Above the law: The prosecutor's duty to seek justice and the performance of substantial assistance agreements

Fordham Law Review

Volumn 68, Issue 4, 2000, Pages 1245-1282

  Galin, Ross ^a  

^a NONE

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EID: 0034402523     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (272)

1. Robert H. Jackson, The Federal Prosecutor (Address Delivered at the Second Annual Conference of United States Attorneys, Apr. 1, 1940), reprinted in 31 J. Am. Inst. L. & Criminology 3, 6 (1940).
2. Robert H. Jackson, The Federal Prosecutor (Address Delivered at the Second Annual Conference of United States Attorneys, Apr. 1, 1940), reprinted in 31 J. Am. Inst. L. & Criminology 3, 6 (1940).
3. See infra Part I.A.
4. See infra Part I.A.
5. See infra Part I.B.
6. See U. S. Sentencing Guidelines Manual § 5K1.1 (1998) [hereinafter USSG].
7. See infra Part I.B.
8. See infra Part I.C.
9. See infra Part I.C.
10. 928 F.2d 356 (10th Cir. 1991).
11. See id. at 359.
12. See id. at 358.
13. See id. at 359.
14. See id. at 358-59.
15. See id. at 359.
16. See id. at 360.
17. See id.
18. See id. at 360-61.
19. See id. at 361.
20. 9 F.3d 1492 (11th Cir. 1993).
21. See id. at 1494-95.
22. See id.
23. See id. at 1497.
24. See id. at 1495.
25. See id. at 1494-95.
26. Id. at 1497.
27. See id. at 1496.
28. See id. at 1497.
29. See id.
30. See id.
31. See id.
32. See id. at 1498.
33. See id. at 1497.
34. See id. at 1498.
35. Id. at 1495.
36. Id. at 1497.
37. See id. at 1504.
38. 99 F.3d 96 (2d Cir. 1996).
39. See id. at 97.
40. See id.
41. Id.
42. See id. at 98.
43. See id.
44. Id. at 98-99. The clear implication of "fresh start" was that the prosecutor would pretend the false answer had never been given.
45. See id. at 99.
46. See id.
47. See id. For a discussion of the good faith standard of review, see infra Part I.C.
48. See Brechner, 99 F.3d at 99.
49. See id. at 99-100.
50. See infra Part II.B.
51. At times this Note uses the terms "substantial assistance agreement" and "cooperation agreement" interchangeably. The two phrases are synonymous in the context of this Note.
52. See Pub. L. No. 98-473, 98 Stat. 1988 (codified at 18 U.S.C. §§ 3141-3150 (1988)).
53. See Melissa M. McGrath, Federal Sentencing Law: Prosecutorial Discretion in Determining Departures Based on Defendant's Cooperation Violates Due Process, 15 S. Ill. U. L.J. 321, 321 (1991); Paul M. Secunda, Cleaning Up the Chicken Coop of Sentencing Uniformity: Guiding the Discretion of Federal Prosecutors Through the Use of the Model Rules of Professional Conduct, 34 Am. Crim. L. Rev. 1267, 1272 (1997). Prior to the enactment of the guidelines, criminal sentences were left almost entirely to the discretion of judges. Judges could receive input from prosecutors, probation officers, or others, but there were no formal guidelines that judges were required to follow. Several studies indicated that the lack of formal guidelines led to widely disparate sentences. This disparity was perceived as being unfair and in conflict with the notion that similarly situated defendants should be treated equally, and in turn, led many legal scholars and lawyers to believe that the discretion of judges should be restricted so as to lead to more uniform sentences. See McGrath, supra, at 324-25.
54. See Melissa M. McGrath, Federal Sentencing Law: Prosecutorial Discretion in Determining Departures Based on Defendant's Cooperation Violates Due Process, 15 S. Ill. U. L.J. 321, 321 (1991); Paul M. Secunda, Cleaning Up the Chicken Coop of Sentencing Uniformity: Guiding the Discretion of Federal Prosecutors Through the Use of the Model Rules of Professional Conduct, 34 Am. Crim. L. Rev. 1267, 1272 (1997). Prior to the enactment of the guidelines, criminal sentences were left almost entirely to the discretion of judges. Judges could receive input from prosecutors, probation officers, or others, but there were no formal guidelines that judges were required to follow. Several studies indicated that the lack of formal guidelines led to widely disparate sentences. This disparity was perceived as being unfair and in conflict with the notion that similarly situated defendants should be treated equally, and in turn, led many legal scholars and lawyers to believe that the discretion of judges should be restricted so as to lead to more uniform sentences. See McGrath, supra, at 324-25.
55. See Secunda, supra note 52, at 1272.
56. See USSG, supra note 5, ch. 1, pt. A, introduction.
57. See id.
58. Secunda, supra note 52, at 1272; see also Julie Gyurci, Note, Prosecutorial Discretion to Bring a Substantial Assistance Motion Pursuant to a Plea Agreement: Enforcing a Good Faith Standard, 78 Minn. L. Rev. 1253, 1256 (1994) (describing the three goals of the guidelines as uniformity, proportionality, and honesty in sentencing).
59. See USSG, supra note 5, sentencing table; Secunda, supra note 52, at 1273; Gyurci, supra note 56, at 1256-57.
60. See USSG, supra note 5, sentencing table; Secunda, supra note 52, at 1273; Gyurci, supra note 56, at 1257.
61. See USSG, supra note 5, sentencing table; Secunda, supra note 52, at 1273; Gyurci, supra note 56, at 1257.
62. See, e.g., McGrath, supra note 52, at 351 (claiming that by allowing downward departures to some, but not all, defendants, the purpose of the guidelines is undermined and sentences consequently lack uniformity); Secunda, supra note 52, at 1269 (arguing that the tremendous discretion given to prosecutors defeats the guidelines' purpose of fairness and uniformity in sentencing).
63. See generally Kate Stith & Jose A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts (1998) (discussing how the guidelines have changed judging by restricting the discretion afforded judges in sentencing); see also Secunda, supra note 52, at 1278 (same).
