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Getting Immunity from the Government Before Cooperating

We have previously addressed how truth is in the eye of the beholder and, when the beholder is a federal agent or prosecutor, failing to confirm what the government believes the truth to be can lead to charges. However, there are times when it is in the client’s best interest to meet government agents and prosecutors and answer questions. Before that meeting takes place, it is important to agree on what protections will be afforded to the client – the type of immunity the government will provide. The purpose of this article is to discuss the three types of immunity: transactional; use; and contract. While there are certain similarities, they are also very different. For example, the government may compel the client to provide information pursuant to transactional or use immunity, it may not do so using contract immunity.

Transactional immunity, also commonly called “blanket immunity,” completely protects the client from a future prosecution for crimes related to his or her testimony. The U.S. Supreme Court has held that the government need not provide transactional immunity to compel a client’s testimony. Consequently, the federal government only provides this immunity in the rarest of instances.

Use immunity is more common than transactional immunity, but it is not the most common. Use immunity only protects the client against the government's using of his or her immunized testimony in a prosecution of the client, except in a subsequent prosecution for perjury, giving a false statement, or obstruction of justice. While the government is free to find evidence independent from information the client provided to prosecute him or her, in a subsequent prosecution the government must prove the evidence was not derived directly or indirectly from the client’s testimony. Generally, to obtain use immunity, the U.S. Attorney General or his or her designee must approve providing it. Consequently, federal prosecutors usually protest obtaining use immunity. Use immunity affords the client great protections.

The most common form of immunity is called several things, including contact, letter, proffer, “king/queen for a day,” informal, or pocket immunity. Information provided pursuant to this type of immunity is voluntary and is subject only to the terms of the agreement. The agreement only guarantees that the government will not use the client’s statements directly against him or her in any prosecution, except for perjury, false statement, or obstruction of justice charges. This type of immunity does not bind other prosecuting authorities, like state agents or prosecutors who are not parties to the contract. While some protections are afforded, it offers the least protection to the client, especially when the client does not understand the truth as the government sees it.

Experienced criminal defense lawyers can assist with understanding the kind of immunity offered and whether it is in your best interests to cooperate with the government. This is important because some prosecutors do not know the difference. Recently the government offered use immunity to my client during a meeting, only to provide contract immunity later that day. Lawyers without experience in the federal criminal justice system may not realize the difference, and inadvertently place the client at greater risk. If the client decides to speak to the government, regardless of the type of immunity offered, experienced counsel should always bring a witness. While the government may have an agent taking notes, the counsel and the client will not get to review the notes or draft report to determine if it is accurate. On occasion we have had to correct errors found in government reports to ensure our client was not later prosecuted for giving a false statement, perjury, or obstructing justice.

If you believe you are under federal or state investigation, or if you are an attorney with a client under federal or state investigation, contact the Law Offices of Horwitz & Citro, P.A. immediately. Call (407) 901-5852 to request a free initial consultation with an experienced criminal defense lawyer.