Witness Intimidation Protections for Federal Cooperators.

If you are a federal cooperator and you believe that someone is trying to intimidate you into refusing to cooperate with the government, you must report it immediately. You must report it to your prosecutors, to the case agent, and to your case’s victim-witness coordinator. Witness intimidation by federal cooperators is a form of witness tampering, which is a federal felony. 18 U.S.C. § 1512 prohibits the use of physical force or threats of force to intimidate a witness. The statute applies to threats of physical harm to a witness, the witness’s family, associates, or employer. 18 U.S.C. § 1512 also prohibits any attempt to corruptly persuade a federal witness to withhold testimony, refuse to cooperate, or avoid being subpoenaed. With the government’s use of witness protection program measures like changes to a cooperator’s identity and relocation, it is more than possible that witnesses facing intimidation will feel it is too late to come forward. However, in these circumstances, prosecutors can impose evidentiary and criminal penalties that punish anyone accused of committing witness intimidation. This, in turn, can encourage cooperators to continue working with the government and provide critical testimony. Other witness protection measures include witness relocation, changes to a witness’s identity, and detention of defendants charged with intimidation. 28 U.S.C. § 20141 requires federal officials to arrange reasonable protection for witnesses threatened with harassment, intimidation, or other forms of retaliation.

Under Guideline § 5K1.1, cooperators can receive substantial sentence reductions. The prosecution must make a request to the district court, which can then use a sentencing reduction based on the cooperator’s assistance. Under Wade v. United States (1992), courts can only review the prosecution’s motion for a 5K1.1 sentence reduction in cases of unconstitutional prosecutorial motive. Under Melendez v. United States (1996), a 5K1.1 motion alone cannot pierce a mandatory minimum. Instead, the prosecuting attorney must make a motion under 18 U.S.C. § 3553(e) and convince the district court that the cooperator provided a substantial level of assistance. Courts will also use Guideline § 5K1.1(a)(4) to weigh the risk that the sentence imposed will cause others to face danger in the future due to providing cooperation in federal cases.

What Should I Do Immediately After an Intimidation Threat?

Victims of federal witness intimidation must immediately report the threat to their assigned prosecutor or investigator. Since every United States Attorney’s office staffs a victim-witness coordinator, you should go to this person as well. While this seems obvious, you should be able to assume that you can work with your assigned prosecutors as well. However, doing anything that can prevent witness intimidation is important to ensure your cooperation with the government does not slow down your witness protection measures. Witness protection measures include:

• Witness relocation, identity changes, and other protection program benefits
• Witness protection law enforcement officer (LEO) assignments
• Detention and detention hearings
• Federal restraining orders
• Protection orders
• Interception of the threats
• Protection under the Crime Victims’ Rights Act (CVRA)
• Protection under other federal statutes
• BOP intervention

Under 18 U.S.C. § 1514, a district court can enter restraining orders for witnesses targeted by federal witnesses who attempt to intimidate or harass them. The application for the restraining order may be submitted to the district court by a government attorney, and this witness protection measure becomes effective in just a few hours in cases involving intimidation threats. In such cases, however, the witness must rely on his or her assigned government attorney to ask for witness protection and protection from further witness intimidation.

With regard to detention and detention hearings, 18 U.S.C. § 3142(f)(2)(B) authorizes detention hearings in cases where there are serious concerns about the risk of witness intimidation. In cases involving witness intimidation, 18 U.S.C. § 3142(c)(1)(B)(v) authorizes federal judges to impose restrictions such as prohibiting the defendant to enter into contact with a witness of a federal case as a condition of pretrial release.

• The Crime Victims’ Rights Act, under 18 U.S.C. § 3771(a)(7) and (a)(8), crime victims are afforded protection from intimidation and harassment under federal law. Since federal witness intimidation is not limited to crime victims, this federal statute only provides witness protection to crime victims that are federal witnesses. While the CVRA provides for some protection in cases involving witnesses, it does not protect any witnesses who are not crime victims.
• Protection under 18 U.S.C. § 1513, Witness retaliation is a federal felony that carries substantial penalties. This is even more true in cases involving intimidation efforts that result in witness death.
• Interception of the threats, Since 28 C.F.R. § 540.102 allows for interception of federal prisoner telephone calls, any federal witness intimidation efforts that are conducted through the telephone will be intercepted by the Bureau of Prisons. It will then report any threats to federal prosecutors, which will trigger the federal government to immediately act to preserve a cooperator’s testimony.

What Conduct Counts as Federal Witness Intimidation?

