When Cooperation Makes Sense in a Federal Case.

Substantial assistance ordinarily concerns providing information that helps the government investigate or prosecute another person or business. It generally does not involve admitting to a crime. If you are thinking about cooperating with federal prosecutors, it is important to understand that:

• Cooperation is not an entitlement. You are not automatically entitled to have charges reduced or for sentencing concessions.

• A proffer agreement is a binding contract with specific protections and obligations. The specific wording of the proffer agreement controls how prosecutors can use your statements in your case or other cases.

• Cooperation can expose defendants and their family members to risks of retaliation by current or former co-conspirators, associates, or employers.

• The “80/20 rule” is not a doctrine of federal prosecution. When lawyers refer to the “80/20 rule” in federal cases, they are usually using a form of Pareto’s heuristic rather than referring to codified or accepted federal prosecution doctrine.

• There is no particular offense that is “hardest” to prove. No federal authority designates any one offense as the hardest to prove. The difficulty of proving any crime depends on the facts at hand and the evidence that the government is able to collect.

• There are not “three universal charging prerequisites.” While some sources list prosecutors’ obligations to establish that a crime was committed, that the defendant committed the crime, and that prosecution is in the interest of the public, no federal authority designates these as universal prerequisites.

• ABA Model Rule 3.8(a) does not provide the protections of a proffer agreement. Model Rule 3.8(a) states, “The prosecutor shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” However, that is not the same as having the negotiated protections that come with a proffer agreement.

How Do I Know Whether My Cooperation Has Value?

What form will your cooperation take?

Cooperation with the government can take various forms depending on the circumstances at hand. It can include providing a witness, providing testimony, participating in debriefings, and participating in a monitored activity.

Does a guilty plea qualify as substantial assistance?

A guilty plea does not by itself qualify as “substantial assistance.” A guilty plea is an admission of a crime. Substantial assistance is an affirmative action that assists the government in investigating or prosecuting another person or business.

Do you have the ability to be truthful?

You do not need to be perfectly candid with the government. However, if you know that the information is not true, you cannot tell the government that it is. Knowingly making a “materially false, fictitious, or fraudulent statement” to a federal agent is a violation of 18 U.S.C. §1001 and can lead to additional charges and punishment.

Will your cooperation be “timely”?

According to Section 5K1.1(c), timing is one of five factors to be considered when determining the value of a defendant’s cooperation. Generally speaking, assistance that is provided as soon as possible will have more sentencing value than assistance provided after most of the government’s evidence has been collected.

Is your information useful and does it address all relevant aspects of a crime?

According to Section 5K1.1(a)(1), (3), usefulness, truthfulness, and scope are three additional factors to be considered when evaluating a defendant’s assistance. While these factors can have different meanings in different cases, generally speaking, providing useful and truthful information that is broad enough to address all of the most relevant aspects of a crime will have greater value than providing information that only addresses a small or less-relevant aspect of the offense.

Do you have information about others who are involved in potentially dangerous criminal activity?

According to Section 5K1.1(a)(4), any injury suffered, or any danger or risk of injury to the defendant or the defendant’s family resulting from the assistance, is another factor that courts should consider when assessing the value of a defendant’s assistance. Cooperation that exposes the defendant or the defendant’s family to injury, danger, or risk of injury is generally more likely to support a substantial sentence reduction than cooperation that carries little personal risk.

Does cooperation make sense?

If the evidence against you is weak, or if the information you can provide to the government is not valuable enough to warrant a substantial sentence reduction, then cooperation may not make sense. However, if a criminal conviction is likely, and if you have information about co-conspirators or others involved in criminal activity, cooperation may be a smart choice.

Do you need to plead guilty in order to cooperate with the government?

No, there is no federal rule that requires a defendant to plead guilty prior to cooperating with the government. While in many cases the government requires a guilty plea before filing a motion for a sentence reduction under 18 U.S.C. §3553(e), there are exceptions. In some cases, the value of the defendant’s information is sufficient for the government to seek a reduced sentence for the defendant without requiring a guilty plea, though this is rare.

To what extent do the sentencing Guidelines depend on the assessing prosecutor’s evaluation of a defendant’s cooperation?

