Why do people decide to cooperate with federal law enforcement agencies and prosecutors in a criminal case? This is a good question because, in my 30 years of experience, I realize that cooperation is one of the most significant ways that the feds can generate their cases.
I would say probably better than 80% or higher of cases filed at the federal level because somebody cooperated. You may not know who collaborated; you may not know when they cooperated, how they cooperated, and how it connects to you.
Still, many of these cases are being filed because somebody gave information, either because they were trying to work off a federal issue or because they didn't want a federal case filed in the first place.
So, when it comes to federal cooperation, somebody would do it because they could avoid having charges against them. Sometimes people are arrested, are found with 10 kilos of drugs, and are facing a 10-year mandatory minimum.
Federal agents will say, if you give us information about specific people and we're able to catch them, we will not file a case against you. That's one example of why somebody would cooperate at the federal level. Another reason is:
- they have a case filed against them,
- they're facing a lot of time in federal custody,
- they're facing a 10-year mandatory minimum,
- they're a career offender.
Perhaps it's just a first arrest, and they don't want to get a federal conviction on their record; they don't want to go to federal prison for a long time. That would be a reason to cooperate because prosecutors have a lot of authority. They'll have you come in for what's called a proffer session. Our California criminal defense lawyers will review this topic further below.
What is a Proffer Agreement?
They'll give you and your lawyer a letter called a Queen for the Day, called a "proffer letter," which allows you to talk to them without them using what you say against you, so you can feel free to give them the information.
Suppose they later determined that your information was valuable, and they were able to use it to prosecute other people? In that case, they could then give you a benefit, which can take the form of allowing you to get under the 10-year mandatory minimum in a drug case, for example.
It can sometimes allow people no custody time if their benefit is substantial enough to the federal government. It puts their lawyer in a solid position to argue to keep them out of custody or minimize their custody significantly.
In other words, cooperating with the prosecutor might be in the defendant's best interest. For instance, the evidence against them might be so solid that it can't be reasonably challenged, such as in a situation where undercover federal agents recorded illegal activity. Perhaps cooperation could be the best strategy when a federal defendant faces significant risk if they take their case to trial. For example, if the jury convicts them at trial, they face harsh legal penalties.
If they decide to cooperate with the government, however, it's possible they could receive substantial credit in exchange for their decision. There are situations where cooperation with the prosecutor means:
- they will not be charged with a federal crime, or
- they would face reduced charges with lesser penalties or no jail time.
In federal criminal cases, cooperation with the government is commonly called a proffer agreement or interview. A proffer agreement is a written contract between a federal prosecutor and defendant or someone under a criminal investigation, where they agree to provide the prosecutor with helpful information.
Their statements will not be used against them later in a criminal proceeding. Most proffer agreements permit a federal prosecutor to introduce statements made during plea negotiations if:
- a defendant's testimony was not consistent with their statements, or
- if the defense lawyer attempts to challenge evidence that contradicts their statements.
Put simply; the statements will be used to impeach the defendant. Rule 410 of the Federal Rules of Evidence states:
- “Statements made during plea discussions with an attorney with authority to prosecute, if the discussions did not result in a guilty plea, are not admissible against a defendant that made the plea or who participated in plea discussions.”
Thus, a proffer interview is a meeting between a criminal defendant or somebody under investigation with their legal representation, which meets at the U.S. Attorney's Office. The defendant must tell the prosecutor all the information they know about the federal offense under investigation and other people involved.
A proffer is made with the understanding that the federal prosecutor will either grant them immunity or offer a favorable plea bargain. Of course, there are drawbacks to cooperating with the government. If the parties you cooperate against discover that you cooperated, you could be in danger. That's one big reason. Nobody wants to be labeled as a snitch.
Contact Federal Criminal Defense Professionals
So, you've got to evaluate for yourself, with the assistance of your attorney, whether it makes sense looking at everything for you to cooperate.
Sometimes it does; sometimes, it doesn't. You're going to be the final decision-maker when it comes to whether you want to cooperate with the federal government.
But I will tell you; it can yield a massive benefit because that's the way the federal system is set up -- to encourage people to cooperate -- to encourage them to give information -- so the feds can catch other people, and that puts you in positions so that you will not get nearly as much custody time as you would have if you did not cooperate with the feds.
The prosecutor will typically agree that if the defendant is charged with a federal crime and convicted, they will not attempt to enhance the offense level on any statements made during the proffer interview.
If you are a criminal defendant or a suspect in a federal criminal investigation and considering cooperating with the prosecutor or federal law enforcement agents, contact us first to review all the details.
We need to evaluate whether cooperation would be in your best interest. The Hedding Law Firm is in Los Angeles, California. We provide a free case consultation via phone or contact form.