Should I cooperate with the Feds in Jacksonville?
Answer:
No, you should not. I wrote about this subject, generally, back in June of 2014, where I discussed the pros and cons of cooperating with prosecutors in order to get a better deal. Based on my recent experience, however, I am now firmly of the opinion, as a Jacksonville criminal lawyer, that cooperation, or informing on your friends and co-defendants in order to get a better deal, is a waste of time and counterproductive in in Jacksonville.
I base this on my recent experience in the matter of USA v. Larry Taylor. My client, Mr. Taylor, is a 49 year old man who was involved in a scheme to help manufacture and cash counterfeit checks. He was stopped in a car, with another person (his eventual co-defendant); the police searched the car and discovered 13 counterfeit checks which totaled $2,924.24. Mr. Taylor also had some driver’s licenses that did not belong to him. Taylor was charged first in state court with possessing forged checks. The case was eventually transferred to federal court, where Taylor was charged with and aiding and abetting the attempted passing of counterfeit checks.
Taylor decided to cooperate with the feds. He was debriefed and told the authorities about all of the people he was involved with who made and passed counterfeit checks. Because of the information he provided, the feds raided a hotel room, arrested another individual and seized computer media, check printing supplies and other material associated with the manufacture of commercial counterfeit checks. Taylor also informed on his co-defendant, causing him to plead guilty.
Taylor had an extensive criminal record, but many of the crimes he committed in the past were minor. Based on the Federal Sentencing Guidelines, Taylor scored a criminal history category of IV (4 on a scale from 1 to 6). His offense level was scored, after various adjustments, as a level 5. That gave him a range of imprisonment of 4-10 months for his crime. At his sentencing, because of his cooperation, the prosecutor filed what is known as a 5K1 letter on Taylor’s behalf, to bring his sentence even lower. The prosecutor recommended a two level reduction of his sentence. This caused Taylor sentence range to be reduced to 0-6 months. The prosecutor recommended that Taylor be sentenced to time served. I, of course, joined in that recommendation. But the judge had other ideas. Completely on her own, (and because of Taylor’s criminal history) the judge decided that Taylor was being treated too lightly. So she arbitrarily upped his sentence to 20 months. At the end of the day, all that Taylor had done for the feds came to nothing.
Lesson Learned:
When the feds ask you to cooperate with them, a agreement is signed, known as a proffer letter. Implied in this agreement is that the prosecutors will do the right thing by you. The right thing was not done by Mr. Taylor. While the prosecutor did keep his word and did recommend a lower sentence for Taylor, he only recommended a two level reduction. What does this mean? Usually, this means only a six month reduction in one’s sentence. Considering that a person is required to inform on everyone he knows that is involved in any criminal activity (even family members), exposing them to arrest and prosecution, six months off a sentence is not much of a reward. But that’s pretty much all the reduction that federal prosecutors in Jacksonville will offer. And in this instance, the judge rejected it all. Of course, a judge is free to reject any plea deal, but in my experience it rarely happens. It happens even less when the prosecutor himself stands up and recommends a lower sentence.
When a judge does this, it sends a chilling message to all those who might seek to cooperate in the future and trust the Government. In fact, it gives them little incentive to come forward. Mr. Taylor would have been better off keeping his mouth shut and then when released from jail, not have to live with the title of ‘rat’ or ‘snitch’, looking over his shoulder for the rest of his life. Because cooperation is not rewarded or valued in Jacksonville, I will recommend that none of my future clients cooperate with the government. It’s just not worth it.
Is it a crime to be untruthful to federal agents who questioned you?
Answer:
Yes, it is, and in the federal system, you can be charged with the crime of “knowingly and willfully” giving false statements in any matter under federal jurisdiction. This means that federal agents investigating a crime can knock on your door, interview you, not give you Miranda warnings and prosecute you for making an inaccurate or false statement under 18 United States Code 1001. You can be charged with making false statements and no other offense. I have represented people this has happened to as a Jacksonville criminal lawyer.
Many people think that Martha Stewart was convicted and jailed for insider trading or securities fraud. In fact, she wasn’t even charged with those things. She was charged with and convicted of obstructing justice and lying to investigators when asked about a well timed sale of stock. Illinois Govenor Rod Blagojevich was also charged and convicted of making false statements to investigators. These prosecutions fit into the category of ‘the cover up is easier to prove than the crime’, which is often the case where a white collar defendant is not charged with the underlying offense, but instead charged with and convicted of lying about their conduct to investigators.
Some judges and legal commentators have criticized Section 1001 as a ‘catch all’ and an unfair trap for the unwary. It is not unheard of for prosecutors to charge people with making false statements even where the government lacks sufficient evidence to indict on the underlying offense under investigation. This is especially true where the suspected crimes are complicated and difficult to prove. In 1998, U.S. Supreme Court Justice Ruth Bader Ginsburg went so far as to state that Section 1001 gives prosecutors “extraordinary authority” to “manufacture crimes”.
Recently, the U.S. Department of Justice (DOJ) adopted a more defense-friendly position on criminal prosecutions under Section 1001. It is now the DOJ’s position that in order to prove a person acted willfully, federal prosecutors must show beyond a reasonable doubt that the defendant knew his or her statements were unlawful – not just that the statements were false. This is a material change in the government’s position that could have a significant impact on future white collar investigations and prosecutions under Section 1001.
