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Should I cooperate with the prosecutors to get a better plea deal?


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.

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