Will I Have to Wear a Wire as Part of My Cooperation??

There is no federal rule that says every cooperator has to wear a wire. If you cooperate, your cooperation agreement could demand that you engage in consensual recordings or that you provide other forms of proactive assistance. If you agree to a recording and then you refuse to wear a wire, your refusal could jeopardize any negotiated benefits that you have. Again, nothing you do as a cooperator, except for provide truthful and helpful information to the prosecutors, is guaranteed to get you a favorable result.

The truth is that it is completely up to the prosecutor to bring forward criminal charges against a cooperator and it is also up to the judge to decide what charges he or she will accept. He or she will also decide whether to grant a sentencing reduction on a substantial-assistance motion, which only the government may file. Any such request must be consistent with 18 U.S.C. Section 3553(a) which says that a federal judge must take into account “the need for the sentence imposed.. to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;.. to afford adequate deterrence to criminal conduct;.. to protect the public from further crimes of the defendant.” The statute also requires the judge to take into account the defendant’s offense and the defendant’s history and characteristics. Remorse is only one of these factors and by itself it is not sufficient to warrant a reduced sentence.

The judge must also decide if the defendant has been “truthful and helpful” in his or her cooperation. Again, a federal judge will only reduce a defendant’s sentence if he or she finds it appropriate in his or her discretion. No matter how helpful you think you have been, you are not entitled to any reductions or dismissals and it is a mistake to overstate your cooperation.

Can I refuse a wire and still receive cooperation credit?

Depending on when you agreed to cooperate, your cooperation credit will take one of three forms. The most common form is under U.S.S.G. §5K1.1. To qualify for a substantial-assistance departure, the government must file a motion under Section 5K1.1 requesting that you be given credit. That will then send you into a new calculation. 5K1.1 is not the only way to get credit for cooperation, and in some cases, it is not the correct way to get credit.

Cooperation Credit Under 18 U.S.C. Section 3553(e)

18 U.S.C. Section 3553(e) provides for cooperation credit as well, but only under certain conditions. Section 3553(e) is what allows the government to file a motion to sentence a defendant to a term that is below the statutory minimum. This is because a Section 5K1.1 motion by itself only lowers the sentencing guideline range, and if a defendant’s mandatory minimum sentence is higher than the calculated guideline range, then the judge cannot sentence him or her below that statutory minimum. In this case, the government must file a motion under Section 3553(e) that requests a sentence below the statutory minimum.

Cooperation Credit Under Rule 35(b)

Rule 35(b) allows the government to request a reduction in a defendant’s sentence for cooperation he or she provides AFTER he or she has been sentenced. Here too, if the government agrees to a reduction, it must file a motion under Rule 35(b). Again, the judge can then use his or her discretion to deny the request or to only grant a partial reduction.

The Risk of Refusing a Wire Recording When You’ve Agreed to Cooperate

If the government requests a wire recording and you have already agreed to cooperate, then refusing to wear a wire could potentially jeopardize any negotiated benefit that you have on the table. You are at a disadvantage if you don’t have a lawyer who has some experience with these deals, and if your lawyer doesn’t have some experience, then you should really engage a lawyer who does.

How Much Will Cooperation Benefit Me?

For most, cooperation is a high-risk, no-guarantee commitment. Here too, experience counts. If you think you are in a situation where you can really help the government, you can always hire a separate attorney to handle the negotiation for you. However, if you think that your cooperation would be better-received, then your current lawyer should be the one to handle it. Either way, no matter what you do, you need to engage a lawyer who knows what it means to provide “substantial assistance” that doesn’t just feel substantial to you, but substantial to the prosecutors, federal agents, and your potential judge as well.

Can federal agents legally record conversations without a warrant?

A consensual participant in a conversation can record what you say, but this is subject to some limitations. Here, you might say “But this conversation is between just two people, so is this de facto private and should be protected under the 4th Amendment?” If the answer is not “Yes” under federal law, can there still be state-law considerations that might apply?

Here, you can look to 18 U.S.C. Section 2511(2)(c). It says that it shall not be unlawful under this chapter for “a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.”

So, when can state-law considerations get involved? While a state may permit recordings under its own consent statutes, if the statute does not address the issues of federal or wire law recording, then federal law applies. In addition, in some states, consent statues may not specifically allow a party to disclose the information.

When Are Title III Wiretap Warrants Not Required?

Generally, Title III wiretap warrants are not required when recording conversations with a consenting participant. In this scenario, the recording agent is acting in reliance on the participant’s consent, and as such, he or she is not intruding on the suspect’s privacy in the same manner as a Title III wiretap. Title III wiretaps are far more intrusive because they involve the electronic-recording or electronic-interception of a defendant without a party’s prior consent.