64. See Bennett L. Gershman, The New Prosecutors, 53 U. Pitt. L. Rev. 393, 418-19 (1992) (explaining that the guidelines have restricted the power of judges while producing a corresponding increase in the power of prosecutors); Cynthia K. Y. Lee, From Gatekeeper to Concierge: Reigning in the Federal Prosecutor's Expanding Power over Substantial Assistance Departures, 50 Rutgers L. Rev. 199, 234-35 (1997) (arguing that recent court decisions have made clear that the prosecutor has the ability to determine whether a court will be able to exercise discretion and depart from the prescribed sentencing range);
65. See Bennett L. Gershman, The New Prosecutors, 53 U. Pitt. L. Rev. 393, 418- 19 (1992) (explaining that the guidelines have restricted the power of judges while producing a corresponding increase in the power of prosecutors); Cynthia K. Y. Lee, From Gatekeeper to Concierge: Reigning in the Federal Prosecutor's Expanding Power over Substantial Assistance Departures, 50 Rutgers L. Rev. 199, 234-35 (1997) (arguing that recent court decisions have made clear that the prosecutor has the ability to determine whether a court will be able to exercise discretion and depart from the prescribed sentencing range);
66. Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 Fordham L. Rev. 2117, 2141 (1998) (discussing the power of the prosecutor to, in effect, impose sentences under the guidelines).
67. See USSG, supra note 5, § 5K1.1 cmt. (historical note).
68. See id. app. C, amend. 290.
69. Id. § 5K1.1. 5K1.1 (a) lists five factors that may be used by the court in determining the appropriate reduction in sentence: 1. The court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered; 2. The truthfulness, completeness, and reliability of any information or testimony provided by the defendant; 3. The nature and extent of the defendant's assistance; 4. Any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; 5. The timeliness of the defendant's assistance. Id. § 5K1.1(a).
70. See id. § 5K1.1, cmt.; McGrath, supra note 52, at 332.
71. See USSG, supra note 5, § 5K1.1 cmt.
72. See infra note 214 for an example of a typical substantial assistance agreement.
73. See infra Part I.C.
74. See generally Lynch, supra note 62 (arguing that prosecutors actually administer justice based on their power to use the guidelines to extract pleas).
75. See id. at 2132.
76. 404 U.S. 257 (1971).
77. See id. at 260-61.
78. Id. at 260; see also Corbitt v. New Jersey, 439 U.S. 212, 222 (1978) (expressing the view that the government has a legitimate interest in facilitating plea agreements); Roland Acevedo, Is a Ban on Plea Bargaining an Ethical Abuse of Discretion? A Bronx County, New York Case Study, 64 Fordham L. Rev. 987, 991-92 (1995) (examining the mutual advantages of plea bargaining).
79. See Santobello, 404 U.S. at 260.
80. See id. at 261.
81. See USSG, supra note 5, ch. 1, pt. A; Gyurci, supra note 56, at 1264.
82. See Ian Weinstein, Substantial Assistance and Sentence Severity: Is There a Correlation?, 11 Fed. Sent. Rptr. 2 (Sept.-Oct. 1998).
83. See id. Although there are other circumstances in which judges can depart from the guidelines, these instances are primarily limited to those occasions where the defendant has no prior criminal history and is willing to accept responsibility for the crime committed or where extenuating family circumstances exist. See generally Stith & Cabranes, supra note 61.
84. See Cynthia Lee & Brian Derdowski, Jr., The Future of Substantial Assistance: Recommendations for Reform, 11 Fed. Sent. Rptr. 2 (Sept.-Oct. 1998).
85. See Wade v. United States, 504 U.S. 181, 186 (1992).
86. See Ian Weinstein, Regulating the Market for Snitches, 47 Buff. L. Rev. 563, 567 (1999).
87. See Santobello v. New York, 404 U.S. 257, 262 (1971).
88. 404 U.S. 257 (1971).
89. See id. at 258.
90. See id. at 259.
91. Id. at 262.
92. See id.
93. Id.
94. See, e.g., Margalli-Olvera v. INS, 43 F.3d 345, 351 (8th Cir. 1994) (explaining that contract law principles apply to substantial assistance agreements); United States v. Rexach, 896 F.2d 710, 713 (2d Cir. 1990) (same); United States v. San Pedro, 781 F. Supp. 761, 771 (S.D. Fla. 1991) ("A plea agreement is a contract between the defendant and the United States. Therefore, although constrained at times by due process implications, commercial contract principles govern the interpretation and enforcement of plea agreements.").
95. 43 F.3d 345 (8th Cir. 1994).
96. Id. at 351.
97. See San Pedro v. United States, 79 F.3d 1065, 1068 (11th Cir. 1996) ("[T]o enforce a promise made during plea negotiations, there must have been a valid, binding agreement in the first instance upon which the defendant relied in deciding to forego his constitutional rights and plead guilty.").
98. See United States v. Nelson, 717 F. Supp. 682, 685 (D. Minn. 1989) (explaining that if the court finds that the government breached the contract, it can order specific performance).
99. See, e.g., United States v. Knights, 968 F.2d 1483, 1485 (2d Cir. 1992) (citing a plea agreement requiring substantial assistance prior to the submission of a downward departure motion); San Pedro, 781 F. Supp. at 763 (referring to a plea agreement where the prosecution may recommend a more lenient sentence in exchange for defendant's cooperation).
100. USSG, supra note 5, § 5K1.1.
101. See, e.g., United States v. Gonsalves, 121 F.3d 1416, 1419 (11th Cir. 1997), cert. denied, 522 U.S. 1067 (1998) ("'Substantial assistance' generally requires that the defendant's assistance has yielded results that are useful to the government, not merely that the defendant expended substantial effort or good faith in attempting to assist." (emphasis omitted)); United States v. Torres, 33 F.3d 130, 133 (1st Cir. 1994) (explaining that 5K was amended in 1989 to make clear that the assistance had to actually be provided and not simply attempted).
102. See Torres, 33 F.3d at 133.
103. 33 F.3d 130 (1st Cir. 1994).
104. See id. at 133.
105. Id.
106. See id. at 131-32.
107. See United States v. Forney, 9 F.3d 1492, 1497 (11th Cir. 1993) (demonstrating a prosecutor's insistence on actual arrests derived from defendant's cooperation).
