The Cooperation Process, From Proffer to Sentencing.

A defendant who is aware (or will become aware) of their liability for a federal offense may consider offering cooperation at any stage of the legal process. A defendant might offer to cooperate:

• Prior to being charged with a federal crime;
• During the pre-trial or trial stages; or
• During the pre-sentencing, sentencing, or post-sentencing stages.

Regardless of when the offer is made, providing substantial assistance does not guarantee that the defendant’s charges will be dismissed or that the judge will grant a requested sentence reduction.

2. The Prosecutorial Control of Cooperation Agreements

Under §5K1.1 of the Federal Sentencing Guidelines, “substantially assisting” in the investigation or prosecution of another person (or persons) may entitle the defendant to a sentence reduction. In order to earn this reduction, the government ordinarily must file a §5K1.1 substantial-assistance motion. However, since the decision to file such a motion rests with the prosecutors, the size and extent of a defendant’s sentence reduction is effectively within the government’s control.

3. The Judge’s Control of Cooperation-Related Sentence Reductions

Even if the government agrees to seek a §5K1.1 departure, the size of the departure is ultimately up to the judge. Federal judges have broad discretion to grant sentence reductions, and they are under no obligation to award a departure based on a government’s motion.

4. Types of Substantial Assistance

There are many ways to provide “substantial assistance.” A defendant could provide:

• Information that leads to the arrest or conviction of another defendant;
• Information that corrects the government’s understanding of a criminal matter;
• Information that assists in government recovery efforts;
• Debriefing sessions, undercover activity, grand-jury testimony, or trial testimony; or,
• Information that helps the government prevent future criminal activity.

5. Ongoing Obligations to Cooperate

A defendant who has an obligation to cooperate may have an ongoing obligation to assist the government as its investigation or the investigation against others continues. This obligation may extend through the trial or appeal of the case(s) in which the defendant is providing assistance.

6. The Discretionary Nature of the Federal Witness Protection Program

Under 18 U.S.C. §3521, a defendant who provides substantial assistance may be eligible to enter the Federal Witness Protection Program. However, protection under the program is discretionary; a defendant who provides substantial assistance is not automatically entitled to enter the program.

7. The Federal Rules of Criminal Procedure (Not Civil Procedure)

There is a common misconception that the Federal Rules of Civil Procedure apply to federal criminal cases. They do not. Instead, the Federal Rules of Criminal Procedure govern the conduct of federal criminal cases.

What should happen before I tell federal prosecutors anything?

1. Proffer Agreements and Proffer Letters

A proffer agreement is a contract, and it must be negotiated carefully. These agreements allow a defendant to reveal information to federal prosecutors in exchange for certain contractual protections, but it is also important to understand what they do not do. First and foremost, a proffer agreement is not itself a plea agreement or cooperation agreement. To earn a specific benefit, the defendant will have to enter into another agreement later on.

Also, while a proffer agreement can grant use protections, this is not the same as granting “blanket immunity.” A proffer agreement (or the proffer letter that accompanies it) limits how the government may use or disclose information obtained during a proffer. It does not insulate the defendant from the risk of prosecution if the government obtains independently-sourceable evidence of guilt.

2. Derivative Use of Proffer Statements

Along with limiting the direct use of a defendant’s proffer statements, a proffer agreement may limit “derivative use” of proffer statements. Derivative use refers to using information in a proffer to generate leads for further investigative actions. If a proffer agreement allows the government to make derivative use of its source information, then statements shared at a proffer interview can ultimately lead to a government agent’s warrant affidavit or a witness’s grand jury testimony.

3. Guideline §1B1.8 Protection

Under §1B1.8 of the Federal Sentencing Guidelines, a defendant can be entitled to a “good faith” proffer protection during sentencing if the defendant truthfully and completely assists in the government’s investigation. However, this Guideline provision applies only when the government affirmatively, and expressly, agrees to it. When we represent defendants in federal criminal cases, we never take this protection for granted, we negotiate to include Guideline §1B1.8 language in our clients’ proffer agreements and letters to the fullest extent possible.

