Can I Force the Government to File a 5K1.1 Motion??

Under Section 5K1.1 of the U.S. Sentencing Guidelines, “the court may apply a downward departure to the applicable guideline range if the defendant has provided “substantial assistance” in the investigation or prosecution of another person involved in an offense.”

As clarified in the Guidelines’ commentary to §5K1.1, in most cases, “the government will file a motion requesting that the court apply a downward departure based on the defendant’s substantial assistance.” This makes the filing of a §5K1.1 motion a “necessary precondition” to obtaining the benefit of a downward departure under §5K1.1.

Can you obtain a §5K1.1 departure if you have provided substantial assistance but the government will not file a motion?

Generally, no. Defendants cannot compel the government to file a §5K1.1 motion, and defendants cannot obtain a §5K1.1 departure if the government refuses to file a motion. Defendants generally cannot obtain a downward departure under §5K1.1 by proving their own substantial assistance (the only exception is in cases in which the government refuses to prosecute any of the persons who provided substantial assistance under §5K1.1, which is extremely rare).

Are there any exceptions to the rule in Wade v. United States?

Yes. Although generally nonreviewable, the government’s decision to file or not to file a §5K1.1 motion is subject to very limited review under §5K1.1. Defendants may request that the court review the government’s decision in two cases: (i) where the government’s refusal to file a motion is unconstitutional (i.e., “a decision made on the basis of an impermissible standard”), or, (ii) where the government has breached a promise to file a motion under a plea agreement.

What if the government refuses to file a motion for other reasons?

If the government refuses to file a §5K1.1 motion for any other reason, then you will not be entitled to a §5K1.1 departure. This, however, does not preclude seeking other means of obtaining a sentence below the guidelines, and it does not bar the use of any applicable sentencing enhancements.

When Can a Judge Review a Prosecutor’s Refusal to File a 5K1.1?

In light of the “extremely limited review available for the government’s decision to file or not to file a § 5K1.1 motion,” what are examples of the types of “impermissible standards” that justify judicial review?

• “Race or religion, for instance, would be clearly unconstitutional, and similarly, there would be improper grounds to refuse a § 5K1.1 motion that, although not unconstitutional, are unrelated to some legitimate governmental objective, such as, for example, the prosecutor’s personal preferences.”

What is the scope of the privilege of prosecutors to make decisions about filing motions based on substantial assistance?

“The prosecutor’s decision not to file a § 5K1.1 motion is based on his assessment of the value of the defendant’s cooperation and whether it warrants the sentencing relief sought under § 5K1.1. We accord this decision due deference. However, this privilege is not a constitutional blank check, as implied by the government in this case. The privilege is substantial, but it is not unlimited, as specified above.”

What is required to gain access to discovery and a hearing under Wade?

“ a defendant seeking to establish grounds for judicial review of the government’s refusal to file a motion under § 5K1.1 has “an extremely heavy burden” and must make a “substantial threshold showing” before he is entitled to either discovery, a hearing, or either. .. a defendant who makes a generalized allegation that a prosecutor’s decision to refuse to file a § 5K1.1 motion is based on an impermissible standard” is “not entitled to discovery, and if discovery does not reveal sufficient evidence to establish a ‘clear case of bad faith,’ he is not entitled to an evidentiary hearing.”

Do Courts Have the Power to Order the Government to File a Motion Under 5K1.1 if the Prosecution Is Acting in Bad Faith, Even if Not Unconstitutionally or Contrary to a Legitimate Objective?

Different circuits have taken different views on this question. Some circuits have declined to review decisions based on the prosecutor’s alleged bad faith, but some circuits have held that defendants can seek judicial review in certain cases of prosecutors’ bad faith. The question is still open on the federal level.

What If My Plea Agreement Promised a Substantial Assistance Motion?

When interpreting the scope of the promise to cooperate under a plea agreement, courts generally apply contract law principles. “Generally, the provisions of a plea agreement that establish the scope of the defendant’s obligations with respect to cooperation must be construed as the terms of a contract, and, if a breach is not apparent, courts generally accord the provisions of the agreement their plain meaning.”

