Understanding Your Federal Plea Agreement: Cooperation Provisions.

We understand that the possibility of a reduced sentence is one of the most important factors to consider in deciding whether to cooperate with the federal government in a criminal investigation or prosecution. However, if you are thinking of testifying as a government witness, you need to make sure that you have a clear understanding of the potential risks and rewards. With this in mind, federal plea agreements typically do not guarantee a lower sentence. While many federal prosecutors will offer reduced charges or a recommendation for a reduced sentence in exchange for cooperation, these promises are not binding. Even if you agree to cooperate with the government, the prosecutor is not bound to pursue a lower sentence on your behalf.

In many cases, defendants are able to enter a guilty plea without agreeing to cooperate with the prosecution, and the sentencing recommendation under Rule 11(c)(1)(B) will not be binding on the court.

• In most cases, a substantial-assistance departure under Section 5K1.1 of the U.S. Sentencing Guidelines requires a government motion
• Under the Supreme Court’s decision in Melendez v. United States, 518 U.S. 120 (1996), a downward departure from a statutory minimum in a drug case requires authority under Section 3553(e) (i.e., cooperation)
• In order to be eligible for federal witness protection, a defendant must meet the requirements of Section 3521, but federal witness protection is not guaranteed
• Ordinarily, a federal plea agreement binds only the signing United States Attorney’s office; it does not bind the state prosecutors in the state in which a defendant is being charged
• The Sentencing Commission’s annual Sourcebook includes guilty plea and downward departure rates for the prior fiscal year. The latest version of the Sourcebook, which the Commission publishes on its website, shows that about 97 percent of federal criminal defendants sentenced each year pleaded guilty rather than going to trial, and that about one-quarter of federal criminal defendants in prison received downward departures, with about 30 percent of federal offenders who received these departures, receiving substantial-assistance departures.

Can Prosecutors Use What I Say During a Proffer?

You have to be extremely careful when discussing your (or your client’s) case with the United States Attorney’s Office, the Department of Justice, the FBI, the DEA, or any other federal law enforcement agency. Once you have spoken to a federal prosecutor, he or she will know everything you said. If you have spoken to the federal government about potentially testifying as a witness, he or she will know everything you said as well. When can prosecutors use these statements in federal court?

A proffer agreement is a type of cooperation agreement which is distinct from both a plea agreement and a cooperation agreement. The United States Supreme Court, in United States v. Mezzanatto, 513 U.S. 196 (1995), held that Rule 410 does not prevent a defendant from making a knowing and voluntary waiver of its protections. The U.S. Attorney’s Office has recently amended its proffer agreement to include a Rule 410 waiver, as well as additional limitations on a defendant’s ability to invoke the protections afforded by Rule 410.

If a defendant makes a knowing and voluntary waiver of the protections afforded by Rule 410, then the government will be able to use the defendant’s proffer statements against the defendant to the extent the waiver allows. However, the agreement may still prohibit derivative use of a proffer. For example, the United States Attorney’s Office’s current form of proffer agreement, which states that the government will “not use the information and the subject’s identity in subsequent criminal proceedings against the subject, except as permitted by 18 U.S.C. § 6002, and will not use the information as a basis for subsequent criminal investigations targeting the subject, as limited by 18 U.S.C. § 6002.”

Although the agreement provides a limitation on the use of proffer information, an ordinary proffer confers no form of statutory immunity under 18 U.S.C. § 6002, as it does not constitute an obligation to testify as a witness.

Similarly, federal sentencing guidelines provide that information provided to the government during a proffer will be confidential under Section 1B1.8; however, this protection is limited to sentencings and is subject to the requirement that “the information is not available in some other way.” In order to receive protection under Section 1B1.8, a defendant will need to have an agreement in place, such as a proffer agreement.

Federal statutes do not provide transactional immunity, which prevents prosecution for the commission of the underlying offense; instead, federal statutes such as 18 U.S.C. § 6002 provide only for use immunity and derivative-use immunity. With respect to transactional immunity, the Supreme Court, in Kastigar v. United States, 406 U.S. 441 (1972), has consistently held that any immunized testimony or evidence derived from immunized testimony cannot be used in order to prove guilt in subsequent criminal proceedings.

How Can Cooperation Reduce My Federal Sentence?

