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Should I Cooperate With Federal Prosecutors in a Child Pornography Case
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The federal prosecutor tells you that cooperation is your best option. Your lawyer might even agree. Everyone says the same thing: help the government, and the government will help you. But nobody explains what “cooperation” actually means in a federal child pornography case – what you’re giving up, what you’re risking, and what you might get in return. The truth is that cooperation is a calculated gamble where the government holds all the cards.
Cooperation in federal cases doesn’t mean what you think it means. It doesn’t mean being polite. It doesn’t mean showing remorse. It means providing information that helps the government prosecute OTHER people – names, locations, networks, sources. And the reward you get for this cooperation is entirely at the government’s discretion. You can give them everything, and they can still decide your assistance wasn’t “substantial” enough to warrant any leniency. That’s the system.
Welcome to Spodek Law Group. Our goal is to give you real information about what cooperation means in a federal child pornography case – the mechanics, the risks, and the rare situations where it actually helps. Todd Spodek has represented clients facing cooperation decisions and understands that the wrong choice can destroy your case even more thoroughly than the charges themselves. This article explains what you need to know before you say anything.
The Cooperation Trap – What Nobody Tells You
Heres the fundamental paradox of federal cooperation. The more you reveal, the more evidence the government has against you. You sit down with prosecutors hoping to help yourself, and every word you say becomes a potential weapon in their arsenal. They call it a “proffer session” or “queen for a day.” It sounds protective. It isnt.
The proffer agreement typically says the government wont use your statements directly against you in their case-in-chief. That sounds reassuring. But theres a massive exception that most defendants never understand until its to late: the derivative use exception. The government cant use your exact words, but they CAN use your words to find other evidence. You mention a meeting you attended. They subpoena records from that meeting. Those records contain incriminating information. That information is admitted at trial. Your cooperation led directly to your conviction.
This is the trap nobody explains. You walk into a proffer session thinking your protected. You walk out having provided a roadmap to evidence you didnt even know existed. And that evidence can be used against you becuase it wasnt YOUR statement – it was what your statement led to.
At Spodek Law Group, we never let clients enter proffer sessions without understanding exactly what they’re risking. The derivative use exception changes everything about how cooperation works. Its not protection. Its exposure with a thin veneer of immunity.
How Cooperation Actually Works
Heres the system revelation that should change how you think about cooperation. Only the government can file a motion for sentence reduction under the cooperation guidelines. This is called a 5K1.1 motion. Even if you cooperate perfectly – even if you provide names that lead to arrests and convictions – the government decides wheather to file that motion. You dont get to file it yourself. You cant force their hand.
And heres what makes it worse. A 5K1.1 motion alone dosent get you below the mandatory minimum. If your charged with receipt, theres a five-year mandatory minimum. A 5K1.1 motion can reduce your sentence within the guidelines, but to go below that mandatory minimum, the government must ALSO file a motion under 18 USC 3553(e). Two separate motions. Both entirely at the governments discretion. If they file one without the other, you still serve at least five years.
The average sentence for defendants who recieve a 5K1.1 departure is 52 months. Thats the reward for substantial cooperation – still over four years in federal prison. Defendants who recieve later Rule 35(b) reductions average 83 months. These arent get-out-of-jail-free cards. Theyre modest reductions in sentences that remain extremely severe.
Todd Spodek makes sure every client understands these numbers before discussing cooperation. The fantasy of walking free becuase you helped the government is almost never reality. The reality is modest sentence reductions that may or may not materialize, depending entirely on prosecutorial discretion.
Theres another layer to this system that makes cooperation even riskier. The charging decision – wheather to charge possession or receipt – happens BEFORE cooperation discussions begin. By the time your sitting down to discuss cooperating, the mandatory minimum may already be locked in. If the prosecutor charged receipt instead of possession, your looking at five years minimum no matter what. Your cooperation cant undo that charging decision. It can only affect what happens above that floor.
This creates a perverse situation. The defendant who needs cooperation most – the one facing a mandatory minimum – is also the defendant for whom cooperation provides the least relative benefit. The government already has leverage. They dont need to offer much to get what they want. And what they want is information, not your freedom.
The Proffer Session – Queen For A Day
Heres something that should terrify everyone considering a proffer. The session gives prosecutors a free preview of how you perform under pressure. They watch how you handle tough questions. They observe your demeanor as a witness. They learn your theory of the case. And all of that information helps them prepare to destroy you at trial if your cooperation dosent work out.