What constitutes federal witness intimidation? With regard to criminal penalties, 18 U.S.C. § 1512(a) authorizes federal prosecutors to charge the following in the context of federal witness intimidation:

• Killing, attempting to kill, or conspiring to kill a federal witness
• Threatening to kill or physically injure a federal witness (or his or her family)
• Use of physical force or threats of physical force to intimidate, persuade, or otherwise attempt to corruptly influence a witness
• Tampering with a witness or another person who knows of the existence of a witness

Under 18 U.S.C. § 1512(a)(2), threatening to use physical force to influence a witness is punishable by up to twenty years under 18 U.S.C. § 1512(a)(3)(C), while 18 U.S.C. § 1512(a)(1) reaches killing or attempting to kill a witness. In addition, any attempt to corruptly persuade or intimidate a witness by force or other means not authorized by the statute is also a twenty-year felony under 18 U.S.C. § 1512(b). While 18 U.S.C. § 1512(d) only authorizes prosecutors to charge witness intimidation that harasses or otherwise impairs the ability of a federal witness to testify or otherwise cooperate with federal authorities with a maximum three-year offense, this is not the only offense they can charge.

Under 18 U.S.C. § 1512(k) conspiracy is not limited to a five-year maximum sentence as provided under 18 U.S.C. § 371. In such cases, individuals charged with conspiracy in the context of federal witness intimidation face the full sentence for the underlying offense.

• The official proceeding does not need to be pending or have been instituted. While 18 U.S.C. § 1512(f)(1) indicates this clearly for most cases of witness intimidation, 18 U.S.C. § 1512(b)(3) explains that no official proceeding is needed in order for prosecutors to charge a person with hindering the government’s efforts to communicate with a witness.
• Threats directed to a witness’s family or associates. 18 U.S.C. § 1512 provides protection for family members who are threatened or physically harmed in order to intimidate a witness. This provision allows witnesses to go to the federal government with concerns for the safety of their family members and trusted associates.
• Threats relayed through intermediaries. If a federal witness receives a threat that was relayed through intermediaries, the threatening party can face the same penalties under 18 U.S.C. § 1512 as if they had personally intimidated or threatened the witness. This applies if the threatening party made it clear through their intermediary that the witness must stop cooperating with the federal government in order to remain safe.

How Can Intimidation Evidence Preserve a Cooperator’s Testimony?

Under Federal Rule of Evidence 804(b)(6), the Government may establish that a witness’s statement is admissible to provide substantive evidence in cases involving witness intimidation if the government shows that the witness, or a member of the witness’s family, was subject to a “forfeiture by wrongdoing.” Under Giles v. California (2008), this occurs when a defendant has intentionally made a witness unavailable. Under Rule 804(b)(6), the witness may have already been rendered unavailable in the federal case before the Government offered their hearsay testimony, and the government’s burden is to show that the defendant intentionally made the witness unavailable.

In many cases involving federal witness intimidation, recordings of prison phone calls, social media posts, and records of the Bureau of Prisons’ inmate monitoring system (TRULINCS) provide strong evidence that a defendant intentionally made a federal witness unavailable. To protect cooperators in these circumstances, federal judges can allow the deposition of witnesses under Federal Rule of Criminal Procedure 15(a).

In such cases, deposition testimony remains admissible under Rule 804(b)(1). If the prosecution certifies that the deposition was a reliable attempt to preserve a witness’s testimony under Rule 15, the testimony can be used in court without the witness if they are unavailable, and their prior testimony is deemed to be admissible in such cases.

• Timestamped social media posts. Along with other forms of electronic communication, timestamped social media posts of the defendant that label someone as an informant, betrayer, or rat can serve as admissible evidence in criminal cases.
• Circumstantial evidence. If the defendant’s actions are so circumstantial that prosecutors cannot prove witness intimidation, then circumstantial evidence will be admissible in court as well. While prosecutors must still prove that the defendant had an intent to intimidate the federal witness, evidence that is either in common language, phrasing, or the timing of the la-beling of someone as a rat can establish the defendant’s intent.
• Intermediaries. Intimidation efforts made through the use of an intermediary are also punishable if the defendant is the one who made it clear through their intermediary that the cooperator’s testimony was the reason for the la-beling of the witness. Evidence of threats made via intermediaries is also admissible to show that a defendant had a consciousness of guilt.
• Threats. Proof of threats made to a witness is admissible in federal court. It serves as evidence showing the defendant has consciousness of guilt, particularly in cases involving conspiracy. If a defendant is found guilty, prosecutors and defense counsel can use evidence of threats, harassment, and intimidation to either aggravate or mitigate sentencing based on the federal judge’s opinion.

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.

How Can the Government Limit Exposure of Cooperator Status?

Under Rule 16(d)(1) of the Federal Rules of Criminal Procedure, the federal government can secure protective orders that restrict access to sensitive discovery material in the event a witness needs to testify at the prosecution’s request. While it is possible to limit who will have access to protected discovery, the discovery must remain available for all parties involved to be able to prepare a timely response to the prosecution’s evidence.