The first way to reduce your federal sentence is to cooperate with the government so that the government files a motion for a downward departure under Section 5K1.1 of the federal sentencing guidelines. But, under Section 5K1.1, you must provide substantial assistance in investigating or prosecuting another person. Providing information to the government is not enough to qualify for a substantial-assistance departure under Section 5K1.1, and you must be willing to testify if necessary. Once the government files a §5K1.1 motion, it is up to the judge to determine the extent of the downward departure. While the judge will consider the government’s sentencing recommendation, he or she is not bound by it, and the federal sentencing guidelines list five factors for the judge to consider when determining the reduction in a federal sentence under Section 5K1.1: (i) timeliness, (ii) reliability, (iii) usefulness, (iv) extent of assistance, and (v) risk of exposure.

Another possibility is to cooperate with the government in order to receive a reduction in the sentencing minimum under Section 3553(e) of the federal sentencing law. Here, too, the federal sentencing guidelines are very clear, and any sentence reduction must reflect the extent of the defendant’s substantial assistance in investigating or prosecuting another person.

Finally, Rule 35(b) of the federal rules of criminal procedure provides for a post-sentencing reduction in federal cases involving substantial assistance. While Rule 35(b)(1) describes the normal process for obtaining a substantial-assistance reduction from the government within one year of sentencing, Rule 35(b)(2) allows the government to file a later motion in limited circumstances, such as when the defendant’s assistance involved information that did not become useful until more than a year after sentencing. Furthermore, Rule 35(b)(4) provides that “a reduction beneath the statutory minimum is permissible” if the government files a motion for a substantial-assistance reduction within one year of the court imposing the sentence. Like a §5K1.1 motion, a Rule 35(b) motion must be filed by the government, a defendant cannot file the motion himself or herself.

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

What if Prosecutors Refuse to Reward My Cooperation?

If you (or your client) is thinking of testifying as a government witness, then you need to have an understanding of how the federal government can award or refuse a sentence reduction to a cooperating defendant. While a federal prosecutor is generally afforded broad discretion to decide whether or not to award a sentencing reduction in order to reward a defendant’s substantial assistance, there are exceptions to this general rule. With this in mind, federal prosecutors can refuse to reward a defendant’s cooperation:

• When their refusal is based on unconstitutional motives; and
• When their refusal lacks any reasonable connection with a legitimate government interest.

Under the Supreme Court’s decision in Wade v. United States, 504 U.S. 181 (1992), federal courts have the authority to review a prosecutor’s refusal to award a reduced sentence in both of these cases.

As for obtaining discovery, a defendant’s allegation that he or she provided substantial assistance to the government is not enough to justify discovery or a Wade hearing. The Supreme Court explained: “A defendant’s effort to overturn his conviction cannot rely on a mere claim of having provided substantial assistance; instead, it must rest on a demonstrated breach of a plea agreement promise that was induced by mistake or misinformation, unconstitutional punishment for engaging in a protected activity, or that the prosecutor’s refusal to reward his assistance lacked any connection with a legitimate government interest. In each of these cases, if the prosecutor’s refusal to grant a downward departure was motivated by a specific intent to target a defendant because of his beliefs or actions, or that the refusal lacks any relationship with a legitimate government objective, this will open the door for discovery and a hearing.”

While federal prosecutors have broad discretion to reward cooperation on an ad hoc basis, they can contractually limit their own discretion via a cooperation agreement. An explicit promise to award a reduced sentence (or a reduction in charges) is a binding commitment.

When federal prosecutors make a promise to a defendant in order to induce a guilty plea, the prosecutor is bound to keep the promise. As the Supreme Court noted in Santobello v. New York, 404 U.S. 257 (1971), “The plea agreement is a contract supported by consideration, and, like any other contract, it is subject to enforcement.” Here, a promise to make no recommendation as to sentence was not fulfilled, which raised concerns with the Supreme Court. The Court held that “when the government breaches its promise, the defendant can either withdraw the plea or the defendant can require specific performance . .. the prosecutor cannot be forced to bring charges; and it would be unseemly for a court to instruct a prosecutor to request a sentence.”

Ambiguities in plea agreements are another common issue when dealing with a prosecutor’s refusal to honor a written agreement. Generally, ambiguities are construed against the party that drafted the agreement. Since, as a rule, the government drafts a defendant’s plea agreement, the prosecutor cannot avoid responsibility by relying on ambiguities in the agreement.

