Criminal Defense Lawyers

Federal Drug Informant Rights

The federal government uses confidential informants in approximately eighty percent of drug cases. That statistic alone should tell you something about how this system works. They need informants more than informants need them – and yet the informant takes all the risk while the government makes no guarantees. The person caught with drugs gets pressured into wearing a wire, making controlled buys, and setting up friends and associates. In exchange, they get a promise that someone will tell the prosecutor they helped. Not a promise of leniency. Not a promise of reduced charges. Just a promise that someone will mention their cooperation. That’s the deal.

Understanding your rights as a federal drug informant means understanding that you have fewer rights than you think. The cooperation agreement that seems like your ticket out of prison is actually a contract where you assume all the danger and the government assumes no obligations. By the time most defendants realize this, they’ve already agreed to terms that can’t be undone. The question isn’t whether to cooperate – it’s whether you understand what cooperation actually means before you sign anything.

If you’re facing pressure to become an informant, or you’ve already agreed to cooperate, knowing what rights you actually have – and which rights you’ve already given up – determines whether cooperation helps you or destroys you.

No Guarantees – The Fine Print Nobody Reads

The ATF cooperation agreement states it explicitly: the agency “cannot promise or agree to any immunity from prosecution or specific consideration.” That language isnt buried in legalese. It appears right in the document informants sign. The agency asking the informant to risk everything cant promise anything in return. Only the United States Attorney’s Office can make promises about the case – and prosecutors didnt sign the cooperation agreement with the informant.

Heres the thing about federal cooperation. The defendant agrees to help agents. Makes controlled buys. Wears wires. Provides information about associates. And after all that, the agents write a letter to the prosecutor saying the defendant helped. Thats it. Thats what the defendant gets. The prosecutor then decides – with complete discretion – wheather the cooperation warrants any consideration at sentencing.

Think about the power imbalance:

• The informant commits additional crimes (controlled purchases) at the direction of law enforcement
• The informant faces physical danger
• Destroys relationships and possibly endangers family members
• And in exchange, the informant gets a letter

The prosecutor who recieves that letter has no obligation to do anything with it. They might recommend a reduced sentence. They might recommend no reduction. The cooperation dosent bind them to anything.

The cooperation agreement signed with federal agents does not bind the prosecutor to any specific outcome. The agents cant make promises because they dont control charging or sentencing decisions. Only the USAO controls those decisions, and prosecutors are not party to the informant agreement. The defendant is signing a contract with the wrong party.

Your Testimony Can Destroy You

Heres something defense attorneys warn about constantly but defendants ignore. Any testimony provided as an informant can be used against the defendant at trial. Defendants think cooperation helps the case. They are actualy building evidence against themselves.

OK so consider this scenario. A defendant agrees to cooperate. The defendant provides information about a drug organization. That information includes details about personal involvement – becuase the defendant cant explain how knowledge was acquired without explaining the role played. Every statement gets recorded. Every detail about operations, transactions, and participants includes the defendant’s participation. If the cooperation agreement falls apart for any reason, all that testimony becomes evidence at trial.

The prosecutor dosent even need cooperation to fail completely. If they decide the assistance wasnt “substantial” enough, they can decline to file a 5K1.1 motion for sentence reduction. The defendant is still convicted. Still sentenced. But now theres a detailed record of admissions about the drug conspiracy – admissions made while trying to help the defendant’s own case.

Defendants assume cooperation creates protection. The opposite is true. Cooperation creates exposure. Every statement made as an informant is a statement that can be used at trial. The government has no obligation to suppress the informant’s own words if the cooperation relationship ends. Those words become the strongest evidence they have – becuase the defendant said them.

The Physical Danger Nobody Tracks

Rachel Hoffman was a recent college graduate in Tallahassee, Florida. She got caught with marijuana and a small number of pills. Police pressured her into becoming an informant. They sent her on a sting operation to buy drugs and a gun from two targets. During the operation, they lost track of her. The targets found the wire in her purse. They killed her.

Andrew Sadek was a college student in North Dakota studying robotics. He got caught selling eighty dollars worth of marijuana. Police pressured him into working undercover. His body was found in a river with a bullet through his head. His parents say he was murdered while working as an informant.

Heres the uncomfortable truth. There are no official statistics on confidential informant deaths or injuries. None. Law enforcement tracks everything – arrest rates, conviction rates, drug seizures, gun recoveries. But nobody tracks how many informants die. A 60 Minutes investigation noted that “you cannot find out any information about the number of confidential informants that are being used across this country, much less the number of people who are being killed or injured.”

