What Does "Debriefing" Mean in a Federal Case??

In the federal system, “debriefing” is a broad term used to describe all forms of questioning of suspects and cooperating witnesses. It is not a specific type of court proceeding. Instead, a “debriefing” is an umbrella term used by federal agents, federal prosecutors, and federal defense attorneys to refer to any of several different types of interviews, each with its own purpose, protections, and risks.

Among other possibilities, the following are all types of federal debriefings:

• Proffers (which are subject to the terms of the proffer letter your attorney negotiates on your behalf);

• Cooperation interviews (which are subject to the terms of a cooperation agreement); and,

• “Safety-valve” disclosures (under 18 U.S.C. Section 3553(f), which are a completely different type of interview, with different rules and implications; these are not the same as becoming a cooperating witness).

While all of these interviews involve answering the government’s questions about you, others, and how you may have been involved in a federal offense, each one involves fundamentally different types of protections, risks, and sentencing consequences. A participant’s obligations to the government under a proffer agreement, cooperation agreement, or “safety-valve” disclosure will also be determined by the governing agreement or applicable law.

In all cases, however, federal agents and/or prosecutors will generally prepare detailed notes of each debriefing session. In some cases, debriefing sessions may also be recorded. The interview notes and/or recordings may be shared with federal grand jury members or a federal judge if criminal charges are filed.

What kind of federal debriefing am I being asked to attend?

Debriefings are generally attended by:

• Federal prosecutors (from the U.S. Attorney’s Office);
• Federal law enforcement agents (e.g., DEA, FBI, IRS agents);
• The defendant (the individual being debriefed); and,
• The defendant’s defense counsel.

A federal judge or grand jury typically does not attend a debriefing. If you are being asked to attend a debriefing, it is important to first determine whether the debriefing is for the purposes of negotiating a plea agreement or if you will be required to attend a presentence probation interview. These are the two most common types of debriefings in federal criminal cases, and each serves a different purpose.

1. Proffer and Cooperation Debriefings

In most cases, the first debriefing in a federal criminal case is what is known as a “proffer” or a “proffer session.” During a proffer, a federal defendant who is facing criminal charges (or who knows that charges are imminent) voluntarily discloses information to the government in hopes of convincing federal prosecutors to offer a plea agreement. A proffer typically occurs before the formal steps for entering into a cooperation agreement. A successful proffer is generally not a basis for receiving a plea agreement on its own; instead, its purpose is to help federal agents and prosecutors determine whether the defendant is truly eligible to serve as a cooperating witness. If federal prosecutors determine that the defendant is eligible to serve as a cooperating witness, the proffer can help pave the way to a cooperation agreement, or an initial offer of a plea bargain. In the meantime, defense counsel can help the defendant prepare for the proffer, and defense counsel will also be entitled to attend the proffer in person.

2. Presentence Probation Interviews (Rule 32 Interview)

Under Federal Rule of Criminal Procedure 32(a), probation officers must conduct presentence interviews to gather information they will use to prepare a presentence report for the sentencing judge. Presentence interviews serve an entirely different purpose than the proffer and cooperation debriefings discussed above. The purpose of the presentence interview is to assist probation officers in determining whether the defendant is truly entitled to a lower-sentencing guideline calculation. During these interviews, defendants are expected to be candid and truthful, not just about their own conduct, but about the criminal conduct of others as well. When a defendant does this, a federal probation officer can use the defendant’s disclosures to recommend a lower offense level under the advisory Guidelines; however, if a defendant’s statement is not considered truthful, the federal prosecutor can use it to argue for a “relevant conduct” enhancement, which could lead to an upwardly-departing sentence.

What can prosecutors do with my proffer statements?

The protections afforded to defendants who attend proffers are narrower than the protections afforded to defendants who receive transactional immunity. Under a use and derivative use immunity agreement, prosecutors generally cannot use any of the information you disclose in the proffer (or anything else derived from your disclosure) against you in any criminal proceeding, and transactional immunity goes further still, barring prosecution altogether for the transactions you disclose. In contrast, a proffer agreement will typically allow prosecutors to do much more.

A typical proffer agreement will allow prosecutors to:

• Compare the information you provide during the proffer to information from documents, recordings, and other witnesses in order to assess the accuracy and completeness of your proffer statements;

• Use your proffer statements to pursue investigative leads in order to identify other subjects of the investigation, other witnesses, or pertinent documents;

• Use your proffer statements for purposes of impeachment and rebuttal, and in any other federal prosecution (though not including a prosecution of the subject of the proffer) initiated as a result of information obtained during the debriefing; and,

• Use your proffer statements in any prosecution for perjury, false statements, obstruction of justice, or other offenses arising out of your participation in the debriefing.

