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 Cooperation And Making False Statements 

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Michael Santos

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Introduction

Federal law enforcement agents would probably agree that they cannot accomplish their goals without the cooperation of individuals and companies who choose to assist them to get a better deal.

We discuss below some of the pros and cons of cooperation with federal agents, reminding anyone considering cooperation this:

While people do not have to agree to cooperate in a criminal investigation, they do have to tell federal agents the truth in whatever they choose to say. Failure to do so exposes people to charges for making false statements (18 US Code Section 1001), and time in federal prison.

What is a Section 1001 federal charge?

Title 18, US Code Section 1001 makes it a crime to: 

  • knowingly and willfully;
  • make any materially false, fictitious or fraudulent statement or representation; 
  • in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States.

The issue of lying to federal agents often comes up when a person is cooperating with federal agents and prosecutors during the course of a criminal investigation or prosecution.

Discussion

One of the first questions people ask themselves and their legal advisors as soon as they understand that they are suspects or targets of a federal criminal investigation is whether to cooperate. 

Should you cooperate with federal law enforcement?

No one can decide this for anyone else. The answer is different for everyone. There are many factors people have to weigh, many of which are highly personal. Different lawyers also have different approaches when it comes to their clients and cooperation with the feds. 

People enter into cooperation agreements with prosecutors and federal investigators to get a better deal for themselves. The decision to cooperate is individual, and it is up to each defendant to consider the pros and cons of cooperation based on the advice of counsel.

In general, some people consider cooperation as “snitching” and would never consider doing so in a million years. Prisons are full of people who have possibly valuable information but who choose not to cooperate. 

Likewise, other people are willing to trade whatever they know in exchange for liberty.

Most people are not wedded to either end of the spectrum. They simply would never trust the federal government, Or they might believe that cooperating and informing on co-defendants to get a better deal is a waste of time.

Wherever people land on the spectrum of possibilities, there are stories to support their view.

A Negative Experience

For example, many attorneys regularly vocalize negative experiences when seeking fair cooperation agreements for their clients. For example, there are cases where prosecutors agree to request a sentence range, but the sentencing judge later arbitrarily decides not to go along. This can happen even for a defendant who cooperates fully under their agreement.

It happens that the sentencing judge may decide that the recommended sentence from prosecutors after cooperation is much too light. 

Nor can there ever be a complete guarantee because sentencing is ultimately up to the judge. We don’t intend to discourage anyone or state that it never pays to cooperate. Sentencing judges most often do agree with the judgment of the prosecutors and the defense counsel. 

Still, cooperation and the ultimate sentence after cooperation is a gamble. And hearing negative stories can be disheartening. 

In one case, a California lawyer shares that the FBI debriefed this attorney’s client, who told them everything she knew about a group that manufactured and sold fake credit cards. Based on her truthful, detailed information, federal agents conducted raids, seized evidence, and arrested people who ended up pleading guilty. 

When it was time for his client’s sentencing, the sentencing guidelines yielded a range of 6-12 months in prison. For her cooperation, prosecutors recommended a sentencing range of 0 to 6 months to the sentencing judge. Instead, the judge departed upward to 20 months. The lawyer and client were astonished and devastated.

What’s the takeaway? This anecdote is a sober reminder that a criminal defendant cannot rely solely on the prosecutor’s agreement to request a downward departure. The defendant must convince the sentencing judge that they are worthy of leniency. 

The Written Cooperation Agreement or Proffer Letter

A cooperation agreement in the federal system is usually in writing, signed, and reviewed by legal counsel. A written cooperation agreement is often called a “proffer letter,” “proffer agreement,” or “Queen for a Day.”  

A proffer letter is a written agreement between the prosecutor and a criminal defendant, suspect, target, or witness, that allows the person to give the prosecutor information about an alleged crime in exchange for leniency and a better outcome.

A proffer letter may not explicitly say so, but criminal defendants enter into a proffer agreement with the assumption that prosecutors will act in good faith and will do the right thing. 

Still, people must proceed with caution and managed expectations. At the end of the day, federal sentencing judges can reject an agreement between the parties and have total discretion to sentence a person as they see fit. Sentencing judges are not parties to the plea agreement, and they do not have to go along.

People will say that sentencing judges tend to go along with the reasonable recommendations of the parties and that they rarely disagree with prosecutors about things like a defendant’s cooperation. Still, it can happen. It happens often enough that many legal practitioners warn that cooperation is never a get out of jail card.