108. See Gyurci, supra note 56, at 1272-73.
109. See John D. Calamari & Joseph M. Perillo, The Law of Contracts § 11.37 (4th ed. 1998) (describing a type of contract in which the lack of personal satisfaction by one of the parties to the contract may serve as an excuse of condition).
110. See id.
111. See, e.g., United States v. Knights, 968 F.2d 1483, 1485 (2d Cir. 1992) (providing an example of a cooperation agreement worded to give the government an implied excuse of condition if it is not satisfied by the level of cooperation: "The United States reserves the right to evaluate the nature and extent of defendant's cooperation" (emphasis omitted)); see also United States v. San Pedro, 781 F. Supp. 761, 763-64 (S.D. Fla. 1991) (providing an example of an implied condition of satisfaction).
112. See Calamari & Perillo, supra note 105, § 11.37 (explaining that implied satisfaction requires only reasonable performance, while actual satisfaction often requires nothing less than performance to subjective satisfaction). It is worth noting, however, that there are some courts that will hold the government to its duty to perform on the basis of substantial performance by the cooperating defendant. See, e.g., Ramallo v. Reno, 931 F. Supp. 884, 894-95 (D.D.C. 1996) (holding that the government cannot avoid its contractual obligation if the cooperator substantially complied with the cooperation agreement and any deviation is minor and of no significant legal effect).
113. See United States v. Nelson, 717 F. Supp. 682, 685 (D. Minn. 1989) ("Although the government clearly reserved the right to determine whether to recommend a downward departure, it has an obligation to make that determination in good faith."); see also United States v. Rexach, 896 F.2d 710, 714 (2d Cir. 1990) ("There is . . . an implied obligation of good faith and fair dealing in every contract. A prosecutor's determination of dissatisfaction . . . cannot be made invidiously or in bad faith." (citation omitted)); San Pedro, 781 F. Supp. at 773 ("Notwithstanding the plea agreement's silence on the issue, courts regularly supply a term imposing on both parties to a contract a duty of good faith and fair dealing.").
114. 717 F. Supp. 682 (D. Minn. 1989).
115. See id. at 686.
116. See id. at 684.
117. See id.
118. 504 U.S. 181 (1992).
119. USSG, supra note 5, § 5K1.1.
120. See Wade, 504 U.S. at 185 (recognizing that a government motion is required for a downward departure under 5K); see also United States v. Forney, 9 F.3d 1492, 1498 (11th Cir. 1993) ("A district court's ability to impose a sentence below a statutory minimum is restricted by [5K] to instances when the government moves for such a departure based upon a defendant's substantial assistance."); United States v. Rexach, 896 F.2d 710, 713 (2d Cir. 1990) ("The decision to make the motion is thus expressly lodged in the prosecutor's discretion.").
121. See Gershman, supra note 62, at 419-20; Stith & Cabranes, supra note 61, at 130.
122. Wade, 504 U.S. at 185-86.
123. See id. at 186.
124. See id.
125. See, e.g., United States v. Brechner, 99 F.3d 96, 99 (2d Cir. 1996) (explaining that prosecutors have great discretion whether to offer a 5K motion, and that courts can review their decisions only for bad-faith); United States v. Torres, 33 F.3d 130, 133 (1st Cir. 1994) (same); United States v. Forney, 9 F.3d 1492, 1500-01 (11th Cir. 1993) (same).
126. See United States v. Reardon, 787 F.2d 512, 516 (10th Cir. 1986) ("Plea bargains, like contracts, cannot normally be unilaterally broken with impunity or without consequence.").
127. See Brechner, 99 F.3d at 100; United States v. Pollack, 91 F.3d 331, 336 (2d Cir. 1996).
128. See United States v. Nelson, 717 F. Supp. 682, 684 (D. Minn. 1989).
129. See Torres, 33 F.3d at 133.
130. See, e.g., United States v. Jimenez, 928 F.2d 356, 364 (10th Cir. 1991) (finding that the defendant was not entitled to an enthusiastic recommendation, and that an unenthusiastic recommendation is still a recommendation); United States v. Hand, 913 F.2d 854, 857 (10th Cir. 1990) (stating that simply because the prosecutor recommended a reduction, the prosecutor need not stand mute if the prosecutor believes there is additional information of which the court should be aware); United States v. Benson, 836 F.2d 1133, 1136 (8th Cir. 1988) (holding that there was no breach by the government where the prosecutor satisfied the letter of the agreement even if he had deviated from its spirit).
131. See Santobello v. New York, 404 U.S. 257, 262 (1971).
132. See infra note 206 and accompanying text.
133. Model Rules of Professional Conduct Preamble (1998) (discussing the lawyer's responsibilities).
134. See Charles W. Wolfram, Modern Legal Ethics 145-46 (1986) (explaining that people hire lawyers because lawyers have special skills and knowledge not shared by members of the public, which would be uneconomical for most people to attempt to acquire).
135. See id. at 146 (discussing the idea that the attorney-client relationship is based on fiduciary principles).
136. See id. (discussing the client's expectation of complete loyalty from the lawyer).
137. See generally Monroe H. Freedman, Lawyers' Ethics in an Adversary System 2 (1975) [hereinafter Freedman, Adversary System] (discussing the manner in which our adversary system of law places the interests of the individual in due process and trial by jury above the interests of the state).
138. See The American Lawyer's Code of Conduct Preamble (1982) ("In the context of the adversary system, it is clear that the lawyer for a private party is and should be an officer of a court only in the sense of serving a court as a zealous, partisan advocate of one side of the case before it . . . .").
139. See Model Code of Professional Responsibility Canon 7 (1980) ("A Lawyer Should Represent a Client Zealously Within the Bounds of the Law."); Model Rules of Professional Conduct Rule 1.3 cmt. (1983) ("A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.").
140. See Model Code of Professional Responsibility Canon 7 (1980) ("A Lawyer Should Represent a Client Zealously Within the Bounds of the Law."); Model Rules of Professional Conduct Rule 1.3 cmt. (1983) ("A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.").
141. See Model Code of Professional Responsibility EC 7-4 (cautioning that a legal theory presented to a court must not be frivolous and must be asserted in good faith).
