Using Cooperation to Avoid Trial in Multi-Defendant Cases.

A guilty plea is a plea to the charges in a federal criminal case that resolves the criminal charges against you without a trial.

Can Cooperating Help Me Avoid a Trial?

Yes, if you have committed the crime at issue, cooperating with the government can help you avoid a trial. Often, the prosecutor will offer to reduce the charges against you or seek a shorter sentence in exchange for your cooperation. If the prosecutor enters into a cooperation agreement with you, you will generally be required to testify whenever the government calls you, including at a co-defendant's trial, and the court, which is not bound by the prosecutor's recommendation, decides what sentence to impose.

Can Cooperation Lead to Dismissing My Case?

While cooperation can lead to the prosecutor dismissing your charges, this outcome is rare. It only typically happens in very specific cases where your cooperation is uniquely valuable.

Does a Cooperation Agreement Guarantee a Substantial-Assistance Motion?

No. A cooperation agreement sets the terms of your cooperation with the government. Once you meet those terms, the prosecutor then decides whether to file a substantial-assistance motion. The motion requests that the judge consider reducing your punishment based on your cooperation.

Does Cooperation Guaranteed I Won’t Go to Jail?

No. While cooperation can help you avoid a multi-defendant trial, this outcome does not eliminate the possibility of a conviction or prison sentence.

When Can Multiple Defendants Be Tried Together?

Joining multiple defendants in a federal trial is governed by Rule 8(b) of the Federal Rules of Criminal Procedure. Rule 8(b) allows defendants’ cases to be joined “if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.”

Is it Always Appropriate to Try Multiple Defendants Together?

Not necessarily. While Rule 8(b) is fairly broad, it generally means that multiple defendants can only be tried together when their alleged offenses are related. If multiple defendants have committed the same offense but did not cooperate in any transactional manner, then the court will likely find that joinder is not appropriate.

What Happens if Joining Multiple Defendants Creates Prejudicial Effects?

If the joinder of multiple defendants improperly prejudices one of the defendants, Federal Rule of Criminal Procedure 14 allows the defendant to seek severance. If the court believes that severance is warranted, the defendant will be tried in a separate case from any other defendants.

What makes cooperation valuable to federal prosecutors?

What Does it Mean to Cooperate With Prosecutors?

Cooperation can involve providing information, testimony, or participating in monitored conversations, controlled transactions, or other forms of assistance. These are examples, and the scope of your cooperation will vary depending on the case and the terms of your cooperation agreement.

Do I Have to Admit That I Am Guilty in Order to Cooperate?

In most cases, yes. To make your cooperation useful to federal prosecutors, you will generally have to admit personal criminal conduct. Once you have admitted that you are guilty, prosecutors can expect you to do so in court as part of your guilty plea. Cooperating can be a strong motivator to avoid indictment or trial, but it cannot be used to avoid admitting a guilty plea.

Why Should I Agree to Cooperate as Early as Possible?

The earlier your assistance is most useful, the more likely the prosecutor will reward your cooperation. For example, if the government’s investigation is still underway, your insights may be particularly valuable. Once the investigation is complete and the prosecution is about to begin, your information may be less useful to the government.

Why Should I Not Offer Information That Prosecutors Already Have?

Prosecutors often prefer cooperation that provides new information or evidence that is not already available. Information that is duplicative is typically less useful than information that is unique. While your information may be duplicative, it doesn’t necessarily mean that cooperation is not warranted. Instead, prosecutors may seek cooperation in order to establish the credibility of the information.

If I am the First Person to Cooperate, Will I Get the Most Favorable Terms?

While this can be true, being first is not a guarantee of getting the most favorable terms. There are many factors that go into determining the terms of cooperation, and there is always the potential for your information and assistance to be less useful to federal prosecutors than others who cooperate.

What Are the Risks of Cooperating?