In Natale v. United States, a surgeon was indicted for Medicare fraud, mail fraud and making false statements for billing Medicare for more expensive procedures than were actually performed. A jury acquitted Dr. Natale of the fraud charges, but convicted him of making false statements. He was sentenced to 10 months of imprisonment and a $40,000. fine. Natale appealed all the way to the U.S. Supreme Court, under the theory that the district court judge did not instruct the jury that the government had to prove that he also knew that making false statements to investigators was unlawful. The Supreme Court did not overturn his conviction but the government, in it’s brief to the Supreme Court, specifically stated that for a Section 1001 prosecution, the ‘willfully’ element requires proof that the defendant made a false statement with the knowledge that his conduct was unlawful.
Lesson Learned:
The government now admits (or takes the position) that it must prove that a defendant not only knew the statement he or she made was false, but also knew that making a false statement was unlawful. What does this mean? To me, it means that if federal agents show up at your door and you make statements that are not true, but you didn’t know that making those false statements to the agents was a crime in and of itself, you can’t be prosecuted under Section 1001. And really, how many people actually know that being less than truthful when being questioned by an FBI agent who catches you at home, off guard, when you’re scared (without the benefit of Miranda warnings or the advice of a lawyer) is a separate crime? Few, if any, I’m sure. Prosecutors may be more reluctant to bring Section 1001 claims, knowing they will have to prove a defendant knew that making the false statement at issue was unlawful. But the best advice is still this: if FBI agents show up at your door to question you, say nothing and call a criminal defense lawyer.
Adriana is confronted by the FBI and forced to make an unpleasant decision.
Should I cooperate with the prosecutors to get a better plea deal?
Answer:
The decision to become a government informant or a cooperating witness (or a snitch, as they would say on the street) is one of the most difficult decisions for a defendant to make. As a Jacksonville criminal attorney, I have often seen this decision hastily made, sometimes without the input of counsel, leading to disastrous results. The biggest problem with becoming a government informant, whether on the State or Federal side, is that you must put your trust in the prosecutor and hope he or she does the right thing by you. Sometimes they do and sometimes they don’t.
Anyone who has ever been behind bars wants to get out as quickly as possible. Just when things seem their bleakest, a prosecutor or FBI agent approaches (when you are at your most vulnerable) and dangles a reduced sentence with all sorts of vague promises and assurances. Sometimes they convince you to start talking to the government before talking to a lawyer or before any agreement is made. This is almost always a bad idea.
The first thing you need to do before considering becoming a government informant is to talk to your lawyer. What information do you have? Can your information lead to the arrest of those higher up? Is it safe for you to do so? Will you have to inform on your family members and best friends if they are also involved in criminal activity? Will the prosecutor agree to drop more serious charges against you if you cooperate with them ? When all is said and done, will you be better off than if you didn’t cooperate? These are all important considerations.
If you have limited information and you tell the government about what you did, but your information will not lead to the arrest of anyone else, you might as well stay quiet. You will get little to no benefit from the government and will have given up the ability to go to trial and put the government to it’s proof. Can the government protect you ? Unless you’re going into the witness protection program (which is rare) the government is limited in what it can do for you protection-wise. And once you get out of jail, all your friends and the people you have had dealings with your whole life will know what you did. If you do agree to cooperate, the government will want to know each and every criminal act you committed your entire life and with whom. That means informing on family members and friends. You do not get to pick and choose whom you will inform upon. If you intentionally leave someone out in order to protect them and the government finds out, they will tear up your proffer agreement and you will get nothing.
If you do decide to inform for the government, you will first have to sign a ‘proffer agreement’. This is a one-sided, non-negotiable contract prepared by the government that, in essence, says that you have to tell the government everything you know about everyone and that there are no guarantees as to what will eventually happen to you. It also says that if you lie or intentionally leave anything out, you will get nothing. Once you begin the process, there’s no turning back. At the end of the process, what you hope to get (on the Federal side) is a letter from the prosecutor, pursuant to 5K1.1 of the Federal Sentencing Guidelines, which says that you provided ‘substantial assistance’ to the government.
In Federal Court in the Middle District of Florida, which covers Jacksonville, if the only information you have relates to your co-defendant, you might get only a one or two level reduction, which translates into a six to eight month sentence reduction at best. If your co-defendant also informs on you, you will get no reduction in your sentence. If you have information that leads to the arrest of another person, you will do better. You may have to take the witness stand and testify against others and be cross examined by their lawyers.
Lesson Learned:
Many people agree to inform every day. It is a fact of life in almost all federal prosecutions. Putting the morality of such a decision aside, it must be carefully weighed. I recently represent a young man in federal court in Jacksonville accused of being part of a larger drug conspiracy. Before I even sat down to speak with him and even before his initial appearance before a judge, DEA agents had approached him and he began ‘spilling his guts’, informing on others. He was such a good informant that the prosecutor agreed to release him from jail so that he could give them even more information. As the months went by, he solved a number of cases for the government, one of them a homicide and one a tax fraud case (along with much information given about the drug conspiracy he was involved in). However, he was also a drug addict and part of what he was doing for the government put him in close proximity to cocaine. One day, he slipped up and used some cocaine. A drug test turned up positive and initially, because he was embarrassed and afraid of what might happen to him, he lied about having used cocaine. Shortly thereafer, he told the truth and admitted that he had used the drug. Was the prosecutor or DEA agent sympathetic? Did they understand that this was a one time mistake and on the whole, he had given them a great deal of useful information with which to prosecute others? Hardly. They tore up his plea agreement and asked the judge to show no mercy. The client was sentenced to an eight year term of imprisonment. Being a government informant turned out to be the wrong decision for this young man.