The sentencing Guidelines provide that “Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.” Of course, if the federal government decides to proceed with prosecution, then the prosecutor’s evaluation will carry considerable weight.

What Should I Check Before Signing a Cooperation Agreement?

Negotiated Waiver of Plea-Discussion Protections

The Supreme Court of the United States decided in United States v. Mezzanatto that a defendant and the government can negotiated a waiver of protections during plea negotiations. This negotiated waiver is enforceable even if the defendant does not admit to the charges in exchange for the prosecution’s prosecutorial discretion.

Proffer Agreement, Cooperation Agreement, or Plea Agreement?

Before signing a cooperation agreement, it is also important to consider what kind of agreement it is. A proffer agreement is a contract that governs a defendant’s statements during a proffer and does not ordinarily resolve criminal charges. A cooperation agreement is a contract that establishes a defendant’s assistance obligations and the prosecutorial considerations promised in return. A plea agreement is a contract that sets the terms of a defendant’s plea and may impose additional obligations such as cooperating with the government in exchange for a favorable plea-agreement result.

Protections Against Use of Compelled Testimony

Under 18 U.S.C. §6002, when a court grants immunity to a witness, then any testimony compelled from that witness will not be subject to “direct use or derivative use.” Neither the compelled testimony nor any information derived from it may be used against the witness in any criminal case, except a prosecution for perjury, for giving a false statement, or for otherwise failing to comply with the order. Direct use is when the immunized witness’s testimony is used against the witness. Derivative use is when information obtained from immunized testimony is used in subsequent investigations to obtain additional evidence that is used to establish criminal culpability.

Protections for Informal Debriefings

Informal debriefings, which are a common part of cooperating with the federal government, present different challenges than dealing with the court-supervised process of receiving immunity. Because prosecutors’ abilities to compel testimony in debriefings is not codified in federal law, these debriefings do not create contractual protections unless both the parties agree to a contract. Cooperation agreements, though, can explicitly require the government to use “the same protections” for informal debriefings as granted under 18 U.S.C. §6002.

Direct, Derivative, Impeachment, and Rebuttal Use

Proffer agreements may be worded so that “direct use,” “derivative use,” “impeachment use,” and “rebuttal use” are all defined as separate concepts. The agreement can then impose prohibitions and obligations concerning each type of use individually. Impeachment use refers to the government’s use of statements to impeach a witness’s credibility. Rebuttal use refers to the government’s use of statements when a defendant attempts to raise a particular affirmative defense.

Breach of Agreement and Remedy for Breach

Finally, a proffer agreement may define a “breach” and a “remedy” for a breach. Often, a breach of the agreement refers to a failure to comply with certain rules during the proffer, and the remedy can include the loss of protections under the proffer agreement. This includes the possibility of including the government’s ability to use specific statements even if they would otherwise be covered under the proffer agreement’s use restrictions.

How Can Substantial Assistance Reduce a Federal Sentence?

U.S.S.G. §5K1.1 Substantial Assistance Sentence Reductions

The provisions of U.S.S.G. §5K1.1, “Substantial Assistance,” authorize a federal sentencing court to depart from the recommended advisory sentence in certain circumstances. For a federal court to impose a substantial-assistance departure, the government must file a §5K1.1 motion with the court.

Departures Below the Advisory Sentencing Guidelines Range

According to Section 5K1.1, the only situation in which the government may file a motion for a “downward departure” is if the defendant provides substantial assistance that leads to the government charging or investigating other crimes. A substantial-assistance departure from the advisory Guidelines range is not automatically mandated in these circumstances; rather, a federal sentencing judge has the authority to depart based on the government’s motion.

Overcoming a Statutory Minimum Sentence

A Section 5K1.1 motion alone will not be enough to overcome a statutory minimum sentence imposed for a criminal offense. If the defendant is facing a minimum sentence under a particular statute, the government must also file a motion for a sentence below the statutory minimum sentence pursuant to Section 3553(e). Under Section 3553(e), the government’s motion for a sentence below a statutory minimum must reflect the defendant’s cooperation with the government in the investigation and prosecution of individuals accused of crimes.