Many defendants hesitate to cooperate with federal prosecutors due to fear of retaliation. Retaliation risk extends well beyond the sentencing hearing, and the government has tools to address it, including sealed filings, protective orders, and the federal Witness Security Program authorized under 18 U.S.C. § 3521.

How Do I Know What to Expect if I Cooperate?

If you decide to cooperate, our attorneys will work with the prosecutor to determine the terms of your cooperation agreement. These terms will be outlined in your agreement, and the prosecutor will disclose any information that the government needs to meet your obligations.

What Does the U.S. Sentencing Guidelines Say About Cooperation?

Section 5K1.1 of the U.S. Sentencing Guidelines describes cooperation as:

“Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines. The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following: (1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant’s assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; (5) the timeliness of the defendant’s assistance.”

What other options can keep a defendant out of trial?

Can Severance Avoid a Trial?

While severance changes the structure of a multi-defendant trial, it generally does not eliminate a trial altogether.

When Can Prosecutors Dismiss Your Case?

If the federal government wants to dismiss charges, Federal Rule of Criminal Procedure 48(a) requires the government to ask the court to dismiss the case. Once the court decides to dismiss the case, you will no longer be at risk of being convicted and sentenced.

What Is Federal Pretrial Diversion?

Federal pretrial diversion is an alternative to prosecution. Unlike the cooperation process, this option typically applies at an early stage, in most cases before charges are ever filed, and it concludes without an adjudication of guilt. A successful conclusion to pretrial diversion can persuade federal prosecutors to either decline or dismiss charges.

Can the Government’s Grant of Use Immunity Protect Me?

Use immunity is a grant of immunity under 18 U.S.C. § 6002 that prevents prosecutors from using a person’s testimony against them. However, use immunity is not enough to avoid a multi-defendant trial. Prosecutors can still use all other evidence they have available against you.

What Is Use-and-Derivative-Use Immunity?

The immunity granted by Section 6002 is known as use-and-derivative-use immunity. This immunity prevents the federal government from using anything it learns as a result of your compelled testimony against you. This is a step beyond use immunity, but it falls short of transactional immunity, which prevents a defendant from being prosecuted for a crime, regardless of the source of the evidence.

What Is Section 3553(f)?

Section 3553(f) of Title 18 of the U.S. Code, the "safety valve," implemented in the Guidelines at U.S.S.G. §5C1.2, allows a court to impose a sentence below the statutory mandatory minimum in certain cases. Defendants who satisfy the requirements for Section 3553(f) may have a reduced sentence even without their cooperation. Section 3553(f) generally applies only to qualifying defendants accused of committing a non-violent offense involving the illegal trade of drugs.

What Is the Charge Stacking?

Charge stacking refers to the practice of prosecutors filing multiple charges for a single criminal offense. Prosecutors use this tactic to either increase a defendant’s potential exposure or leverage defendants to plead guilty.

When Do Prosecutors Decide to Charge Multiple Defendants?

Criminal indictments are usually filed after prosecutors have all the information they need to determine who to charge. This process requires extensive cooperation from law enforcement officials. It may not always be possible to identify every defendant’s culpability through their actions alone. When applicable, information from defendants who have cooperated can reveal a defendant’s specific role within a case and influence who is brought to trial.

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

What Is a Proffer?

A proffer is a discussion between a defendant and prosecutors. It is common to have a proffer before taking the next steps in the cooperation process, and it often serves as a stepping stone to an eventual cooperation agreement.

How Do I Know When My Proffer will be Protected?

In federal criminal cases, proffers often take place under the terms of a written agreement. This agreement will outline any limits on the government’s ability to use your disclosures against you. Our attorneys will review the agreement with you before the proffer begins, and we will help you to negotiate terms that limit the protections you get.

Will I Know What to Expect During My Proffer?

You can get a good idea of what to expect during your proffer based on the information you have shared with your lawyer. Our lawyers will walk you through your disclosures, answer any questions you have about the process, and help you to effectively explain the facts at hand.

