INSIDERS AS COOPERATING WITNESSES:
OVERCOMING FEAR AND OFFERING HOPE
Robert E. Courtney III＊I. THE PROBLEM: CRIMINAL CONSPIRACIES AND A CODE OF SILENCE
Most nations and international organizations today recognize that criminal conspiracies pose greater
threats to society than the actions of individuals. We have only to scan the headlines of any major newspaper
in any country to see examples of criminal organizations and their impact on our nations. From violent
organizations like Italian Mafias and drug cartels, to private armies of entrenched political groups indeveloping countries, to smaller, but insidious conspiracies that corrupt public ofﬁcials, organized criminal
activity has become a fact of modern life. Almost 50 years ago the United States Supreme Court summarized
the danger of criminal conspiracies as follows:“[C]ollective criminal agreement--partnership in crime--presents a greater potential threat to the
public than individual delicts. Concerted action both increases the likelihood that the criminal object
will be successfully attained and decreases the probability that the individuals involved will departfrom their path of criminality. Group association for criminal purposes often… makes possible theattainment of ends more complex than those which one criminal could accomplish. Nor is the dangerof a conspiratorial group limited to the particular end toward which it has embarked. Combination incrime makes more likely the commission of crimes unrelated to the original purpose for which thegroup was formed. In sum, the danger which a conspiracy generates is not confined to the substantive
offense which is the immediate aim of the enterprise has embarked.”1
The impact of these criminal organizations has resulted in increasing international cooperation and theadoption of international agreements such as the UN Convention Against Transnational Crime (UNTOC)2 andthe UN Convention Against Corruption (UNCAC).3 Such Conventions recognize that if left unchallenged bylaw enforcement, criminal organizations pose signiﬁcant dangers to the foundations of our very institutions ofgovernment.
Standing in opposition to modern criminal conspiracies are the law enforcement systems of ourindividual countries. As we all know, because of our strong commitment to due process and the rule of law,
we require formal evidence be presented in court before someone can be convicted of a crime. It is theexperience of the United States that without witness testimony from “insiders” to entrenched criminalorganizations, there is little likelihood of convicting the leadership. But the difficulties in obtaining thewitnesses needed to convict the leaders of criminal conspiracies can be daunting.
＊United States Department of Justice Attaché, U.S. Embassy, Manila, Philippines.
1 Callanan v. U.S., 364 U.S. 587, 593-594 (1961).
2 In the Foreword to the UNTOC, UN Secretary General Koﬁ-Annan described the threats to civil society by criminal conspiracies inthese words: “Arrayed against these constructive forces, however, in ever greater numbers and with ever stronger weapons, are theforces of what I call “uncivil society”. They are terrorists, criminals, drug dealers, trafﬁckers in people and others who undo the goodworks of civil society. They take advantage of the open borders, free markets and technological advances that bring so many beneﬁts
to the world’s people. They thrive in countries with weak institutions, and they show no scruple about resorting to intimidation orviolence. Their ruthlessness is the very antithesis of all we regard as civil. They are powerful, representing entrenched interests andthe clout of a global enterprise worth billions of dollars, but they are not invincible.”
3 The preamble to UNCAC describes some of the dangers posed by ofﬁcial corruption as the reason for member states joining UNCAC
in these words: “concerned ...about the links between corruption and other forms of crime, in particular organized crime andeconomic crime, including money-laundering, Concerned further about cases of corruption that involve vast quantities of assets,
which may constitute a substantial proportion of the resources of States, and that threaten the political stability and sustainable
development of those States, Convinced that corruption is no longer a local matter but a transnational phenomenon that affects all
societies and economies, making international cooperation to prevent and control it essential...[member states have acceded to
UNCAC].”― 36 ―

The leaders of organizations insulate themselves from criminal prosecution by passing orders throughunderlings; the criminal bosses often never personally “get their hands dirty” in the commission of criminal
acts by their syndicate; and the leaders often use violence and intimidation to prevent witnesses fromtestifying. The resulting fears of the consequences that will follow if they cooperate with law enforcement
stand in the way of obtaining the critical testimony of “insiders.” Therefore, effective responses to the threatsof criminal organizations require special, coordinated tools that allow law enforcement ofﬁcers to obtain thetestimony needed to break the conspiracies and convict the leaders.