Reducing a Sentence Below a Statutory Minimum

Under Section 3553(e), the government’s motion for a sentence below a statutory minimum must reflect the defendant’s cooperation with the government. This does not automatically mean that the government’s motion will result in a sentence reduction below a statutory minimum. To secure a sentence below a statutory minimum under Section 3553(e), the government must file a motion under Section 3553(e) asking the court to impose a sentence below the statutory minimum to reflect the defendant’s substantial assistance.

Determining the Size of a Cooperation Sentence Reduction

If the government is willing to file a substantial-assistance motion, then the size of the resulting sentence reduction will be at the discretion of the federal sentencing judge. There is no fixed formula that can be used to determine the size of a cooperation reduction, and it is always up to the sentencing judge.

The “Acceptance of Responsibility” Reduction for Cooperating Defendants

A cooperating defendant can receive a sentence reduction for acceptance of responsibility, which is in addition to any sentence reduction based on substantial assistance. Although U.S.S.G. §3E1.1 doesn’t explicitly name the “acceptance of responsibility” reduction as a reward for cooperation, it can be an important sentencing reduction for some defendants to obtain, as it doesn’t require the prosecutor’s motion to be eligible.

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 if the Prosecutors Refuse Credit, or if Your Cooperation Happens Too Late to Have an Immediate Impact?

Can You Seek Relief When Prosecutors Refuse Credit for Your Cooperation?

In Wade v. United States, the U.S. Supreme Court decided that judges may review the prosecutors’ decision to deny a defendant credit for substantial assistance if the defendant alleges that the prosecutors have an unconstitutional motive or their refusal is “irrational.” However, the Supreme Court also rejected relief solely based on allegations of “substantial assistance” that does not result in charges or reduced sentencing.

Can a Defendant Hold Prosecutors Accountable for a Promise of a Cooperation Credit?

If federal prosecutors provide a written promise of a cooperation credit for assistance to be provided in the future, that promise may create an express contractual obligation. If the defendant fulfills their end of the bargain but the prosecutors fail to deliver a motion for a substantial-assistance reduction, the defendant could potentially sue to hold the prosecutors accountable.

What if Your Cooperation Occurs After Your Sentence has Been Imposed?

If the assistance provided has concrete value, but it is not in time to prevent a substantial sentence, you can still seek a sentence reduction from a federal judge. Federal Rule of Criminal Procedure 35(b) allows for a substantial-assistance sentence reduction after a defendant has been sentenced. Under Rule 35(b)(1), the government must move for a sentence reduction within one year of sentencing unless the government’s requirements for a sentence reduction after one year under Rule 35(b)(2) are met.

What are the Three Information-Related Requirements of Rule 35(b)(2)?

Federal Rule of Criminal Procedure 35(b)(2) provides three information-related exceptions to the one-year time limit on motions for sentence reductions. These exceptions apply if: (i) the government did not know about the substantial assistance within one year of sentencing; (ii) the substantial assistance was deferred or delayed at the government’s request; or (iii) the information provided by the defendant was lost or misplaced due to government negligence.

What Happens if Prosecutors Breach a Promise to Support a Motion for a Substantial-Assistance Reduction?

In Santobello v. New York, the U.S. Supreme Court decided that prosecutors must fulfill material promises that induce a defendant’s guilty plea. As a result, if a defendant cooperates with the government in reliance on the promise of a future substantial-assistance reduction and prosecutors then breach this promise, the defendant will be able to seek an adequate remedy. The remedy could be withdrawal of the guilty plea or order for specific performance, and both are possible, depending on the circumstances of the individual defendant’s case.

Can the Safety Valve Help When You Have no Information for Substantial Assistance?

Are There Any Other Provisions That Allow for a Substantial-Assistance Sentence Reduction?

Section 3553(f) is a provision of the United States Code that applies to five enumerated federal drug statutes. The safety valve, as Section 3553(f) designates it, allows defendants to receive a sentence reduction without prosecutors’ assistance.

Does a Defendant Seeking a “Safety Valve” Reduction Need to Fulfill Any Qualifications?

To qualify for a “safety valve” sentence reduction under Section 3553(f), defendants must satisfy all five requirements listed. The last requirement, which is outlined in Section 3553(f)(5), requires a truthful disclosure of all pertinent information to the government. If a defendant can satisfy this requirement without substantial assistance, the defendant can use the “safety valve” to obtain relief without a substantial-assistance reduction under U.S.S.G. §5K1.1.

