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Can I Force the Government to File a 5K1.1 Motion?
The answer is almost certainly no, and the small residue of uncertainty that remains will not comfort you. Under federal law, only the government may file a motion for a downward departure based on substantial assistance. Not the defendant. Not defense counsel. Not the court on its own initiative. The Supreme Court confirmed this in […]
read moreWhy the Government Might NOT File a 5K1.1 Motion
The Motion That Only One Side Can File Cooperation does not guarantee a sentence reduction. That is the sentence most defendants need to read before they sign anything, and it is the sentence most cooperation agreements are structured to obscure. Under USSG § 5K1.1, a federal court may impose a sentence below the guideline range […]
read moreCan a 5K1.1 Motion Get Me Below a Mandatory Minimum?
The Distinction Between Section 5K1.1 and 18 U.S.C. § 3553(e) A 5K1.1 motion, standing alone, does not permit a federal judge to impose a sentence below a statutory mandatory minimum. The answer depends on a statutory distinction that most defendants, and some attorneys, do not perceive until sentencing is imminent. Section 5K1.1 of the United […]
read moreHow Much Can a 5K1.1 Motion Reduce My Sentence?
The number the court selects after a 5K1.1 motion is filed will not appear in any agreement you sign. No cooperation agreement in federal practice specifies the precise reduction a defendant will receive, because the reduction is not the government’s to promise. It belongs to the judge. What the government controls is whether the motion […]
read moreWhat Is a 5K1.1 Departure and How Does It Work?
The single most consequential decision in a federal criminal case is not whether to plead guilty. It is whether to cooperate. Section 5K1.1 of the United States Sentencing Guidelines is the mechanism through which cooperation converts into a sentencing reduction, and it is a mechanism that only one party controls. Only the government can file […]
read more5K1.1 Motion Explained: How Cooperation Reduces Federal Sentences
The Prosecutor Holds the Key The most consequential decision in a federal criminal case is not the plea. It is whether to cooperate, and that answer belongs to two parties, only one of whom possesses any real authority over what cooperation produces. Under Section 5K1.1 of the United States Sentencing Guidelines, a court may impose […]
read moreHow to Qualify for Substantial Assistance Credit
Prosecutorial Discretion and the Motion Requirement The most consequential decision in federal cooperation is one the defendant cannot make. Under Section 5K1.1 of the United States Sentencing Guidelines, a court may sentence below the guideline range only when the government files a motion attesting that the defendant has provided substantial assistance in the investigation or […]
read moreWill I Have to Wear a Wire as Part of My Cooperation?
Most people who ask whether they will have to wear a wire are not, if we are being precise, asking about the wire. They are asking how far the government will expect them to go, how much of their own safety they will be required to offer, and whether the cooperation they imagined as a […]
read moreWhat Is "Substantial Assistance" Under Federal Law?
Two Words, Two Functions The phrase “substantial assistance” performs two opposite functions in federal law, and the distinction between them is not academic. In criminal sentencing, it is the mechanism that permits a cooperating defendant to receive a sentence below what the guidelines or the statute would otherwise impose. In securities enforcement, it is the […]
read moreSubstantial Assistance & Sentence Reductions
The person who can reduce your sentence is the same person who charged you. That is the architecture of federal cooperation, and the structural imbalance it creates has never been incidental to the design. Under U.S.S.G. §5K1.1, a defendant who provides substantial assistance in the investigation or prosecution of another person may receive a sentence […]
read moreHow Long Does the Federal Cooperation Process Take?
Federal cooperation does not operate on a schedule. The process commences when a defendant agrees to assist the government in the investigation or prosecution of another person, and it concludes when the government determines that the assistance is complete. Between those two points, the cooperator occupies a position of enforced patience, waiting for decisions that […]
read moreWhat Happens After a Successful Proffer Session?
The proffer session is not the resolution. It is the application. Most clients leave the conference room at the U.S. Attorney’s office believing the difficult portion of cooperation has concluded, that the act of sitting across from federal agents and speaking candidly about criminal conduct was itself the transaction. It was not. What occurred in […]
read moreProffer Sessions With the FBI vs. the U.S. Attorney's Office
The proffer session at the United States Attorney’s Office and the interview conducted by FBI agents are not the same event, though a surprising number of defense attorneys permit their clients to treat them as though they were. One occurs under a written agreement that confers limited use immunity. The other occurs under no agreement […]
read moreCan I Cooperate Before Being Charged With a Crime?
Cooperation with the government before criminal charges are filed is not merely possible. It is, in the right circumstances, the single most consequential decision a person under investigation will make. The difficulty is that most people do not recognize this window until it has already begun to close. By the time the subject of a […]
read moreWhat Documents Should I Bring to a Proffer Session?
