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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…

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…