II. THE FEARS: VIOLENCE AND SOCIETY’S PUNISHMENT
The fear that deters insiders from giving testimony is twofold. First, they fear violence and retaliationfrom their fellow conspirators for becoming government witnesses. Second, they fear the punishment society
will inﬂict if they admit their participation in the criminal conspiracy they are asked to unmask. Criminalorganizations play on and reinforce these fears to deter cooperation with law enforcement by their members.
Examples of fearsome violence against those who become government witnesses are legion. One
drawn from our experience involves the murder of a government witness’ brother early on the morning he
was scheduled to testify against members of the La Cosa Nostra (LCN). Another involves the arson murder ofﬁve female, family members of a witness against a violent drug organization; murders arranged by the drugorganization’s leader from jail. 4 Each country represented at this conference can share its own experienceswith such violence, including violence in corruption cases.
Fear of prosecution, the second fear deterring would-be cooperators, has been “institutionalized” by
the United States’ Italian Maﬁa, known as La Cosa Nostra (LCN). As a prerequisite to full “membership” inthe organization, the LCN requires a prospective member to participate in a murder. In addition todemonstrating that the member has the “qualities” desired by this vicious organization, it was believed thatparticipation in the murder also made future cooperation impossible. Since the penalties for murder were so
great and the societal repulsion to murder was so strong, the LCN believed that those who participated inmurders would never become cooperating witnesses.5 The LCN has been proven wrong.

III. COUNTERS TO FEAR: WITNESS PROTECTION AND COOPERATION
PLEA AGREEMENTS
Over the past 40 years the United States has developed two powerful mechanisms for overcoming thefears that deter insiders from becoming witnesses. These two tools, when properly utilized, allow police andprosecutors to acquire the formal witness cooperation from insiders needed to convict leaders of criminal
conspiracies and demolish criminal organizations. These two tools are 1) the Federal Witness Protection
Program and 2) Cooperation Plea Agreements.
A. Federal Witness Protection Program
The Federal Witness Protection Program (“the Protection Program”) was created in 1970 by an act of
the U.S. Congress entitled “the Organized Crime Control Act of 1970.” The Protection Program wasoriginally created to help obtain witness testimony in Italian Mafia cases. To this end, the law created asystem to provide for the health, safety and welfare of witnesses and their families both during and after the

4 The drug boss is currently facing federal charges in Philadelphia, Pennsylvania relating to these cruel murders.
5 The LCN has a special “ceremony” where a man who is considered “qualiﬁed” to be a full or “made” member of the organization
swears an oath of allegiance, i.e., the oath of Omertà, the Maﬁa code of silence. Though the ceremony varies from family to family, it
usually involves the pricking of the trigger ﬁnger of the inductee, then dripping blood onto a picture of a Saint, which is then set aﬁrein his hand and kept burning until the inductee has sworn the oath of loyalty to his new “family.” The oath is along the lines of “[a]sthis card burns, may my soul burn in Hell if I betray the oath of Omertà,” or “As burns this saint, so will burn my soul. I enter alive
and I will have to get out dead.”― 37 ―

