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Can the Government Revoke My Cooperation Agreement?
The answer is yes, though the word “revoke” conceals more than it clarifies. A cooperation agreement in the federal system is a contract. Courts have treated it as such since Santobello v. New York, and the contractual framework carries the consequences one would expect: either party can breach, either party can seek a remedy, and […]
read moreBreach of Cooperation Agreement: What Happens Next?
The cooperation agreement was never the difficult part. Signing it required nothing more than a shared intention and two signatures on a document that, at the time, described a future both parties could envision. The breach is what converts the document from an aspiration into a consequence, and the breach is what this article concerns. […]
read moreUnderstanding Your Federal Plea Agreement: Cooperation Provisions
The cooperation provision is the most consequential clause in a federal plea agreement that almost no one reads with the attention it requires. It occupies a few paragraphs in a document that runs to twenty or more pages, and most defendants pass over it on the assumption that cooperation means testifying and testifying means a […]
read moreWhat Is a Federal Cooperation Agreement?
The Conditional Promise A federal cooperation agreement is, if one is being precise about the instrument, not an agreement in the sense that most people understand that word. It is a conditional promise from the government, revocable at the government’s discretion, in exchange for the most complete form of self-exposure the federal criminal justice system […]
read moreRule 35 vs. 5K1.1: Which Motion Is Right for My Case?
The Question Itself The distinction between a §5K1.1 departure and a Rule 35(b) reduction is not, in most federal cases, a choice the defendant makes. It is a consequence of timing, and the timing is rarely within the defendant’s control. Most individuals searching for this comparison have already cooperated, or have agreed to cooperate, and […]
read moreHow to Get the Government to File a Rule 35 Motion
The Mechanism You Cannot Operate The only person who can shorten your federal sentence under Rule 35(b) is the person who prosecuted you. That is not an oversight in the rule. The motion belongs to the government, filed at its discretion, on its timeline, for its reasons. A defendant who has cooperated, who has testified, […]
read moreCooperation Agreements & Plea Deals
Cooperation Agreements and the Illusion of Reciprocity Cooperation does not produce what most defendants believe it will produce. The word itself suggests mutuality, an exchange of roughly equivalent value, when in reality the federal cooperation agreement is among the most lopsided instruments in criminal practice. One party surrenders information, testimony, safety, and the ability to […]
read moreAverage Sentence Reductions Under Rule 35(b)
The reduction is smaller than most defendants expect, and it arrives later. Rule 35(b) of the Federal Rules of Criminal Procedure permits a federal court to reduce a sentence after it has been imposed, but only if the defendant has provided substantial assistance to the government in investigating or prosecuting another person, and only if […]
read moreHow Long After Sentencing Can I Get a Rule 35 Reduction?
The answer is one year, with exceptions that are narrower than most defendants expect, and with a threshold condition that the defendant does not control. Federal Rule of Criminal Procedure 35 is two separate provisions sharing a number. Rule 35(a) addresses arithmetical and technical errors in a sentence. Rule 35(b) addresses sentence reductions based on […]
read moreCan I Cooperate After I'm Already in Federal Prison?
The answer is yes, and the mechanism is more structured than most inmates realize when they first consider it. Federal Rule of Criminal Procedure 35(b) exists for this precise circumstance: a defendant who has been sentenced, who is serving time, and who possesses information the government finds useful in the investigation or prosecution of someone […]
read moreRule 35(b) Explained: Reducing Your Sentence After Cooperation
Before the first debriefing session, before a single name is offered to a government recording device, the trajectory of a Rule 35(b) motion has already been determined by decisions most defendants did not recognize as decisions. Federal Rule of Criminal Procedure 35(b) permits a court to reduce a sentence after it has been imposed, but […]
read moreWhat Is a Rule 35 Motion in Federal Court?
Rule 35 is the closest thing federal criminal procedure offers to a second chance at sentencing, and it is not yours to request. The motion belongs to the government. The decision to file belongs to the government. The determination of whether your cooperation qualifies as “substantial” belongs, with a finality that most defendants do not […]
read moreRule 35 Motions (Post-Sentencing Cooperation)
Rule 35 Motions: The Narrow Path to Post-Sentencing Relief The Architecture of Post-Sentencing Relief The federal system offers few mechanisms for reducing a sentence once it has been imposed. Rule 35 of the Federal Rules of Criminal Procedure is one of them, and it is a narrow one. The rule divides into two provisions that […]
read moreChallenging the Government's Refusal to File a 5K1.1 Motion
The government’s refusal to file a 5K1.1 motion is, in most circuits, one of the least reviewable exercises of prosecutorial discretion in federal law. A defendant who cooperated, who testified, who wore a recording device into a room full of people who would have killed him for it, can find at sentencing that the prosecutor […]
read moreWhat If the Government Promised a 5K1.1 Motion But Didn't File One?
The government’s promise to file a 5K1.1 motion is, in the majority of federal cooperation agreements, not a promise at all. It is a statement of possibility dressed in contractual language, and the distinction between the two determines whether a cooperating defendant has any remedy when sentencing arrives and the motion does not. A defendant […]
read moreCan 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 […]
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