Should I Cooperate With Federal Prosecutors? Pros and Cons.

Cooperation with federal prosecutors typically involves turning over incriminating documents, cooperating with federal agents, interviewing, participating in grand jury proceedings, or testifying at trial. In some cases, cooperation may involve a “proffer” session, in which prosecutors are given the chance to hear the information a defendant possesses. These sessions usually are held pursuant to a written agreement that governs the scope and subject matter of the proffer and that explicitly states whether or not the government is prepared to use statements made during the session as “truthful” for the purposes of a criminal prosecution. The specific language in a proffer agreement is critical, and defendants need to have their counsel negotiate favorable language before they give any statements or information to prosecutors.

What Are the Risks of Cooperating With Federal Prosecutors?

Beyond the legal risks described above, defendants who cooperate face the potential for violent retaliation. This risk can potentially affect the defendant’s family members as well.

Along with retaliation, there are several other substantial risks and issues associated with cooperating with federal prosecutors. The specific risks that a defendant faces, however, depend on the unique circumstances at hand. A defendant’s risk calculations must take into account their (and their family members’) exposure, not only to the risk of violence, but also to additional criminal charges and potential federal incarceration.

As a result of these additional risks, defendants who are contemplating cooperation should carefully weigh their options.

How Many Federal Prosecutors Are There?

At the federal level, the prosecutors are referred to as “Assistant United States Attorneys.” As described below, a state prosecutor’s title will vary, depending on the jurisdiction.

How Many State Prosecutors Are There?

State prosecutors typically enforce the state’s laws, but in practice, most states have criminal statutes that are similar to federal law. The structure of state prosecutions also varies. In some states, there are county-level prosecutors, and in others there is a statewide or district-wide prosecutorial structure.

Can I Be Both Federally and State-Prosecuted for the Same Crime?

Along with facing prosecution under federal law, can a defendant also face prosecution under state law? Yes. Under the federal “separate-sovereigns doctrine,” defendants can be subject to prosecution in both federal court and state court for the same underlying conduct or behavior.

Will a Federal or State Prosecution Result in More Prison Time?

When determining how long a defendant faces prison time, the sovereign that brings charges is usually irrelevant. Rather, this depends on the specific criminal statutes applicable to the case. A defendant’s sentencing exposure will depend on the particular facts at issue, rather than the sovereign that is bringing charges.

Can Prosecutors Use Anything I Say After a Proffer Against Me?

While prosecutors are generally unable to use statements made during a “proffer session” to prove the defendant’s guilt at trial, they may be able to use them for other purposes, such as to impeach or rebut the defendant’s testimony at trial or to pursue other leads obtained as a result of the proffer. However, most proffer agreements will also contain specific language designed to prevent prosecutors from using the proffer evidence to do “circumstantial damage” or, in some cases, from using it against the defendant in any way other than during impeachment or rebuttal.

If you are considering a proffer, you need to discuss the options with your counsel, not only for the legal protections that may apply to your disclosures but also the practical considerations that come into play.

Does a Proffer Give Me Immunity from Criminal Prosecution?

Even if a proffer agreement prohibits the government from using your proffer evidence against you to prove your guilt, it does not usually provide “transactional immunity” from criminal prosecution. The language that does, however, comes into play when you give statements that are materially false or otherwise violate 18 U.S.C. Section 1001, which criminalizes materially false statements within federal jurisdiction.

As a result of these exceptions, even if a proffer agreement prohibits prosecution based on your proffer statements themselves, it still typically permits the investigation of anyone mentioned in the proffer session, including the defendant.

Does a Proffer Agreement Provide “Proffer Immunity”?

Proffer immunity is a concept that is often misunderstood by defendants who are interested in providing information to federal authorities. Under this concept, prosecutors are unable to use proffer information to prove their case at trial. However, proffer immunity does not prevent the federal government from investigating and pursuing charges based on the information provided in the proffer, and it does not protect a defendant from prosecution based on the statements or information in the proffer if the defendant fails to cooperate to the government’s satisfaction.