When Can Prosecutors Use Proffer Statements Against Me?

Under most proffer agreements, prosecutors are not allowed to use a defendant’s disclosures in their case-in-chief. However, most proffer agreements allow investigators to pursue new information or leads that they get from the defendant’s statements.

Under certain circumstances, your proffer statements can also be used against you, if they are admissible at trial. This can include circumstances where:

• A statement during the proffer proves the defendant is lying
• The information is used in a rebuttal for the government’s case
• The statement is used during the sentencing hearing
• The information is used to seek a search warrant or other authority

What Happens if I Lie During a Proffer?

Any evidence that you lied during your proffer can lead to criminal prosecution. This includes:

• Using the proffer to get a sentencing agreement
• Offering testimony at a trial
• Cooperating with federal prosecutors
• Attempting to avoid the prosecution through other means

When a defendant makes false proffer statements, then they can face criminal charges for lying to federal agents in addition to any other charges. If you decide to work out a cooperation agreement with the federal government, our lawyers will do everything they can to make the process as risk-free as possible.

Do All Proffers Qualify as “Queen for a Day” Proffers?

No. A “queen for a day” proffer is informal shorthand, and its protections depend on the specific language used in the proffer agreement. Proffers that use this language may have limited protections, and it is still possible for prosecutors to use a defendant’s disclosures in certain circumstances.

While a federal “queen for a day” proffer agreement provides negotiated use protections, it does not provide immunity from criminal prosecution under 18 U.S.C. § 6002.

What Is the Difference Between a Proffer Agreement and a Cooperation Agreement?

A proffer agreement is a written agreement that sets the terms for discussing relevant information with federal prosecutors. A cooperation agreement sets the terms of a defendant’s agreement to cooperate. This often involves negotiating the terms of a guilty plea, sentence reductions, or other forms of assistance.

Who Decides Whether Cooperation Actually Reduces My Sentence?

Depending on the case, federal prosecutors and federal judges may both have a role to play.

How Does Cooperation Lead to a Reduced Sentence?

There are several ways that cooperation can lead to a reduced sentence. The most common way is for the government to file a motion for substantial assistance under U.S.S.G. §5K1.1, and the federal judge to then find that a defendant is eligible for a substantial-assistance departure.

Along with substantial-assistance, federal prosecutors can also seek to reduce sentences in other cases by:

• Negotiating a sentencing recommendation (such as in the case of a guilty plea)
• Seeking an overpayment of monetary benefits (such as in the case of fraud or embezzlement)
• Offering evidence of a defendant’s extraordinary efforts to make restitution to their victims

Does the Judge Decide to Grant the Departure?

In cases that involve a substantial-assistance departure under U.S.S.G. §5K1.1, the government must first determine if the defendant meets the requirements for the departure. If the government believes the defendant is eligible for the departure, then it will file a §5K1.1 motion. The judge then decides if the defendant is entitled to a substantial-assistance departure, and then determines the extent of the departure, if applicable.

Can the Judge Use Section 5K1.1 to Lower Sentences Below the Statutory Minimum?

The substantial-assistance departure is a “downward departure” that reduces a defendant’s sentence under the U.S. Sentencing Guidelines. However, the substantial-assistance departure cannot authorize a sentence below the statutory minimum.

What Can Be Done if I Cooperate and the Sentence is Below the Statutory Minimum?

While the substantial-assistance departure under U.S.S.G. §5K1.1 cannot be used to reduce a defendant’s sentence below the statutory minimum, the government can still seek to obtain a below-minimum sentence by filing a motion under 18 U.S.C. § 3553(e). This motion allows the district judge to impose a sentence regardless of any mandatory minimum in the relevant criminal statute.

Can the Judge Review My Request for a Substantial-Assistance Departure?

Generally no, and if the government does not agree to have the judge review its decision to deny a substantial-assistance departure, then the judge can only review the government’s decision to deny the departure under Wade v. United States.

What Are the Legal Grounds in Wade v. United States?