The documents you select for a proffer session matter less than most defendants believe, and more than most attorneys will admit. The question that arrives in a search engine (“what should I bring”) implies that the session is a transaction: you deliver records, the government delivers consideration. It is not. A proffer is a credibility […]
read moreHow Many Proffer Sessions Will I Have to Attend?
The Number No One Can Give You The number of proffer sessions a person will attend in a federal case cannot be stated in advance. There is no statute that prescribes it, no standard cooperation agreement that fixes it, and no informal convention among prosecutors that has settled the question over time. The question itself […]
read morePre-Indictment Proffer vs. Post-Indictment Proffer: Which Is Better?
The pre-indictment proffer is not the safer option. It is the option with a different set of consequences, and the distinction between the two collapses under pressure in ways that most analyses of the subject fail to address. Every federal criminal defense attorney who has practiced long enough has sat across from a client who […]
read moreHow Federal Cooperation Works: Step-by-Step Guide
Cooperation is not a defense strategy. It is a transaction, conducted under conditions that favor the government at every stage, and the defendant who enters into it without understanding its architecture will discover the imbalance too late to correct it. The federal system treats cooperation as a privilege extended by the prosecution, not a right […]
read moreThe Cooperation Process
The Cost of Candor Cooperation with the federal government is the single most consequential decision a defendant will make, and it is nearly always made too early. The word itself carries an institutional warmth that obscures what the process demands: a complete and irreversible surrender of information, delivered under conditions the government designs, in exchange […]
read moreCooperation in Multi-Defendant Federal Cases: Strategy Considerations
The decision to cooperate is not, in any meaningful sense, a legal question. It is a question of sequence: who moves first, what they reveal, and whether the information retains its value by the time the government receives it. In a multi-defendant federal case, the architecture of cooperation resembles an auction more than a negotiation, […]
read moreWhat If I Don't Have Useful Information to Proffer?
Cooperation is the currency of federal sentencing, and not everyone has it to spend. The entire architecture of the federal system, from the proffer session to the 5K1.1 motion to the government’s sentencing memorandum, presumes that a defendant possesses information another party wants. Prosecutors offer the proffer letter. Defense counsel prepares the client. The meeting […]
read moreCooperation vs. Going to Trial: How to Decide
The decision to cooperate or proceed to trial is not, in most federal cases, a question of innocence. It is a question of architecture: what can be constructed from what remains after the government has assembled its case, and whether the materials available to the defense bear the weight of a trial or serve better […]
read moreIs Cooperation Worth It If I'm Facing Mandatory Minimums?
Cooperation is the most consequential decision a federal defendant will make, and it is almost always made with incomplete information. The question is not whether the government’s offer sounds reasonable. The question is whether the architecture of the federal sentencing system, as it exists in practice, will deliver what the offer implies. The federal system […]
read moreWhen You Should NOT Enter a Proffer Agreement
The Proffer You Should Not Have Taken The proffer session that destroys a defense is not the one where the client lies. It is the one where the client tells the truth to a government that did not need to hear it. Most articles on this subject begin with a definition. A proffer agreement, sometimes […]
read moreWhen Cooperation Makes Sense in a Federal Case
Cooperation in a federal case is not a moral concession. It is a transaction, and like all transactions, it has terms that one side composed and the other side must evaluate before signing. The question is never whether cooperation is good or bad in the abstract. The question is whether, given the specific charges, the […]
read moreShould You Cooperate?
Cooperation is not a strategy. It is a posture, and the distinction determines whether a company emerges from a federal investigation diminished or dissolved. The instinct to cooperate, to present oneself as forthcoming, antedates any analysis of whether cooperation actually serves the company’s interest in a particular case. The question deserves more sustained attention than […]
read moreWhat Happens If My Proffer Doesn't Satisfy the Government?
The proffer that does not satisfy the government is not returned. It is retained, repurposed, and in many cases deployed against the person who offered it. This is the fact that prospective cooperators most often fail to absorb before they sit down, sign the letter, and begin talking: the information travels in one direction, and […]
read moreCan I Withdraw From a Proffer Agreement?
The Short Answer You can withdraw from a proffer agreement. You can stop the session, instruct your attorney to end the meeting, stand from the conference table in the United States Attorney’s Office, and leave. The proffer agreement is not a subpoena. It is not a court order. No one will restrain you from exiting […]
read morePerjury Risks in Federal Proffer Sessions
The federal proffer session creates a category of criminal exposure that most defendants do not perceive until it has already materialized. What is commonly described as “Queen for a Day” immunity is, in practice, a conditional grant of limited protection that excludes from its scope the very conduct most likely to occur in the room: […]
read moreWhat If My Proffer Is Inconsistent With My Trial Testimony?
A proffer that contradicts your trial testimony will, in most federal courtrooms, end your defense before the jury begins to deliberate. Most defendants enter a proffer session with one understanding of the word “inconsistent” and discover, months later, that the government operates with a different one. The distance between those two understandings is large enough […]
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