Criminal Investigations: Part II - Cooperation Considerations

REPRESENTING A CLIENT DURING A CRIMINAL INVESTIGATIVE

PART 2 - COOPERATION CONSIDERATIONS

Robert C. Bonsib, Esq.

MarcusBonsib, LLC

301-441-3000

robertbonsib@marcusbonsib.com

The Cooperation Agreement

Once a decision has been made to negotiate a cooperation agreement with the government, defense counsel is responsible for insuring that the terms of the cooperation agreement provide clarity and the expected protection or incentives. Cooperation agreements generally contemplate the client receiving immunity or a reduced plea/sentence.

The following provides a quick review of the terms commonly used in a cooperation agreements.

Defining Terms

"Formal immunity" - Pursuant to the federal immunity statute (l8 U.S.C. 600l et. seq.) or the Maryland immunity statute (9-123, Courts Article), a prosecutor may request that the Court compel a witness to provide testimony. Statutory immunity provides both "use" and "derivative use" immunity. (see infra).

"Informal immunity" - Sometimes also called "pocket immunity," this type of immunity refers to an offer of immunity by a prosecutor made without reliance upon the judicial procedures required for formal immunity. Informal immunity may be conferred orally or in writing. The immunity offered by the prosecutor may be "transactional," "use," and/or "use and derivative use" immunity. A prosecutor may not compel an unwilling person to provide information through an offer of informal immunity, however, this type of immunity can effectively bind the prosecutor in the same manner as formal immunity. United States v. Pelletier, 898 F.2d 297, 30l (2nd Cir. l990) (Informal immunity is in the nature of a contract between the government and the defendant). One must be cautious of the limits of the prosecutor's offer of informal immunity. It may not bind prosecutors in other counties, States or other federal judicial districts.

"Transactional immunity" - This type of immunity is seldom offered by prosecutors. It provides complete protection from prosecution for any offense covered by the immunity, regardless of whether the prosecutor independently acquires evidence of the person's wrongdoing. Maryland's immunity statutes, prior to the relatively recently enacted Section 9-l23, provided transactional immunity. Once a witness has been compelled to testify about particular conduct under a grant of transactional immunity, the witness cannot be prosecuted for that conduct, regardless of the source and quantity of other available evidence.

"Use immunity" - Use immunity prohibits the direct use of a person's words against them. By itself, it does not prevent the government from using information provided under a grant of use immunity to develop leads to other witnesses or evidence which may then be used against witness. This is typically the type of immunity provided during a proffer session.

"Use and derivative use immunity" - When combined with use immunity, derivative use immunity protects a witness against the direct and indirect use of the information provided by the witness. Use and derivative use immunity must be provided before a witness may be compelled to provide incriminating information. After a grant of use and derivative use immunity, the government may not use against the witness either the actual words or information provided by the witness, nor any information or evidence derived as a consequence of the compelled information. Kastigar v. United States, 92 S.Ct. l653 (l972).

"Proffer letter" - A proffer letter sets forth the understanding pursuant to which a witness provides information to the government in anticipation of formalizing a cooperation agreement. Generally, it provides only use immunity. It permits the witness to provide information to the government so that the government can decide if the witness's information will be valuable to the government. Such a proffer letter prohibits the words uttered by the witness from being used against the witness. It does not, however, protect the witness against the derivative use of the information. The government generally insists on limiting proffer letter immunity to use immunity. This protects the government in the event of a failure to reach a cooperation agreement. Should the government later decide to prosecute the witness where only use immunity was conferred, the government will not be required to prove an independent source for all subsequently acquired information.

Pitfalls in Cooperation Agreements

If the client has good information and is honest and forthcoming with the government, in the ordinary case there will be no problems during the course of the client's cooperation. Protecting the client against harm in those few cases that "break down" is the responsibility of defense counsel. Where, then, are the most common problem areas? Attempts to reach cooperation agreements may fail for a number of reasons.

First, the government may conclude that the client is not being truthful. Prior to any proffer session with the government, the client should be told in the most forceful terms that the government will consider 99.9% truthful information to be worthless. It is either l00% truthful or it is useless. Many government proffer letters provide that should the prospective witness be untruthful during the proffer, the immunity offered for the proffer is deemed withdrawn and the information provided can be used against the client.

For obvious reasons, a client should be fully debriefed by counsel prior to the proffer so that the client is fully aware of what may be asked and what may be expected. Often clients think that they do not have to provide truthful and complete information and may be expecting that they can protect a family member or close friend and "rat" on everyone else. The client must know, prior to meeting with the government, that there are no "safe harbors" of information. If, after the proffer session has been concluded, additional information needs to be provided to correct information provided to the government, it is defense counsel's responsibility to alert the government before the government finds out on its own.

