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 When Cooperating on a Federal Case 

Michael Santos

Michael Santos

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What to Consider When Cooperating on a Federal Case

By:  Lawrence Hartman

Determining whether to cooperate can be a difficult decision for many people. We instinctively have a difficult time putting someone else in harm’s way solely to improve our own situation. However, the federal government plays hardball, threatening extremely long and harsh sentences while dangling the prospects of leniency as a carrot. Navigating those treacherous waters can be insanely problematic, especially when authorities threaten the prospect of bringing additional charges should you choose not to cooperate.   

If you’ve decided to cooperate, then you’re generally willing to plead guilty to something and throw yourself at the mercy of the process. Sure, some people do get off without prison time or manage to avoid a charge altogether. However, that is the exception to the rule. Understand that as part one of the process.

As for what benefits your cooperation may bring, there are no guarantees, only half-hearted assurances, based on what you’re eventually able to provide. The prosecution team, however, is motivated to stand by those assurances because the entire system is built upon the reliability of this quid pro quo – cooperation in return for a reduced sentence. 

First, a few important general rules about cooperating: 

1. The first people to cooperate get the best deal, 

2. The lower you are on the Feds’ concept of the case, the better deal you can expect, 

3. The higher you are on the Feds’ concept of the case, the more they’ll expect from your cooperation, 

4. If you reject a Plea Deal, subsequent offers will likely be worse, 

5. If you reject a Plea Deal you can anticipate the possibility of a superseding indictment bringing additional charges, 

6. The entire time you’re cooperating, you’ll be reminded that you’re not being given any guarantees regarding the amount or extent of your cooperation credit, and 

7. There can be certain consequences for cooperating if you’re designated to a medium security level prison or higher to serve your sentence. 

It typically all begins like this. Your lawyer presents the AUSA with a general idea of how you can be helpful, and the prosecution offers up a charge (or charges) to which you’ll plead guilty, which is less than what you would have faced had you chosen to go to trial. 

The charge(s) will have a maximum term, which is intended to serve as a cap, even though you’re anticipating considerably less. The value of your cooperation (and general amount of credit you can anticipate) “unofficially” depends on (a) the profile of the case you’re cooperating on, (b) the value of your information in making the case, (c) how many people you cooperate against, (d) how many cases you cooperate on, and (e) the proximity of that (those) case(s) to your AUSA. Low level information on a low-profile case elsewhere in the States will not get your AUSA’s attention. Bring him or her a juicy, ready-made case that your AUSA can prosecute directly, and you’ll be happily rewarded. 

Bear in mind, you’ll need to start cooperating in advance of signing the Plea Agreement and the government will use that agreement as leverage for as long as it can, like an Albatross hanging around your neck. You’ll be asked to do things that you may find uncomfortable or risky, like inform on people who are dangerous or who you care about, and you may be required to wear a wire. Know that going in. 

Moreover, you’ll only get the deal in exchange for full cooperation, sometimes beyond even what was originally asked of you and what you contemplated. The Plea Agreement can be pulled at any time if you shy away from the Feds’ requests even after you’ve already provided significant assistance. You might also be required to testify. In that instance, you’ll need to have a signed Plea Agreement in place beforehand because any Criminal Defense Attorney worth her or his salt will ask you incriminating questions on the witness stand, making 

The likelihood and extent of a sentence reduction is effectively based on a sliding scale. You’re highest and best value is directly to your AUSA, then another AUSA in the same office, followed by helping an AUSA in another office, with aiding on a state case rounding out the possibilities. 

Sentencing and any prison time, will typically be put off until your cooperation is complete. So, here’s some terminology you need to know. Cooperation credit prior to sentencing is under “Rule 5k.1” and may be offered by prosecutors and/or argued for by your attorney at your Sentencing Hearing. Even if prosecutors offer up only a certain amount of time credit, your attorney can argue for more. Judges can be both surprisingly flexible and harsh, depending on the level of assistance provided and amount of contrition you demonstrate. 

Cooperation credit post-sentencing comes under “Rule 35,” and is generally tougher to get unless it directly aids your own AUSA. Moreover, Rule 35 credit may only be initiated by prosecutors. There is absolutely no recourse if you cooperate and get no credit (except for a complex constitutional argument alleging protected class discrimination). 

While slightly different rules govern both Rules 5k.1 and 35, the amount of time off your sentence is ultimately in your judge’s hands. Regardless of assurances made by the AUSA, a judge can sentence in excess of the expected time frame or even reject the entire plea outright. 

I know this sounds like a scary three ring circus of uncertainty because it most certainly is, in many respects. However, rest assured that the people who cooperate fully and extensively are typically treated most compassionately by the system. 

While all this is going on, you’ll have plenty of sleepless nights and be plagued by stress and anxiety. There’s just no avoiding it. However, you might be somewhat consoled by certain additional benefits you can expect beyond just a reduced sentence. 

1. Additional time free from incarceration while the government is still using you, 

2. Having your name kept out of the press, 

3. Avoiding an embarrassing public arrest, 

4. Being offered bond and reasonable bond terms between signing the Plea Agreement and sentencing, 

5. Self-surrender to prison (instead of immediate remand at the end of the Sentencing Hearing), giving you additional time to get your affairs in order, and 

6. On rare occasions, refraining from aggressively pursuing your assets. 

Now for the tough part. Once you’ve cooperated, you might be at certain personal risk in prison should you be designated to a medium security level prison or higher. Not so much at a prison camp, though, where as many as half the inmates may have done likewise. Even at a Low, the typical worst you can expect is to be outed and ostracized (although instances of physical violence can and do occur, as I’ve personally witnessed). 

While the vast majority of cooperators receive low level sentences, that’s not always the case. The bureaucratic system generally does poorly in watching out for you after you’ve cooperated and been sentenced. Moreover, it’s often difficult to hide your cooperation no matter how hard you try. To begin with, all filings in your case can be found online in a program called PACER. One way to avoid that is asking your judge to have your record sealed, however, I’ve even seen instances where information became public knowledge even after a file was sealed by a judge. 

About the author

Lawrence Hartman, is Columbia Law School graduate and a principal at ComplianceMitigation.com. He has done deals worth hundreds of millions of dollars over his lengthy career as a Wall Street attorney, General Counsel of a publicly traded REIT, internet entrepreneur and international financier.  He also, found himself on the other side of the process as a defendant and then inmate, learning all too well that things don’t work how they teach in law school.  He served 7-1/2 years utilizing his legal background to gain unique insights and perspectives vital for mitigating criminal legal exposure.

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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