Cooperation in the Federal System – Paul Manafort, a Study of What Not to Do

Much has been written about Paul Manafort’s conviction at his first trial, the potential decades long sentence, and his sudden plea and cooperation deal shortly before his second trial was scheduled to begin. This sequence of events alone is unusual as most defendants decide to cooperate in an effort to reduce their potential sentence well-prior to trial. Moreover, most federal prosecutors do not want to cooperate with a defendant who has contested charges, gone to trial and lost. Most unusual, and damaging to Manafort, is his apparent violation or beach of the cooperation agreement by his alleged lies to the government.

To briefly review, cooperation with the government means that an individual must meet with the Assistant U.S. Attorneys (AUSAs) and federal agents to be debriefed about their entire history of criminal activities, both in the charged case, as well as any prior criminal activity, and provide “substantial assistance” to the United States. Substantial assistance means completely truthful, useful, material information about the criminal activity being investigated and any corroborating evidence such as documents, emails, texts, recorded conversations and the like. The government – the AUSAs and the agents – alone decide whether the person has provided substantial assistance. If the government decides that the defendant provided substantial assistance, the AUSAs submit a motion to the sentencing court moving for a downward departure under section 5K1.1 of the U.S. Sentencing Guidelines.

If the government determines that the defendant either failed to provide substantial assistance, or that he breached the terms of the cooperation agreement by lying or committing other criminal offenses, then the government at its sole discretion has the right to withhold the motion for a downward departure. The government may also choose to bring additional charges for obstruction of justice or lying to federal officials.

If Manafort lied to the government and breached his plea and cooperation agreement, he has put himself in the absolute worst position for sentencing. His plea of guilty cannot be withdrawn, the judge will sentence him on the plea terms without the benefit of the downward departure for his cooperation, may refuse the normal time off for acceptance of responsibility, and can take into consideration the fact that Manafort lied to the government in a continuing effort to conceal and obfuscate his criminal conduct and that of others.

When a defendant makes a decision to cooperate, it is imperative that he follow through on all terms and conditions to receive the maximum benefit for that cooperation. Experienced white-collar defense counsel will have spent considerable time reviewing the client’s options, the potential risks versus benefits of cooperation, and preparing their client for the many proffers and meetings the client and attorney will have with the government.

In cases that have a number of cooperators, or have been investigated extensively,

A purported cooperator who attempts to:

• minimize his conduct or that of others,
• withhold information, or
• mislead investigators

faces greater chances of being caught because of all the information and evidence at the government’s disposal.

While successful cooperation often results in greatly reduced time in prison, or probation, failed cooperation often leads to much harsher sentencing.

In time, we will learn what the government claims Manafort did to breach his agreement and what his fate will be. Whatever the result, this is a case that defense counsel dreads as their client failed to abide by the terms of the agreement — and put himself in a much worse position for sentencing. Defense counsel can only do so much to prepare and protect their client, it is ultimately up to the client to fulfill the terms of the negotiated agreement.

Robert Stahl, and his firm, Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.