There is, however, a major limitation on government recording efforts. In Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964) the U.S. Supreme Court ruled that the government can’t deliberately elicit information from a defendant after his or her arraignment and without a court-appointed lawyer present. This rule rests on the Sixth Amendment right to counsel, which attaches once adversary judicial proceedings such as indictment or arraignment have begun, and it applies independently of the Fifth Amendment Miranda warnings required before custodial interrogation.

Here too, there is one major exception: When you are engaged in a non-custodial conversation with someone who is not a law enforcement officer or government employee. Miranda warnings are generally not required for recordings of non-custodial conversations.

Is Recording Suspects Entrapment?

If the federal government records you without a warrant or without reading you your Miranda rights, does that constitute entrapment? Not necessarily. To raise a defense of entrapment, the defendant must show: (i) that the government induced the crime; and (ii) that he or she was not predisposed to commit it before being approached by government agents. Once the defendant makes that showing, the government must prove predisposition beyond a reasonable doubt.

If you have been charged with a crime, the recording of you can be evidence that you were predisposed to offend. However, while the government has a duty not to do so, it must be shown that the government Induced the crime through fraud, deceit, or excessive force. Simply recording a person is not enough for an entrapment defense to be successful.

Can Recorded Conversations Be Suppressed in Federal Court?

If state law prohibits the recording of a conversation without a warrant, how does this apply to evidence produced from recordings that are consensual but are made without a warrant? A recording made without a warrant that might otherwise be prohibited under state law does not automatically trigger the exclusionary rule in federal court. Instead, it is up to the federal judge to determine whether the suppression of evidence is warranted, and as a result, these recording may be admitted in federal court cases.

Can safety concerns excuse recordings or required testimony?

A cooperation agreement may require you to provide truthful testimony before a federal grand jury and/or even provide truthful testimony at trial. Refusing to provide required testimony in either of these federal proceedings can constitute a breach of a cooperation agreement.

Federal Witness Protection

The federal government offers protections for those who are in witness, victim, or informant cases. This includes the Witness Security Program under 18 U.S.C. § 3521. However, not everyone is eligible to receive protections under 18 U.S.C. § 3521. Individuals or entities that are eligible to participate in the Witness Security Program are qualifying witnesses and certain related persons. Additionally, any attempts at retaliation of witnesses, victims, or informants can lead to criminal charges under 18 U.S.C. § 1513.

Rule 16(d)(1) Protective Orders

For those who are not eligible for the Witness Security Program under 18 U.S.C. § 3521, Federal Rule of Criminal Procedure 16(d)(1) may provide relief. In federal criminal proceedings, federal judges can issue protective or modified discovery orders. For example, under Fed. R. Crim. P. 16(d)(1), the court may, for good cause, “deny, restrict, or defer discovery or inspection, or grant other appropriate relief.” The issue here is “good cause.” Thus, if you can show your safety is at risk and that good cause exists, you can try to get a protective or modified discovery order.

Protection Against Testimonial Self-Incrimination

Lastly, the Fifth Amendment prohibits you from being forced to testify in a federal trial, grand-jury proceeding, or interview conducted by the prosecution if doing so will create evidence of your own involvement in a crime. As long as a Fifth Amendment privilege attaches to a witness and the witness makes a timely and unequivocal assertion of the privilege, the privilege prevents the government from compelling the witness to provide truthful testimony. However, there are numerous exceptions to the Fifth Amendment’s privilege and the privilege can be waived.

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

Will a consensual recording be admissible in federal court?

If a recording is a lawful consensual recording, how else can the government use the recording? The government needs to prove the recording is authentic, admissible, and probative.

1. Authentication of the Recording

Under Federal Rule of Evidence 901, evidence authentication is necessary to use any material for proof of what the material shows. Here, the material can be authenticated by the testimony of a witness with knowledge “that an item is what it is claimed to be.” As a person who is a party to the conversation and participated in the recording, they will be able to authenticate a correct recording from their personal knowledge. Testimony from a recording technician is only needed to authenticate recording-equipment failure or other issues. As long as no such issue has arisen, authentication can be established by the personal testimony of any consenting participant in the recording. If the recording doesn’t have any problems, the government won’t need the testimony of the informant who participated in the recording.

2. Admissibility of the Recording

In a federal criminal proceeding, the government can offer the defendant’s own recorded statements at trial. Hearsay is not an issue because those statements were made by the defendant and are offered against the defendant, which makes them opposing-party statements. Under Federal Rule of Evidence 801(d)(2)(A), an opposing-party statement is considered a non-hearsay statement, which will then get it admitted into evidence.

However, an informant’s words in the recording may have to be excluded unless the prosecution can show how the words fit into one of the hearsay exemptions listed in Federal Rule of Evidence 803. Even if the informant is not considered an opposing party, federal prosecutors can still offer the informant’s words in an effort to provide context, but the truth of the statements themselves wouldn’t then be offered to the jury.