Think about the perverse incentive structure. Prosecutors invite you in for a “queen for a day” session. You provide information hoping for leniency. They evaluate wheather your information is useful enough to warrant a 5K1.1 motion. And while theyre evaluating, theyre also learning exactly how to cross-examine you if they decide not to file that motion. Every question they ask is simultaneously an investigation into your value as a cooperator AND reconnaissance for your eventual trial.
Theres another consequence that most defendants never consider. If you proffer and then go to trial, your proffer statements can be used for impeachment if you testify. Your lawyer tells you to take the stand and tell your story. But the moment your testimony differs from anything you said in that proffer session – even slightly, even on minor details – the prosecutor pulls out the transcript. Now your a liar in front of the jury. Your proffer designed to help you becomes the weapon that destroys your credibility.
At Spodek Law Group, we evaluate every proffer opportunity with these consequences in mind. Some proffers make sense. Most dont. The difference depends on what you have to offer and what you have to lose.
Heres something else that most defense attorneys dont explain clearly. Once you proffer, you cant take it back. The information exists in prosecutorial files forever. Even if you decide not to cooperate further, even if the deal falls through, even if you go to trial – prosecutors have your statements. They know what you know. They know what you admitted. They know your weaknesses.
This permanence changes everything about the calculation. A bad trial can sometimes be appealed. A conviction on weak evidence can sometimes be overturned. But a proffer session creates a permanent record of your own words. There is no appeal from that. There is no suppression motion. The moment you speak, that information belongs to the government.
The Derivative Use Exception
Heres the paradox that makes proffering so dangerous. You sit down thinking your protected. Your words cant be used against you. But your words can lead to evidence that convicts you.
You mention a website you visited. Prosecutors subpoena records from that website. Those records show your IP address and download history. That evidence is admitted at trial. Your conviction rests on evidence you helped them find.
You mention a person you communicated with. Prosecutors arrest that person. That person cooperates against you. Now your facing testimony from someone YOU led them to. Your cooperation backfired completely.
You mention a date when something happened. Prosecutors pull your emails from that date. Those emails contain incriminating information. You forgot the emails existed. But they exist becuase you reminded prosecutors to look.
This is how derivative use works. Every fact you mention is a thread prosecutors can pull. And you never know what that thread will unravel. The protection in your proffer agreement covers your WORDS. It dosent cover what your words reveal.
The federal circuits have consistently upheld these broadly-worded proffer agreements. Courts say defendants understand the risks when they sign. But most defendants dont understand – not really. They hear “immunity” and think theyre safe. They arent.
When Cooperation Makes Sense
Heres the inversion that matters. The question isnt “should I cooperate.” The question is “what will I get in writing before I say anything.”
Cooperation makes sense when you have information the government desperately wants – information that leads to arrests and prosecutions of people higher up the chain. If your the end user with no connections to producers or distributors, you probly have nothing to trade. If you have names and networks and sources, you have leverage. But only if you use that leverage correctly.
The timing matters. Cooperation before charges are filed gives you more leverage then cooperation after. Once your indicted, the government already has enough to prosecute you. Your cooperation becomes less valuable. But before charges, when theyre still building the case, your information might shape what charges get filed – or wheather charges get filed at all.
The structure matters. Verbal promises mean nothing. Everything needs to be in writing. The government needs to commit to specific actions in exchange for specific cooperation. A promise to “consider” your assistance is worthless. A promise to file a 5K1.1 motion if your information leads to a conviction – thats something.
Todd Spodek negotiates these agreements on behalf of clients. We never let clients walk into proffer sessions without clear written commitments about what cooperation will produce. Oral assurances from prosecutors evaporate when its time to file motions.
Theres also a strategic consideration that most defendants overlook. If you have information about people further up the distribution chain – producers, distributors, network operators – that information has maximum value before you’ve been charged. Once your indicted, the government knows they can convict you. Your leverage decreases. But if you approach prosecutors before charges are filed, while theyre still investigating, your information can shape what happens to you. It can affect wheather you get charged at all, wheather you get charged with possession instead of receipt, wheather the government decides to make you a cooperating witness rather then a defendant.
This timing window is narrow. Most defendants miss it. They wait until charges are filed, until theyre facing trial, until the pressure becomes unbearable. By then, their leverage is gone. The government has already committed to prosecuting them. All they can offer now is testimony, and testimony is cheaper then pre-charge cooperation.
