Last Updated on: 10th December 2023, 07:40 pm

The Role of Informants and Cooperators in Federal Target Letter Investigations

Informants and cooperators play a critical role in many federal criminal investigations and prosecutions. An “informant” provides information to law enforcement, often secretly, while a “cooperator” not only provides information but also actively assists the government’s investigation, typically in exchange for potential legal benefits. The use of informants and cooperators can provide significant advantages for federal investigators and prosecutors – but also carries risks that must be carefully managed.

Why Informants and Cooperators Are Used

Informants and cooperators offer federal investigators unique access to insider information about criminal activity or organizations. As the Department of Justice OIG explained, informants “provide a window into criminal activity that is often otherwise invisible to law enforcement.”^[1] Similarly, cooperators who actively work undercover can obtain direct evidence of crimes in ways that would be difficult or impossible for undercover agents.

Many complex crimes like drug trafficking, organized crime, or terrorism conspiracies could likely not be fully investigated without cooperators on the inside. As one former federal prosecutor put it, “Numerous crimes and criminal organizations could not get prosecuted without insider accounts.”^[2] Informants and cooperators make it possible to penetrate deeply into criminal enterprises.

Becoming an Informant or Cooperator

In some cases, a suspect’s defense attorney will proactively offer cooperation with prosecutors in hopes of securing a plea deal or more lenient treatment. In other cases, investigators or prosecutors may target a suspect and try to “flip” them into becoming an informant or cooperator.

The benefits for informants and cooperators typically include reduced criminal charges or punishment. For example, cooperators may receive immunity for certain crimes, dismissal of charges, reduced prison sentences, or placement in a witness protection program. However, there are also substantial risks – informants and cooperators may face retaliation or put themselves in legal jeopardy.

As one criminal defense lawyer emphasized, the decision to cooperate in an investigation is complex with many uncertainties. Suspects should carefully consult counsel to weigh the potential benefits and risks in their specific situation.^[3]

Duties and Activities

An informant’s main duty is to provide information secretly to assist an investigation. This could involve providing tips, documents, recordings, or other evidence about criminal activity.

Cooperators have additional duties such as wearing a wire or recording device, participating in monitored phone calls, introducing undercover agents to targets, staging drug deals or other illegal transactions, testifying before grand juries, and serving as witnesses at trial. Cooperators thus take on more personal risk.

The specific activities required will depend on the nature of the case and the cooperator’s relationship to the criminal activity. Experienced defense lawyers emphasize the need for cooperators to understand in advance what will be expected.^[4]

Oversight and Management of Informants and Cooperators

Given the sensitivities of using informants and cooperators, the Department of Justice and FBI have guidelines to regulate their use in investigations. Some key requirements include:

• Background inquiries on suitability
• Limitations on authorization of illegal activity
• Procedures for higher-level approval of certain informants
• Special approval for juvenile informants
• Documentation and review requirements
• Prohibitions on informing solely to disrupt political or religious groups

FBI policy prohibits agents from making promises about rewards or benefits to potential informants or cooperators. There are also special oversight procedures for high-level informants who enable “otherwise illegal activity” in an investigation.

In addition, prosecutors have ethical duties under ABA standards to assess informants’/cooperators’ credibility, motivations, and reliability before relying on their information for investigative steps or charging decisions.^[5]

Benefits Provided by Informants and Cooperators

When properly managed, informants and cooperators provide tremendous value in federal criminal investigations and prosecutions. Specific benefits include:

• Insider accounts – Direct, first-hand observations of criminal activity
• Context – Background information about operations, hierarchies, methods
• Corroboration – Can confirm or refute information from other sources
• Recordings – Can secretly capture audio/video evidence
• Undercover deals – Cooperators can set up monitored transactions
• Trial testimony – Can explain criminal operations/events to jury

Without cooperators, many complex conspiracies, drug networks, and organized crime activities would go unsolved and unpunished. Informants and cooperators provide a unique means for investigators to infiltrate criminal organizations.