What Does it Mean to Satisfy the Requirement to “truthfully provide the court and the government with all information” under Section 3553(f)(5)?

According to Section 3553(f)(5), the requirement to “truthfully provide the court and the government with all information” is satisfied when a defendant has none to provide. If a defendant honestly possesses no pertinent information about a crime, then this information itself will have the potential to qualify as substantial assistance under Section 3553(f).

Does Satisfying the “Safety Valve” Requirements under Section 3553(f) Guarantee a Substantial-Assistance Sentence Reduction?

No, it does not. Even when defendants satisfy the §3553(f) requirements, federal judges will only grant a “safety valve” sentence reduction at their discretion.

• As the United States Court of Appeals for the Ninth Circuit discussed in Pulsifer v. United States, Section 3553(f)(1) states that it doesn’t apply if “any” listed criminal-history condition exists. This “any” means that as long as a defendant does not satisfy at least one of the safety valve requirements under Section 3553(f)(1), it doesn’t matter if they satisfy the others. As a result, the safety valve provision will not be available.

What are the “Criminal-History” Conditions under Section 3553(f)(1)?

The criminal-history conditions are:

• Having three or more points of qualifying criminal history as defined in U.S.S.G. § 4A1.1; (See Section 3553(f)(1)(A))
• Having a prior conviction for a qualifying offense that carries more than 3 criminal history points; (See Section 3553(f)(1)(B))
• Having a prior conviction for a qualifying violent offense; (See Section 3553(f)(1)(C))

Who may learn that I cooperated with federal prosecutors?

Can the Public Find Out if I Cooperate with Federal Prosecutors?

Cooperating witnesses will frequently be required to testify at trial in open court. In many cases, this means that their cooperation will not remain a secret. However, prosecutors and judges may address safety concerns in certain situations, and there may be grounds to limit information about a cooperating witness’s identity during the government’s investigation and prosecution.

Will a Federal Sentencing Judge Consider the Danger to Safety When Evaluating My Cooperation?

Yes, safety risks are an express factor for judges to consider when evaluating a defendant’s cooperation under Section 5K1.1. The provision explicitly states that judges must take into account the potential danger that is created for the defendant if he or she cooperates.

Does Federal Rule of Criminal Procedure 6(e) Impose Grand Jury Secrecy Obligations on Witnesses?

No. Federal Rule of Criminal Procedure 6(e)(2)(B) governs grand jury proceedings, and it imposes secrecy obligations on several individuals involved. However, it does not explicitly extend the obligation of secrecy to witnesses whose testimony is compelled in a grand jury proceeding.

What is the Giglio Rule?

The “Giglio rule” is a principle from the U.S. Supreme Court decision Giglio v. United States. It requires the government to disclose any information that is material to a government witness’s credibility. The scope of this rule includes, but is not limited to, disclosures about benefits the witness received for cooperating with the government and testifying on the government’s behalf.

Can I Seek a Court Sealing Order to Protect My Identity?

A court sealing order is used to protect documents and other materials. However, it does not prevent disclosures made during trial testimony in open court. If disclosure of a cooperating witness’s identity is necessary to the government’s prosecution, the sealing order will not prevent this disclosure.

Do I Qualify for the Federal Witness Protection Program?

Qualifying for the federal witness protection program is not automatic. While some perceive cooperation as a ticket into WITSEC, this is not the case. In fact, admission into the program is discretionary. According to 18 U.S.C. §3521, the Attorney General grants the program’s benefits based on a witness’s ability to contribute to federal criminal justice efforts, any potential safety risks, and the best interests of the federal government.

Does WITSEC Include Family Members?

Yes, admission into WITSEC can include a witness’s immediate family members, close associates, and anyone else whom the government deems “in need of protection.” The government may provide assistance to these family members and associates as well, because they can also face safety risks as a consequence of their relation to the cooperating witness.

Who Administers the Federal Witness Protection Program?

The United States Marshals Service administers the witness security program for the U.S. Department of Justice. The agency is tasked with providing “security and protection” in the form of protective housing, relocation assistance, financial assistance, and other benefits during the witness’s enrollment in the program.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.