It is common practice for the government to include language that reserves final decisions about substantial assistance to the prosecutor’s (or the prosecutor’s supervisor’s) sole discretion. However, if the government breaches a plea agreement that promised a §5K1.1 motion, defendants who have not already been sentenced have two potential remedies: (i) withdrawing their guilty plea, or, (ii) requesting specific performance. Santobello v. New York, “While the decision is ultimately a matter of judicial discretion, it is the court, and not the defendant, who decides the appropriate remedy when the government breaches a plea agreement.”

How Does the Supreme Court View Promises to File a Motion Under 5K1.1?

The Supreme Court has not addressed the scope of prosecutorial discretion when prosecutors promise to provide a “good-faith evaluation” of a defendant’s cooperation. Some circuits previously held that these are binding promises requiring specific performance; some recently held that they are unenforceable due to their inherent vagueness. The Supreme Court has not granted certiorari on whether a prosecutor’s promise to provide a good-faith evaluation of a defendant’s cooperation is enforceable, so the question continues to be governed by circuit precedent applying contract principles under Santobello v. New York. This is something to watch for.

Can I Rely on Promises Made by the Prosecutors?

Generally, a prosecutor may have the authority to bind the government by making promises during plea negotiations. However, a defendant’s ability to rely on those promises depends on whether the prosecutors have actual authority and whether a defendant’s reliance is reasonable. This is another issue currently on appeal.

Are There Other Provisions of the Sentencing Guidelines that Limit the Government’s Use of Disclosures That Are Protected Under 18 U.S.C. 6413(f)?

Can My Cooperation Count Toward a 5K1.1 Motion When Made Protected Under 18 U.S.C. 6413(f)?

USSG §1B1.8(a) protects self-incriminating information provided pursuant to a cooperation agreement if it is “protected under 18 U.S.C. § 6002, or other federal laws, regulations, or judicial procedures” that protect a target’s or witness’s information disclosures. If the defendant makes protected disclosures, “the court may not apply an aggravating adjustment under § 3C1.1 (Obstruction of Justice) based on a defendant’s providing ‘insubstantial assistance’ and may consider the defendant’s protected disclosures to establish substantially assisted a law enforcement investigation as required under § 5K1.1.” Thus, the court may consider the defendant’s protected disclosures for the purposes of substantial assistance.

How Much Does a 5K1.1 Motion Actually Reduce a Federal Sentence?

Contrary to what many think, Section 5K1.1 of the federal sentencing guidelines does not require that a defendant’s “substantial assistance” results in a charge, arrest, or conviction. Instead, any assistance that “substantially” helps “the investigation or prosecution of another person involved in the offense(s)” can justify a 5K1.1 motion.

Can a Judge Deny a 5K1.1 Departure even After the Prosecution Files a Motion?

Yes. The federal sentencing guidelines are simply suggestions, and federal judges are not bound to follow them. Additionally, even if a judge chooses to follow the guidelines, Section 5K1.1 merely permits a downward departure upon the prosecution’s motion; the judge is not required to grant the departure.

Does the Prosecution Decide How Much the Sentence is Reduced?

No. The sentencing judge decides how much, if at all, the sentence is reduced. The prosecutor’s only role is to establish that the defendant provided “substantial assistance.” The prosecutor’s role is also to present “the information in its possession” about “the defendant’s level of assistance” and “the extent to which the defendant has cooperated.” The prosecutor may make a sentencing recommendation, but a recommendation to reduce a sentence by a particular percentage or by a specific number of offense levels may not be binding on the sentencing judge.

Is There a Fixed Percentage of Sentence Reduction That I Can Expect If the Prosecution Files a 5K1.1 Motion?

No. Section 5K1.1 does not prescribe any particular percentage of reduction, and it does not state that any specific reductions should be granted upon the finding of substantial assistance. Instead, Section 5K1.1 sets forth five factors that “the court may consider when determining the amount of reduction to be granted,” i.e., “the usefulness, reliability, and scope of the defendant’s cooperation; any danger to the defendant or the defendant’s family incurred because of the cooperation; and the timeliness with which the defendant provided assistance.”