The protections afforded to proffer participants generally include protection against the direct use of their proffer statements during the government’s case-in-chief in federal prosecutions against them. While this restriction prevents prosecutors from using your proffer statements against you to seek a conviction, it does not preclude prosecutors from using your statements for other purposes.

In the criminal case of United States v. Mezzanatto, the Supreme Court held that defendants in federal criminal cases can waive their protections against the use of prior statements for impeachment, provided the waiver is “voluntary and knowing.” Federal Rule of Evidence 410 provides similar protections for statements made during qualifying plea discussions. But not every interview with federal agents and prosecutors qualifies as a “discussion” under Rule 410, and not every interview with federal agents and prosecutors counts as a “plea discussion.” This is why having clear written protections is critical for potential proffer participants.

What does a cooperation debriefing require from me?

A cooperation debriefing may involve one or more sessions. If investigators need clarification or verification, they will seek subsequent debriefings as well. Your obligations in a cooperation debriefing will depend on the terms of your cooperation agreement. For example, your cooperation agreement could require you to:

• Disclose all criminal activity that you know about;
• Testify in front of grand juries or trial juries;
• Maintain your availability as a witness for as long as necessary; and,
• Not commit further criminal activity.

Once the debriefing concludes, prosecutors will assess your disclosures based on:

• Their truthfulness, usefulness, and timeliness; and,
• To what extent they can be corroborated with other sources of information.

A 5K1.1 motion depends on a prosecutor’s good faith determination of the level of “substantial assistance” a cooperating defendant has provided. According to Section 5K1.1 of the federal sentencing guidelines, there are five key considerations involved in measuring the level of substantial assistance a cooperating witness provides during a federal criminal investigation:

• The value of the information provided (i.e., its usefulness and novelty);
• The witness’s truthfulness and completeness;
• The nature and extent of the assistance provided (for example, testifying at trial, recording conversations, or working proactively with agents);
• The danger to the witness for testifying; and,
• The timeliness of the witness’s willingness to provide substantial assistance.

Among other implications, this rule ensures that even if the prosecution cannot charge others based on a witness’s disclosures, the witness can still receive a downward departure for testifying to information the prosecutor can independently prove. For example, in United States v. Shabani, 513 U.S. 10 (1994), 513 U.S. 10 (1994), the U.S. Supreme Court held that while defendants who cooperate are not entitled to downward departures for their information per se, prosecutors can still seek reductions for cooperators whose testimony helps prove violations of 21 U.S.C. Section 846, even in instances that don’t require a distinct overt act.

Spodek Law Group, led by managing partner Todd Spodek, defends clients in federal criminal and white collar matters.

Can debriefing reduce my sentence below a mandatory minimum?

For a downward departure for substantial assistance, a federal court must see a motion from the prosecutor. In some cases, this means that even if a defendant has provided substantial assistance, he will not receive a shorter sentence unless prosecutors choose to file a Section 5K1.1 motion on his behalf.

A Section 5K1.1 motion does not, on its own, authorize a court to sentence a defendant below a mandatory statutory minimum. A separate motion pursuant to 18 U.S.C. Section 3553(e) is required to authorize a court to sentence a defendant below his mandatory minimum. While the prosecution may not be required to file such a motion under Section 3553(e), doing so can have significant implications for the defendant’s sentencing.

For example, while a court may consider any cooperation information that the prosecution has provided under 18 U.S.C. Section 3553(a), Section 5K1.1 offers more comprehensive and direct assistance to a cooperating witness. However, a cooperation-based variance under Section 3553(a) cannot override an applicable mandatory minimum.

While appellate courts generally leave prosecution’s decision not to pursue a motion for downward departure to the sentencing judge, the Supreme Court in Wade v. United States has held that, federal district courts may review the government’s refusal to file a substantial-assistance motion and grant relief if the refusal was based on an unconstitutional motive, though generalized allegations of improper motive entitle a defendant to no remedy, discovery, or evidentiary hearing.

The consequences of debriefing in federal cases can include substantial sentencing reductions. Many cooperating witnesses are eligible for a reduction in their offenses’ culpability scores and/or the applicable mandatory minimums through Section 5K1.1 and Section 3553(e) motions. Furthermore, Rule 35(b) allows post-sentencing reductions, where prosecutors can file a motion after the original sentence has been imposed, if the cooperating witness provides “substantial assistance” later on, or if the full extent of the witness’s assistance becomes apparent only after sentencing, though in every case only the government may file the motion, the court cannot reduce the sentence on its own initiative.

Is a safety-valve debriefing the same as cooperation?

