Many people mix and match the term Plea Agreement with Cooperation, assuming they both go hand-in-hand. However, that’s not always the case. While cooperation will inevitably lead to a Plea Agreement, a Plea Agreement does not necessarily require cooperation.
To begin with, you may have nothing to offer. The case could be against you, and you alone. You could also be the big fish or the last one picked up on a conspiracy with nothing and no one of value to offer. In those instances, you’re pleading out for the sake of damage control. You’ll typically plead guilty to only one or two counts, instead of the myriad of charges originally brought against you. Plus, you can expect a two- level reduction under the Federal Sentencing Guidelines for accepting guilt and a one level reduction for expressing remorse. As a result, your sentence will be significantly lower in exchange for saving the government the time, cost and uncertainty of trial.
The second reason you might be offered a plea when not cooperating, is that you’ll be required to cooperate in the return of assets. The government then uses the fear of pulling the plea to pressure you for hidden assets or those not easily obtained. Cash, jewelry, offshore bank and brokerage accounts, and foreign land can be tough to confiscate without your help. Now, you’re probably under the assumption that the more you return, the better off you’ll be at sentencing. Well, not so much. In their minds you’re obligated to give up everything. So, while it can count materially against you if you’re being obstructionist, there’s generally no extra credit for being overly helpful. Bear that in mind.
Finally, your Plea Agreement will contain a provision requiring you to provide additional assistance, even if you now have none to give. Who knows what tomorrow holds? You might be forced to cooperate even if you never intended to.
When you cooperate, on the other hand, you’re making a very clear and definite choice, with the hopes of getting a 5k1 letter from your AUSA. That 5k1 letter can work some serious magic. Just to give you an idea, it got my co-defendant Richard a sentence of under 5 years as he testified at two trials, while my other co-defendant Paul, who went to trial, was slammed with 25. You’ll be expected to cooperate to the full satisfaction of your prosecutors till the very end.
You might begin the process thinking you can leverage what you have to offer and set the terms for negotiations. Fat chance. Most Plea Agreements are one-sided “take it or leave it” propositions with subsequent offers only getting worse, not better. Understand this – it is not a typical negotiation. Sometimes they even threaten family and friends with prosecution if you don’t submit. AUSAs go home at night and forget about you the moment they leave the office. Their life is not on the line and even if they lose, what are the consequences? Hardly any at all. It’s not as if they’ll lose their cushy government job because they lost a single case. Plus, at the end of the day, there’s always some private law firm willing to hire them at a ridiculous salary when their public career is over, regardless. Do not attempt to overplay your hand. They’ll work with you a bit but only on their terms.
Also, be aware that you only get 5k1 credit for completed cooperation. You may have spoken to dozens of agents and AUSAs but the only thing that typically counts is (i) whether they get convictions and (ii) whether you were intrinsic to helping them do so. Everything else was a waste of time.
Now, onto the agreement itself. It will list all the terms insisted upon by the government, including forfeiture of assets, restitution, the counts(s) you’re pleading guilty to and a description of the actions underlying those counts. The sentence(s) corresponding to that (those) count(s) now essentially serve as a cap, the highest amount of time you can expect to serve. It may also include an agreement to provide a 5k1 letter for cooperation. Then, depending on your judicial district, there may (or may not) be more definitive language regarding the amount of time you can expect to serve. The ultimate decision, though, rests with your judge and is made at the Sentencing Hearing, after receiving and reviewing the Presentencing Report from the Department of Probation and motions of recommendation from both the AUSA and your attorney (all discussed further in Chapter 5).
I wish I could tell you that a Plea Agreement is a definitive contract, clearly spelled out and binding upon the government, but it’s not. It’s only advisory for the judge (although judges do, for the most part, defer to its terms), but nonetheless binding upon you. You forfeit almost all rights to appeal when signing a Plea Agreement (with a few exceptions, discussed later). This can sometimes have serious repercussions. Kevin L. pled out while his co-defendant chose going to trial. It was a drug case and the co-defendant questioned the legality of the search. His case was tossed (a near miracle). Kevin, though, got no benefit from that and was stuck with his Plea Agreement, which unfortunately turned into a 15-year sentence. While this scenario is an extreme exception, I point it out to demonstrate the rights you give away in a plea.
That said, you can always try to negotiate a “conditional” Plea Agreement, pursuant to which you have a right to reject the Plea Agreement if the judge goes rogue and dishes out more time than expected. However, it’s a terrible position to be in, especially if you’ve already provided substantial assistance and have little (or nothing) more to offer in exchange. Moreover, prosecutors in many judicial districts won’t offer a conditional plea based on internal policy. The uncertainty built into the entire process takes a tremendous emotional toll.
There are other things you might be able to massage into an agreement once you’ve indicated a willingness to plea, like a fixed recommendation of level reductions under the Sentencing Guidelines connected to your cooperation. You’ll feel much better going into sentencing knowing you’re getting a 4-level reduction, let’s say, for your 5k1 Letter than going in totally blind. For this reason, I also recommend trying to get most of your cooperation out of the way prior to Sentencing, to the extent you can. Post-sentence credit is governed by an entirely separate rule (Rule 35) putting you at the government’s mercy to offer it later.
Other topics for negotiation can include the assets subject to forfeiture and amount of restitution. Try to negotiate these early and with documentary proof because it’s abundantly more difficult once the government takes a firm position. The quantity and quality of drugs might also be subject to negotiation down from an inflated amount in your initial charge. Finally, if you’re a citizen of another country, see if you can work in non-objection to a Treaty Transfer. It might be valuable. You never know.