Being a Federal Cooperator Without Legal Counsel
When the Feds are after a large target, usually the top people in a conspiracy ring, they will approach those individuals who are lower on the totem pole, and attempt to get them to cooperate before charges are filed against them. The agents will tell the potential cooperator they will make sure the cooperator gets credit for helping out, but they won’t specifically say what that would be and they will never put it in writing. This is the worst position to be in as a federal cooperator soon to be defendant who is not yet represented by an attorney.
Prosecutor Holds All the Power Over You As a Federal Cooperator
When federal agents use a cooperator to the extent of wiring the federal cooperator to gather recorded conversations the cooperator hopes to have with higher level targets, the federal cooperator is at serious risk of being hurt or even killed if the higher ranking targets find out. So what is this type of risk worth when the cooperator is eventually charged and prosecuted? It completely depends on the prosecutor (Assistant U.S. Attorney or “AUSA”) who is assigned to the case. Some AUSA’s are more trustworthy than others. This is why it is so important for a federal cooperator to hire a federal criminal defense attorney BEFORE he or she decides to cooperate. When the federal cooperator is formally charged, the cooperation language in the plea agreement comes into play.
In a plea agreement that involves a federal cooperator, it usually includes one-sided language as follows:
“DEFENDANT’S UNDERSTANDINGS REGARDING COOPERATION
Defendant understands the following:
- Any knowingly false or misleading statement by defendant will subject defendant to prosecution for false statement, obstruction of justice, and perjury and will constitute a breach by defendant of this agreement.
- Nothing in this agreement requires the USAO or any other prosecuting, enforcement, administrative, or regulatory authority to accept any cooperation or assistance that defendant may offer, or to use it in any particular way.
- Defendant cannot withdraw defendant’s guilty plea if the USAO does not make a motion pursuant to U.S.S.G. § 5K1.1 for a reduced guideline range or if the USAO makes such a motion and the Court does not grant it or if the Court grants such a USAO motion but elects to sentence above the reduced range.
- At this time the USAO makes no agreement or representation as to whether any cooperation that defendant has provided or intends to provide constitutes or will constitute substantial assistance. The decision whether defendant has provided substantial assistance will rest solely within the exclusive judgment of the USAO.”
Without any type of guarantee for a reduction, why would a federal cooperator agree to this? They agree to it in hopes of getting the 5K1.1 reduction because without it, it’s impossible to get.
5k Motion to Reduce Sentence For Federal Cooperator
For all federal criminal cases, the United States Sentencing Guidelines apply. These guidelines used to be mandatory for the judges to follow, so although harsh, at least a defendant knew what sentence to expect. Now, the Guidelines are advisory only and a federal cooperator has no idea what sentence he will get until he is in front of the judge on the date of sentencing. For a federal cooperator who has a trustworthy AUSA, a motion for a sentence reduction will be done usually within a year from the date of sentencing. [See Rule 35(b)], and the AUSA is the only one who can request it if he or she deems the level of cooperation sufficient, which is completely subjective.
Take It or Leave It?
All federal cooperators need to be advised about the extreme risks of cooperating. Some cooperators have benefitted substantially, others have not. Again, the power regarding the sentence reduction for a cooperator lies solely with the AUSA who is assigned the case. Before anyone agrees to cooperate, it is imperative to seek legal advice from an experienced federal defense attorney. For more information regarding federal cooperation, contact the Kenney Legal Defense Corporation and speak with federal crime attorney Karren Kenney.