Think about what that silence means. The government uses an estimated 100,000 confidential informants across the country. Eighty percent of drug cases involve informants. Fifty percent of federal drug defendants cooperate as informants. This is a massive system – and theres no accountability for the human cost. When informants die, theres no investigation into wheather proper protocols were followed. Theres no tracking of how many die. Theres just silence.

The 89 Percent Problem

Louisiana State Police conducted polygraph examinations of confidential informants. The results were striking. Over 89 percent of informants examined confessed to having told significant lies to their handlers. Not minor exaggerations. Significant lies about the information they were providing.

Heres the inversion nobody discusses. The government relies on informants precisely becuase informants have inside knowledge of criminal organizations. But the people with inside knowledge of criminal organizations are criminals. And criminals lie. The same characteristics that make someone useful as an informant – criminal connections, willingness to deceive associates, desperation to avoid prison – make them inherantly unreliable witnesses.

Courts recognize this problem in theory. Federal judges routinely instruct juries to view informant testimony with caution becuase of the inherant incentive to fabricate. But in practice, juries convict based on informant testimony constantly. The warning dosent change the outcome. Informant testimony leads to conviction even when the informant has every reason to lie.

Fifteen percent of wrongful convictions in capital cases involved jailhouse informants. These are cases were defendants were sentenced to death based partly on informant testimony – and later proven innocent. The informants lied. The juries believed them. The defendants almost died. And thats just capital cases. Nobody tracks how many non-capital wrongful convictions involve informant lies.

No Judicial Oversight – Unlike Plea Bargains

When a defendant enters a plea bargain, a judge reviews the agreement. The judge ensures the defendant understands the terms, that the plea is voluntary, that theres a factual basis for the charges. Judicial oversight exists becuase plea agreements have constitutional implications.

Informant agreements have no such oversight. No judge reviews the terms. No judge ensures the defendant understands what there agreeing to. No judge evaluates wheather the cooperation being requested is reasonable or dangerous. The agreement happens entirely between law enforcement and the defendant – with the defendant often having no counsel present when the initial pressure begins.

Heres were the system breaks down. Different agencies handle informants differently. Theres no standard rules across jurisdictions. The protections available to an informant working with the FBI in New York might be completly different from protections for an informant working with DEA in Texas. Some agencies have detailed protocols. Others have almost none. The defendant agreeing to cooperate has no way of knowing which category there dealing with.

The Attorney General’s Guidelines Regarding the Use of Confidential Informants exist, but they still leave “significant discretion” to individual agents. A GAO report found that some agencies “do not fully address procedures” outlined in the guidelines. The oversight that should exist dosent function as intended. Informants fall through the gaps in a system that has more gaps then protections.

The Time Commitment Nobody Mentions

Federal agents usually wont agree to help with a defendant’s case after just one arrest. They want months of cooperation. Sometimes years. The image of making one controlled buy and getting charges dismissed is fantasy. The reality is extended, ongoing cooperation that consumes the defendant’s life.

Think about what months or years of cooperation means:

• The informant lives a double life
• The informant maintains relationships with people being betrayed
• The informant remains constantly at risk of discovery
• The informant reports to handlers, makes recordings, participates in operations
• All while trying to maintain the appearance of normal life
• All while knowing that if discovered, the people who have been informed on have every reason to kill

The cooperation dosent end when the informant wants it to end. The signed agreement commits the defendant untill the agents decide satisfaction has been achieved. Trying to stop cooperating before agents have gotten what they want means they can decline to recommend any sentencing consideration. All the risk already taken becomes worthless. The defendant has endangered self and family for nothing.

And heres the thing about timing that really matters. To cooperate effectively with the federal government, defendants need to start early. If other defendants provide the same information first, the late cooperator’s information has less value. The cooperation window closes as others cooperate first. By the time a defendant decides to become an informant, the value that could have been provided may already be lost – becuase someone else provided it first.

Conflicts With Supervision

The federal court system acknowledges an uncomfortable reality about informants. Acting as a confidential informant is “generally inconsistent with the rehabilitative and re-integrative goals of supervision.” In other words, the thing thats supposed to help defendants avoid prison actively undermines the thing thats supposed to help them become productive citizens.

A defendant on probation or supervised release faces conflict between informant activities and supervision conditions:

• Supervision requires avoiding criminal associations – but informant work requires maintaining those associations
• Supervision requires honesty with officers – but informant work requires living a secret double life
• Supervision requires avoiding illegal activity – but controlled buys are illegal activity conducted at law enforcement direction

OK so heres the practical consequence. A defendant on supervision who becomes an informant may technicaly violate supervision conditions. The very cooperation intended to help their case creates potential violations that could send them back to prison. The court system recognizes this conflict exists but hasnt resolved it. Defendants navigate this contradiction alone.