142. See id. EC 7-3 ("Where the bounds of law are uncertain, the action of a lawyer may depend on whether he is serving as advocate or adviser . . . . While serving as advocate, a lawyer should resolve in favor of his client doubts as to the bounds of the law." (citation omitted)).
143. See Monroe H. Freedman, Understanding Lawyers' Ethics 65-66 (1990) [hereinafter Freedman, Understanding Ethics]. "[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others." Id. (quoting Trial of Queen Caroline 8 (1821)).
144. See generally Model Rules of Professional Conduct Preamble (1998) (discussing the lawyer's responsibilities as a negotiator).
145. See The American Lawyer' Code of Conduct Preamble (1982) ("Lawyers function in an adversary system even when their clients are not actually involved in litigation. . . . The lawyer drafting a contract or a will must anticipate and guard against interests adverse to the client's that may exist or that may develop in the course of time."); Freedman, Understanding Ethics, supra note 137, at 66. Professor Freedman cautions: It is important to remember, however, that any lawyer who counsels a client, negotiates on a client's behalf, or drafts a legal document for a client must do so with an actual or potential adversary in mind. . . . The advice given to a client and acted upon today may strengthen or weaken the client's position in litigation next year. In short, it is not just the advocate in the courtroom who functions in an adversary system, and it is not just the client currently in litigation who may require and be entitled to "warm zeal in the maintenance and defense of his rights." Id.
146. See The American Lawyer' Code of Conduct Preamble (1982) ("Lawyers function in an adversary system even when their clients are not actually involved in litigation. . . . The lawyer drafting a contract or a will must anticipate and guard against interests adverse to the client's that may exist or that may develop in the course of time."); Freedman, Understanding Ethics, supra note 137, at 66. Professor Freedman cautions: It is important to remember, however, that any lawyer who counsels a client, negotiates on a client's behalf, or drafts a legal document for a client must do so with an actual or potential adversary in mind. . . . The advice given to a client and acted upon today may strengthen or weaken the client's position in litigation next year. In short, it is not just the advocate in the courtroom who functions in an adversary system, and it is not just the client currently in litigation who may require and be entitled to "warm zeal in the maintenance and defense of his rights." Id.
147. See generally Gerald B. Wetlaufer, The Ethics of Lying in Negotiations, 75 Iowa L. Rev. 1219, 1220-21 (1990). Professor Wetlaufer argues that lying in negotiations is accepted practice and is even considered a virtue. Id.
148. See Michael H. Rubin, The Ethics of Negotiations: Are There Any?, 56 La. L. Rev. 447, 452 (1995) (citing the Center for Professional Responsibility, American Bar Association, The Legislative History of the Model Rules of Professional Conduct: Their Development in the ABA House of Delegates (1987)).
149. See Michael H. Rubin, The Ethics of Negotiations: Are There Any?, 56 La. L. Rev. 447, 452 (1995) (citing the Center for Professional Responsibility, American Bar Association, The Legislative History of the Model Rules of Professional Conduct: Their Development in the ABA House of Delegates (1987)).
150. See id. at 462.
151. See supra notes 136-37 and accompanying text.
152. See supra notes 136-37 and accompanying text; cf. Rubin, supra note 142, at 451 (explaining that achieving the best result for the client is paramount). See generally Wetlaufer, supra note 141 (discussing the use of lies in negotiation to gain advantages for the client).
153. See Rubin, supra note 142, at 451 (claiming that acting as a zealous advocate for the client can overwhelm an even-handed approach to negotiations).
154. See United States v. Harvey, 791 F.2d 294, 302-03 (4th Cir. 1986) ("Though the Government negotiates its plea agreements through the agency of specific United States Attorneys - as necessarily it must - the agreements reached are those of the Government.").
155. See Bruce A. Green, Why Should Prosecutors "Seek Justice"?, 26 Fordham Urb. L.J. 607, 610 (1999) (discussing how the professional ethos of prosecutors is different from that of other lawyers).
156. See Freedman, Adversary System, supra note 133, at 79 (discussing the understanding that prosecutors and defense lawyers have different roles and functions that lead to different ethical difficulties and solutions); see also Dr. George T. Felkenes, The Prosecutor: A Look at Reality, 7 Sw. U. L. Rev. 98, 98 (1975) (discussing the role and responsibilities of prosecutors); Roberta K. Flowers, What You See is What You Get: Applying the Appearance of Impropriety Standard to Prosecutors, 63 Mo. L. Rev. 699, 728-32 (1998) (discussing how the role of the prosecutor is unique).
157. See Freedman, Adversary System, supra note 133, at 79 (discussing the understanding that prosecutors and defense lawyers have different roles and functions that lead to different ethical difficulties and solutions); see also Dr. George T. Felkenes, The Prosecutor: A Look at Reality, 7 Sw. U. L. Rev. 98, 98 (1975) (discussing the role and responsibilities of prosecutors); Roberta K. Flowers, What You See is What You Get: Applying the Appearance of Impropriety Standard to Prosecutors, 63 Mo. L. Rev. 699, 728-32 (1998) (discussing how the role of the prosecutor is unique).
158. See Model Rules of Professional Conduct Rule 3.8 (1998). The special responsibilities of the prosecutor are to: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with the sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; (e) exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6; (f) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information. (g) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused. Id., accord Standards Relating to the Administration of Criminal Justice, The Prosecution Function (1992).
159. See Wolfram, supra note 130, at 759 ("The office of prosecutor can best be conceptualized as a lawyer with no client but with several important constituencies." (citation omitted)).
160. See Carol A. Corrigan, Commentary, On Prosecutorial Ethics, 13 Hastings Const. L.Q. 537, 537 (1987) ("The prosecutor occupies a unique role in a legal system predicated generally on individual representation. The prosecutor does not represent the victim of a crime, the police, or any individual. Instead, the prosecutor represents society as a whole." (citation omitted)); Secunda, supra note 52, at 1280-81 (discussing the unique role of the federal prosecutor).
161. See generally Freedman, Adversary System, supra note 133 (providing examples of the difference between the government and individual citizen); Gershman, supra note 62 (describing how the balance of the criminal justice system is skewed to the advantage of the prosecutor).