While a safety-valve debriefing is often called “debriefing,” a safety-valve debriefing is not the same as becoming a cooperating witness. One of the key differences is that the information shared in a safety-valve debriefing does not need to be useful against any particular individual, and this is the reason why the federal government may rely on the debriefing even if it leads to no arrests or other convictions.

While the federal government may agree to use safety-valve information, it will only do so if the defendant satisfies all five of the statutory requirements listed in Section 3553(f):

• The defendant must have a limited criminal history;
• The offense must not have involved violence or credible threats of violence;
• The defendant must not have possessed a firearm (or weapon of any kind) connected to the offense or “otherwise held” or “maintained control over” a firearm;
• The defendant must provide complete and truthful information about the offense; and,
• The defendant must provide this information “at a time and in a manner” that allows the prosecutor to assess its truthfulness and usefulness “and to identify other individuals” through this information.

The first three requirements (i.e., limited criminal history, no violence or credible threats of violence, and no access to weaponry connected to the commission of the crime) are eligibility requirements. While in some cases, mere proximity to a firearm can establish statutory disqualification, it is not automatically the case. A defendant will need to show that the firearm was not “connected” to the offense in order to qualify for safety-valve relief.

The remaining two requirements are those that a defendant must satisfy by conducting a safety-valve debriefing. A safety-valve debriefing involves testifying to “complete and truthful” information about the offense and the overall course of conduct that led to the offense. There are two critical aspects to this final requirement:

• Timing: As the federal statute provides, the defendant must have truthfully provided the required information “not later than the time of the sentencing hearing,” so any other information that the defendant provides on the federal prosecutor’s behalf (including the proffer and cooperation debriefings discussed above) can count toward the “disclosure” requirement.
• Scope: Once again, information does not need to be “new” or “useful” in order to qualify for safety-valve relief. Instead, it must be “complete,” meaning it must be comprehensive, and the defendant must be truthful to a sufficient extent that the defendant satisfies the “truthful” component of the statutory requirement.

For eligible defendants, safety-valve relief means that the judge can impose a sentence below the applicable mandatory minimum.

What should I tell my lawyer before debriefing?

Even if you will never be subject to charges for any other offense, making knowingly false statements to a federal agent, such as DEA or FBI agent, when he or she asks questions during a debriefing could potentially expose you to liability under 18 U.S.C. Section 1001. As a result, it is critical for potential federal debriefing participants to be open and candid with their defense counsel about damaging facts in their past; and, if you have engaged in conduct that would constitute a criminal offense in the federal system, you should not hesitate to share the particulars with your attorney.

1. Why don’t I have to worry about incriminating myself in a conversation with my lawyer?

In addition to having their statements recorded in a presentence report, defendants accused of federal offenses risk inadvertently giving federal agents and prosecutors ammunition to build their criminal cases. This can expose them to unnecessary and additional prosecution risks. This means that as a potential federal debriefing participant, you should have no hesitation about communicating all relevant information to your defense counsel. There are three reasons why this is the case:

• Attorneys cannot use your statements to charge you with a crime in any criminal case against you;
• In contrast, concealing a fact (even if you did not do it yourself) that you know to be relevant can impede your attorney’s ability to adequately assess your exposure and to evaluate what protections you need if you are going to debrief with federal investigators; and,
• A criminal defense attorney will always want to know the full truth about your alleged conduct, so you can use the attorney’s advice to better evaluate the risks of the federal prosecution, seek the best possible defense, and/or prepare to participate in the debriefing.

2. Can a court hold a communication between you and your defense counsel in confidence?

The protections that defense counsel can provide to clients in federal criminal cases are rooted in the attorney-client privilege. However, these privileges have their limits. The common-law privilege protections are generally interpreted to cover communications that are confidential and related to seeking legal advice. If a third party is present, this is more than likely to defeat the confidentiality requirement of the attorney-client privilege.

There are also cases where the third party’s presence does not defeat confidentiality. If a defendant speaks to his defense counsel about a confession made to a third party who was already present for the debriefing (or who otherwise knows of the confession), then he is making a confession that may be admissible against him. Similarly, there are “the crime-fraud exception” to the attorney-client privilege, which allows prosecutors to compel disclosure if the defendant and his attorney used privileged communications in order to pursue conduct the defendant knew to be wrong. As noted by the Supreme Court in United States v. Nixon, the crime-fraud exception doesn’t necessarily remove the attorney-client privilege for discussions about committing a crime in the future, and a discussion about a confession doesn’t necessarily fall under it.

3. What if the federal agent already contacted me?

In that case, you should tell your defense counsel, and then avoid any further contact with the federal agent or prosecution. If you don’t discuss the pertinent facts of the case with the agent before consulting with your attorney, your attorney can more effectively preserve your rights and protections.

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.