Criminal Investigations: Part III - Cooperation and Guilty Plea Agreements

REPRESENTING A CLIENT DURING A CRIMINAL INVESTIGATIVE

PART 3 - COOPERATION & GUILTY PLEA AGREEMENTS

Robert C. Bonsib, Esq.

MarcusBonsib, LLC

301-441-3000

robertbonsib@marcusbonsib.com

When the time has come to "talk turkey" regarding the terms of a cooperation-guilty plea, many of the same considerations apply just as they do in no-prosecution cooperation agreements. Where a sentence will be imposed under the federal sentencing guidelines or where the client may also have pending and/or anticipated federal criminal exposure, certain additional factors must be considered.

While not a comprehensive list, the following factors should be included in the agreement:

(i) The offense to which the client will be entering a plea;

(ii) If the agreement contemplates the client not being prosecuted for other criminal conduct, the conduct should be defined with sufficient particularity to avoid any future disagreement concerning what conduct was covered by the no-prosecution promise. If the conduct could be prosecuted by another state or prosecuting authority, insure that that authority has signed onto the agreement. Often a prosecutor will only agree to recommend that other jurisdictions not prosecute, but will not go the extra step of trying to get a promise from another prosecutor's office to forgo prosecution;

(iii) Is a fine or is restitution a possibility? If not, the agreement should so state. If it is left up to the discretion of the Court, the agreement should so state.

(iv) Is the government forgoing any right to seize and forfeit property or assets? Contra, is the client expected to consent to forfeit certain property or assets.

(v) If the sentence contemplates, either in whole or in part, a suspended sentence and/or a period of probation, what is the length of the suspended sentence or probation, or is that to be left to the discretion of the Court.

(vi) Is it contemplated that the agreement is to be binding on the Court? If so, be sure and know your judge. While most judge will agree to be bound to a reasonable cooperation plea agreement, there are certain judges who refuse to bind themselves regardless of the reason.

(vii) Is there anything about the offense to which the guilty plea is being entered that will affect the agreement. Obviously a plea to a mandatory five year offense makes a farce any cooperation plea agreement where the client thinks superb cooperation may net him probation, unless the cooperation is in federal court and the government has agreed to make a motion to the court that would permit the court to deviate from the mandatory sentence because of the client's "substantial cooperation."

(viii) Is a reconsideration of the sentence permitted or barred by the agreement? If the plea is a binding plea agreement and the client anticipates being able to argue for reconsideration of the sentence at some point in the future, the Court and the government must both agree to that possibility as a term of the plea agreement.

There are critical differences in the plea negotiation process between criminal cases in state court and those in federal court. If defense counsel is not well versed and experienced in both court systems, then a consultation with another attorney experienced in those court systems where counsel is not so experienced is essential. Binding plea agreements are common in many state courts but rare in federal court. Reconsideration of sentence are frequent in state court, but not available in federal court except in rare circumstances, such a where a defendant has cooperated with the government post-sentencing or where there has been some clerical or administrative error. In state court, reconsiderations must be heard within five years of the sentence, may not be permitted if the plea agreement was a binding or "ABA" plea agreement, unless counsel specifically has reserved the right, in the agreement to file a reconsideration of sentence motion.

What should be obvious at this point is that any cooperation agreement, whether or not it contemplates a guilty plea, should be in writing and signed by the client, the prosecutor and defense counsel. While federal agreements are also in writing and filed with the court, often it is difficult to get the local prosecutor to find the time to write the letter confirming the terms of the agreement. If that is the case, defense counsel can summarize the agreement in a letter to the prosecutor and have the prosecutor sign off on the letter. Alternatively, the terms of the agreement must be specifically detailed on the record (perhaps under seal) as part of the plea hearing. What you, the defendant, the prosecutor and the court have agreed to may be impossible to reconstruct if you, the prosecutor or the court are no longer around at some later point in the proceedings.