conclusion of the trial proceedings. In the years since it was created, the Protection Program has been
expanded to other types of signiﬁcant criminal conspiracy cases, not just those involving Italian Maﬁa cases,
and has been modiﬁed to address issues not originally foreseen, such as providing protection for incarcerated
cooperating witnesses.
By statute the United States Witness Protection Program is prosecutor-driven. The statute gives theUnited States’ Attorney General the authority to provide for witness relocation and protection. See Title 18,
United States Code, Section 3521, a copy of which is attached hereto as Annex 1. Thus prosecutors decide
who should be admitted into the Protection Program. Neither judges nor defense attorneys have a role in thisdecision. Over the last 40 years procedures and criteria have been established under the authority of the
Attorney General to ensure that the Protection Program only admits people who are witnesses in important
cases and who are not likely to constitute a future danger to society.6
In the implementation of the Protection Program a special unit in the Criminal Division of the
Department of Justice in Washington, known as the Ofﬁce of Enforcement Operations (“OEO”), oversees andadministers the operation of all phases of the Protection Program, including the decision of who should be
accepted into the Protection Program. In addition to the prosecutors in OEO, two other agencies havesubstantial roles in implementing the protection features of the Protection Program. These are the UnitedStates Marshals’ Service (Marshals’ Service) and the Federal Bureau of Prisons (“BOP”). The Marshals’Service handles protection for non-incarcerated witnesses and their family members; BOP handles protection
for witnesses who are serving jail sentences by establishing “jails within jails” that only house cooperating
witnesses.
Of course, no one can be forced to go into the Protection Program. It is purely a voluntary decision on
the part of a witness to request and accept protection under the umbrella of the Protection Program. Indeed, aperson can decide to leave the Protection Program at any time. However, because it is expensive and complex
to protect people, at the outset there is written agreement that is signed by the witness and the Marshals’Service that details what each has agreed to do. Thus, when it has been determined that a witness is a suitable
candidate for the Protection Program, the witness and his/her adult family members who are to be protected
will be asked to sign a Memorandum of Understanding. The Marshals’ Service agrees to satisfy eachcommitment set forth in the MOU as long as the witness remains in good standing in the Protection Program.
On the other hand, the Marshals’ Service will not be required to provide amenities or services not included in
the document. Typically the Marshals’ Service agrees to relocate the witness and family to another part of theUnited States, to provide a new identity, and to help the family start a new life, which includes basic job
location assistance for the relocated witness and, as well as the payment of living expenses for a period. At
the same time, the witness and family members must satisfy their obligations under the MOU, including
cooperation in searching for new employment in the relocation area and not taking any action that may
compromise their new identities and location.
The witness’ obligations can be difﬁcult to honor, including, speciﬁcally the agreement not to take any
action that might divulge the new identity and residential location. This means the witness cannot return to
the “danger area,”7 or stay in contact with friends and relatives, except through means authorized by the
Marshals’ Service. If the witness breaches his security, OEO will expel him from the Protection Program andno longer authorize the Marshals’ Service to provide services. (This does not mean that the witness’ newidentity will be revoked; nor does it mean that in the event of an actual danger that the witness will not beprovided protection. However, OEO may refuse to approve continued payment of subsistence or provision ofother types of support.)
The restrictions on the witnesses are often as stressful as the testimony given in court. 8 Somewitnesses ﬁnd the Protection Program so restrictive they are unable to adjust. Some even decide to return to

6 It should be emphasized that the Protection Program is only available to witnesses and their families. It is not designed to provide
protection to non-witnesses who may feel threatened by criminal elements.
7 The “danger area” is the broadly considered to be the areas where the witness is likely to be known or recognized, and therefore
potentially targeted for violent retribution. Thus, for example, the “danger area” for a witness from New York City could include alarge area of the East Coast of the United States since that is the geographic area in which he is most likely to be recognized.
8 It is not uncommon for a wife of a prospective witness to break down in tears when told that she will not be able to attend hermother’s funeral in the “danger area” when/if her mother should die.