Second, the government may believe that the client is being truthful, but the quality and/or quantity of the information offered by the client may be considered to be of marginal or no value to the government. In other circumstances, the government may make a plea offer to the client which the client rejects. While all parties have been operating in good faith and no breach of any agreement has occurred, the proffer letter will still permit the government to make derivative use of the information provided by the client. This provides a great advantage to the government in conducting any subsequent investigation of the client. In the event of a trial, the information provided during the proffer session would permit the government to know what the defendant will say, if he testifies, and to use the proffered information for impeachment purposes if the client offers testimony at trial different from that provided during the proffer session.

The government insists on a "use" only form of immunity in the proffer letter specifically to avoid the type of situation which occurred in United States v. North, 9l0 F.2d 843, 854 (D.C. Cir. l990). In North, the immunity conferred was "use and derivative use immunity" and the government had to meet the heavy burden of establishing that all of its evidence against North was acquired independently of his immunized testimony. Its failure to meet that heavy burden was fatal to its attempt to prosecute North.

Third, although the government will agree that the information offered by the client during a proffer session may not be used against the client in any criminal matter, the standard proffer letter permits the government to directly use the information provided during the proffer if the witness later refuses to complete the cooperation originally agreed to by the client.

Other concerns

Does the cooperation agreement or proffer letter prevent the government from disclosing the information to other law enforcement or prosecuting agencies? Where the client makes a proffer, no agreement is reached to resolve the case, and then one government agency disseminates that information to another law enforcement agency which then uses the proffer information to begin an investigation of the client, it may be that such disclosure to permitted by a proffer agreement that permits the government to make derivative use of the information disclosed during the proffer session.

Does the cooperation agreement contemplate that the client will eventually receive statutory immunity? Where you and the client have determined that it was best to participate in a proffer session even though you were offered only use immunity, what is the status of the information provided by the client when the client repeats the information as he testifies before the grand jury or at a trial? What protection does the client have against the use of that subsequently provided information? When statutory immunity has been granted and the testimony occurs pursuant to such a grant of immunity, the compelled testimony may not be used directly or derivatively against the client by any jurisdiction. Kastigar, supra at l663; Murphy v. Waterfront Com'n of New York, 84 S.Ct. l564 (l964). When grand jury or trial testimony occurs only pursuant to informal immunity, it is not clear that where one prosecutor has conferred informal immunity that such immunity will protect the client against the use of that information by other police or prosecuting authorities. Absence one prosecutor agreeing to respect the informal immunity granted by another prosecutor's office, one prosecutor's office granting of informal immunity is not binding on another prosecutor's office. Even where statutory immunity may have been granted for grand jury testimony, counsel should insure prior to any trial or subsequent testimony, that the previously granted statutory immunity covers the subsequent testimony. Each disclosure of information by the client must be analyzed in terms of whether the offered immunity is still applicable and whether it is broad enough to effectively protect the client.

Finally, while the government is generally not inclined to offer transactional immunity, it will frequently agree that if the client completes the required cooperation, the client will not be prosecuted for an identified course of conduct, i.e. his involvement in drug trafficking activities up to the date that the agreement was signed. In many cases this is the functional equivalent of transactional immunity.

Procedure where it "breaks down."

When information has been proffered by the client and the government later contends that the cooperation agreement has been breached and that it may use the proffered information against the client, the client is still entitled to due process prior to the use of the information. The most common reasons for the government contending that the client has breached the proffer agreement are the failure to provide completely truthful information and the failure to fully disclose information. Partial disclosure as well as untruthful information can breach the terms of the standard proffer agreement.

Many proffer and cooperation agreements contain a paragraph providing that in the event the government contends that the client has breached the agreement, the government will provide notice to the client prior to the use of proffer information. This type of agreement also generally provides that prior to the government's use of the proffer information, the client will be entitled to a judicial hearing at which the government must establish a breach of the cooperation agreement by a preponderance of the evidence. Even if the agreement does not contain such language, counsel should insist that, as a matter of due process, the client is entitled to such a hearing and strongly argue that the government may not unilaterally determine whether there has been a breach of the agreement.

If the government is successful at such a "breach" hearing, then all the information provided by the client during the proffer process is now in the government's arsenal of evidence. An awareness of the consequence underscores the importance of emphasizing to the client, prior to any proffer session, all possible adverse consequences that are the result of an unsuccessful or "breached" cooperation effort.