What Rights You Actually Have

Despite everything above, informants do have some rights. Understanding these rights – and there limits – matters for anyone considering or engaged in cooperation.

Defendants have the right to refuse to become informants. The government cant compel cooperation. Agents can offer incentives and apply pressure, but the final decision belongs to the defendant. Understanding this matters becuase police often present cooperation as the only option when its actualy a choice.

Defendants have the right to have an attorney review cooperation agreements before signing. This right is frequently waived in practice becuase police approach defendants immediatly after arrest, before counsel is retained. But the right exists. Exercising it – insisting on counsel before agreeing to anything – provides crucial protection.

When testifying based on informant activity, the defendant being testified against has rights that affect the informant. Under Roviaro v. United States, defendants can sometimes compel disclosure of informant identity if necessary for fair defense. Informant confidentiality isnt absolute. The Jencks Act requires disclosure of prior statements if the informant testifies. The entire cooperation history may become public record.

Informants have the right to be protected during cooperation activities – in theory. Agencies are supposed to have protocols for informant safety. But as Rachel Hoffman and Andrew Sadek demonstrate, those protocols sometimes fail catostrophicaly. The right to protection exists on paper. Wheather it exists in practice depends on the handlers assigned to the case.

The Decision Framework

Deciding wheather to become a federal informant requires understanding the full picture. Not the picture law enforcement presents – the complete picture including risks they dont mention.

The potential benefits: recommendation for reduced sentence, possible dismissal of charges, avoiding pretrial detention. These benefits are real but conditional. They depend on the prosecutor exercising discretion favorably after the dangerous work has already been done.

The certain costs: physical danger, destroyed relationships, extended time commitment, psychological stress of living a double life, potential for testimony to be used against the informant if cooperation fails.

The hidden risks: no judicial oversight of the agreement, no guarantee of any specific outcome, potential conflict with supervision conditions, handlers who may lose track of informants during operations, fellow defendants who may discover the cooperation.

Think about this calculation honestly. The informant trades certain danger for uncertain benefit. The informant gives up concrete things – safety, relationships, peace of mind – in exchange for a recommendation that may or may not produce any sentencing benefit. Some defendants make this trade and it works out. Others make it and end up worse then if they’d fought the case conventionaly. Others make it and end up dead.

The Searches That Never Stop

Federal informants sign consent to search provisions that most defendants dont fully understand. The ATF agreement requires informants to consent to search of person, property, and vehicle before and after any authorized activity. This isnt a one-time consent. Its ongoing. Every time the informant participates in an operation, law enforcement can search everything.

Think about what this means in practice. The informant has no privacy during the cooperation period. Agents can search the informant’s home before a controlled buy. They can search it again after. They can search the vehicle. They can search the informant’s person. This consent remains in effect throughout the entire cooperation relationship – which may last months or years.

The search provisions protect law enforcement, not the informant. Agents want to ensure informants arent skimming drugs or money from operations. They want to verify the informant isnt conducting unauthorized transactions. The searches serve agency interests. The informant simply accepts this invasion of privacy as the cost of cooperation.

And heres something else. The search consent creates additional legal exposure. If agents find something during a cooperation-related search – drugs, weapons, evidence of other crimes – that evidence is admissable. The informant has already consented. The Fourth Amendment protections that might otherwise apply have been waived. Cooperation opens the door to discovery of additional crimes.

The Retaliation Risk That Lasts Forever

Becoming an informant creates permanent risk that dosent end when cooperation ends. The people informed on dont forget. Organizations dont forget. Even after the case resolves, after the sentence is served, the informant remains a target.

The federal system provides no witness protection for most informants. WITSEC – the Witness Security Program – exists for major cases involving threats from organized crime. The average drug informant dosent qualify for WITSEC protection and never will. After cooperation ends, most informants return to the same communities in which they informed. The same people they set up live in those communities. The same criminal organizations continue to operate in those communities. The informant returns with a target on their back and no federal protection.

Think about the long-term calculation. A defendant becomes an informant to avoid five years in prison. The cooperation works – the sentence gets reduced to two years. But the defendant must then live the rest of their life in a community were people know what happened. The risk of retaliation extends indefinately. The prison sentence had a clear end date. The danger from former associates has no end date.

Federal drug informant rights are limited by design. The system needs informants to function – eighty percent of cases depend on them. But the system dosent need to protect informants to function. The power imbalance means informants assume risk while the government assumes none. Understanding this imbalance is the first step toward making an informed decision about wheather cooperation makes sense for a specific situation. That decision should be made with counsel who understands exactly what the defendant is trading and what might be received in return.