As long as the recording is consensual and doesn’t violate any other applicable evidence rules, then the recording itself is generally admissible in a federal criminal trial.

3. Probativeness of the Recording

Whether a recording is probative is a question for the federal judge to determine on a case-by-case basis. If you think the recording doesn’t show what the government argues it shows, this is a defense that should be considered during your trial. Even if the recording is a lawful consensual recording, you can still request its suppression or exclusion if the recording doesn’t fit into any of the admissible categories. If the recording was made in order to entrap you, then this might be a basis for suppressing the recording’s admissibility.

4. Chain of Custody Issues

In criminal cases, if the chain of custody for a recording is broken, how does it affect the admissibility of that recording? Again, this depends on how serious the break is. Usually, breaks in the chain of custody affect only the evidentiary weight of the recording, but it will need to affect admissibility when the break in the chain of custody is so serious that a recorded conversation could be distorted or manipulated. This is when a gap in the chain of custody could present a genuine doubt as to authenticity.

What should I tell my lawyer before cooperating?

Generally, confidential communications between a defendant and his or her defense attorney in order to seek legal advice are considered privileged and are subject to attorney-client privilege. However, this privilege only protects communications between clients and their defense attorneys, and it does not protect communications between clients and defense attorneys to the extent the underlying facts they discuss are not otherwise privileged. In addition, the attorney-client privilege may be inapplicable if you discuss your ongoing or future wrongdoing with your lawyer, even if your intentions regarding the wrongdoing are criminal in nature. Here too, this is based on the attorney-client privilege crime-fraud exception.

Will My Statements Become Public?

No matter how confidential your statements to your lawyer might be, if you make statements to a federal prosecutor, your statements will be subject to disclosure. Even statements made to the prosecutor during a proffer session are not privileged, and this is true regardless of whether the statements were produced under the umbrella of attorney-client privilege or under the rules of professional conduct that lawyers must follow.

As far as proffer protections go, a proffer is generally subject to the terms of a written agreement between the prosecutor and the defendant. This written agreement will generally outline certain exceptions that can allow the prosecutor to pursue an indictment or a criminal complaint based upon any information that is produced as part of the proffer session, and in many cases, these exceptions will be substantial in number and scope.

What If I Lie During a Proffer Session?

If you knowingly lie during a proffer session, you could be charged with violating 18 U.S.C. § 1001. This statute has an extremely broad scope, and it can expose defendants to charges and sentences that are far more severe than the punishments they may have otherwise faced. Federal agents, as well as federal prosecutors, expect defendants to be completely honest during a proffer session. Any signs of dishonesty can significantly impair the defendant’s relationship with the government. However, lying to federal agents and federal prosecutors is not a given, and, if a defendant is honest during his or her proffer session, it may be in his or her best interests.

Does a recording guarantee charges or make conviction inevitable?

There is no one criminal charge that is categorically the hardest for a defendant to defend against successfully in court. The practical difficulty of defending any given charge, including the likelihood of conviction, is typically a factor of the strength of the evidence against the defendant, any specific elements that the prosecutor must prove in order to obtain a conviction, the specific defense that is being used, and all other considerations that are relevant to the specific case at hand.

While a recording can be used as evidence to support an admission of guilt or a solicitation that can strengthen the government’s prosecution of a given case, these recordings, too, can be challenged. It is not inherently “impossible” to obtain an acquittal in a case where a recording is in evidence.

Whether or not a recording is admissible is not a given, as is the case with any other form of evidence that the government intends to use at trial. Evidence must be presented that a recording is authentic, admissible, and probative, and if any of these are found to be lacking, the judge will likely exclude the recording.

What Must a Prosecutor Prove to File Charges?

There is no universal rule requiring federal prosecutors to establish a minimum of three (or any other number) conditions before filing charges.

Under federal law, for a federal criminal complaint, there must be probable cause that an accused person committed a federal offense. This threshold of evidence is significantly less than a “preponderance of the evidence” and far less than the standard “beyond a reasonable doubt.”

Under the United States Attorney’s Manual, federal prosecutors should only file a federal criminal complaint or indictment when there is sufficient admissible evidence of guilt to sustain a conviction. The United States Attorney’s Manual explains that probable cause does not mean that there should be evidence beyond a reasonable doubt, but rather, there should be enough evidence that it is more likely than not that the accused person committed the offense.

What is the Difference Between Indictment and Conviction?

If you are in federal court and facing a criminal charge, a common question is whether or not this means you will be convicted. The answer is “No,” as indictments do not equate to convictions in the federal court system. In federal cases, a federal grand jury indictment is required unless the defendant validly waives this right in his or her case. However, in an indictment, only probable cause is required, not proof beyond a reasonable doubt. Convictions are not inevitable even if an indictment is obtained by the federal prosecution.

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.