Uncategorized

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…

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…

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…

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…

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.…

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…

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…

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…

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…

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…