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What Is an SEC Subpoena and Why Did I Get One?
The envelope changes nothing. By the time an SEC subpoena reaches your desk, the investigation that produced it has been running for months, sometimes longer, through channels you were not aware of and on the basis of information you may not have seen. The subpoena is not the beginning; it is the moment the Commission […]
read moreI Received an SEC Subpoena — What Should I Do Now?
The subpoena is not the beginning. By the time an SEC subpoena reaches a desk, a majority of the Commissioners have already voted to authorize a formal investigation, staff attorneys have already assembled a theory of violation, and the agency has already decided that your conduct (or conduct adjacent to yours) warrants the exercise of […]
read morehow 5K1.1 motions work and the risks of proffering, those are people actively facing these decisions and needing immediate guidance.
A defendant who provides truthful, complete, and assistance delivered on a timeline the government considers acceptable may receive nothing for it. The statute does not obligate the prosecutor to file a motion. The sentencing guidelines do not require acknowledgment of effort. The Supreme Court, in Wade v. United States, confirmed that the government holds a […]
read moreLife After Cooperation: Moving Forward After a Federal Case
For most federal cooperators, the sentencing hearing functions as the end of a negotiation but the beginning of something less defined. The 5K1.1 motion has been filed. The government has acknowledged the assistance. The judge has imposed a sentence that, in all likelihood, would have been measured in decades without it. And then the cooperator […]
read moreThese titles directly target the questions and anxieties your potential clients are searching for. The highest-intent searches tend to be around whether cooperation is worth it
Is Federal Cooperation Worth It? The Proffer and Its Consequences Cooperation with the federal government is not a negotiation. It is a forfeiture of information in exchange for a promise the government is not obligated to honor. That sentence will strike some readers as overstated. Under Section 5K1.1 of the United States Sentencing Guidelines, only […]
read moreCan My Cooperation Be Used Against Me in State Court?
The Short Answer Is Yes, and the Longer Answer Is Worse A federal proffer agreement does not bind a state prosecutor. One may cooperate with the United States Attorney’s Office under a written agreement that restricts the federal government’s use of the statements provided, and still discover that a state district attorney has obtained those […]
read moreWill My Cooperation Be Mentioned at Sentencing?
The cooperation will be mentioned. Not in the way most defendants fear, and not always in a manner visible to the public, but mentioned it will be, because a federal judge cannot grant a departure from the sentencing guidelines without knowing the basis for it. The question that matters is narrower: mentioned to whom, in […]
read moreHow Long Until I'm Sentenced After Cooperating?
The Question Without a Number Cooperation in a federal criminal case does not produce a sentencing date. It produces a plea agreement, a series of debriefings, and an interval of sustained uncertainty that no provision of the Federal Rules of Criminal Procedure constrains with a fixed duration. The answer to “how long” is not a […]
read moreWhat Happens After I Finish Cooperating With the Government?
The cooperation is finished, and nothing has been resolved. This is the condition that most federal defendants do not anticipate: the months, sometimes years, between the final debriefing session and the moment the government decides what the cooperation was worth. Every obligation has been met. Every question has been answered. The debriefing room has been […]
read moreAfter Cooperation
The cooperation is finished, and nothing has changed. The proffer sessions are complete. The debriefings have been transcribed, the testimony delivered, the names provided. The government has what it required. The cooperator has a plea agreement, a sentencing date that has passed, and a sentence that may or may not reflect the assistance rendered. What […]
read moreSecond Opinions on Federal Proffer Agreements: When to Get One
The proffer letter is not a gesture of goodwill. It is a contract, and like most contracts drafted by one party for the benefit of that party, its protections are distributed in a manner that favors the drafter. The government writes the proffer letter. The government controls its terms. In most districts, those terms have […]
read moreUsing Cooperation to Avoid Trial in Multi-Defendant Cases
The Cooperator’s Calculation Someone in every multi-defendant federal case cooperates first. The question that governs the remaining defendants’ exposure is not whether cooperation will occur but when, and whether the person cooperating possesses information sufficient to foreclose the others’ options at trial. In 2019, in a wire fraud prosecution in the Eastern District involving seven […]
read moreHow to Get a Non-Prosecution Agreement Through Cooperation
Cooperation as Currency The non-prosecution agreement is not a reward for good behavior. It is a transaction, and the government sets the price. Most articles on this subject begin with a definition. The definition is not the part that matters. What matters is that the Department of Justice has constructed, through decades of memoranda and […]
read moreCan Cooperating Early Prevent Federal Charges?
The Transaction Early cooperation does not prevent federal charges. It purchases a different variety of exposure. The question assumes a bargain that does not exist in the form most people imagine it. A person under federal investigation contacts the government, provides information, and in exchange receives assurance that charges will not follow. That sequence describes […]
read moreTiming Your Cooperation: Before or After Indictment?