― 38 ―

their old home city. There are a number of instances where witnesses who withdrew from the Protection
Program and returned to the “danger area” were murdered. For example, against the advice of the Marshals’Service a man from Philadelphia, Pennsylvania who had been a cooperating witness against the LCN foundthe Protection Program too restrictive and decided to leave the Protection Program and return to his oldhometown. He was murdered within a matter months of returning.
The humorous (and grossly inaccurate) portrayal of the Protection Program in the comedic movie My
Blue Heaven does catch one element many familiar with the Protection Program have experienced. The
principal character in the movie describes his attitude toward the changes required by participation in theProtection Program as follows:I get to never see my parents again or my loved ones. I get to live in a place ... it’s okay, don’t get me
wrong ... the air is clean, the people are nice ... but for a guy like me, raised on the sidewalks of thecity that never sleeps, it’s a living hell.9
Perhaps as a result of its strict rules, it is unquestionable that the Protection Program has been atremendous success. No relocated witness who followed the Marshals’ Service rules has been harmed, andthere have been thousands of successful prosecutions throughout the United States as a result of courtroom
testimony from protected witnesses. Most noteworthy, the entrenched leadership of the LCN organizations,which justiﬁed the original creation of the Protection Program, has been convicted in cities throughout theUnited States based upon the testimony of “insiders” who were protected by the Protection Program.
B. Cooperation Guilty Plea Agreements
The other “tool” that works hand-in-glove with the Witness Protection Program is the “Cooperation
Plea Agreement.” It is a fact that most “insiders” in serious criminal conspiracies have personally committed
criminal acts. The Cooperation Plea Agreement is a mechanism which allows criminal “insiders” to plead
guilty and to receive reduced jail sentences if they provide “substantial assistance” to the prosecution bycooperating and testifying.
It is the policy of the United States, incorporated in statutory law, to encourage such cooperation by
allowing judges to impose jail sentences that are less than the sentences they would have received if the
defendant had not cooperated. This policy recognizes that persons who have committed serious crimes should
not be allowed to avoid all penal sanctions by agreeing to testify. At the same time, the policy gives the“insider” hope that at the end of the process, the insider will still have the opportunity to start a new life. It isthe collective judgment of the United States that the cost of allowing reduced sentences for cooperation
against leaders of the criminal organization is justiﬁed by the need to defeat the criminal organizations thatpose such serious threat to civil society.
Prosecutors desiring the testimony of “insiders” always need to weigh the importance and public valueof the insider testimony in a speciﬁc case against the risk that a serious criminal will not receive appropriate
punishment. The Cooperation Plea Agreement is the balancing mechanism that allows both testimony andappropriate penal sanctions. Over the past thirty years the United States has developed considerable
experience in the use of Cooperation Plea Agreements. It is now common to require criminal-witnesses toplead guilty to representative criminal violations and face the likelihood of jail sentences.
Unlike the Witness Protection Program that is controlled by the prosecutor, the Cooperation Plea
Agreement requires the active involvement of the defense attorney and the judge, as well as the prosecutor.
First, the prosecutor discusses the case with his/her supervisors and obtains approval from the leadership of
the prosecution ofﬁce to consider a Cooperation Plea Agreement with the speciﬁc defendant in the speciﬁccase. Next, the prosecutor and defense attorney discuss the proposed plea agreement and its likely meaning inthe speciﬁc case. If the agreement is acceptable to the defense attorney and the client, the plea agreement
must be set forth in writing and signed by the prosecutor, the defense attorney and the defendant. Next, the

9 From dialogue of “Todd Wilkerson”, a ﬁctional participant in the Witness Protection Program, as portrayed by Steve Martin in MY
BLUE HEAVEN (Warner Brothers Pictures 1990).

― 39 ―

agreement is presented to the judge who can accept or refuse the agreement. Moreover, all parties understandand agree that the decision as to what sentence will be imposed is solely the decision of the judge.
Cooperation Plea Agreements used by the US Department of Justice expressly state that the agreement does
not bind the judge with respect to what sentence ought to be imposed. Thus, it is the judge, informed by his/
her training and by having a full understanding of the case, who decides what sentence to impose.
If the judge decides to accept the agreement, the judge will require the defendant-cooperator to plead
guilty in open court to the charges covered by the plea agreement. In most cases the defendant-cooperator will
testify for the prosecution after the judge has accepted the plea agreement and after the defendant-cooperator
has pled guilty. Thus, sentencing is deferred until the defendant-cooperator has completed cooperating withthe prosecutor so that the judge may consider the signiﬁcance of the cooperation. The expected cooperation
can often involve several trials and different crimes, depending on the knowledge of the defendant-cooperator.
In most violent criminal conspiracy or drug cases, the defendant-cooperator will be held in jail without bailand will be incarcerated in the Bureau of Prisons Protected Witness jail while cooperating and awaiting
sentence.10
When the time comes to sentence the cooperating defendant, the judge is required by law to consider
and evaluate these ﬁve factors:(1) the significance and usefulness of the defendant’s assistance, taking into consideration thegovernment’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 fromhis assistance; and(5) the timeliness of the defendant’s assistance.
Section 5K1.1 of the United States Sentencing Guidelines.11 Applying these factors, the judge decides what
the appropriate sentence should be for the cooperating witness in the speciﬁc case.
The positive effects of a cooperation plea bargaining system is that law enforcement has something tooffer to overcome the fear of the potential witness that he will receive the same jail sentence as if he did notcooperate. Together with the Protection Program, the Cooperation Plea Agreement offers hope to thecooperating insider that he/she may have a new life free from the inﬂuences of the criminal syndicate they are
exposing.