162. See Freedman, Understanding Ethics, supra note 138, at 214 (recognizing the distinct role of the prosecutor).
163. Model Rules of Professional Conduct Rule 3.8 cmt. (1998) ("A prosecutor has the responsibility of a minister of justice and not simply that of an advocate."); Standards Relating to the Administration of Criminal Justice Standard 3-1.2 ("The prosecutor is an administrator of justice."); Model Code of Professional Responsibility EC 7-13 (1981) ("The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict." (citation omitted)).
164. See Daniel C. Richman, Foreword to The Changing Role of the Federal Prosecutor, 26 Fordham Urb. L.J. at vii. (1999) ("At its core, the prosecutor's job always has been to mediate between spectacularly broad legislative pronouncements and the equities of individual cases, giving due attention to the public interest and such technical matters as evidentiary sufficiency." (citation omitted)).
165. Donnelly v. DeChristoforo, 416 U.S. 637, 649 (1974) (Douglas, J., dissenting). 158. 295 U.S. 78 (1935).
166. Id. at 88 (criticizing an overzealous prosecutor for misstating facts and other indiscretions in an attempt to gain a conviction in a counterfeiting case).
167. See Freedman, Understanding Ethics, supra note 138, at 215 ("[The prosecutor's ethical standards] are different as a result of the prosecutor's distinctive role in the administration of justice.").
168. See supra note 149. An example of this difference is the treatment of evidence. While it is clear that a defense lawyer does not have a responsibility to disclose evidence to the prosecution that it knows may inculpate his or her client, a prosecutor must turn over evidence that may exculpate the defendant. See Brady v. Maryland, 373 U.S. 83, 87 (1963); Model Rules of Professional Conduct Rule 3.8(d) (1998).
169. ABA & Ass'n of American Law Schools, Professional Responsibility: Report of the Joint Conference, 44 A.B.A. J. 1159, 1218 (1958).
170. See supra note 150, providing text of Model Rule 3.8.
171. See Kenneth J. Melilli, Prosecutorial Discretion in an Adversary System, 1992 BYU L. Rev. 669, 699 (1992) (explaining that Rule 3.8 is "meaninglessly redundant if it means only that the prosecutor is prohibited from violating other, specific ethical rules").
172. See Standards Relating to the Administration of Criminal Justice Standard 3-1.2(c) (1992) ("The duty of the prosecutor is to seek justice, not merely to convict."); accord United States v. Bartelho, 129 F.3d 663, 670 (1st Cir. 1997) (describing the prosecutor's duty as seeking truth and ensuring that justice is done); Model Code of Professional Responsibility EC 7-13 (1981).
173. See Standards Relating to the Administration of Criminal Justice Standard 3- 1.2(c) (1992) ("The duty of the prosecutor is to seek justice, not merely to convict."); accord United States v. Bartelho, 129 F.3d 663, 670 (1st Cir. 1997) (describing the prosecutor's duty as seeking truth and ensuring that justice is done); Model Code of Professional Responsibility EC 7-13 (1981).
174. See James Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1524-37 (1981) (describing the vast discretion that prosecutors enjoy in a number of important areas, such as in charging decisions and plea bargaining); supra note 165.
175. See Freedman, Understanding Ethics, supra note 138, at 213; Stith & Cabranes, supra note 61, at 130-36; Vorenberg, supra note 166, at 1524-37.
176. See Michael Q. English, Note, A Prosecutor's Use of Inconsistent Factual Theories of a Crime in Successive Trials: Zealous Advocacy or a Due Process Violation?, 68 Fordham L. Rev. 525, 555 (1999); see also Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 Vand. L. Rev. 45, 48 (1991) ("The 'do justice' standard, however, establishes no identifiable norm. Its vagueness leaves prosecutors with only their individual sense of morality to determine just conduct."); David Aaron, Note, Ethics, Law Enforcement, and Fair Dealing: A Prosecutor's Duty to Disclose Nonevidentiary Information, 67 Fordham L. Rev. 3005, 3026 (1999) (noting that the ethical standards provide very few specific duties of the prosecutor).
177. See Michael Q. English, Note, A Prosecutor's Use of Inconsistent Factual Theories of a Crime in Successive Trials: Zealous Advocacy or a Due Process Violation?, 68 Fordham L. Rev. 525, 555 (1999); see also Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 Vand. L. Rev. 45, 48 (1991) ("The 'do justice' standard, however, establishes no identifiable norm. Its vagueness leaves prosecutors with only their individual sense of morality to determine just conduct."); David Aaron, Note, Ethics, Law Enforcement, and Fair Dealing: A Prosecutor's Duty to Disclose Nonevidentiary Information, 67 Fordham L. Rev. 3005, 3026 (1999) (noting that the ethical standards provide very few specific duties of the prosecutor).
178. See Michael Q. English, Note, A Prosecutor's Use of Inconsistent Factual Theories of a Crime in Successive Trials: Zealous Advocacy or a Due Process Violation?, 68 Fordham L. Rev. 525, 555 (1999); see also Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 Vand. L. Rev. 45, 48 (1991) ("The 'do justice' standard, however, establishes no identifiable norm. Its vagueness leaves prosecutors with only their individual sense of morality to determine just conduct."); David Aaron, Note, Ethics, Law Enforcement, and Fair Dealing: A Prosecutor's Duty to Disclose Nonevidentiary Information, 67 Fordham L. Rev. 3005, 3026 (1999) (noting that the ethical standards provide very few specific duties of the prosecutor).
179. See Felkenes, supra note 149, at 109 (offering an empirical study showing the tendency among prosecutors to view their role as to gain convictions); Melilli, supra note 164, at 685-86.
180. See Felkenes, supra note 149, at 109.
181. See id. at 111.
182. Zacharias, supra note 168, at 49.
183. Green, supra note 148, at 634. Professor Green provides examples of the objectives of "seek justice" that include: "enforcing the criminal law by convicting and punishing some (but not all) of those who commit crimes; avoiding punishment of those who are innocent of criminal wrongdoing . . . and affording the accused, and others, a lawful, fair process." Id.
184. See Model Code of Professional Responsibility EC 7-13 (1981) ("The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.").
