

As we have discussed, under Section 5K1.1, the sentencing judge considers several factors when determining if a defendant deserves a sentence reduction. One of those factors is “the degree to which the defendant is at risk in the investigation or prosecution,” which includes risk of retaliation against the defendant’s family members as well.

What happens while I wait for cooperation credit?

Rule 35(b)(1) and (2)

The timing of when a defendant gets his or her cooperation credit depends on the timing of his or her plea and trial or guilty plea. Generally, if a defendant is convicted at trial or accepts a guilty plea, prosecutors must file a Rule 35(b)(1) motion within one year. This is how a sentencing reduction is triggered in most cases.

If a defendant has a plea agreement and substantial assistance is provided after sentencing, the prosecutors may file a Rule 35(b)(2) motion. Rule 35(b)(2) motions generally cannot be filed within the one-year window unless the substantial assistance was either not available within one year or, the prosecutors can show why waiting to file the motion for substantial assistance was more beneficial to the government’s investigation.

Testifying in Multiple Trials

In many cases, it may take months or years for a defendant to receive his or her cooperation credit. In most cases, cooperating witnesses are called to testify in multiple trials in different districts across the country, and the credit is not awarded until all cases are completed.

Postponing Sentencings

When a defendant has a plea agreement, his or her sentencing is routinely postponed until the assistance is complete. The most common date for sentencing cooperators is the date their assistance is finished.

Detention and Pre-Trial Release

Under 18 U.S.C. § 3143(a)(2), there is a presumption of detention in most federal cases. Once a defendant has pleaded guilty, there is a presumption of detention in any offense with a statutory maximum sentence of 10 years or more or involving a firearm or controlled substance. However, under 18 U.S.C. § 3145(c), defendants who agree to cooperate with federal prosecutors may seek pre-trial release for “exceptional reasons.”

Witness Protection

As the U.S. Marshals Service notes, “the Witness Security Program, or ‘WITSEC’ is a program of the U.S. Department of Justice under the authority of the Marshals Service.” Under 18 U.S.C. § 3521, the government will protect witnesses whose safety is at risk, and it will also relocate the witness’s immediate family members if necessary.

Inferring Cooperation from Case Files

Co-defendants will frequently infer cooperation from several process events. These include:

• Engagement of defense counsel
• Filing of a guilty plea
• Gaps in a case’s docket
• Multiple sentencing continuances

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.