ALL ABOUT COOPERATION
One third of all federal defendants in the Southern and Eastern Districts of New York, give or take, try to get cooperation agreements with the government. In the state system, cooperation is much less common. This article explains the entire process.
Cooperation in the Federal System
Before a person accused of a crime decides to talk to the government with a view to getting a cooperation agreement there are a number of factors he should consider. Cooperation makes sense only when the defendant is guilty and is planning to plead guilty. If he is planning to go to trial, talking to the government would only hurt his case. In any event, the government is not interested in talking to defendants who claim that they are innocent of the crimes charged.
Unless the person is facing a long sentence, cooperation is generally not a good option because it entails considerable risks. Those risks include alienating people against whom the person cooperates and subjecting defendants and even their families to threats and to violent retribution in rare cases such as organized crime cases. If the person enters into a cooperation agreement, his sentencing will be postponed until all of the people against whom he cooperated have been sentenced themselves. This means that an incarcerated defendant will remain at MCC, MDC or a local jail for pretrial detainees for a long time until the others have been sentenced. Since jails (institutions for prisoners sentenced to a year or less and pretrial detainees), as opposed to prisons, have fewer programs, inferior medical care, generally less freedom and time out of doors, there is a real cost to delaying sentencing. Finally, cooperation often results in additional charges being brought and, in some instances, where the crimes are more serious than the originally charged crimes, an increase in his sentencing exposure.
If a defendant decides to cooperate, the first step is to meet with his lawyer, often over many days. An experienced criminal defense lawyer will thoroughly debrief his client about the facts of the crimes charged, his prior criminal activities (including acquitted conduct and conduct for which he was never charged), and any information he may have about criminal conduct by others, including his coconspirators and anyone else. He may also have information about the location of contraband and funds that are the fruit of crimes.
Once the client has been fully debriefed, the lawyer must make a determination as to (1) whether he has information that would amount to substantial assistance to the government; (2) whether cooperation would result in the revelation of new crimes that might result in an increased sentence; (3) if he is willing to be completely truthful, and (4) if he is willing to engage in proactive cooperation. If the lawyer determines that his client’s attempt to cooperate would likely be successful and worthwhile, he will then notify the prosecutor (AUSA) that he wishes to bring his client in for a proffer session (a meeting in which the client tells his story to an Assistant United States Attorney and one or more agents).
At the proffer, the client will be asked to sign a proffer agreement, also known as a Queen for a Day agreement. This agreement is carved in stone, i.e., the government will not countenance any changes. It provides very limited protection to the defendant. It bars the government from using any statements made by the defendant in the government’s case in chief with the exception of prosecutions for perjury, making false statements or obstruction of justice should the government conclude that the defendant lied in the proffer. However, the government can use statements to develop leads, to cross-examine the defendant should he go to trial, and to rebut any evidence or claims raised by the defendant at trial. The statements can be used at sentencing. There are differences between proffer agreements in the Southern and the Eastern Districts.
At the proffer session, the government will first ask about the defendant’s background and his involvement in the case in which he has been charged. They will do this largely to determine if he is being truthful. If he lies, the meeting can be terminated and his chances of getting a cooperation agreement will usually vanish. The AUSA will then ask the defendant what other information he might have about other crimes. Next, usually at a second session, the government will require the defendant to list all of the crimes he has ever committed, even uncharged crimes unknown to law enforcement. This is frequently the most difficult part of the process because defendants who are not carefully prepared by their lawyer will be fearful that revealing such crimes will hurt them. In fact, admitting to such crimes is the only way in which the defendant can get a cooperation agreement. Except in unusual circumstances, the sentencing judge will not punish the defendant for disclosing those crimes. The defense lawyer is present at all proffers and will participate and counsel the client in private in order to make sure that things move smoothly.
If the government is satisfied that the defendant has been 100% truthful and that he has material information about others that is useful to the government, i.e, that he has and will continue to provide material assistance by agreeing to testify if necessary and, in some cases, otherwise assist the government by providing proactive assistance , the AUSA after consultation with his boss will draft a cooperation agreement. That agreement requires the defendant to tell the truth and to cooperate fully. In return the government promises to write a 5K letter, a letter under §5K1.1 of the Federal Sentencing Guidelines setting forth the defendant’s crimes and the nature and extent of his cooperation. This letter permits the judge to sentence the defendant without regard to any mandatory minimum sentence restrictions. It also gives the defendant two points off the sentencing guidelines range. Depending on the facts, a defendant who gets a 5K letter can expect a lenient sentence, sometimes an extremely lenient one. An experienced lawyer who knows the predilections of the judge can predict with a high degree of accuracy the approximate sentence the client will receive. The government will never make any promises as to what the sentence will be nor will they ask the judge for a specific sentence. The strength of the 5K letter is important. When the defense lawyer and the AUSA have a good relationship, the AUSA will give the defense lawyer an opportunity to review and comment on a draft of the letter before it is sent out.
While the discounts in sentences given in the federal courts in New York are frequently enormous, the same cannot be said of other districts. In the Eastern District of Virginia, for example, a defendant cannot expect no more than one-half off their sentence.
The decision to cooperate is a serious one and is entirely the clients. Should the client want to cooperate, an experienced federal lawyer can help the defendant successfully negotiate the rapids at every turn of the voyage and assure that he reaches his destination in good order. Should he not want to cooperate, a wise lawyer will not try to change the client’s mind once the lawyer has explained the option, its risks and its benefits.
Cooperation in State Court
State prosecutors are generally much less experienced in working with cooperators than federal prosecutors. Very few state defendants cooperate, largely because the ADAs do not solicit it and because the fruit of cooperation is not as sweet. The main difference between federal and state cooperation is that in state court, the District Attorney will promise a specific sentence for cooperating.