185. See Zacharias, supra note 168, at 53 (explaining that when read as a whole, the ethics codes suggest a view of justice that is based on the adversary system and is not "outcome-oriented"); see also United States v. Vaccaro, 115 F.3d 1211, 1216 (5th Cir. 1997) (arguing that prosecutors should be zealous but not to the point that ambition for a conviction jeopardizes integrity); Felkenes, supra note 149, at 109 ("It is the primary responsibility of the prosecutor to see that justice is achieved rather than to assure conviction.").
186. See, e.g., John D. Bessler, The Public Interest and the Unconstitutionally of Private Prosecutors, 47 Ark. L. Rev. 511, 543 (1994) (explaining that prosecutors have a dual role in the criminal justice system, one aspect of which is to obtain convictions and the other of which includes preventing the conviction and punishment of innocent people); Michael T. Fisher, Note, Harmless Error, Prosecutoral Misconduct, and Due Process: There's More to Due Process than the Bottom Line, 88 Colum. L. Rev. 1298, 1303 (1988) (describing prosecutors as having a dual role as both advocates seeking convictions and as public servants); Note, Let's Make a Deal: A Look at United States v. Dailey and Prosecutor-Witness Cooperation Agreements, 67 B.U. L. Rev. 749, 762 (1987) [hereinafter Let's Make a Deal] ("The prosecutor, on the other hand, is not concerned solely with winning the case, but with seeing that 'justice shall be done.'"); see also United States v. Francis, 170 F.3d 546, 553 (6th Cir. 1999) (explaining that prosecutors must be both zealous advocates and protectors of fairness); United States v. Wilson, 149 F.3d 1298, 1303 (11th Cir. 1998) (same).
187. See, e.g., John D. Bessler, The Public Interest and the Unconstitutionally of Private Prosecutors, 47 Ark. L. Rev. 511, 543 (1994) (explaining that prosecutors have a dual role in the criminal justice system, one aspect of which is to obtain convictions and the other of which includes preventing the conviction and punishment of innocent people); Michael T. Fisher, Note, Harmless Error, Prosecutoral Misconduct, and Due Process: There's More to Due Process than the Bottom Line, 88 Colum. L. Rev. 1298, 1303 (1988) (describing prosecutors as having a dual role as both advocates seeking convictions and as public servants); Note, Let's Make a Deal: A Look at United States v. Dailey and Prosecutor-Witness Cooperation Agreements, 67 B.U. L. Rev. 749, 762 (1987) [hereinafter Let's Make a Deal] ("The prosecutor, on the other hand, is not concerned solely with winning the case, but with seeing that 'justice shall be done.'"); see also United States v. Francis, 170 F.3d 546, 553 (6th Cir. 1999) (explaining that prosecutors must be both zealous advocates and protectors of fairness); United States v. Wilson, 149 F.3d 1298, 1303 (11th Cir. 1998) (same).
188. See, e.g., John D. Bessler, The Public Interest and the Unconstitutionally of Private Prosecutors, 47 Ark. L. Rev. 511, 543 (1994) (explaining that prosecutors have a dual role in the criminal justice system, one aspect of which is to obtain convictions and the other of which includes preventing the conviction and punishment of innocent people); Michael T. Fisher, Note, Harmless Error, Prosecutoral Misconduct, and Due Process: There's More to Due Process than the Bottom Line, 88 Colum. L. Rev. 1298, 1303 (1988) (describing prosecutors as having a dual role as both advocates seeking convictions and as public servants); Note, Let's Make a Deal: A Look at United States v. Dailey and Prosecutor-Witness Cooperation Agreements, 67 B.U. L. Rev. 749, 762 (1987) [hereinafter Let's Make a Deal] ("The prosecutor, on the other hand, is not concerned solely with winning the case, but with seeing that 'justice shall be done.'"); see also United States v. Francis, 170 F.3d 546, 553 (6th Cir. 1999) (explaining that prosecutors must be both zealous advocates and protectors of fairness); United States v. Wilson, 149 F.3d 1298, 1303 (11th Cir. 1998) (same).
189. See Melilli, supra note 164, at 698 ("If prosecutors truly accept their obligation to define the public interest they represent, the apparent conflict between zealous advocacy on behalf of the state and 'seeking justice' disappears."); Zacharias, supra note 168, at 56-60 (arguing that the prosecutor's duty is to help achieve "adversarial justice").
190. See supra notes 151-52 and accompanying text.
191. See Corrigan, supra note 152, at 538 (describing the prosecutor as the spokesperson for the "People"); see also Wolfram, supra note 130, at 759-60 (discussing the role of the prosecutor as the representative of the public in the criminal justice system).
192. See Corrigan, supra note 152, at 540 (discussing the need for the prosecutor to act fairly so as to uphold the public's faith in the criminal justice system); see also In re Petition for Review of Opinion 569 of the Advisory Comm. on Prof'l Ethics, 511 A.2d 119, 122 (N.J. 1986) (explaining how the public's trust in government is dependent upon its employees); Flowers, supra note 149, at 703 (discussing how the public's perception of the prosecutor affects its perception of the criminal justice system as a whole, and the prosecutor's responsibility to foster confidence in the system).
193. Corrigan, supra note 152, at 543.
194. See United States v. Wade, 388 U.S. 218, 256-58 (1967) (White, J., concurring) ("Law enforcement officers have the obligation to convict the guilty and to make sure that they do not convict the innocent."); Berger v. United States, 295 U.S. 78, 88 (1935) (same); Green, supra note 148, at 640 (same); Melilli, supra note 164, at 699 (same).
195. See supra note 180 and accompanying text.
196. See generally Berger, 295 U.S. 78 (providing an example of overzealous treatment of a witness by a prosecutor having an adverse affect on the criminal justice system); see also Brown v. Borg, 951 F.2d 1011, 1015 (9th Cir. 1991) (explaining that it is not only important for a prosecutor to gain a conviction but to obtain it fairly).
197. See Zacharias, supra note 168, at 59-60.
198. See Model Rules of Professional Conduct Rule 3.8 cmt. (1983) (explaining that "seek justice" carries with it specific obligations that the defendant be accorded procedural fairness and that guilt be based on evaluation of the evidence); Melilli, supra note 164, at 697-98 (explaining that the prosecutor's ethical duty extends to the defendant even after he has been charged).
