Rick Gates, Paul Manafort’s former business partner, is the star witness in the first trial resulting from the Special Counsel’s Russia collusion investigation in federal court in Virginia. Gates pled guilty to felony charges and agreed to testify against Manafort in an effort to receive a substantially reduced sentence. The government and defense agree on one thing – the cooperating defendant/witness is guilty of financial crimes, moral misdeeds and has lied repeatedly in the past. Despite that, Gates is on the witness stand, under oath testifying as a government witness in a highly publicized trial of great public interest.

While this may seem odd to some, it happens in federal and state courts around the country every day of the week. Often the best evidence of a criminal conspiracy comes from an insider – a co-conspirator – to the very criminal acts charged. A cooperating defendant is useful to explain to the jury each defendants’ role, how the criminal conduct was carried out, the true meaning of the tape-recorded conversations, the flow of the fraudulent paperwork and financial transactions, and the efforts to conceal the crime. Typically, in a multi-defendant case the government will use a cooperator(s) that has information about the higher ups in the conspiracy – the more culpable leaders of the criminal conduct – to explain their roles and actions to the jury. A complicated, relatively boring paper intensive white-collar case with thousands of documents and financial transactions becomes much more interesting to a jury through a cooperator’s testimony.

The government explains to the jury that the cooperator has a plea agreement with the government whereby he pled to serious charges and has agreed to tell the truth in exchange for leniency at sentencing. In the federal system, the cooperator in the vast majority of cases has no idea or guarantee of what benefit he will receive because it is solely up to the judge to determine the extent of the departure from the sentencing guidelines.  If the cooperator has fulfilled his agreement with the government, the prosecutor will file a departure motion describing the nature and extent of the cooperation to the court prior to sentencing. In many state systems, the prosecutor and the cooperator actually sentence bargain and agree to a specific sentence in exchange for the cooperation and testimony.

While the defense’s goal is to demonstrate that the cooperator is a liar, a fraud, and a despicable person not to be trusted who is simply lying in order to get his deal, the prosecutor usually has additional evidence that substantiates or corroborates what the cooperator testifies to. That corroboration can come in many forms – other witness statements, emails, text messages, documents, bank records, recorded conversations and the like. In an effort to blunt the effect of the cooperator’s bad acts and prior lies, the prosecutor will usually be the first to tell the jury about them in the government’s opening statement and on direct examination. By fronting the bad information before the defense has the opportunity to reveal it, the prosecution hopes that the jury sees that the prosecutor is not afraid of the information or is trying to conceal it from them. This is what is known as “taking the sting” out of the bad acts of the cooperator.

At the end of the trial the jury will likely hear in the prosecutor’s summation that the government can’t chose its witnesses, that it was the defendant who first chose to work with the person they now call a liar not worthy of belief. The prosecutor will also point out that the jury doesn’t have to believe anything the cooperator said unless it is confirmed by other evidence.

In the Manafort trial it is likely that the government will say something to the effect – “Ladies and gentlemen, the government agrees that Gates committed multiple crimes and lied in his everyday life. He admitted that to you here in court. You don’t have to like Gates to understand that what he said here was corroborated by all the other evidence presented. And when the defense attacks him as a low life liar and despicable human being, remember that it was Mr. Manafort who chose him as a business partner and ultimately a co-conspirator in his crimes.”

And while all of that may be true in many cases, there are still thousands of cases where a cooperating defendant lied or exaggerated others’ roles or conduct simply to benefit himself at sentencing. Attacking the credibility of a cooperating defendant is of utmost importance in aggressively defending a client charged as part of a conspiracy. 

Robert Stahl, and his firm, Stahl Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rstahl@stahlesq.com.