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The Obligation That Multiplies The subpoena is not a request. Most people understand this in the abstract, but the understanding becomes concrete when a second one arrives, and then a third, each bearing a…

The cooperating witness is the prosecution's most effective instrument and its most obvious liability. In federal criminal cases, the government constructs its narrative around individuals who have already admitted their own guilt and agreed…

The Promise and the Stand The cooperation agreement is the easiest document you will ever sign in a federal case. It is also the least important. What matters is not the agreement itself but…

The Architecture of a Cooperation Agreement Cooperation with federal prosecutors is the most consequential decision a defendant will make, and it is almost always made under conditions that guarantee the defendant cannot evaluate it…

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 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…

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…

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…

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…

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…