199. See, e.g., In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring) (arguing that the social cost of convicting an innocent man is greater than that of acquitting someone who is guilty); Olmstead v. United States, 277 U.S. 438, 470 (1928) (Holmes, J., dissenting) (expressing belief that it is better that a criminal go free than that the government play an ignoble part in putting an innocent person in prison); see also English, supra note 168 passim.
200. See Bessler, supra note 176, at 543; see also Wolfram, supra note 130, at 759 ("[Prosecutors] bear alone the state's considerable responsibility to see that no innocent person is prosecuted, convicted, or punished.").
201. 373 U.S. 83 (1963).
202. Id. at 87.
203. See Jackson, supra note 1, at 6.
204. The Fifth Amendment to the United States Constitution provides that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law . . ." U.S. Const, amend. V.
205. See Fisher, supra note 176, at 1300; see also Dowling v. United States, 493 U.S. 342, 352-53 (1990) (discussing the meaning of due process); Yvette A. Beeman, Note, Accomplice Testimony Under Contingent Plea Agreements, 72 Cornell L. Rev. 800, 803 (1987) (describing the standards of due process).
206. Fisher, supra note 176, at 1300.
207. See id.; see also Bessler, supra note 176, at 552 ("A fair trial in a fair tribunal is a basic requirement of due process." (quoting In re Murchison, 349 U.S. 133, 136 (1955)).
208. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (finding that a prosecutor's withholding of evidence that is favorable to a defendant violates due process).
209. See Mooney v. Holohan, 294 U.S. 103, 112 (1935) (using perjured testimony to obtain a conviction violates due process).
210. See United States v. Marion, 404 U.S. 307, 324 (1971) (holding intentional pre- indictment delay by prosecutor, that causes prejudice, to be a violation of due process).
211. See Brown v. Borg, 951 F.2d 1011, 1015 (9th Cir. 1991) (explaining that the limits of prosecutorial conduct were developed to protect the right of defendants to a fair trial).
212. See Bessler, supra note 176, at 547 (explaining that ethical duties are different from regulatory constraints); Aaron, supra note 168, at 3026 ("Ethics therefore extend professional obligations beyond the limits imposed by law.").
213. See, e.g., United States v. Lopez, 4 F.3d 1455, 1463-64 (9th Cir. 1993) (holding that although the prosecutors' misconduct rose to an intolerable level, it did not constitute prejudice and require dismissal of the indictment); United States v. Lopez, 989 F.2d 1032, 1041-42 (9th Cir. 1993) (refusing to dismiss the defendant's indictment as a remedy for the prosecutor's violation of ethics rules regarding communications with individuals represented by another lawyer); United States v. Manko, 979 F.2d 900, 909-10 (2d Cir. 1992) (ruling that an ex parte communication between the prosecutor and the judge was improper, but did not constitute reversible error); United States v. Modica, 663 F.2d 1173, 1184 (2d Cir. 1981) (explaining that the social cost of reversing convictions for prosecutorial misconduct that did not prejudice the defendant is too high, and that a better method is to allow the conviction to stand and to punish the prosecutor in an alternative manner); People v. Rice, 505 N.E.2d 618, 618 (N.Y. 1987) (finding the prosecutor's use of half-truths reprehensible and not to be condoned, but not severe enough to warrant a reversal of the defendant's conviction); see also United States v. Kearns, 5 F.3d 1251, 1253 (9th Cir. 1993) (explaining that in order for an indictment to be dismissed on due process grounds, the conduct must be grossly shocking and outrageous); Acevedo, supra note 74, at 1004 ("Behavior that is legal can nonetheless be unethical.").
214. 505 N.E.2d 618 (N.Y. 1987).
215. Id. at 618.
216. See Model Rules of Professional Conduct Rule 3.8(f) (1983); see also Zacharias, supra note 168, at 83 (explaining that sometimes the ethical duty of a prosecutor requires the prosecutor to turn over information that discovery rules do not require).
217. See Zacharias, supra note 168, at 88.
218. See id. at 113-14.
219. See Model Rules of Professional Conduct Preamble (1998).
220. See supra Part II.B.
221. See supra note 137.
222. See supra note 136.
223. See supra Part II.
224. See supra Part II.C.
225. In order to understand the potential sentence, assume the defendant was caught with 350 grams of cocaine. Under the guidelines, the defendant has been charged with an offense carrying a base level of 22. See USSG, supra note 5, § 2D1.1. Further, assume that the defendant is not a first-time offender, but rather has two criminal history points, thus placing him in criminal history category II. See id. § 4A1.1. The intersection of the offense level and the criminal history result in a possible sentence of 46-57 months. See id. ch.5, pt. A.
226. For the purpose of the hypothetical, assume in pertinent part that the agreement reads: Defendant agrees to cooperate fully with the United States Attorney's Office, the Drug Enforcement Administration, and such other law enforcement agencies as either of the foregoing may require by: (a) providing complete, candid and truthful information and testimony concerning trafficking and attempts to traffic in controlled substances by defendant and others; and (b) appearing at such grand jury proceedings, hearings, trials, and other judicial proceedings as may be required by the Office of the United States Attorney. The United States reserves the right to evaluate the nature and extent of defendant's cooperation and to advise the Court of the nature and extent of any such cooperation at the time of sentencing. The United States agrees that if, in the sole and unfettered discretion of the United States, the circumstances of defendant's cooperation warrant a departure by the Court from the Sentencing Guidelines range determined by the Court to be applicable, the United States will make a motion pursuant to section 5K1.1 of the Sentencing Guidelines stating that defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense. If it is determined by the United States to make such a motion, the amount of the departure requested in such motion will lie in the complete and sole discretion of the United States Attorney. This language is modeled on agreements at issue in United States v. Knights, 968 F.2d 1483, 1485 (2d Cir. 1992), and United States v. San Pedro, 781 F. Supp. 761, 763-64 (S.D. Fla. 1991).
227. See supra note 214.
228. See supra notes 83-94 and accompanying text (explaining that courts apply contract law principles when determining the enforceability of a substantial assistance agreement).