Can the Federal Sentencing Guidelines (USSG) Include Information I Disclosed in a Protected Cooperation Arrangement?

Section 1B1.8 of the Federal Sentencing Guidelines (USSG) generally provides that a defendant’s disclosure in a “protected cooperation arrangement” will not be considered when determining the defendant’s offense level. However, this provision applies only when the government “is not entitled to use” information or statements obtained from the defendant as a result of the protected cooperation arrangement. The guidelines exclude information provided in a protected cooperation arrangement when the defendant provides information to prosecutors or agents, but later decides to resist the government’s charges. However, if the defendant refuses to accept plea and/or sentencing liability, the government can use the information as a source for proving guilt and punishment.

Does the USSG Section 1B1.8 Grant Immunity from Prosecution?

No. While USSG Section 1B1.8, prohibits use of a defendant’s disclosures in calculating the defendant’s offense level, it does not grant immunity from criminal prosecution. Furthermore, if the defendant breaches their protected cooperation arrangement, the defendant may still face criminal prosecution based on information provided in the protected cooperation arrangement.

How Can Cooperation With Federal Prosecutors Actually Reduce My Sentence?

How Can Cooperation With Federal Prosecutors Help Me Avoid or Reduce a Federal Mandatory Minimum?

When calculating a defendant’s sentencing exposure under the U.S. Sentencing Guidelines, federal judges can grant “departures” based on factors outlined in the guidelines, known as “departures.” One type of departure is a “substantial-assistance departure.” This refers to a defendant who provides the government with information and/or assistance that leads to the arrest and/or conviction of others. Under Section 5K1.1 of the Federal Sentencing Guidelines, this type of departure is limited to cases in which the government makes a formal request for the departure. The request must be accompanied by information regarding the amount of assistance rendered by the defendant. However, the specific amount of the departure is subject to the judge’s discretion.

What If a Judge Decides to Grant a Substantial-Assistance Departure?

If a judge decides to grant a substantial-assistance departure, the defendant’s offense level is reduced by a specified amount. This can lower the defendant’s total offense level and may lead to a lighter sentence. For example, if the total offense level is 20 and the judge decides to grant a four-level downward departure, the offense level is reduced to 16. The reduced level is then matched with the relevant criminal history category to determine the sentencing guidelines’ recommended range.

The amount of a substantial-assistance departure is not limited to just a couple of levels. While most substantial-assistance departures are not for more than six levels, judges may apply these departures for the largest reductions available under the Sentencing Guidelines. As a result, defendants who are sentencing in a federal criminal case will want to make informed decisions about the sentencing process and may need to turn to a skilled and experienced federal defense counsel in order to mitigate their potential punishment.

Can a Substantial-Assistance Departure Overcome a Statutory Mandatory Minimum?

A substantial-assistance departure under Section 5K1.1 of the sentencing guidelines can only reduce a defendant’s sentencing exposure to the statutory minimum. It cannot overcome the mandatory minimum in a case involving federal drug conspiracy charges.

How Can a Defendant Overcome a Federal Mandatory Minimum When Sentencing?

If a defendant faces a federal mandatory minimum, the government must file a motion under 18 U.S.C. § 3553(e) that seeks a sentence below the mandatory minimum. This type of request can be filed only when the defendant has provided the government with substantial assistance.

While federal judges have discretion in granting these departures, many judges consider these pleas as grounds for granting these departures.

Does a Safety-Valve Motion Require the Government’s Intervention?

A “safety-valve” motion is not the same as a substantial-assistance departure or a motion under 18 U.S.C. § 3553(e). Unlike these types of departures, the federal safety valve does not require a motion from the government. This makes a federal safety valve a desirable result for defendants who do not have access to a substantial-assistance departure. However, this only applies to designated controlled-substance offenses, not every case.

Can Defendants Seek a Sentence Reduction Post-Sentencing?

Yes. Defendants who have provided information to the government that was helpful in prosecuting others have the potential to receive a post-sentencing reduction under Rule 35(b) of the Federal Rules of Criminal Procedure. A Rule 35(b) motion must be filed by the government, and it authorizes a sentence reduction below a statutory mandatory minimum, even in some cases where a mandatory minimum sentence was previously imposed.

