The Risk of a Cooperating Witness – VW Emissions Scandal

The Justice Department reported a guilty plea in the VW emissions scandal prosecution. By this one announcement, DOJ signaled that it is planning to build a bigger case against VW. Ironically, the Justice Department has exceeded the number of guilty pleas and cooperating witnesses in many of its high profile FCPA and AML/Sanctions cases.

A senior VW engineer entered a guilty plea to what is termed “a 371 conspiracy” or a conspiracy to defraud the United States under title 18 USC Section 371. Prosecutors use this statute in cooperating witness contexts, or when seeking to plea bargain and placecertain limits on a sentence. The maximum punishment for a 371 conspiracy is 5 years’ imprisonment.

More importantly, the VW engineer’s plea agreement includes an opportunity to cooperate by providing “substantial assistance” to the government in the investigation and prosecution of others. By doing so, the VW engineer can reduce his punishment which is set now at 60 months imprisonment.

For those who are following the VW criminal investigation, you can expect further indictments and plea agreements of individuals as prosecutors build cases against individuals and eventually VW, the company.

In rare circumstances, a cooperating witness may not get the “opportunity” to build a case against another individual or the company and may be stuck with no reduction in his or her sentence.

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