One issue that arises frequently in federal criminal defense revolves around clients who are “cooperating” with the government or what most people know as “informants”. Many of my clients find themselves in a situation where if they don’t cooperate with the government they are facing outrageous sentences. Mandatory minimum sentences in Federal drug cases range from 5 years to life in prison for possession with the intent to distribute narcotics, depending upon the type of drug, i.e. meth, cocaine, marijuana, ecstasy, pseudoephedrine, etc, the amount or quantity of drug, the purity of the drug and the person’s criminal history or “priors”. In some cases, the only way to get out from under these antiquated and preposterous sentences is to cooperate or become an informant.
What does it mean to be an informant or a “cooperator”?
If a defendant has information that can help the government (U.S. Attorney’s Office, FBI, DEA, ATF, IRS, Secret Service, or other federal agency) in the prosecution of “others”, the government will recommend a reduction of the defendant’s sentence. It is within the “exclusive judgment” of the government to determine whether or not someone has provided “substantial assistance”. SO, if the government isn’t interested in the information someone provides, it’s not new information, or it’s stale information and they don’t pursue it, the informant gets no credit for the information they provide. If the government does charge someone with the information provided, they don’t have to win their case against that person in order for the informant to get credit.
It is up to the U.S. Attorney’s Office to decide whether or not the informant gets credit. The judge doesn’t participate in this process. The judge merely grants the government’s request to give the credit. However, if the US Attorney’s Office doesn’t make the request, the judge won’t/can’t doesn’t give a defendant cooperation credit. I have never seen a judge deny a government request to give cooperation credit.
What kind of information does the government generally want?
The government is only interested in information about things that the informant knows from first hand knowledge; basically what you saw or heard. They are not interested in guesses or opinions. They are also not interested in what other people told the informant about someone. That’s hearsay and they can’t use it. If the informant overheard someone talking about a crime or saw them committing the crime, that is very useful information.
Does the informant have to plead guilty in order to get credit for cooperating?
Yes. Unless someone is willing to accept responsibility for their actions, it is the government’s view that they would not be a credible witness. Furthermore, if the informant doesn’t plead guilty, the attorney for the person about whom the information was given will use that to impeach the informant if or when they get a chance to cross examine them.
How much credit will they get?
That depends on several things. It depends on the kind of information the informant provides. It depends on how reliable the information is. It depends on how many people the informant gives information about. It depends on how much the informant does. For instance, if the informant just meets with the US attorney and the agents and tells them what they know they would get a certain amount of credit or time off of their sentence. If the informant testifies at the grand jury hearing and helps the government obtain an indictment against one or more people, the informant would get more credit. If the informant testifies at trial against one or more people, the informant earns the most amount of credit or time off. The problem is that most cases don’t go to trial. However, if the informant provides information that causes one or more people to plead guilty, the informant would also receive credit for that.
Does an informant get immunity?
Here’s where Hollywood misleads us. We often see movies or crime dramas where the suspect’s attorney says to the FBI agent, “My client will tell you what you want to know if you agree not to charge him.” The FBI agent might reply, “We’ll recommend that the US attorney’s office reduce the charges if he talks.” That doesn’t happen. An informant would get what is called “use immunity”. This means that the government cannot use any information that the informant provides against them if they decided to go to trial or at sentencing. They can only use it to impeach the informant if they say something different at a later date and to pursue leads. They can also charge the informant with perjury or obstruction of justice if they lie. An express material term of any cooperation agreement is that the informant must be completely truthful. This means not only answering questions honestly but it means not holding back if they know something but don’t tell them. The government will not, however, agree to dismiss charges, or reduce charges in exchange for cooperation.
When does the informant find out how much credit or time off of their sentence they are getting?
This is the part that drives people nuts and where Hollywood is just wrong. The government will not and can not tell anyone how much credit they are recommending until after the informant has completed all of their cooperation. This usually occurs a week or two before sentencing.
In the movies and TV we see the feds tell the informant exactly what kind of deal they’re willing to give them before they give the information. It just doesn’t happen that way. That’s Hollywood. Not reality. It doesn’t matter how serious the information provided is, or how dangerous it is was to give that information.
If the government gives any indication of what sentence they are going to recommend before the informant is completely done with their cooperation that would make them a bad witness. The attorney for the people about whom the information was given would cross examine the informant at trial and it would go something like this:
Q: “So you were looking at 20 years for drug trafficking. Right?”
Q: “But because you agreed to testify against my client, the government promised you that you would only serve 1 year?
Q: “And you would do or say anything to get out of serving 20 years in federal prison. Right? “
A: “I guess.”
Q: “Who wouldn’t?”
Q: “So we can’t believe anything you say.”
That’s why they can’t and won’t make any promises until all is said and done.
Is the information confidential?
That depends upon whether or not the person about whom the information is provided goes to trial or pleads guilty. Sometimes it’s obvious who the informant is based on the information given. Maybe the informant is the only person who could have known something or who saw a certain thing on a certain day. If it’s not obvious who the informant is and the other person pleads guilty at the early stages of their case, the identity of informant(s) is generally not disclosed. They would just be referred to as Confidential Informant “CI” or Confidential Source “CS”. However, if that person goes to trial and the informant is going to testify, their identity, rap sheet and plea agreement all go to the other person’s lawyer. That usually doesn’t happen until a week or so before trial.
Isn’t it dangerous?!
That’s a decision only the informant can make. The informant has to decide whether or not they think that the person or people about whom they are giving information is/are dangerous and whether they would actually do anything to retaliate. In most cases that doesn’t happen. It’s not Hollywood. The other thing an informant has to decide is whether they’d rather do the time or spend some period of time wondering whether something will happen to them. Again, that’s a decision only the informant can make.
What about Witness Protection?
That’s a whole subject in and of itself. I will tell you that in the 18 years I have been practicing in the area of criminal defense, I have only had one client who has gone into witness protection, and I have represented people who have testified in very serious cases against some pretty bad people. Most of the time there is no real danger. Witness protection means that the informant is given a new identity and they are relocated. They can no longer have any contact with their former life, family etc. Spouses and immediate family members can join someone in witness protection but that requires that they also give up their lives as they know them. Not many people are willing to do that. The only time someone would enter witness protection is if they really have no choice.
Are there other ways informants are protected?
Sure. Certainly, if someone feels that they are in danger as a result of their cooperation they can call the agency that is handling their case. If the informant is in custody they can be moved to a different location or placed in protective custody. All jails are set up to handle these situations. However, in many cases, protective custody means that the informant is locked in for the majority of time making the time much more punitive. If they are out of custody, sometimes moving to another county is all it takes to stay safe.
Is it worth it?
Most of the time, absolutely. I have had clients who were facing 10 years, 20 years and life sentences who cooperated and served much, much shorter sentences. They were able to re-build their lives, spend time with their families and have careers and they were extremely grateful that they made that decision.
If you are an Orange County criminal defense lawyer, and you have been contacted by a potential client about representing an individual in a federal criminal case, it is essential that you have a complete understanding of the federal sentencing guidelines and other factors that the court must consider at sentencing. Associating with an experienced Orange County federal attorney in these cases is the perfect way to gain experience and knowledge about federal criminal defense while maintaining your relationship with your client base. Orange County criminal lawyer Diane C. Bass, would be more than happy to split fees, or pay referral fees to assist in federal criminal cases.
If you or a loved one are under investigation for, or if you have been charged with, a federal criminal case, it is critical that you obtain representation by an experienced federal Orange County criminal attorney, like Diane C. Bass.