An unfortunate consequence of accounts where judges do not go along with a prosecutor’s request for leniency based on cooperation is the chilling message to others considering cooperating and proffering to get a better deal. These stories make it harder for people to trust the federal government and reduce the incentives for people to come forward. It perpetuates the notion that perhaps cooperation is not respected, valued, or rewarded in the federal system. 

Making False Statements to Federal Agents

While people do not have to agree to cooperate with federal agents, people have to tell federal agents the truth. Making false statements to a federal agent is a crime, and prosecutors regularly bring these charges. It is better to say nothing at all to federal agents than to lie.

So when federal agents investigating a crime knock on people’s doors, if they choose to speak, they can get prosecuted for making a false statement under 18 United States Code 1001. 

There are many famous examples where lying to federal agents and obstructing justice brought people down, not some other underlying crime under investigation. Stewart’s charges stemmed from lying when federal agents asked her about the timing of stock she traded based on inside information. Former Illinois Governor Rod Blagojevich also got charged and convicted of making false statements to investigators. 

Section 1001 Charge

Prosecutors can file false statement charges under 18 USC Section 1001 when someone makes a “false statement” to an agent or agency of the federal government in connection with a federal matter.

Some judges and legal commentators criticize Section 1001 as an overly broad catch-all criminal provision that unfairly traps people. Indeed, the late Supreme Court Justice Ruth Bader Ginsburg criticized the breadth of Section 1001 noting how it gives prosecutors the power to potentially manufacture crimes. 

Justice Ginsburg’s statement is a testament to just how broad  Section 1001 is. For one, federal prosecutors can indict people for making false statements to federal agents even where they do not indict them for any other crime. Their crime is lying during an investigation. 

One argument that defense lawyers routinely raise on behalf of their clients is to insist in Section 1001 cases that federal prosecutors show beyond a reasonable doubt that their client knew that making that statement was unlawful, not just that the statement was false. 

Better than relying on some potential argument a lawyer can raise in defense, the best course of action when the FBI comes asking questions is to get a card, agree to get back to them, and call a lawyer before saying anything.

Tips About Cooperation With Federal Law Enforcement

  • People should avoid deciding on cooperation in a rush or under the excruciating pressure that sometimes accompanies the situation. Especially avoid deciding based on prosecutors or FBI agents making vague promises.
  • Never decide on the spot; people can avoid significant regrets and pain by waiting to decide on cooperation after talking to legal counsel.
  • Remember that not all federal agents act in good faith, and not all prosecutors are trustworthy. Evaluate carefully whether cooperation makes sense for you and give yourself the time and space to decide wisely.
  • Evaluate objectively whether the information will be sufficiently valuable to agents and prosecutors. Remember that federal agents and prosecutors value information that can lead to the arrest of bigger fish. If the information does not lead to the arrest or conviction of someone else, will cooperation be worthwhile?
  • Understand what prosecutors are offering in exchange for cooperation. What charges will prosecutors require in the plea agreement? Discuss with counsel whether they agree to seek a reduced sentence but also reduced charges.
  • Consider whether the government can adequately protect all of your interests if you cooperate; discuss this with your counsel.
  • Often, cooperation demands that people agree to disclose anything federal agents want to know, including, if they ask, about any criminal act the defendant and people the defendant knows ever committed.
  • Do not make false statements to federal agents, especially during the course of a cooperation agreement or proffer. Nothing upsets federal agents more than for a cooperating witness (or an informant) to lie to them.
  • Cooperation can involve testifying under oath at a hearing or trial. Those are not easy experiences, and everything you say will be subject to cross-examination.
  • A big knock on proffer letters is that they are one-sided agreements with very little room for defendants to negotiate.
  • Manage your expectations. Remember that no one can guarantee what the sentencing judge will do. Just because someone you know received probation after cooperation, no one can guarantee the same result.
  • Remember that it will be difficult, if not impossible, to turn back after deciding to cooperate.
  • Also, discuss with counsel the potential ramifications of not cooperating.
  • Making false statements to federal agents can subject people to prosecution. 

Conclusion

In many federal white-collar criminal investigations, federal law enforcement can use the assistance of cooperating witnesses. Receiving information about a criminal scheme from insiders can be extremely valuable. Still, the decision to cooperate is one of the most significant decisions a person will make in a criminal matter. The government seeks to lure cooperating witnesses by offering reduced charges and promising to ask the judge for a reduced sentence based on the cooperator’s substantial assistance in investigating and prosecuting others.

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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