With regard to sentencing, the Judicial Conference provides a policy recommending that the federal government routinely file sealed sentencing supplements in every case. Under the Uniform Sealed Supplement Policy, the file should be designated as a sealed supplement even if the defendant is not known to be a federal witness, as the filing itself can serve as an indicator of a cooperator’s status and could cause the defendant to be targeted by others.

While inmates have devised methods to circulate plea and sentencing “paperwork” that they then use to identify potential cooperators, the federal government’s goal is to encourage cooperation and to have its witnesses come forward to immediately report witness intimidation.

Under Federal Rule of Criminal Procedure 49.1, the federal government must redacting identifying information from public filings. Public access to documents from PACER is not shielded to avoid unintended issues arising from improper disclosure.

With the objective of facilitating protective custody and other witness protection measures, the federal government utilizes the Bureau of Prisons’ (BOP) Central Inmate Monitoring system pursuant to 28 C.F.R. § 524.72. Through this system, the government can flag cases involving witness security to ensure a cooperator is not placed in a separation assignment with named codefendants.

The fact that the BOP records inmate activity electronically means that even documents filed under Rule 49.1’s redaction and PACER’s shielding restrictions can be easily scraped and redistributed. As a result, a cooperator’s status can easily be disclosed through these documents. As a federal criminal defense law firm that handles cases nationwide, the attorneys at Spodek Law Group are familiar with the risks involved in federal witness protection, and we advise cooperators based on this insight.

What Protection is Available Without Entering WITSEC?

The Federal Witness Security Program (WITSEC) is codified at 18 U.S.C. §§ 3521-3528, and the United States Marshals Service is the agency that administers it. DOJ’s Office of Enforcement Operations (OEO) must approve each WITSEC admission, and under 18 U.S.C. § 3521(d), the cooperating witness must enter into a signed memorandum of understanding with the Marshals Service before they can be enrolled in the program.

With regard to protection options available to cooperators who are not enrolled in WITSEC, the Marshals Service has the authority to furnish short-term protection in order to preserve the witnesses’ testimony. Additionally, through the DOJ’s Emergency Witness Assistance Program, a witness can be granted a one-time, short-term relocation in lieu of WITSEC. Once again, while these options may appear similar, the protections provided under the program differ in their scope and availability.

According to 18 U.S.C. § 3521(f), the federal government can terminate a cooperator’s WITSEC benefits if the participant substantially breaches their signed memorandum of understanding. Termination can occur even if the witness provided a substantial level of assistance to the federal prosecution. While this risk is substantial for all federal cooperators, only a small fraction of them ever enter WITSEC.

Federal cooperators are most likely to enter into a temporary protective arrangement with the federal government, and they are eligible for federal protection under the various statutes discussed above. This includes protection and protection orders under 18 U.S.C. § 1514, while having the ability to extend their temporary restraining orders. However, under 18 U.S.C. § 1514, temporary restraining orders expire automatically in ten days unless the government requests an extension.

What Other Remedies Can Punish Retaliation Against a Cooperator?

In addition to the charges listed above, federal prosecutors can charge individuals under 18 U.S.C. § 1513 if they retaliate against a witness, relative, or associate after their cooperation with the government has already been completed. The provision on retaliation affecting a cooperator’s livelihood was enacted in 2002 under 18 U.S.C. § 1513(e). The penalty for causing retaliation through which a witness suffers substantial harm to his or her livelihood is ten years of federal imprisonment. If the retaliation causes bodily injury or substantial damage to a witness’s property, the penalty increases to twenty years under 18 U.S.C. § 1513(b).

There are also several civil options for those in custody that are not protected under the federal government’s Witness Protection Program and for those in federal witness protection who are not seeking to secure criminal penalties.

• 42 U.S.C. § 1985(2). This is a civil remedy that gives federal witnesses the ability to recover civil damages from any individual or entity that intimidated them. The provision under the statute allows private defendants to be targeted even without a requirement of state action.

The ability to apply civil remedies in federal witness intimidation cases also depends on other applicable federal and state statutes. In many cases, civil RICO claims may be another option. Under 18 U.S.C. § 1961(1), 18 U.S.C. § 1512 and 18 U.S.C. § 1513 both constitute predicate acts to RICO civil and criminal cases. As a result, defendants charged with civil RICO in these cases may be liable for treble damages under 18 U.S.C. § 1964(c), provided that the pleading alleging tampering is sufficient to meet the federal standard for a RICO prosecution.

Retaliatory efforts that involve publishing a witness’s home address, phone number, or other restricted personal information to encourage violent action or harass the individual are also illegal. Under 18 U.S.C. § 119, individuals who encourage or threaten violent action against federal law enforcement and court officials can face federal criminal penalties. In some cases, the federal government will extend this to those who intimidate witnesses as well. If you are a federal witness facing retaliation, seek counsel. The federal government provides layered protections, and we will do everything in our power to make sure your safety is ensured.

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If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.