Witness Protection Program.

Administration and Statutory Authority

The Federal Witness Protection Program, which is more commonly known as WITSEC, is administered by the United States Marshals Service. The program was established in 1970 by the Organized Crime Control Act, which established a federal witness security program for the first time. The program began operating under the Marshals Service’s administration in 1971, and it was later amended by the Comprehensive Crime Control Act, which amended the program’s statutory framework in 1984. Federal authorities’ power to protect witnesses under the federal witness protection program appears in 18 U.S.C. § 3521.

Who Qualifies for Federal Witness Protection?

To qualify for protection under WITSEC, a witness generally must be a witness or potential witness for the federal or a state government in an official proceeding involving organized criminal activity or another serious offense, and the Attorney General must determine that a qualifying violent or obstruction-related offense directed at the witness is likely to be committed. The following requirements are typically necessary to qualify:

• Testimony in Federal Prosecution: The witness must provide testimony that is significant and essential to the success of the prosecution.
• Imminent Risk of Violence: The witness must provide evidence (or the likelihood of evidence) showing they are in danger of physical harm or death due to their involvement.
• Witness Suitability: The government will assess whether the prospective witness is suitable for witness security. Individuals with a history of violent crimes or criminal tendencies may be deemed ineligible.

What Protection Does the Federal Witness Protection Program Provide?

Once a witness is accepted into the Federal Witness Protection Program, the government provides a broad range of protections, including:

• Secure Relocation: The federal government provides witnesses with a new location, and in some cases, transport out of the state or country.
• New Identity: Witnesses given new identities will receive federal documents and records to support their new identities.
• Financial Assistance: In some cases, the government provides witnesses with funds for housing, employment training, and other basic necessities until they can support themselves.
• Legal Protection: Witnesses are often provided with legal advice regarding their testimony and the protections they are entitled to.

What Must an Approved Participant in the Witness Protection Program (WITSEC) Promise Before Entering the Program?

In order to be approved to enter WITSEC, the potential participant will typically have to agree to a number of terms. As noted in the U.S. Department of Justice regulations, the Attorney General (or the Attorney General’s designee) can require the prospective participant to sign a “Before providing protection to any person under this chapter, the Attorney General shall enter into a memorandum of understanding with that person.” (18 U.S.C. § 3521(d)(1)). The memorandum sets out the conditions upon which the prospective participant can be approved to enter into the Federal Witness Protection Program, and it generally stipulates that a participant must agree to:

1. Testify in Criminal Proceedings

A witness approved for Witness Security must agree to testify, if requested, in all pertinent federal criminal proceedings, including grand jury proceedings, pretrial hearings, and trials, in which their testimony is needed. While the exact scope of testimony requirements varies by case, witnesses who are accepted into the program are expected to be available and truthful when called upon to assist with federal prosecutions.

2. Refrain from Criminality

A witness approved for Witness Security must agree not to commit further crimes as long as he or she is under the Witness Security Program. If an approved participant commits a new offense, this can serve as grounds for removal from the program. The government will not use Witness Security resources (such as relocation and protection) to aid a person who continues to violate federal criminal laws.

3. Comply with Personnel

A witness approved for Witness Security must agree to obey all reasonable instructions and demands of U.S. Marshals Service personnel assigned for their protection. This includes, but is not limited to, requirements regarding travel and relocations, communication with previous associates, and maintaining their cover in their assigned location.

4. Disclose Legal Obligations

A witness approved for Witness Security must agree to disclose outstanding debts, lawsuits, and other legal obligations before he or she enters the program. As explained above, WITSEC is primarily designed for the witnesses’ safety, so there is no expectation that WITSEC-protected witnesses are exempt from fulfilling their pre-existing legal obligations.

How Long Does Federal WITSEC Protection Last?

How long will a participant in the Witness Security Program receive protection depends on the specific circumstances involved. There is no federal law that guarantees a specific duration of protection, and the U.S. Marshals Service does not typically commit to a specific length of protection. However, the program remains available under 18 U.S.C. § 3521(b)(1), for as long as the danger to that person exists. The Department of Justice states that if a former participant is in immediate jeopardy arising from the former cooperation, the need for further protective services will be evaluated and provided if appropriate.

What Form of Federal WITSEC Protection Will I Receive?