229. It is clear from the signed writing that mutual assent exists and that the exchange of cooperation for a 5K motion represents the necessary consideration.
230. See supra Part I.C.
231. See United States v. Reardon, 787 F.2d 512, 516 (10th Cir. 1986) ("Plea bargains, like contracts, cannot normally be unilaterally broken with impunity or without consequence.").
232. See Santobello v. New York, 404 U.S. 257, 262 (1971); supra notes 83-89 and accompanying text.
233. See United States v. San Pedro, 781 F. Supp. 761, 774 (S.D. Fla. 1991).
234. See supra note 207 and accompanying text.
235. See supra note 214 for the text of the hypothetical agreement.
236. The described conduct by the prosecutor is nearly identical to that of the prosecutor in United States v. Jimenez, 928 F.2d 356, 360-61 (10th Cir. 1991), and similar to that of the prosecutor in United States v. Hand, 913 F.2d 854, 856-57 (10th Cir. 1990).
237. See, e.g., Jimenez, 928 F.2d at 364 (finding that the defendant was not entitled to an enthusiastic recommendation, and that an unenthusiastic recommendation is still a recommendation); Hand, 913 F.2d at 856 (stating that simply because the prosecutor recommended a reduction, the prosecutor need not stand mute if the prosecutor believes there is additional information which the court should know); United States v. Benson, 836 F.2d 1133, 1136 (8th Cir. 1988) (holding that there was no breach by the government where the prosecutor satisfied the letter of the agreement even if he had deviated from its spirit).
238. See, e.g., United States v. Cooper, 70 F.3d 563, 565-66 (10th Cir. 1995) (holding that the government cannot resort to literalism in order to fulfill its duty under a plea agreement); United States v. Shorteeth, 887 F.2d 253, 256 (10th Cir. 1989) ("We will not allow the government to resort to a rigidly literal construction of the language of the plea agreement . . . ."); United States v. Greenwood, 812 F.2d 632, 635 (10th Cir. 1987) (refusing to allow the prosecutor to resort to literalism); accord United States v. Forney, 9 F.3d 1492, 1507 (11th Cir. 1993) (Clark, J., dissenting) (preventing the prosecution from doing indirectly that which it is prohibited from doing directly).
239. See, e.g., United States v. Stemm, 847 F.2d 636, 638 n.1 (10th Cir. 1988) (refusing to "condone the Government accomplishing through indirect means what it promised not to do directly"); accord Shorteeth, 887 F.2d at 256 (same).
240. See supra notes 180-207 and accompanying text.
241. See supra notes 191-204 and accompanying text.
242. See supra notes 178-85 and accompanying text.
243. See infra note 234 and accompanying text.
244. See supra note 214 (setting forth the hypothetical cooperation agreement).
245. 9 F.3d 1492 (11th Cir. 1993).
246. See id. at 1501 n.4.
247. Id. at 1502 n.4.
248. See id. at 1504.
249. See supra notes 96-113 and accompanying text.
250. See supra Part II.A.
251. See supra notes 178-85 and accompanying text.
252. Some may argue that the current rate of 90% of cases resolved by pleas is an indication that defendants and their lawyers are as willing as ever to enter into plea bargains. The high percentage of pleas, however, is a testament to the threat of harsh sentences under the guidelines, not of faith in the government's integrity. See Weinstein, Regulating the Market for Snitches, supra note 82, at 566 & n.12. The purpose of meeting a higher ethical standard is not only to ensure that plea bargains remain a useful tool for the disposition of cases, but also to preserve the government's integrity. If the government's integrity suffers, so does its ability to negotiate pleas in cases where the threat of the guidelines is not enough or where the evidence is too weak to force a plea.
253. See USSG, supra note 5, at app. C, amd. 290.
254. See id., supra note 5, § 5K1.1.
255. It is worth noting that some courts believe that the prosecution is not only ethically, but also legally, forbidden from backing out of an agreement simply because it did not like the testimony provided. See, e.g., Thomas v. I.N.S., 35 F.3d 1332, 1342 (9th Cir. 1994) ("A criminal's testimony often lacks the persuasive force of plain truth, even when it is true, and often it is hard to know whether it is true. The government bargained for a criminal's testimony, and cannot avoid paying the agreed price because of buyer's remorse.").
256. See supra note 214.
257. This was the argument advanced by the prosecution and accepted by the court in United States v. Brechner, 99 F.3d 96 (2d Cir. 1996), in which the cooperator lied during a debriefing with the prosecutor. The court held that even though the cooperator almost immediately corrected himself, the government
258. See supra Part III, Scenario 3.
259. See supra Part III, Scenario 1.
260. See supra notes 192-204 and accompanying text.
261. See Brian A. Blum, Contracts: Examples & Explanations § 13.6 (1998) (explaining that if the signer of an agreement was induced to sign by a misrepresentation, the contract is voidable); Calamari & Perillo, supra note 105, § 9.22 (same).
262. Substantial assistance agreements routinely include a provision that the cooperator cannot be prosecuted for any crimes that the prosecution learns of as a result of the cooperation; therefore it is likely that the cooperator in this hypothetical would inform the prosecutor of his level of involvement during a proffer session or debriefing. See, e.g., United States v. San Pedro, 781 F. Supp. 761, 764 (S.D. Fla. 1991) (providing an example of a standard cooperation agreement that prevents the prosecution from charging the defendant for any crimes based on evidence that the prosecution learns of through the defendant's cooperation).
263. See United States v. Jimenez, 928 F.2d 356, 363 (10th Cir. 1991); accord United States v. Cooper, 70 F.3d 563, 566-67 (10th Cir. 1995).
264. See Cooper, 70 F.3d at 566.
265. See id.; Jimenez, 928 F.2d at 363.
266. See Cooper, 70 F.3d at 566-67; Jimenez, 928 F.2d at 364.
267. See supra Part II.C.
268. See supra Part III.A.
269. See supra Part III, Scenario 2.
270. 35 F.3d 1332 (9th Cir. 1994).
271. See id. at 1342.
272. See United States v. Jones, 983 F.2d 1425, 1433 (7th Cir. 1993) (explaining that the prosecutor's duty is to seek the fairest sentence, not the most severe sentence).