Are Defendants Required to Come Forward Promptly?

While timeliness is not strictly required, it is a factor considered by the judge when determining the amount of a 5K1.1 reduction. However, timely cooperation is not a strict requirement and this factor will not preclude a downward departure if all other conditions are met.

Does the Prosecution Have to Prove it Had Other Information in its Possession for the Defendant’s Assistance to Be “Substantial”?

No. As the Supreme Court explained in “Wade v. United States, a showing of assistance is a necessary condition for relief, but it is not a sufficient one, and a claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing”

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

Can a 5K1.1 Motion Get Me Below a Mandatory Minimum Sentence?

On its own, a 5K1.1 motion is not enough to overcome a mandatory minimum sentence. With the exception of the safety valve, the only way a defendant can obtain a sentence below a mandatory minimum is if the government files a motion under 18 U.S.C. § 3553(e). Here, the government can move the court to apply a sentence below the mandatory minimum if “the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” While a §3553(e) motion has some similarities with a §5K1.1 motion, it is distinct from it. One major difference is that the government must file a §3553(e) motion before the court has any authority to consider sentencing the defendant below a mandatory minimum.

What if the Prosecution Will Not File a 5K1.1 Motion? Can the Prosecution Still Take the Fact of My Cooperation into Account for Sentencing Purposes?

Yes, it can. If the government refuses to file a §5K1.1 motion, a defendant can still seek a variance under 18 U.S.C. § 3553(a). Here, however, the judge’s authority to lower a defendant’s sentence based on a plea agreement is only limited to a variance when, (i) the prosecution has not filed a §5K1.1 motion, or, (ii) the prosecution has refused to seek a §5K1.1 departure because the defendant’s cooperation did not rise to substantial assistance. However, even with this authority, the judge still may not apply a cooperation-based variance independently from a mandatory minimum sentence.

What if I am Eligible for a Safety Valve?

Defendants are eligible for a “safety valve” when certain conditions are met. Once a defendant is eligible, the safety valve allows the court to impose a sentence below the mandatory minimum in the drug cases covered by 18 U.S.C. § 3553(f), provided the defendant satisfies all five statutory criteria . .. though, a substantial assistance motion under Section 5K1.1 is not required in order for defendants to receive the benefit of a safety valve.

What if I am Eligible for a 5K1.1 Motion, but the Prosecution has not Agreed to file a §3553(e) Motion?

If a defendant qualifies for the benefit of a § 5K1.1 motion, but not for a § 3553(e) motion, then, a prosecutor’s recommendation to lower the sentence below the mandatory minimum based on cooperation has little or no relevance. The judge must make his decision in accordance with the safety valve, and any reduction granted under § 3553(e) is limited to reflecting the substantial assistance provided by the defendant and not any unrelated sentencing considerations.

What Is the Difference Between a 5K1.1 Departure and Rule 35?

Rule 35 is one of a set of rules adopted by the federal judiciary (the Federal Rules of Criminal Procedure) and, although it mentions a substantial assistance reduction, this is only under subsection (b). Rule 35(b) is very similar to Section 5K1.1 but it provides federal judges with the authority to award substantial-assistance reductions “after sentencing.” The key difference is that under Rule 35(b) (unlike under Section 5K1.1), only the government may initiate these sentencing reductions.

When are Rule 35(b) Reductions Filed?

As established in Rule 35(b)(1), Rule 35(b) substantial assistance reductions must be filed generally within one year from the sentencing of a defendant. However, there are three exceptions to the one-year limit as established in Rule 35(b)(2), as defendants can still obtain a Rule 35(b) reduction if: (i) the assistance provided by the defendant was not yet substantial, or (ii) the government’s failure to seek the reduction within one year is “in the interests of justice”; or, (iii) the assistance comes from a cooperation agreement that the government has not yet fulfilled.

When are Rule 35(b) Reductions a Substantiality of Sentencing Reduction?

Rule 35(b)(4) specifically allows for Rule 35(b) reductions to be applied even in cases where a defendant has a mandatory minimum sentence. This differs from Section 5K1.1 in that Section 5K1.1 requires that the court receive a request from the government to apply a sentence below a mandatory minimum under 18 U.S.C. § 3553(e), and that this request not have any other limiting factors.