Protected witnesses will be provided with a number of supports designed to protect their identities. As noted in the Witness Security Guidelines, these supports can include:

• Legitimate Social Security numbers, birth certificates, and other government records in the protected witness’s assumed identity.
• Protected witnesses may receive driver’s licenses (or other pertinent identity documents) that reflect their protected identities.
• U.S. Marshals Service personnel will generally provide protected witnesses with housing, basic home furnishings, and subsistence assistance.
• The federal government may provide protected witnesses with other form of financial assistance as well, though this typically requires showing an “imminent need” and will typically be time-limited.
• Once relocated into their new community, witnesses are generally expected to work toward financial self-sufficiency.

The attorneys at Spodek Law Group carry more than fifty years of combined experience between them.

What Happens When the U.S. Marshals Service Ends Protection?

When the U.S. Marshals Service terminates protection for a witness, that witness becomes responsible for their own housing and basic needs. He or she will also no longer receive financial assistance, and will no longer be provided with security services or other resources under WITSEC. Once terminated, WITSEC participants will continue to use their new identity unless requested otherwise.

Can Cooperation with the U.S. Marshals Service Under the Witness Protection Program (WITSEC) Reduce a Federal Sentence?

Section 5K1.1 of the U.S. Sentencing Guidelines permits the government to file a motion for substantial-assistance sentencing relief on behalf of a defendant who has provided substantial assistance in the investigation or prosecution of another person who has committed an offense. However, by design, this type of sentencing relief can only be requested through the filing of a Section 5K1.1 departure motion by federal prosecutors on the defendant’s behalf. If you or a family member has cooperated with federal authorities in connection with a pending federal case or trial, it is possible that you or your family member will qualify for a favorable sentencing outcome as a result.

Federal Rule of Criminal Procedure 35(b) also allows for substantial-assistance sentence reductions. Rule 35(b) applies to individuals who have already been sentenced. Like Section 5K1.1, Rule 35(b) requires the government to file a motion on the defendant’s behalf.

While providing substantial assistance to the government in connection with a federal investigation or prosecution can potentially lead to a lighter sentence under Section 5K1.1 or Rule 35(b), this type of cooperation does not automatically place an individual into WITSEC. In many cases, witnessing and cooperating with federal authorities will not entitle an individual to federal protection.

Can an Individual Receive Protection under WITSEC Without Seeking a Reduction in a Federal Sentence?

Yes, it is possible for a witness to receive protection under the federal Witness Protection Program without seeking a reduced sentence. As explained above, some witnesses in the Federal Witness Protection Program (WITSEC) are not criminal defendants, and those who are criminal defendants are not required to seek relief under Section 5K1.1 or Rule 35(b). In order to enter the program, witnesses must satisfy the Program’s eligibility and approval requirements, including being an essential witness in a qualifying case and facing a qualifying threat. Conversely, witnesses may decline federal protection.

How Do Whistleblower Remedies Differ from Federal Witness Protection Program (WITSEC) Protection?

While the U.S. Marshals Service has extensive authority to provide protection under WITSEC, the federal government does not have statutory authority to protect all of its witnesses. For example, in Florida, the state government operates its own Victim/Witness Protection Program. As noted in Florida Statute § 914.25, this state-level program is separate from WITSEC, and it provides qualifying participants with:

• Witness Relocation: The program helps relocate qualifying witnesses within the state of Florida.
• Witness Transportation: The program provides transportation to a temporary secure location and to the witnesses’ relocation destinations.
• Physical Protection: Florida’s program may also provide round-the-clock physical protection for qualifying witnesses and victims.

Federal witness protection laws are also distinct from federal whistleblower-retaliation laws. Federal witness protection laws address protective problems arising out of exposure to violence, whereas whistleblower laws address economic and other employment-related retaliation. As the False Claims Act explains, private citizens who become aware of fraud perpetrated against the United States may pursue legal action (or provide assistance in pursuing legal action). To discourage retaliation by employers, various whistleblower laws afford protection to citizens. These protections include the ability to file lawsuits for reinstatement, back pay, and other remedies. For example, if a person is wrongfully terminated or demoted as a result of blowing a whistleblower, a person could seek a variety of remedies under the federal laws protecting whistleblowers.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028 to speak with our team.