In Wade v. United States, a federal court held that a federal judge could review the government’s decision to deny a substantial-assistance departure if there is “some reason to believe that the prosecutor’s decision was based on an unconstitutional motive.” Additionally, if the government is motivated by other considerations that are unrelated to any legitimate governmental objective, then the prosecutor’s decision can be subject to judicial review under Wade.

How Do the Courts Interpret Cooperation Agreements?

Generally, cooperation agreements are interpreted as contracts by federal courts, with some exceptions. Federal courts have stated that “federal courts’ interpretation of cooperation agreements has evolved to the point where, although they are interpreted as contracts, the standard contract rules have been tempered by constitutional requirements of fundamental fairness.” In other words, these are contractual agreements that have been modified by the Due Process Clause, which prohibits unconstitutional and unconscionable contract terms in cooperation agreements.

What Are Other Remedies for Prosecutorial Failure to Comply with Cooperation Agreements?

Other remedies include seeking specific performance and withdrawal of a guilty plea. As noted in Santobello v. United States, if the government does not comply with its promises in a plea agreement, the defendant can seek either to have the promise specifically enforced or withdrawn from the plea agreement.

What changes when a co-defendant decides to cooperate?

What happens with joint representation?

When federal criminal defense attorneys jointly represent co-defendants, the attorneys must comply with Federal Rule of Criminal Procedure 44(c). While Rule 44(c) does not require co-defendants to be represented separately, the attorneys must inquire about potential conflicts between their clients. Additionally, the attorneys must personally advise each defendant about their right to separate representation in the event of a conflict of interest.

What about joint-defense agreements?

Joint-defense agreements are contractual arrangements between co-defendants. These agreements, often referred to as common-interest arrangements, allow co-defendants to share information and work on a coordinated defense while preserving their attorney-client privileges. Defendants in federal criminal cases who form joint-defense agreements do so to protect their privileged information while remaining eligible to seek cooperation with the government in the future.

Can a joint-defense agreement bar a member from cooperating?

No, a joint-defense agreement cannot bar a member from cooperating with the government. Federal judges have routinely invalidated joint-defense agreements when used to prevent defendants from cooperating.

What is the common-interest doctrine?

The common-interest doctrine is a legal rule that allows members of a joint-defense agreement to share information that is already protected by a qualifying privilege. For example, information protected by a defendant’s attorney-client privilege can be shared with co-defendants in a joint-defense agreement without waiving the privilege. This doctrine does not provide privilege protection to information that is not otherwise protected by a qualified privilege.

What happens if a co-defendant decides to cooperate?

When a co-defendant decides to cooperate, other defendants must make critical decisions. One co-defendant’s decision to cooperate may make it a bad idea for others to pursue trial in most cases. The information that the cooperating co-defendant shares with prosecutors can influence the prosecution’s trial strategy.

What happens if a jointly represented defendant decides to cooperate?

In cases involving joint representation, a defendant’s decision to cooperate presents a conflict of interest that can end joint representation. Attorneys cannot jointly represent a cooperating defendant and another defendant. This conflict also involves the defendants’ Sixth Amendment rights, which guarantee them the right to conflict-free legal representation.

When is a cooperating defendant treated as a government witness?

A cooperating defendant is treated as a government witness if they provide testimony for the prosecution during a trial. They are also treated as a government witness in cases where their information and testimony lead to an indictment or conviction of another defendant. In either situation, their statements can be used to impeach them if they testify on the government’s side, or if their statements contradict others’ testimony.

What requirements does the government have regarding cooperating defendants?

The government has various obligations when treating cooperating defendants as government witnesses. Under Giglio v. United States, federal prosecutors must disclose any benefits a government witness receives in exchange for their assistance to a defendant. The Jencks Act governs the delivery of witness statements to the defense. Generally, prosecutors turn over a witness’s pertinent statements after the witness’s direct examination, though they may be turned over earlier by court order or agreement.

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.