Can I Get a Rule 35(b) Reduction If I Already Received a 5K1.1 Reduction?

Yes. If a defendant has already received a 5K1.1 reduction but continues to cooperate or his assistance becomes substantially useful to the prosecution after sentencing, then the defendant can seek an additional reduction under Rule 35(b). However, this additional reduction can only be awarded in exceptional cases, such as when the prosecutor is unable to obtain a conviction of a high-ranking official or a gang leader who is involved in a serious federal offense.

What Is Rule 35(a)?

Rule 35(a) allows for federal judges to make corrections to their clear sentencing errors; and Rule 35(a) has no relevance to substantial assistance. For example, if the prosecution has made a clerical error about the number of offense levels by the sentencing guidelines or the number of months he assigned for the mandatory minimum, then Rule 35(a) comes to the rescue.

If a prosecutor has made a Rule 35(a) error, the prosecutor has 14 days after sentencing to make the correction in the prosecution’s request for corrections or corrections to its offer for a Rule 35(a) reduction.

The prosecutor can make a sentencing correction independently within 14 days from the date of sentencing, and in this case, it falls under Rule 35(a).

Can Cooperation Get My Federal Charges Dropped Instead of Reduced?

While many law enforcement agents claim to be able to get a defendant’s federal charges dismissed on the grounds of substantial assistance, the fact that the defendant helped law enforcement generally does not make it automatic. Also, while law enforcement agents can help prosecutors file §5K1.1 motions, law enforcement agents generally do not have the authority to make binding promises to defendants.

The main distinction here is that Section 5K1.1 only affects the sentencing imposed by the judge; a §5K1.1 motion will never result in a dismissal of criminal charges.

Federal prosecutors, however, can negotiate Rule 11(c)(1)(A) plea agreements that allow the prosecutor to dismiss a defendant’s charges if the defendant provides the substantial assistance that is required for sentencing relief.

Federal Rule of Criminal Procedure 48(a) states that the “government may, with leave of court, dismiss an indictment, information, or complaint.” So, when the government wants to dismiss the charges, it will need the court’s permission before it is able to dismiss the case before sentencing.

This is another reason to be very careful when dealing with law enforcement agents. As stated above, this is because cooperating with law enforcement does not automatically entitle a defendant to a dismissal of his or her criminal charges.

How Long Do I Have to File a Motion to Dismiss in Federal Court?

Unlike in state court, the Federal Rules of Criminal Procedure do not apply a uniform numerical time limit for filing a motion to dismiss. Federal Rule 12 governs the filing of motions to dismiss and, as discussed in detail below, Rule 12(c)(1) grants federal judges the authority to set deadlines that apply on a case-by-case basis.

Is There a Deadline for Filing a Motion to Dismiss Under Rule 12?

In a case where a federal judge has not set a deadline for filing a motion to dismiss, the deadline for filing a motion to dismiss is the start of the trial. As stated in Rule 12(c)(3), after a trial has already begun, a federal judge may still consider a motion to dismiss if the defendant has a “valid reason for not making the motion earlier.”

Is There a Deadline for Filing a Motion to Dismiss Under the Speedy Trial Act?

If a defendant is seeking a dismissal under the Speedy Trial Act, he or she will need to file the motion to dismiss before the trial starts. Additionally, after a defendant pleads guilty, he or she will no longer be able to seek a dismissal on the grounds of violation of the Speedy Trial Act.

Is There a Deadline for Filing a Motion to Dismiss on the Grounds of Lack of Subject-Matter Jurisdiction?

No. As established in Rule 12(b)(2), subject-matter jurisdiction can be challenged “at any time.” This means that the motion to dismiss must be filed before the end of a case.

Is There a Deadline for Filing a Motion to Dismiss Based on Defects in the Indictment?

If a defendant is seeking a dismissal based on an alleged defect in the indictment, the defendant must generally file a motion to dismiss before the trial begins. This is established under Rule 12(b)(3) as a procedural defense and will not be available once the trial has started.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.