Cooperating with government is a very common, and sometimes effective strategy in mitigating the consequences of a federal criminal prosecution. Unlike state prosecutions, assisting the government in the prosecution of crime, including your own, can have a tangible benefit meaning it can be somewhat quantified before hand. In State court, cooperating is rarely a strategy if ever. In federal criminal prosecutions, it happens all the time. Sometimes lawyers are too quick to offer cooperation when alternative strategies like challenging evidence admissibility are best tried first.
There are three general types of federal cooperation. Pre-Indictment Charge Bargaining, Acceptance of Responsibility, and providing Substantial Assistance.
Pre-Indictment Charge Bargaining
It is possible to negotiate the criminal charges with the United States Attorney before they seek a grand jury indictment. This negotiation often involves a “proffer” discussion which means the AUSA and case agent question the client about the facts of the case. Of course the client’s attorney will be present to protect the client. The client will be given a limited type of immunity so that his answers cannot be used against him if things don’t work out. This discussion can lead to a mutual and favorable resolution of the matter. An agreed upon criminal complaint and rule 11 plea agreement can then be filed in federal court. The sentence can also be negotiated or left up to the district judge.
Acceptance of Responsibility
Typically after an indictment but well before trial, a client can provide notice to the United States Attorney that he wishes to admit his guilt and plead guilty to one or more of the charges in the indictment. This usually happens when the government has a very good case against the defendant which is often the case because of the government’s significant resources. The client and his attorney will meet with the AUSA and case agent for a proffer where the client must truthfully admit the conduct comprising the offenses he is charged with. The client must assist the government in the prosecution of his own misconduct and not necessarily of another. The client may also wish to voluntarily pay any restitution to a victim or resign from an office or position held during the commission of the offense. The reward for engaging in this type of assistance is up to a three-point reduction of the base offense level for the charge. This reduction can reduce a jail sentence on average about 30%..
Acceptance of responsibility does not require that the defendant to assist the government with evidence against other people, unless possibly within the same criminal conspiracy, or other acts beyond the charged offense.
Providing Substantial Assistance
One of the government’s most used tools in prosecuting offenders is to offer to greatly reduce a sentence with what is known as a 5K motion. When a defendant has provided substantial assistance in the successful prosecution of another person, the government, in their own discretion, can request a judge to reduce a sentence by sometimes 50% or more, depending upon the amount of assistance and the amount of crime successfully prosecuted. Often times this assistance includes testifying for the government at trial. It may also or alternatively require the defendant to operate as an under cover informant. Clearly, both of these activities can be considered dangerous in some circumstances and must always be considered. Federal law enforcement will offer protection services if appropriate.
When deciding the exact amount of departure from the sentencing guidelines the court will look at the significance and usefulness of the assistance as well as the government’s evaluation of the extent of the assistance. Providing substantial assistance in the prosecution of others is sometimes enough to allow a person to completely avoid a sentence of incarceration. Whether to provide this level of assistance must considered carefully as there are often no guarantees and, as stated, there are inherent dangers that may be attached.
Evaluating Whether to Cooperate and the Value of Client Preparation.
Again, the decision to cooperate with the government in any manner must be carefully evaluated by a skilled and experienced federal criminal defense attorney. Alternative options for resolution must be considered. If the client and lawyer decide to cooperate, the client must be fully prepared for the proffer because his statements are very important and will be scrutinized. Further, the client may feel like he is being harshly questioned and the lawyer must properly prepare him and be ready to defend him if they get too aggressive. The goal should always be to help the client get a better outcome and not helping the government make their job easier.