IV. WITNESS PROTECTION PROGRAM AND COOPERATION PLEA
AGREEMENTS IN PRACTICE
One example of the effectiveness of these two tools, taken from our experience in prosecuting the
LCN in Philadelphia, Pennsylvania illustrates this. In the period between 1991 and 1993 a war broke out
between two competing factions of the LCN. During this period there were a series of murders and attempted
murders, including a brazen motor vehicle ambush on a major expressway at the height of rush-hour. These
competing acts of violence were ordered by the LCN “boss” and by his rival. Neither of the men actuallypulled a trigger or was near the scenes of the violent crimes. Indeed, the LCN structure, depicted in Appendix
III, is designed to insulate the leadership from the commission of crimes ordered by those leaders. As a resultof investigation, prosecutors learned the identity of three men who were “shooters” in three LCN murders andbuilt prosecutable cases against them. After much thought, prosecutors approached their defense attorneys
and entered into separate cooperation plea agreements with the each of the three conspirators AND sponsored

10 The time spent in jail will count toward whatever jail sentence is ultimately imposed.
11 In the United States sentencing in Federal Court is guided by Sentencing Guidelines. The provision of these guidelines applicable insentencing cooperators is Section 5K1.1. A copy of this provision is attached in Annex 2.

― 40 ―

them for the Witness Protection Program. Each man was required to plead guilty to his participation in themurders. Based upon their testimony, together with other evidence developed in a 2 year investigation,prosecutors charged the entire leadership of the Philadelphia LCN, including the boss and 22 others, with thecrime of Racketeering and multiple acts of murder and extortion. After a 3 month trial, interrupted at one
point by the murder of a brother of one of the insider-witnesses, all were convicted.12 At sentencing the bossand his “underboss” were sentenced to life in jail without the possibility of parole. The three cooperating
witnesses were sentenced respectively to 10, 12 ½ and 15 years in jail for their role as “shooters” in murders
ordered by the “boss.” Without the Cooperation Plea Agreements they would have been sentenced to life injail. Each served his sentence in a Bureau of Prisons Witness Protection facility in different federal jails, andthereafter was protected by the Protection Program.

V. CONCLUSION
In order to defeat modern criminal organizations, modern law enforcement needs to adapt to thechallenges posed by sophisticated criminal syndicates. This means civil society must realize that tools
appropriate for dealing with individual criminal acts are not adequate when dealing with the modern,sophisticated criminal organizations. Accordingly, our nations must provide law enforcement with the tools
necessary to obtain testimony from members of these criminal conspiracies. This testimony will protect
society from criminal organizations and at the same time provide due process in the legal proceedings against
the leaders of these conspiracies. In the United States the Witness Protection Program and Cooperation Plea
Agreement have been effective tools in eliminating and minimizing entrenched criminal organizations, andoffer a baseline experience that other countries may reference when considering how to deal with modern
criminal organizations.

12 The prosecution had offered to have the Witness Protection Program cover the brother and his family. However, the brother refused.
At the time he was murdered he was living in his family home in Philadelphia.

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APPENDIX I
Title 18, United States Code, Section 3521, Witness Relocation and Protection(a)(1) The Attorney General may provide for the relocation and other protection of a witness or a potential
witness for the Federal Government or for a State government in an official proceeding concerning anorganized criminal activity or other serious offense, if the Attorney General determines that an offense
involving a crime of violence directed at the witness with respect to that proceeding, an offense set forth inchapter 73 of this title directed at the witness, or a State offense that is similar in nature to either such offense,
is likely to be committed. The Attorney General may also provide for the relocation and other protection of
the immediate family of, or a person otherwise closely associated with, such witness or potential witness if
the family or person may also be endangered on account of the participation of the witness in the judicial
proceeding.
(2) The Attorney General shall issue guidelines deﬁning the types of cases for which the exercise of theauthority of the Attorney General contained in paragraph (1) would be appropriate.
(3) The United States and its ofﬁcers and employees shall not be subject to any civil liability on account ofany decision to provide or not to provide protection under this chapter.
(b)(1) In connection with the protection under this chapter of a witness, a potential witness, or an immediatefamily member or close associate of a witness or potential witness, the Attorney General shall take suchaction as the Attorney General determines to be necessary to protect the person involved from bodily injury
and otherwise to assure the health, safety, and welfare of that person, including the psychological well-being
and social adjustment of that person, for as long as, in the judgment of the Attorney General, the danger tothat person exists. The Attorney General may, by regulation-( A)		 provide suitable documents to enable the person to establish a new identity or otherwise protect theperson;(B)provide housing for the person;( C) provide for the transportation of household furniture and other personal property to a new residenceof the person;
(D) provide to the person a payment to meet basic living expenses, in a sum established in accordancewith regulations issued by the Attorney General, for such times as the Attorney General determines to be
warranted;( E)

