Before I walked into my first DOJ proffer session, the defense lawyer in my FCPA case said, “Richard, there are no guarantees here, and the Justice Department moves at its pace, not your pace. Once we start this process, we have no control over the outcome.”
That process started for me in the spring of 2007. It continued until the end of my probation in January 2017, when the court released my passport and I started the process of restoring my civil rights. That was my ten-year journey through the U.S. criminal justice system.
I thought back on my decade-long ordeal when I read about a recent FCPA sentencing. Larry Puckett, a former Alstom sales manager who pleaded guilty to an FCPA conspiracy, was sentenced to a $5,000 fine and 100 hours of community service. Like me, he had cooperated with the DOJ, which included testifying in court as a cooperating witness.
After his sentencing, I read from his court file the DOJ’s “memorandum in support of a motion for downward departure and in aid of sentencing.” That document is known as a “5K,” short for Section 5K1.1 of the United States Sentencing Guidelines. The DOJ also filed a 5K in my case.
The possibility that a defendant might receive a 5K is usually part of a plea agreement. In order to even be considered for a 5K filing, the defendant agrees to be truthful and thorough in disclosing past illegal conduct, not to break the law going forward, to testify truthfully if asked, and cooperate in an undercover capacity (if asked), among other things.
In addition, the defendant’s undertaking extends to any investigations that might evolve from his or her initial cooperation. For example, in my case, I was asked to proffer with another U.S. Attorney’s Office in a separate matter that came to the surface during my disclosures.
Then, in a totally one-sided condition, the DOJ stipulates (taken from my own plea agreement):
“Nothing in this Agreement may be construed to require the government to file such a motion (5K) and that the Government’s Section 5k1.1 and/or Rule 35 assessment of the nature, value, truthfulness, completeness, and accuracy of the defendant’s cooperation shall be binding on the defendant.”
In other words, only the DOJ decides if the value of a defendant’s cooperation warrants a 5K, And to be clear, there’s no process of appeal if the DOJ doesn’t file the 5K.
Furthermore, even if the government does file a 5K, the plea agreement will have stipulated that “the defendant understands and acknowledges that the Court is under no obligation to grant a Government motion pursuant to Section 5K1.1 of the Sentencing Guidelines…should the Government exercise its discretion to file such a motion.”
In other words, if you decide to cooperate, and do everything the DOJ requires as part of a plea agreement, and if the DOJ decides to use its discretion to file such a motion, it’s only if the district court judge decides to consider it in a downward departure, that a defendant will end up serving less time due to cooperation. That’s a lot of “ifs.”
Larry Puckett’s journey apparently started in 2012, when he was approached by law enforcement. He proffered in the same year, pleaded guilty in 2019, and his probation will end in 2022. Among the many parallels between Puckett’s case and my own, including testifying as a cooperating witness and trial preparation, the one that stood out to me the most was the decade-long ordeal (albeit self-inflicted) within the criminal justice system.
So why talk about it now?
My decade long crucible ingrained within me a level of patience that I wouldn’t have otherwise had. I learned about dealing with uncertainties and accepting a situation that I was responsible for, but where I had no ultimate control over the consequences. All that is helping me deal with our murky, uncertain Covid-19 future.
I’m not a scientist or doctor. But I do have some experience with infectious diseases — I have written before about contracting MRSA that went untreated during my time in prison. I appreciate that getting to the other side of this pandemic will take time. While it hopefully won’t take a decade, it may not be quick, and progress isn’t likely to be linear.
But a lesson I learned from my ten-year journey from proffering to the end of probation and beyond, is that the less I thought about getting to the other side, the faster the outcome seemed to arrive. I’m thankful today to have learned the value of patience, when so many things in life now seem out of our control.