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

What Type of Sentencing Recommendation Should I Expect from the Government in a Cooperation Agreement?

Within the United States, there are two types of plea agreements: sentencing recommendations and binding sentencing agreements. A sentencing recommendation is not binding on federal judges, but it has the weight of an official recommendation. If a sentencing recommendation is rejected, a judge is not required to explain why it rejected the recommendation.

However, when a binding sentencing agreement is entered, it must be accepted by the court. As long as the agreement is accepted by the court, it becomes binding, and the sentencing agreement is enforced.

A sentencing recommendation is a form of of plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(B), and a binding sentencing agreement is a form of plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C).

What Happens When the Prosecution Breaches a Promise Made to a Defendant in a Plea Agreement?

When a defendant accepts a plea agreement, the defendant’s waiver of some or all of their Constitutional rights to a full and fair trial is a material issue in the plea agreement. If the prosecution breaches a promise made in the plea agreement, then the prosecution is interfering with the defendant’s process. In Santobello v. New York, the United States Supreme Court recognized the potential for “remedies” in cases of the government’s breach of a promise in a plea agreement.

Can I Insist That the Prosecution Treat Me Better Because I Was the First Cooperator?

As early as the first-offering cooperator, can a defendant expect and insist on more favorable terms than subsequent cooperators? Unfortunately, there is no statute providing protections for an early cooperator, and there are no protections that are given in the context of cooperation agreements that have a clear benefit to the first offering.

Can I Seal My Cooperation Agreement With the Prosecution?

There is no statutory or constitutional requirement that cooperator agreements be filed under seal. While it is possible that the government may agree to seal cooperator agreements if they can satisfy the court as to why they must be sealed, this is not always the case. Sealed records can be unsealed if the court decides to unseal them, and cooperator agreements are subject to all other requests for unsealing as well.

What Are the Potential Risks of a Guilty Plea?

Even if you are thinking about taking a plea bargain, you can still make mistakes in taking your plea bargain. In the Giglio v. United States case, the United States Supreme Court held that information related to potential benefits from the prosecution must be disclosed because it has a bearing on the witness’s credibility. This is true, regardless of how much benefit the witness has received from prosecutors.

In many cooperation agreements, benefits are conditioned upon the witness providing full, truthful, and continuing assistance to the government. In some cases, if it is determined that the witness provided partial, untruthful, or discontinues cooperation, they can still face the consequences of the plea. Sealing a cooperator agreement will not eliminate the prosecutor’s responsibility under the Giglio case to disclose the defendant’s plea agreement.

Can I Trust Federal Prosecutors to Protect My Interests?

No, you can’t trust federal prosecutors to look out for your interests, nor can you rely on them to respect your due process rights or your interests. With the vast resources of the Department of Justice at their disposal, federal prosecutors are working for the interests of the United States government. They have been tasked with protecting the interests of the United States, not you. This is why it is imperative to turn to federal defense counsel in order to protect yourself from criminal prosecution.

Do Prosecutors Not Have a Responsibility to Pursue Justice?

Yes, they do. In the case of Berger v. United States, the Supreme Court held that a prosecutor’s interests “do not coincide with those of a private attorney, whose interest is to assist his client in obtaining a favorable result at trial.”

The Supreme Court’s holding in Berger, however, also noted that prosecutors’ interests do not coincide with those of the government. This does not diminish the prosecutor’s responsibility, but prosecutors do have additional duties.

Do Prosecutors Hate Defense Attorneys?

There is no evidence to suggest that prosecutors hate defense attorneys more than any other type of defense attorney. Furthermore, while some prosecutors have admitted to having feelings like hatred and hostility, there is no way to say that this is a common sentiment among prosecutors.

A prosecutor’s dislike or respect for a defense attorney will be reflected in their interactions during a trial or plea negotiations. However, this will not necessarily mean that the judge, the prosecution, or any other members of the jury will have a biased view of the defendant.