Special consideration under the federal

sentencing guidelines

Where the client will be sentenced under the federal sentencing guidelines, it is essential that defense counsel have spent sufficient time to become familiar with the sometimes complicated federal sentencing guidelines so that counsel can competently advise the client of the consequences and limitations of a cooperation guilty plea under the federal sentencing guidelines.

What then are some of the factors to be considered?

(i) Do you really know your client's criminal record? In the typical federal plea agreement, the prosecutor clearly states that any sentencing guidelines sentence will be affected by the client's criminal record, and the deal you negotiate may be substantially different than was intended if you have miscalculated the client's criminal history. Even relatively minor offense, particularly where the client was on probation at the time of the instant offense, can result in a higher than anticipated sentence.

(ii) Has the prosecutor reviewed with you the statement of facts that will be made part of the plea agreement. Is there anything else that the prosecutor intends to tell the Court or the probation department for inclusion in the presentence report. The guidelines offense level may be determined by reference to these facts and can have a dramatic effect on the sentencing guidelines range applicable to your client at sentencing. It is extremely important to have a clear understanding and agreement as to all the facts that the prosecutor will contend are relevant for the court to consider at the time of sentencing. [An agreement of this type is important in state court as well to avoid the prosecutor undercutting a suggestion that consideration should be given for cooperation by an allocution that emphasizes the severity of the crime.]

(iii) Has the prosecutor agreed to request that the Court sentence below the applicable sentencing guideline range or below any mandatory minimum. The government has the discretion and power to make such a request if it believes the cooperation of the client warrants it. The agreement should state that the government will make such a request if the client has fulfilled his promise to cooperate. It is important to make sure that the federal prosecutor has agreed to make a motion that not only recommends a below guidelines sentence per U.S.S.G 5K1.1 but also below the statutory mandatory minimum pursuant 18 U.S.C. 3553(e).

(iv) The agreement should discuss what, if any, use the government may make of incriminating information provided by the client during his cooperation will be used by the government during its sentencing allocution or by the Court in determining the guidelines offense level.

(v) If the agreement provides that the client will be testifying about conduct not encompassed by the guilty plea, the agreement should clearly state whether statutory or other immunity will be granted the information provided.

(vi) If the client is to get credit for pleading guilty, the agreement should state that the government will recommend a downward departure in the offense level as a result of the guilty plea. For offenses with an initial offense level of l6 or greater, the Court can grant a downward departure of three (rather than just two) levels if the guilty plea occurs at a sufficiently early stage in the proceedings to avoid the government having to commit time and resources to prepare for trial. You should negotiate with government to get that extra level reduction if it is applicable.

(vi) What is the extent of cooperation expected from the client? Is he simply to testify before the grand jury and at trial or is he expected to work with the investigators as an informant? For what period of time is he expected to perform? Must he agree to participate in activities that might jeopardize his or his family's safety. Is he required to wear a concealed recording device or attempt to set up former close friends? A specific understanding of the type of cooperation which is expected can avoid serious misunderstandings at a later date.

(vii) If there is a pending criminal matter in a state or local court, has its disposition been considered. Usually it is better to hold off on the state case until after the federal sentencing to avoid affecting the criminal history of your client before any federal sentencing hearing.

Summary

The foregoing is not a complete list of factors to consider when negotiating a cooperation guilty plea. It is important to insure that any agreement be in writing and that it fully and clearly incorporate the duties, responsibilities and expectations of all the parties to the agreement. It is frustrating for all concerned to have a client who has done everything he thought was required and then learns at sentencing that his expectations of his "reward" are different from those of the government. Careful negotiations with the government and extensive discussions with the client can help avoid such pitfalls.

Occasionally, at the end of cooperation arrangements, defense counsel will mutter to himself or herself that it would have been a great deal easier to simply try the case. While that may occasionally be true, however, our client's best interest may force to take the more difficult course.