A “Deal” With A Federal Agent – Where’s The Value?

a. Introduction: Federal Agents And “Promises.”

True or False: The federal government must honor:

  • A federal agent’s written promise of immunity given to Blackwater employees allegedly involved in a Baghdad shooting incident;
  • A DHS special agent’s promise that only one modest charge will be filed in exchange for complete cooperation; and/or
  • An FBI special agent’s promise to bring any cooperation to the prosecutor’s attention. (Answers at the end of this article.)

Immunity promises by federal criminal investigators (special agents) usually have the same effect from a legal perspective as a “Get Out Of Jail Free” card – that is, absolutely zero.

Blackwater employees in Baghdad were promised immunity, in writing, by investigators from the State Department’s Bureau of Diplomatic Security. They did not get immunity for their statements. Richard Griffin, the Diplomatic Security Bureau’s chief and supervisor of the BDS agents, did get the opportunity to quit his post – without explanation – after 36 years of service.

Absent thoughtful lawyering by experienced federal defense counsel, no legal significance flows from a federal agent’s promise that only a misdemeanor will be filed, or a case will be resolved on a no–custody basis.

b. Enforcing Special Agents’ “Promises” In San Francisco, San Jose, And Oakland’s Federal Courts.

If a person is charged and if that person through defense counsel makes a plea bargain, then in case of a later dispute judges decide the matter using the signed Plea Agreement between the parties, the court record, and Rule 11 of the Federal Rules of Criminal Procedure.

On the other hand, if no charges are pending and a DHS special agent promises anything about a prosecution, then a judge is unable to review any plea agreement, court record, or Rule of Criminal Procedure. What was said or even signed usually won’t carry the day in this kind of dispute in federal court in San Francisco, San Jose or Oakland,

Given the legal and factual vacuum, judges instead look to contract law to decide if there is an enforceable plea bargain or "deal." In particular, judges look to the authority of the person making the agreement.

Because no law grants a federal agent the actual authority to promise immunity, federal law enforcement agents cannot make a “deal” obligating the Department of Justice to provide immunity. And because no law grants federal agents the actual authority to resolve criminal charges, federal agents likewise cannot limit charges (or control the sentence if there is a conviction). Unless there are very unusual circumstances present, the agent’s promise means nothing.

Special agents (and other criminal investigators) are, however, enormously influential. What they can promise and deliver is rigidly limited:

  • Promises to bring to the prosecutor’s attention a person’s cooperation (or lack of cooperation). Such a promise sounds good but means little – the agent’s job is to provide the prosecutor all the facts anyway; and
  • Promises to close the investigation. This may or may not mean anything. If the U.S. Attorney has opened an investigation, only the U.S. Attorney can close it. Agents can close their own investigation but are supposed to "present" the case to the U.S. Attorney before doing so. Agents are not supposed to promise more, but there are continuing disputes whether they cross the line.

Although it seems fundamentally unfair, if a federal agent makes a promise without authority there generally is no due process or other violation for a statement (or even confession). The statement is admissible in court and in almost all circumstances there is no enforceable deal.

c. Palo Alto Attorney Lee Altschuler Offers Six Short Tips.

More people convict themselves than the government ever convicts through independent investigation. Palo Alto Attorney Lee Altschuler (a former Assistant U.S. Attorney) offers six practical tips to stay out of trouble if federal agents call:

1. Never Lie. Even if the initial investigation is unfounded, not telling the truth to government investigators is a crime with severe legal and practical consequences. No one likes being lied to, particularly federal authorities – just ask a former aide to the Vice President!

2. Reflect On Your Rights – They Are There For A Reason. Federal courts protect only people who assert their rights. The rights to counsel, to remain silent, and to refuse permission to search are invaluable rights in the criminal justice system. “The Constitution is not neutral. It was designed to take the government off the backs of the people” wrote William O. Douglas, an Associate Justice of the Supreme Court.

3. Assert Your Rights – No One Can Hold That Against You. The Department of Justice cannot penalize an individual for asserting Constitutional rights against government investigators. The rule is different in some other common law countries.

4. Never Accept A Deal That Seems Too Good To Be True. A one-time, one–day offer of “helping yourself” by getting immunity or “having your problems go away” is too good to be true. It may sound very much like immunity or a great deal, but is not. And most agents know better than to promise what they cannot deliver.

5. When Asked To Sign, Don’t. Your signature on a “Consent Form” is proof positive you are giving up valuable Constitutional rights. Investigators ask for signatures to improve the government’s legal position in court, not to help others.

6. Call On Experienced Federal Criminal Defense Counsel. Now. The deck is stacked in the government’s favor unless an experienced federal defense attorney negotiates for you. A lawyer experienced not only in criminal law, but who lives and breathes federal criminal law delivers the best values in:

• Assessing your risk in high–stakes federal court matters;

• Setting the ground rules for any voluntary government interview;

• Knowing how to seek a witness assurance (non-prosecution) letter;

• Obtaining a binding deal in your interest, or recommending sound other choices.

An experienced federal defense attorney understands the risks, rules and options – and stands in your corner. It is an easy choice to make compared to accepting promises by an investigator who works for the government and answers to the prosecutor.

Answers: 1) False – agents cannot promise immunity; only authorized Department of Justice attorneys can make a binding promise; 2) False – agents cannot select which charges a prosecutor presents: and 3) True – agents can and should bring to a prosecutor’s attention everything that happens during an interview, including cooperation.