One thing that all defendants need to remember is that a prosecutor may have a positive or negative relationship with your defense attorney, regardless of the attorney’s skills.

Are Federal Prosecutors Better Than State Prosecutors?

We can’t know if federal prosecutors are better than state prosecutors. This is a question that does not have a clear and conclusive answer. We can never make a sweeping statement regarding the abilities or ethics of federal prosecutors and state prosecutors.

If you have concerns about your case, then you will need to work with experienced counsel who can identify and address your specific situation.

How Much Civil Liability Exposure Do Federal Prosecutors Have?

Unlike the law enforcement personnel who investigated the defendant, federal prosecutors have absolute immunity from being held liable for damages related to their litigation conduct. As established in the case of Imdasani v. United States District Court, this immunity extends to conduct including pre-trial and post-trial conduct.

This protection only applies when the alleged conduct is intimately connected to the advocacy role of a prosecutor. If a prosecutor has committed wrongs related to the investigative side of the law, they may not be covered by this protection.

This does not necessarily mean that it prohibits disciplinary action or the pursuit of criminal prosecutions for a prosecutor’s alleged conduct.

Is There a Remedy under Bivens for Violations of Constitutional Rights?

Under Bivens, the Supreme Court has recognized that certain federal agents and other employees of the federal government can be held civilly liable for violating an individual’s constitutional rights. However, in Egbert v. Boule, the Supreme Court sharply limited the scope of future Bivens remedies in order to avoid judicial intervention in a domain that is reserved to the legislative branch of government.

What Should I Tell My Lawyer When Discussing Cooperation?

When speaking to your attorney, anything that you share with them is protected by attorney-client privilege. This privilege includes communication made in confidence between a client and a lawyer to facilitate the representation. The privilege does not cover preexisting communications, documents, or other evidence that were in the client’s possession at the time of the representation.

Additionally, this privilege does not extend to third parties present during meetings with your attorney. While you may not think that it is necessary to exclude your spouse or friend from the conversation, having a third party present during a meeting can waive your right to attorney-client confidentiality. If you have any questions, you will want to address these concerns before proceeding with your legal representation.

What Is the “Crime-Fraud Exception” to Attorney-Client Privilege?

There is also a concept known as the “crime-fraud exception” to attorney-client privilege. Under this concept, if the client’s communication with counsel is for the purpose of committing or furthering a crime or fraud, then it will not be privileged.

However, this does not mean that your attorney is a part of your planned criminal scheme. ABA Model Rule 1.2(d) explicitly forbids lawyers from advising a client to commit, or helping a client, commit, a crime or fraud. The lawyer must always remain within the boundaries of their legal obligations and must not assist the client in breaking the law.

Similarly, ABA Model Rule 3.3 also prohibits attorneys from knowingly making a false statement to the court. As a result, there are clear rules that are designed to maintain the integrity of legal counsel and to prevent the potential for client-centered criminality.

Are There Truths My Lawyer Needs to Know to Help Me?

Yes. You will want to communicate with your lawyer about any facts that may adversely affect your case. This includes the full scope of your involvement, the actions of anyone involved, or any other evidence that prosecutors may have. You will also want to tell your lawyer about your criminal record (if applicable), as your criminal history may affect your exposure as a defendant.

Having a full understanding of the pertinent facts will allow your lawyer to determine what type of advice is best suited for your legal representation. With these facts on hand, you can then discuss whether you want to take a plea bargain, fight criminal charges in court, or take another path toward mitigating your sentencing exposure.

Ultimately, if you have the right attorney on your side, they can use these facts to work in your best interest.

Is It Possible for Me to Get in Trouble for What I Disclose to My Attorney?

Not if you adhere to the guidelines set by the American Bar Association. While you need to disclose all pertinent information, you will not get in trouble if you discuss ways to mitigate your sentence or seek defenses that may be available.

However, you will get in trouble if you ask your attorney to hide, alter, or destroy evidence or if you give your attorney false information. As discussed above, attorneys have obligations to the court system and the ethics rules prohibit attorneys from knowingly assisting in criminal activity.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.