assist the person in obtaining employment;( F)

provide other services necessary to assist the person in becoming self-sustaining;( G) disclose or refuse to disclose the identity or location of the person relocated or protected, or any othermatter concerning the person or the Protection Program after weighing the danger such a disclosure would
pose to the person, the detriment it would cause to the general effectiveness of the Protection Program, andthe beneﬁt it would afford to the public or to the person seeking the disclosure, except that the Attorney
General shall, upon the request of State or local law enforcement officials or pursuant to a court order,
without undue delay, disclose to such officials the identity, location, criminal records, and fingerprints
relating to the person relocated or protected when the Attorney General knows or the request indicates thatthe person is under investigation for or has been arrested for or charged with an offense that is punishable
by more than one year in prison or that is a crime of violence;― 42 ―

( H) protect the conﬁdentiality of the identity and location of persons subject to registration requirements
as convicted offenders under Federal or State law, including prescribing alternative procedures to thoseotherwise provided by Federal or State law for registration and tracking of such persons; and(I) exempt procurement for services, materials, and supplies, and the renovation and construction of safe
sites within existing buildings from other provisions of law as may be required to maintain the security ofprotective witnesses and the integrity of the Witness Security Protection Program.
The Attorney General shall establish an accurate, efﬁcient, and effective system of records concerning thecriminal history of persons provided protection under this chapter in order to provide the information
described in subparagraph (G).
(2) Deductions shall be made from any payment made to a person pursuant to paragraph (1)(D) to satisfy
obligations of that person for family support payments pursuant to a State court order.
(3) Any person who, without the authorization of the Attorney General, knowingly discloses any
information received from the Attorney General under paragraph (1)(G) shall be ﬁned $5,000 or imprisoned
ﬁve years, or both.
(c) Before providing protection to any person under this chapter, the Attorney General shall, to the extent
practicable, obtain information relating to the suitability of the person for inclusion in the Protection Program,including the criminal history, if any, and a psychological evaluation of, the person. The Attorney Generalshall also make a written assessment in each case of the seriousness of the investigation or case in which theperson’s information or testimony has been or will be provided and the possible risk of danger to otherpersons and property in the community where the person is to be relocated and shall determine whether theneed for that person’s testimony outweighs the risk of danger to the public. In assessing whether a person
should be provided protection under this chapter, the Attorney General shall consider the person’s criminal
record, alternatives to providing protection under this chapter, the possibility of securing similar testimony
from other sources, the need for protecting the person, the relative importance of the person’s testimony,
results of psychological examinations, whether providing such protection will substantially infringe upon therelationship between a child who would be relocated in connection with such protection and that child’s
parent who would not be so relocated, and such other factors as the Attorney General considers appropriate.
The Attorney General shall not provide protection to any person under this chapter if the risk of danger to the
public, including the potential harm to innocent victims, outweighs the need for that person’s testimony. This
subsection shall not be construed to authorize the disclosure of the written assessment made pursuant to thissubsection.
(d)(1) Before providing protection to any person under this chapter, the Attorney General shall enter into amemorandum of understanding with that person. Each such memorandum of understanding shall set forth the
responsibilities of that person, including-(A) the agreement of the person, if a witness or potential witness, to testify in and provide information to
all appropriate law enforcement ofﬁcials concerning all appropriate proceedings;(B)