When Cooperation Destroys You
Heres the uncomfortable truth. Many defendants who cooperate recieve no benefit. They provide information. That information dosent lead anywhere useful. The government decides their assistance wasnt “substantial.” No 5K1.1 motion is filed. And now theyre in the worst possible position – theyve admitted things in a proffer session that can be used for impeachment, theyve lost the element of surprise, and theyve recieved nothing in return.
Theres also the safety issue that nobody wants to discuss openly. Federal prison is a dangerous place for cooperators. The information that you cooperated often becomes known. Other inmates, many of whom are there becuase someone else cooperated, dont react kindly. The label “snitch” follows you. And the reduced sentence you hoped for might not be enough to offset the increased danger you face.
Heres another hidden connection that matters. Every person you name in cooperation becomes a potential witness against you. You provide a name hoping to trade up. That person gets arrested. That person faces the same cooperation pressure you faced. And now that person is looking for information to trade – and they know about you. The cooperative relationship reverses. The person you exposed cooperates about you.
At Spodek Law Group, we consider all of these factors. Cooperation isnt just about what you know. Its about what happens after you reveal it. The cascade of consequences can extend far beyond the proffer session.
Theres something else worth understanding. The government dosent always tell you when other people are cooperating about you. You might be sitting in your proffer session providing names, and one of those names is already in a proffer session of their own – providing YOUR name. The cooperative relationship creates a race to the bottom. Everyone is trying to trade information for leniency. Everyone is naming everyone else. And the person who cooperates last often gets the worst deal.
This prisoners dilemma dynamic is particularly brutal in cases involving networks. If prosecutors arrest five people connected to the same distribution ring, all five face cooperation pressure. All five are being encouraged to name each other. The first person to proffer gets the best deal. The last person to proffer gets nothing – becuase prosecutors already have all the information they need from the first four. Timing matters. But so does understanding that your cooperation may be racing against someone elses.
What To Do Before You Say Anything
If your facing federal child pornography charges and considering cooperation, heres what needs to happen before you say a word.
First: understand that the value of your cooperation is determined by what the government WANTS to know, not what you happen to know. If your information dosent lead somewhere prosecutors care about, it dosent matter how much you reveal.
Second: never proffer without experienced federal defense counsel. The nuances of proffer agreements, derivative use exceptions, and 5K1.1 motions are too complex for anyone without specialized knowledge. A mistake in structure can destroy you.
Third: get everything in writing. What specifically will the government do if your cooperation is successful? File a 5K1.1 motion? File a 3553(e) motion to go below mandatory minimum? Recommend a specific sentence? Vague promises help no one.
Fourth: understand the risks completely. Derivative use. Impeachment if you testify. Loss of trial strategy confidentiality. Safety concerns in prison. These arent hypotheticals. They happen.
Fifth: consider wheather you have anything to trade. If your an end user with no connections to larger networks, your cooperation value is low. Proffering will expose you without helping you. Sometimes the answer is to fight the case instead.
Sixth: understand that silence has value too. The Fifth Amendment exists for a reason. Prosecutors cant compel you to testify against yourself. If cooperation offers no real benefit, maintaining silence may be your best protection. A strong defense at trial is sometimes better then a weak cooperation agreement.
The cooperation decision is among the most consequential you will make. It determines wheather you help yourself or help the government build a stronger case against you. It determines wheather your sentence is reduced or wheather you serve the maximum. And it cannot be undone.
Call us at 212-300-5196. The consultation is free and completly confidential. If prosecutors are pressuring you to cooperate – if they’ve offered a proffer session, if they’re suggesting you could help yourself by talking – you need to understand exactly what your agreeing to before you agree. The “queen for a day” session sounds protective. The reality is far more dangerous.
Cooperation can work. But only when its structured correctly, when you have real value to trade, and when the government commits in writing to specific actions. Everything else is a gamble with your freedom – and the house always wins.
The federal system is designed to encourage cooperation. Thats the point of 5K1.1 motions, of proffer agreements, of substantial assistance departures. The government wants you to talk. They want you to provide names. They want you to help them build cases against other people. And they’ve created a system that makes cooperation seem like the obvious choice.
But the obvious choice isnt always the right choice. Some defendants have nothing to trade. Some defendants face safety risks that outweigh sentence reductions. Some defendants would be better served by fighting the charges then by cooperating and hoping for mercy. The decision requires careful analysis of what you have, what you face, and what the government actually wants. At Spodek Law Group, thats the analysis we provide. Before you say anything that cant be unsaid.
Dont let prosecutors convince you that cooperation is your only option. It isnt. And for many defendants, its not even the best option. Find out what your options actually are before you commit to any of them.