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Securities Fraud: How the Government Uses Cooperating Witnesses

Securities Fraud: How the Government Uses Cooperating Witnesses

Securities fraud refers to illegal activities that deceive investors or manipulate financial markets. It covers a wide range of misconduct like ponzi schemes, insider trading, accounting fraud, and more. The government relies heavily on cooperating witnesses to detect, investigate and prosecute securities fraud.

What is a Cooperating Witness?

A cooperating witness, also called an informant, is someone involved in securities fraud who agrees to help the government in exchange for potential leniency. They provide inside information, testify against others, secretly record conversations, and take other actions to assist prosecutors.

Cooperating witnesses can be key government sources since securities fraud is complex white-collar crime that is often difficult to detect. Schemes may involve many sophisticated parties spanning different companies, industries and countries. Informants have intimate knowledge of the fraud that external investigators lack. Their cooperation is usually essential for the government to fully uncover wrongdoing.

Why Do People Become Cooperating Witnesses?

There are a few common reasons why securities fraudsters agree to cooperate:

Avoiding Criminal Charges: Potential criminal liability gives informants a strong incentive to assist prosecutors. In exchange, they may receive immunity or reduced charges. Cooperating is often the only way to avoid prison time.

Financial Incentives: Some major fraud cases allow cooperating witnesses to receive a cut of money that the government recovers. For example, informants in the Bernie Madoff ponzi scheme shared over $2.7 billion in victim restitution. These financial rewards encourage witnesses to come forward.

Revenge: Cooperating witnesses sometimes have personal grudges against their co-conspirators. Helping take down former colleagues may be motivated by animosity rather than legal considerations.Prosecutors leverage these self-interests to turn securities fraud participants into informants. The first conspirator to cooperate often gets the best deal, encouraging swift action.

What Information Do Cooperators Provide?

Valuable information provided by cooperating witnesses includes:

• Internal Communications: Emails, texts, chat logs, voicemails and other communications often contain incriminating evidence. Informants provide private messages that document fraudulent intent, knowledge, false statements and more.
• Recorded Conversations: Witnesses may secretly record face-to-face or phone conversations with targets at the FBI’s direction. Capturing candid confessions is hugely valuable for prosecution.
• Transaction Records: Financial records, account statements, contracts, invoices, inventory reports, and other documents help trace money and assets tied to illegal activity.
• Witness Testimony: Informants use their insider status to interpret complex schemes for investigators and juries. Testifying about first-hand participation makes fraud allegations more credible.
• Network Information: Cooperators identify other conspirators, participants, victims, related businesses, financial accounts, and pertinent information to expand investigations.

This evidence provides tangible proof of culpability that converts allegations into enforceable charges.

What Legal Protections Do Informants Have?

Cooperating witnesses who admit to participating in crimes take big legal and safety risks. If deals collapse, informants may end up with long prison sentences without aid as a government witness.

To balance these dangers, cooperating witnesses have legal protections including:

• Written Cooperation Agreements: Formal promises made by prosecutors regarding immunity, reduced charges, and sentencing recommendations in exchange for providing assistance.
• Anonymity: Keeping informants’ identities hidden to protect them from retaliation by targets of investigations.
• Witness Security Program: The U.S. Marshals Service may provide temporary protection or even permanent relocation of cooperators and their families when serious threats exist.

However, legal protections have limitations. Informants still face jail time, have tight restrictions, endure invasive monitoring, and give up constitutional rights like avoiding self-incrimination. Agreements can be invalidated if cooperators lie or fail to provide substantial assistance. There are no guarantees in the pressure-filled role of snitching on dangerous fraudsters.

What Major Securities Fraud Cases Used Cooperators?

Here are some notable examples of large securities fraud prosecutions fueled by insider informants:

• Enron: CFO Andrew Fastow and other executives provided evidence and testimony against CEO Jeffrey Skilling, Chairman Ken Lay and colleagues.
• Worldcom: CFO Scott Sullivan gave information and testified against CEO Bernie Ebbers over an $11 billion accounting fraud.
• Madoff Investment Securities LLC: CFO Frank DiPascali was a key cooperator in exposing Bernie Madoff’s massive ponzi scheme.
• Galleon Group: Portfolio manager David Slaine helped implicate the hedge fund’s co-founder Raj Rajaratnam for insider trading.

Nearly all major Wall Street schemes rely on cooperators in some capacity. Informants help initiate over half of federal white collar crime investigations, according to the FBI. Their information unlocks complex cases.

Why Do Cooperating Witnesses Have Credibility Problems?

While critical for prosecutors, information from admitted fraud participants raises natural credibility concerns. Motivations rooted in self-interest make cooperators seem unreliable. Common attacks on their trustworthiness include:

• Avoiding jail: Cooperators may lie or exaggerate to get immunity or reduced charges for themselves.
• Financial incentives: Multi-million dollar rewards for informants also provide motives to make false allegations.
• Revenge: Bitter witnesses may fabricate information simply to retaliate against former associates.
• Ongoing fraud: Criminals hoping to avoid past crimes may continue committing new ones. Embezzler Frank Abagnale Jr, portrayed in the film Catch Me If You Can, is a dramatic example.

Judges instruct juries to carefully weigh testimony from cooperating witnesses – especially when they provide the only evidence against a defendant. Informants with corroborating documentation, recordings, data and other witnesses tend to be more believable.

Prosecutors use various strategies to bolster credibility like investigating informants’ backgrounds, having agents monitor dealings, securing independent verification of claims, and requiring honesty about complicity in crimes.

Still, cooperator credibility often proves decisive in securities fraud trials. When juries doubt informants, it creates reasonable doubt that sabotages convictions – no matter how strong the supporting evidence.

What Are the Pros and Cons of Using Cooperating Witnesses?

Relying on cooperating witnesses has notable drawbacks:

Cons

• Credibility attacks may undermine prosecutions
• Reduced charges allow culpable fraudsters to avoid full accountability
• Generous financial incentives may encourage false allegations
• Witness protection is expensive and risky

However, the benefits usually outweigh these concerns:

Pros

• Insiders provide essential information about secretive fraud schemes
• Recordings, documents, and testimony offer strong proof of guilt
• Early cooperation allows stopping schemes before they grow
• Convicting ringleaders provides deterrence
• Victim restitution depends on successful legal outcomes

The extensive use of cooperating witnesses across law enforcement agencies shows their value outweighs the downsides. Securities fraud is too complex and hidden to prosecute without critical help from informants.

What Does the Future Hold for Cooperating Witnesses?

Informants will keep enabling securities fraud prosecutions for the foreseeable future. However, the growing data footprint of digital communications may gradually reduce dependence on human witnesses over time.

Emails, chat logs, and recordings captured on company servers provide extensive written confessions without personal credibility baggage. Advanced data mining and analytics techniques help investigators sort through this information at scale. The raw evidence speaks for itself.

But human insight likely always will be needed to fully contextualize complex financial crimes. Cooperating witnesses remain indispensable – at least for now. Relying on insiders who “flip” still offers the best way for prosecutors to unravel tricky securities schemes and hold fraudsters accountable.