When people say "the government" in a federal criminal case, they almost always mean one person: an Assistant United States Attorney in the U.S. Attorney's Office for the district where the case is being investigated. In New York City that is usually the Southern District of New York, which covers Manhattan and the Bronx, or the Eastern District, which covers Brooklyn, Queens, Staten Island and Long Island. That prosecutor works with the agents, presents the case to the grand jury, drafts the plea agreement and decides whether to file the motions that can lower a sentence. Spodek Law Group P.C. owes loyalty to only you, and understanding how that person makes decisions is where your defense starts.
Who the prosecutor is and where the power comes from.
Each federal judicial district has a United States Attorney, appointed by the President with the advice and consent of the Senate, and the Attorney General appoints the assistant U.S. attorneys who carry the cases day to day (28 U.S.C. §§ 541 and 542). The statute that defines the office directs each U.S. Attorney to prosecute for all offenses against the United States within the district (28 U.S.C. § 547).
The AUSA on your case works under supervisors, and the Justice Manual, the Department's internal rulebook, requires supervisory approval for some of the most important choices, including a non-prosecution agreement given in exchange for cooperation (JM 9-27.600). Agents from the FBI, IRS, HSI or another agency gather the evidence, but it is the prosecutor who decides what to do with it.
The charging decision.
Under the Principles of Federal Prosecution, a prosecutor should bring a federal case when the prosecutor believes the conduct is a federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless the prosecution would serve no substantial federal interest, the person can be effectively prosecuted in another jurisdiction, or an adequate non-criminal alternative exists (JM 9-27.220). Once that decision is made, the charges selected will ordinarily include the most serious offense the conduct supports that is likely to result in a sustainable conviction (JM 9-27.300).
That is why the weeks before an indictment matter so much. Counsel who reaches the prosecutor early can sometimes put facts, documents or legal problems in front of the office while the charging picture is still open, and the same conversation handled carelessly can hand the government admissions it did not have.
Target, subject or witness.
Prosecutors sort the people in a grand jury investigation by how close they are to the conduct. The Justice Manual defines a target as a person the prosecutor or the grand jury has substantial evidence linking to the commission of a crime and who, in the prosecutor's judgment, is a putative defendant, and a subject as a person whose conduct is within the scope of the grand jury's investigation (JM 9-11.151). As the evidence develops, a witness can become a subject and a subject can become a target.
Department policy encourages prosecutors, in appropriate cases, to notify a target a reasonable time before seeking an indictment so the person has an opportunity to testify (JM 9-11.153), and that notice usually arrives as a target letter. If you do not know which category you are in, finding out is one of the first things your lawyer should do.
What a prosecutor can promise, and what only the judge decides.
Plea negotiations happen between the prosecutor and defense counsel, and Rule 11 of the Federal Rules of Criminal Procedure bars the judge from participating in those discussions. A plea agreement can commit the government to drop or not bring other charges, to recommend a sentence or a guideline position, or to agree that a specific sentence or range is appropriate.
The difference between the last two is critical. A recommendation under Rule 11(c)(1)(B) does not bind the court, and if the judge does not follow it you have no right to withdraw your plea, while an agreed sentence under Rule 11(c)(1)(C) binds the court once the court accepts the agreement. Anything a prosecutor says that is not written into the agreement should not be relied on.
Cooperation runs through motions only the government can file.
Prosecutors control the motions that turn cooperation into a lower sentence. Section 5K1.1 of the Sentencing Guidelines applies upon motion of the government, and 18 U.S.C. § 3553(e) lets the court go below a statutory minimum to reflect substantial assistance only on the government's motion. The Supreme Court has called this a power and not a duty, and held that a court may review a refusal to file and grant a remedy if the refusal was based on an unconstitutional motive (Wade v. United States, 504 U.S. 181 (1992)).
Before anyone sits down in a proffer session, it helps to understand that the value of whatever you say will be judged by the same office that is prosecuting you.
Why the first call to the prosecutor should come from your lawyer.
Agents often reach people before a lawyer is involved, and anything you say in that conversation can be used against you, including as a separate charge under 18 U.S.C. § 1001 if the government believes you knowingly and willfully made a materially false statement. Once you have counsel, your lawyer can learn what the office is investigating and what it wants, judge whether a meeting helps or hurts you, and make sure any proffer happens under a written agreement you have read line by line.
We owe loyalty to only you, not to the prosecutors we sit across from, and the consultation is risk-free - you can ask us anything you want, for as long as it takes.