the agreement of the person not to commit any crime;(C) the agreement of the person to take all necessary steps to avoid detection by others of the facts
concerning the protection provided to that person under this chapter;(D)the agreement of the person to comply with legal obligations and civil judgments against that person;(E)the agreement of the person to cooperate with all reasonable requests of ofﬁcers and employees of― 43 ―

the Government who are providing protection under this chapter;(F)

the agreement of the person to designate another person to act as agent for the service of process;(G) the agreement of the person to make a sworn statement of all outstanding legal obligations, including
obligations concerning child custody and visitation;(H) the agreement of the person to disclose any probation or parole responsibilities, and if the person is
on probation or parole under State law, to consent to Federal supervision in accordance with section 3522
of this title; and(I) the agreement of the person to regularly inform the appropriate Protection Program official of theactivities and current address of such person.
Each such memorandum of understanding shall also set forth the protection which the Attorney General has
determined will be provided to the person under this chapter, and the procedures to be followed in the case ofa breach of the memorandum of understanding, as such procedures are established by the Attorney General.
Such procedures shall include a procedure for filing and resolution of grievances of persons provided
protection under this chapter regarding the administration of the Protection Program. This procedure shall
include the opportunity for resolution of a grievance by a person who was not involved in the case.
(2) The Attorney General shall enter into a separate memorandum of understanding pursuant to thissubsection with each person protected under this chapter who is eighteen years of age or older. The
memorandum of understanding shall be signed by the Attorney General and the person protected.
(3) The Attorney General may delegate the responsibility initially to authorize protection under this chapter
only to the Deputy Attorney General, to the Associate Attorney General, to any Assistant Attorney General in
charge of the Criminal Division or National Security Division of the Department of Justice, to the AssistantAttorney General in charge of the Civil Rights Division of the Department of Justice (insofar as the delegation
relates to a criminal civil rights case), and to one other ofﬁcer or employee of the Department of Justice.
(e) If the Attorney General determines that harm to a person for whom protection may be provided under
section 3521 of this title is imminent or that failure to provide immediate protection would otherwise
seriously jeopardize an ongoing investigation, the Attorney General may provide temporary protection tosuch person under this chapter before making the written assessment and determination required bysubsection (c) of this section or entering into the memorandum of understanding required by subsection (d) of
this section. In such a case the Attorney General shall make such assessment and determination and enter intosuch memorandum of understanding without undue delay after the protection is initiated.
(f) The Attorney General may terminate the protection provided under this chapter to any person who
substantially breaches the memorandum of understanding entered into between the Attorney General and that
person pursuant to subsection (d), or who provides false information concerning the memorandum of
understanding or the circumstances pursuant to which the person was provided protection under this chapter,
including information with respect to the nature and circumstances concerning child custody and visitation.
Before terminating such protection, the Attorney General shall send notice to the person involved of thetermination of the protection provided under this chapter and the reasons for the termination. The decision of
the Attorney General to terminate such protection shall not be subject to judicial review.

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APPENDIX II§5K1.1. Substantial Assistance to Authorities (Policy Statement)
Upon motion of the government stating that the defendant has provided substantial assistance in theinvestigation or prosecution of another person who has committed an offense, the court may depart from theguidelines.
(a) The appropriate reduction shall be determined by the court for reasons stated that may include,
but are not limited to, consideration of the following:
(1)
(2)
(3)
(4)
(5)

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;
the truthfulness, completeness, and reliability of any information or testimony provided by the
defendant;
the nature and extent of the defendant’s assistance;
any injury suffered, or any danger or risk of injury to the defendant or his family resulting fromhis assistance;
the timeliness of the defendant’s assistance.

Commentary of the Sentencing Commission includes the following:
A defendant’s assistance to authorities in the investigation of criminal activities has been recognizedin practice and by statute as a mitigating sentencing factor. The nature, extent, and significance ofassistance can involve a broad spectrum of conduct that must be evaluated by the court on an
individual basis. Latitude is, therefore, afforded the sentencing judge to reduce a sentence based uponvariable relevant factors, including those listed above. The sentencing judge must, however, state thereasons for reducing a sentence under this section. 18 U.S.C. § 3553(c). The court may elect toprovide its reasons to the defendant in camera and in writing under seal for the safety of the defendantor to avoid disclosure of an ongoing investigation― 45 ―

APPENDIX III― 46 ―