Cooperation is the only currency a federal defendant controls, and its value depreciates by the hour. The question is not whether to cooperate. For most defendants confronting serious federal exposure, the arithmetic on that question resolved itself the moment the investigation became visible. The question is when. And the answer depends on information the defendant […]
read moreHow to Maximize Your Cooperation Credit in Federal Court
The Asymmetry Cooperation credit in federal court is not earned. It is granted. The distinction between those two words contains the whole of the problem. Under USSG § 5K1.1, a federal court may impose a sentence below the guideline range only upon the government’s motion, attesting that the defendant provided substantial assistance in the investigation […]
read moreWhat Your Lawyer Should Negotiate Before You Proffer
The proffer letter is a contract of adhesion, and the adhesion is the point. What arrives from the United States Attorney’s Office, typically by email to defense counsel, is a document of two or three pages that presents itself as standard. The word “standard” performs a specific function here: it discourages negotiation. In most districts, […]
read moreCommon Mistakes Defendants Make in Proffer Sessions
The proffer session is the only proceeding in federal criminal practice where a defendant is expected to assemble the government’s case. Every other stage of the process, from arraignment through sentencing, assumes an adversarial posture. The proffer inverts it. A defendant sits in a conference room at the United States Attorney’s office, across from prosecutors […]
read morePreparing for a Federal Proffer: What Your Lawyer Should Do
The Proffer Letter Itself The proffer letter is a contract, and the first thing your attorney should do is read it as one. It arrives from the United States Attorney’s Office with standard language, printed on government letterhead, and its clauses read as though they are nonnegotiable. In most districts, they largely are. But “largely” […]
read moreHow an Experienced Lawyer Negotiates Federal Proffer Agreements
Most clients have signed the proffer agreement before they understand what it permits. The document, which in most federal districts runs to seven or eight pages, presents itself as a grant of protection: your words, the letter promises, will not appear in the government’s case in chief. What the letter actually permits is something wider, […]
read moreStrategic Considerations
The merchant who telephones on a Monday has already lost a week. That is the observable pattern. In cases where a funder has filed a confession of judgment or commenced daily ACH withdrawals against a disputed balance, the first strategic error is not the decision to contest the obligation. It is the interval between recognizing […]
read moreCooperating in Federal Money Laundering Investigations
Cooperation is the single most consequential decision a defendant will confront in a federal money laundering investigation, and it is almost always made too late. The client has retained counsel. The target letter has arrived, or the indictment has been returned. The question of whether to speak to the government presents itself not as strategy […]
read moreCooperation in Federal Gun Trafficking Cases
Cooperation is the fulcrum of every federal gun trafficking case, whether the defendant recognizes it or not. The government does not construct these prosecutions to secure a single conviction. It constructs them to dismantle a supply chain, and every person arrested along that chain represents a potential source of testimony against the person above. Before […]
read moreProffer Sessions in Federal Tax Evasion Cases
The proffer session is the most consequential meeting most defendants in federal tax evasion cases will ever attend, and the one they are least prepared to evaluate before it occurs. A person facing a 26 U.S.C. § 7201 charge has, in most instances, already made several decisions without counsel. The returns were filed or not […]
read moreCooperating in Public Corruption Investigations
Cooperation in a public corruption investigation is not a negotiation. It is a surrender conducted under terms the government will dictate, that your attorney can influence but cannot control, and that will reshape your relationship to every person you have ever worked with in public life. The instinct, when federal agents make contact, is to […]
read moreCooperation in Specific Case Types
Cooperation is not one thing. The word appears in proffer agreements and plea negotiations, in corporate enforcement policies and regulatory settlements, and in each context it carries a different weight, a different set of risks, and a different calculus of what the government requires in exchange for what it is willing to offer. The type […]
read moreWhat If Co-Defendants Find Out I'm Cooperating?
The fear is not irrational. In most federal conspiracy cases, cooperation is discovered (if not immediately, then at sentencing, and if not at sentencing, then in the mathematics of the sentence itself), and the person who cooperated spends the intervening months constructing a version of the future in which that discovery does not arrive. It […]
read moreSealed Filings and Cooperation: Keeping Your Role Confidential
The Seal Is Not the Shield Cooperation in a federal criminal case produces a record. The question, for most clients who sit across from us for the first time, is not whether to cooperate but whether the cooperation can remain invisible to the people most motivated to discover it. The answer is more conditional than […]
read moreHow to Protect Your Family When Cooperating With the Government
The family learns last. In almost every federal cooperation matter, the accused person’s spouse, children, and parents discover the scope of the arrangement weeks or months after the proffer session has concluded, and the information arrives not as a disclosure but as a consequence. A changed phone number, an abrupt relocation, a name surfacing in […]
read moreWill My Name Be Public If I Cooperate?
Cooperation does not come with anonymity. That is the sentence most attorneys save for the third meeting, after the client has committed to the idea in principle. We begin with it because the alternative, discovering the limits of confidentiality after the proffer session, is the kind of surprise that corrodes the relationship between attorney and […]
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