Risks and Controversies Related to Informants/Cooperators

While informants and cooperators are valuable investigative tools, there are also significant risks and controversies associated with their use, including:

• Unreliability – May provide false information for personal gain
• Going rogue – May exceed scope of authorization
• Retaliation – Often face threats from former criminal associates
• Oversight failures – History of mismanagement by some FBI offices/agents
• Entrapment – May improperly induce crimes
• Disproportionate benefits – Sometimes receive extremely generous rewards

There are many examples of informants and cooperators who provided false information or manipulated evidence, cooperators who went beyond authorities’ instructions, and failures by agents to properly supervise informants’ activities.

In addition, the extensive benefits offered to cooperators in exchange for their assistance have been criticized as excessive leniency in some cases. However, prosecutors counter that such arrangements are necessary to enable difficult, complex prosecutions.

Key Laws and Policies

Some of the main laws, regulations, and policies governing the use of informants and cooperators in federal investigations include:

• Attorney General’s Guidelines Regarding the Use of FBI Confidential Informants^[6]
• DOJ’s Confidential Informant Review Committee (CIRC)^[1]
• FBI Confidential Human Source Policy Manual
• ABA Standards for Prosecutorial Investigations^[5]
• U.S. Sentencing Guidelines – Substantial Assistance Departures (5K1.1)

These policies aim to maximize benefits of informants/cooperators while regulating their use to prevent abuses. However, oversight depends heavily on proper compliance and training by individual agents and prosecutors.

Defense Perspectives

From a defense perspective, the extensive use of cooperators has fundamentally changed the criminal justice system. With so many incentives to cooperate, most large federal cases now involve cooperators on both sides. This had led to questionable reliability in some cases.

Defense lawyers caution that cooperators often have strong personal motivations to provide information favorable to the government. Their testimony should not be accepted uncritically. Rigorous examination of cooperators’ backgrounds, prior inconsistent statements, and potential biases is critical.

In addition, defense attorneys emphasize that investigators and prosecutors have ethical duties to seek justice – not just convictions. They should not uncritically accept whatever information cooperators provide to bolster their case.

Conclusion

Informants and cooperators provide unique benefits to federal criminal investigations but also pose risks that demand careful oversight. When properly managed, they enable prosecution of crimes that would otherwise go unpunished. However, there is a long history of mismanagement and abuse that requires ongoing vigilance. By following established guidelines and making prudent use of informants and cooperators, federal investigators and prosecutors can maximize their value while minimizing associated risks.

References

[1] DOJ Office of the Inspector General, “The Federal Bureau of Investigation’s Compliance with the Attorney General’s Investigative Guidelines (Redacted),” Special Report, September 2005, https://oig.justice.gov/sites/default/files/archive/special/0509/chapter3.htm

[2] “The Cooperating Witness In A Federal Criminal Case,” Prison Professors, March 8, 2022, https://prisonprofessors.com/the-cooperating-witness-in-a-federal-criminal-case/

[3] Ibid.

[4] Ibid.

[5] ABA Standards for Criminal Justice: Prosecutorial Investigations (3rd Edition), 2008, https://www.americanbar.org/groups/criminal_justice/publications/criminal_justice_section_archive/crimjust_standards_pinvestigate/

[6] Attorney General’s Guidelines Regarding the Use of FBI Confidential Informants, 2005, https://oig.justice.gov/sites/default/files/archive/special/0509/chapter3.htm

FBI Confidential Human Source Policy Manual, https://vault.fbi.gov/FBI%20Confidential%20Human%20Source%20Policy%20Guide/FBI%20Confidential%20Human%20Source%20Policy%20Guide%20Part%2001%20of%2001/view

“Informants and Cooperators,” Arizona State University Sandra Day O’Connor College of Law, https://law.asu.edu/sites/default/files/pdf/academy_for_justice/11_Reforming-Criminal-Justice_Vol_2_Informants-and-Cooperators.pdf