This is a cautionary tale. It is not meant to criticize or complain. It is meant to warn defendants about the risks they run when cooperating in the Southern District of New York. Even defense lawyers, especially those from out of town, may not suspect what lies ahead of them.
The prosecutors in the Southern District of New York are always upfront about a deal, but sometimes defendants do not want to listen or hear only what they want to. The prosecutors say to the defendant: “Tell us all you know, and then we will decide whether to ‘sign you up’ as a cooperator. No promises.” That may mean exchanging information two, three or four times, expanding on previous statements, clarifying answers and explaining inconsistencies. All this without a guarantee from the prosecutor. In some cases, the government may require the defendant to plead guilty pursuant to an agreement that will result in a twenty year sentence if the government is ultimately not interested in the defendant’s cooperation.
In the case of one defendant, a well known drug dealer extradited from Mexico who shall remain nameless, the United States attorney said the defendant could attempt to cooperate but only if he pled guilty to charges that would result in a life sentence. So the defendant spent six hours with the prosecutors telling them all he knew. The prosecutors took down every word, presumably learning things that they had never known, and in the end, they thanked the defendant for his efforts but did not offer him a deal. As a result the defendant was sentenced to life.
The defendant took the case to the Court of Appeals, arguing that he was misled by the government. But the court did not agree, essentially saying, “Too bad. You took the government up on their offer to cooperate without any promises and you lost. The government apparently felt that it was not in their interest to have you cooperate. You made your bed, now you have to lie in it.” The defendant is currently doing life.
However, if an arrest occurs in the near or distant future in a related case there is a chance that the government may again ask for this defendant’s cooperation. They might be missing a piece of evidence or they may be looking for a stronger replacement and call upon the defendant to supply it. In the Southern District it is that cut and dry. It is all about what the government needs. If the defendant can benefit from cooperating, great, but cooperating is not about the defendant. It is about the government first.
A defendant needs to determine whether the government will be interested in what he or she has to say. A defense attorney can help the defendant by speaking with the prosecutor and making what is known as “an attorney’s proffer.” The attorney summarizes what the defendant has to say in general terms only, and the prosecutor decides whether they are interested. The more specific the attorney is, the more specific the prosecution is about what they want. But it is not without risk.
The government has interests. And if a defendant’s interests meet theirs, a deal can be worked out. If not, no deal, nothing personal. No matter how truthful a defendant is, if their cooperation does not “advance the ball,” the government will not offer a deal. Good intentions do not matter. For example, the government has a case that requires them to prove A, B, C & D. But they are missing C. If a defendant can provide them with C, then he or she can work out a deal. But if a defendant can only provide them with A or D, which the government already has, there is no chance of a deal.
Another mistake defendants make is to believe the government will be interested in information that does not relate to their case, for example, information regarding corruption in their own country or crimes in other states. But why would Americans be interested in exposing corruption in another country, especially if that country’s government is cooperating with the United States? Why would a DEA agent in New York want to know about car hijackings in Miami? DEA is not interested in passing information to another agency in Miami. There is enough competition within the agency. That is how independent some of these groups operate. With one exception: terrorism. If you have something to say about terrorism, any prosecutor or agent will listen and move on it.
So ultimately a defendant should not be disappointed if he or she decides to cooperate and the government says thanks, but no thanks. That is how the U.S. attorney’s office in the Southern District of New York operates. Some defendants may accuse the prosecutors of acting in bad faith, but the government clearly points out what the risks are. Like any gamble, a defendant needs to weigh the odds and understand how to improve upon them. A defense attorney needs to figure out what the government wants, and decide whether a defendant has it.