4. The Cooperation Agreement

If a defendant is willing to cooperate and is eligible for consideration based on a successful proffer, the next step is to enter into a cooperation agreement. A cooperation agreement is a contract, and it conditions any promised “consideration” (e.g., charges dismissed, sentence reduction, or other relief) upon the defendant’s delivery of specified assistance and full and continued compliance with all of its terms. These terms often include complying with a comprehensive list of the government’s cooperation obligations, with clear penalties for noncompliance.

The cooperation agreement will also detail the scope of the assistance the government expects. This can include conducting interviews and debriefing sessions, assisting with undercover activity, giving grand-jury testimony, which may include both direct testimony and witness-statement testimony at trials, or delivering all documents and other relevant information.

5. The Rule 11(c) Plea Agreement

A defendant who cooperates with the government will enter into a Rule 11(c) plea agreement. This is another contract, and it may contain terms related to the defendant’s guilty plea, the government’s charging decisions, and/or the government’s sentencing recommendation. While a cooperation agreement may involve a Rule 11(c) plea agreement, this is not always the case.

The government is permitted to demand a variety of terms in a Rule 11(c) plea agreement, including waivers of the defendant’s right to appeal, and some of these demands may not be covered by the terms of a cooperation agreement.

6. Contractual Use Protections

A cooperation agreement will provide contractual use protections. However, it is important to remember that these protections are limited to the specific information, sources, and uses designated in the written agreement. They cannot be broadly construed to protect the defendant.

7. Proffer Waivers and Other Exceptions to Use Protections

Along with permitting the derivative use of proffer statements, proffer agreements often include other exceptions as well. One common example is a proffer waiver, which allows the government to use a defendant’s statements to rebut contradictory evidence or arguments at trial if the defendant later pleads not guilty.

8. Future Assistance and Sentencing Recommendations

Finally, a cooperation agreement will often require continued assistance following sentencing, and the government’s sentence recommendation may be contingent upon the defendant’s cooperation and compliance through the end of the investigation or trial involving the defendant’s assistance.

How can cooperation reduce my sentence before sentencing?

1. Evaluation of a Defendant’s Substantial Assistance

Before determining whether a defendant is eligible for substantial assistance protection, federal prosecutors must evaluate the defendant’s cooperation (including, but not limited to, information provided during a proffer interview). Prosecutors generally evaluate whether a defendant’s assistance is:

• (i) credible;
• (ii) useful;
• (iii) complete; and,
• (iv) timely.

If the defendant’s assistance meets these (and other) criteria, then the defendant can potentially earn substantial assistance protection under Guideline §5K1.1.

2. Cooperation Agreement Requirements

Along with providing “substantial assistance,” a defendant who has a cooperation agreement must also:

• truthfully and completely disclose all information, and
• provide continuing assistance through the investigation, trial, or appeal of the defendant(s) he or she is assisting, as necessary.

If a defendant fails to comply in either of these respects, he or she could lose the protection of the cooperation agreement and potentially lose his or her protection from prosecution.

3. Significance, Usefulness, and Value of Assistance (Guideline §5K1.1)

When ruling on a §5K1.1 motion, the court considers “the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered.” As it states in the Commentary:

“Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.”

4. Truthfulness, Completeness, and Reliability of Assistance (Guideline §5K1.1)

Separately, Section 5K1.1 directs the court to evaluate “the truthfulness, completeness, and reliability of any information or testimony provided by the defendant.”

5. Timing of Assistance (Guideline §5K1.1)

Section 5K1.1 also identifies the timing of a defendant’s assistance as a factor that courts should consider at sentencing. The guideline itself lists as a factor “the timeliness of the defendant’s assistance,” and its Commentary does not elaborate on how timing should be weighed.

6. §5K1.1 Motion Limitations

Although a §5K1.1 motion allows a judge to grant a downward departure, this alone is not enough to allow a sentence below a federal statutory minimum.

7. 18 U.S.C. §3553(e) and Mandatory Minimums

If the applicable federal offense carries a mandatory minimum sentence, then the government must file a motion under 18 U.S.C. §3553(e) for the court to award the defendant a sentence below that minimum.