Lastly, generalized allegations of prosecutorial bad faith alone are not enough to compel the government to file a substantial-assistance motion under Section 5K1.1 or Rule 35(b).

What Cooperation Duties Can Put My Plea at Risk?

While some cooperation agreements have very broad and open-ended scope, most cooperation agreements include a list of specific obligations that the defendant is required to fulfill in exchange for the rewards for cooperation. With this in mind, some examples of cooperation duties that have the potential to endanger a defendant’s plea agreement include:

• Duty of truthful, complete, and continuing disclosure. This duty has been included in nearly every cooperation agreement that has been drafted by federal prosecutors. A defendant will be in breach of the agreement if he or she lies, is silent, or lies in order to hide information during the government’s investigation.
• Duty to testify before a grand jury and at trial. This is probably the most substantial assistance a defendant can provide. Because this duty is usually required by cooperation agreements, many defendants are unwilling to consider the possibility of testifying in order to keep their cases from being known to the public.
• Duty to monitor communications and engage in controlled transactions.
• Duty to undergo polygraph testing. While some federal prosecutors insist on polygraph testing for cooperation agreements, it is not an automatic feature, and it can be negotiated out of the agreement.

Along with these duties, most cooperation agreements also include a provision that imposes a breach for committing another crime during the period of cooperation. If a defendant has breached the cooperation agreement, then the government is relieved of its obligation to reward his or her cooperation. As a result, while the plea agreement will remain in effect, the defendant will not receive the benefit he or she was entitled to receive. However, in order to avoid a penalty for a breach of the agreement, the defendant must make sure that a prosecutor is not able to prove the breach to the court. When evaluating whether a defendant has breached his or her obligations, the federal district courts usually hold the opinion that “the prosecutor’s burden of proof in order to show that the defendant breached his or her obligations is a preponderance of the evidence.”

Ultimately, whether or not a defendant has breached his or her obligations under a cooperation agreement can be decided by the district court, and not the prosecutors. The defendant and the prosecutors will present their competing arguments to the judge, and the judge will make the final decision.

It held that federal courts should apply the same principles when interpreting plea and cooperation agreements that they use to interpret a private contract.

Who Controls Sentencing After I Sign the Plea Agreement?

In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the federal sentencing guidelines are advisory in nature. As a result, after a defendant signs a plea agreement, neither the prosecution’s sentencing recommendations nor the sentencing guidelines are binding upon the sentencing court.

While the parties to a federal plea agreement will typically execute the plea with certain factual stipulations, U.S.S.G. § 6B1.4(d) expressly states that “the sentencing court is not bound by any factual stipulation from the plea agreement.” After a defendant enters a guilty plea, the sentencing court will then request the defendant’s presentence report from the federal probation office. During preparation of the presentence report (PSR), the probation officer will independently calculate the defendant’s sentencing guidelines, taking into account the federal sentencing guidelines, the evidence of the crime, the defendant’s admissions, and the defendant’s personal and professional history. The probation office will then finalize the PSR, and a copy of the PSR will be provided to both the defendant’s attorney and the prosecutor.

Rule 32 of the Federal Rules of Criminal Procedure dictates the timing of disclosure and resolution of any dispute. In order to give the defense time to prepare for sentencing, the government must disclose the presentence report to the defendant 35 days prior to sentencing, and the defense attorney has 14 days to file a written objection if necessary. If the government and the defendant’s attorney are unable to resolve a material provision in the PSR, Rule 32 dictates that “the court must resolve all material disputes before sentencing.”

Finally, 18 U.S.C. § 3553(a) serves as the ultimate legal standard for sentencing. When sentencing a defendant, federal judges are to apply the § 3553(a) criteria to ensure that the sentence imposed is appropriate based on the nature of the offense, the characteristics of the defendant, and the overarching goal of ensuring the punishment is a just one. When analyzing the standards set forth in Section 3553(a), the Supreme Court explained that the federal sentencing guidelines are to be treated as an advisory baseline for federal judges. The Supreme Court further explained that the federal sentencing process consists of two separate steps. First, the judge must correctly calculate the federal sentencing guidelines’ range. Next, the judge should decide whether to depart to another sentence within this range or to a sentence outside of this range. Gall v. United States, 552 U.S. 38 (2007).

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.