Substantial assistance is the legal phrase for cooperation that helps the government investigate or prosecute someone else. It is the basis for three different motions: a § 5K1.1 motion for a sentence below the guideline range, a § 3553(e) motion for a sentence below a statutory minimum, and a Rule 35(b) motion to reduce a sentence that has already been imposed. All three belong to the government. Spodek Law Group P.C. owes loyalty to only you, and our job is to make sure that if you cooperate, you do it knowing exactly what is and is not promised.
What § 5K1.1 says.
Section 5K1.1 of the Sentencing Guidelines provides that, upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, a sentence below the otherwise applicable guideline range may be appropriate. The court determines the reduction for reasons it states, and it may consider the significance and usefulness of the assistance (taking into account the government's evaluation), the truthfulness, completeness and reliability of the information or testimony, the nature and extent of the help, any injury or risk of injury to the defendant or the defendant's family, and the timeliness of the assistance.
The commentary adds that substantial weight should be given to the government's evaluation of the extent of the assistance, and that the reduction is considered independently of any reduction for acceptance of responsibility.
Statutory minimums need a separate motion.
A § 5K1.1 motion works against the guideline range, and it does not by itself let the judge go below a mandatory minimum. The Supreme Court held in Melendez v. United States (1996) that a government motion asking for a sentence below the guideline range does not also authorize a sentence below a lower statutory minimum. That requires a motion under 18 U.S.C. § 3553(e), which gives the court authority to impose a sentence below a statutory minimum to reflect a defendant's substantial assistance.
In drug and firearm cases where a minimum is in play, whether the government will file both motions is a question to raise while the agreement is being negotiated.
The government decides whether to file.
Both § 5K1.1 and § 3553(e) turn on a motion by the government, and the Supreme Court has described that as a power and not a duty (Wade v. United States, 504 U.S. 181 (1992)). Under Wade, a district court can review a refusal to file and grant a remedy if the refusal was based on an unconstitutional motive, but a claim that the defendant merely provided substantial assistance does not entitle the defendant to a remedy, or even to discovery or an evidentiary hearing.
If your agreement leaves the judgment of whether your help was substantial to the prosecutor, as the guideline and the statute already do, then the wording of that agreement and a clear record of what you provided matter a great deal.
After sentencing: Rule 35(b).
Cooperation that happens after sentencing is handled under Rule 35(b) of the Federal Rules of Criminal Procedure. On the government's motion made within one year of sentencing, the court may reduce a sentence if the defendant provided substantial assistance in investigating or prosecuting another person after sentencing. A later motion is allowed only in the situations the rule lists, such as information the defendant did not know until one year or more after sentencing, or information whose usefulness could not reasonably have been anticipated until later and was promptly provided once it became apparent.
When acting under Rule 35(b), the court may reduce the sentence below the statutory minimum, and in evaluating the assistance it may consider help the defendant gave before sentencing.
The safety valve is a different route.
People often confuse substantial assistance with the safety valve in 18 U.S.C. § 3553(f). The safety valve requires the defendant to truthfully provide the government all information and evidence about the offense, but the court decides eligibility after the government has an opportunity to make a recommendation, no government motion is required, and the fact that the defendant has no useful information, or that the government already knows it, does not prevent the court from finding the requirement met.
Substantial assistance is about helping the government make a case against another person. In a drug case the two can overlap, and choosing between them, or pursuing both, is a strategic decision.
Deciding whether to cooperate.
Under § 5K1.2, a defendant's refusal to assist authorities in the investigation of other persons may not be considered as an aggravating sentencing factor, so declining to cooperate should not by itself increase your sentence, although it gives up a possible reduction. Before any proffer, you should know what the agreement protects and what it does not, who decides whether your assistance counts, and what happens if the government concludes you were not truthful.
We owe loyalty to only you, the consultation is risk-free, and you can ask us anything you want before you decide.