8. 21 U.S.C. §851 and Prosecutorial Discretion

In some cases, federal prosecutors can reward cooperation by declining to file information under 21 U.S.C. §851. These informations are used in some federal drug cases to increase the mandatory minimum sentence, and the decision of whether to file one is left to the prosecutors’ discretion.

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.

What can reduce my sentence after sentencing?

1. Rule 35(b)(1) Motion

A Rule 35(b)(1) motion is a government motion that is filed after sentencing. With few exceptions, Rule 35(b)(1) motions must be filed within one year of sentencing.

2. Rule 35(b)(2) Motion

Generally, Rule 35(b)(1) motions must be filed within one year after sentencing. Rule 35(b)(2) provides three limited circumstances under which the government may file a motion to reduce a defendant’s sentence after the one-year deadline. These exceptions apply only when:

• (i) the information or assistance involved information not known to the defendant until one year or more after sentencing;
• (ii) the information or assistance provided by the defendant became useful after sentencing; or,
• (iii) the information or assistance was information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing, and which the defendant promptly provided to the government after its usefulness was reasonably apparent.

3. Rule 35(b)(2) Motions for Cooperation-Based Sentence Reductions

A Rule 35(b)(2) motion is similarly used to seek assistance-related sentence reductions for newly learned, later-useful, or unexpectedly useful information and assistance.

4. Rule 35(b) Requirements

Rule 35(b)’s text expressly requires that the “information or assistance” sought to justify a sentence reduction have been “provided by the sentenced defendant.” If a proposed sentence reduction is based on information or assistance provided by a person other than the sentenced defendant, it cannot support a Rule 35(b) motion at all, because Rule 35(b) reaches only substantial assistance provided by the defendant whose sentence is at issue.

5. Rule 35(b) Sentence Reductions Below Statutory Minimums

A Rule 35(b) sentence reduction may fall below a statutory minimum.

6. Sentencing Judge’s Discretion Under Rule 35(b)

Under Rule 35(b), the sentencing judge decides whether, and by how much, to reduce the defendant’s sentence.

7. Section 2255 and Sentencing Reductions

Unlike Rule 35(b), which applies when the government files a motion to seek a sentence reduction on the defendant’s behalf, Section 2255 applies when the defendant files a motion on his or her own behalf. Generally, under Section 2255, a defendant must file within one year of the date on which the facts supporting the claim could have been discovered through the exercise of due diligence.

Is the federal safety valve the same as cooperation?

1. The Federal Safety Valve Under 18 U.S.C. §3553(f)

No. The federal safety valve appears in 18 U.S.C. §3553(f). This is different from the substantial-assistance provision (which appears in 18 U.S.C. §3553(e)).

2. No Need for Government Motion

Unlike federal substantial assistance, federal safety-valve relief does not require the government to file a substantial-assistance motion.

3. Timing of Truthful Disclosure

While federal substantial assistance requires truthful disclosure during an investigation, federal safety-valve relief only requires truthful disclosure “no later than the date of sentencing.”

4. Scope of Truthful Disclosure

While federal substantial assistance requires providing “substantial assistance” in the government’s investigation or prosecution of another person (or persons), federal safety-valve relief requires truthful disclosure of “all information and evidence that is in the possession, custody, or control of the defendant, so long as that information or evidence pertains to the offense for which the defendant has been convicted or to any other offense that is part of a common scheme or plan or that is related to or part of a common course of conduct.”

5. “New” or “Useful” Information Not Required

In the context of federal substantial assistance, “substantial assistance” must be “substantial” to qualify. While the Federal Sentencing Guidelines don’t expressly define “substantial,” the term denotes more than some level of assistance. For federal safety-valve relief, however, the information or assistance that a defendant discloses need not be “new” or “useful,” and this is what allows for a safety-valve reduction even in some instances in which the defendant does not earn substantial-assistance protection.

6. No Requirement to Assist in Investigation or Prosecution

Under 18 U.S.C. §3553(f)(5), a defendant who is not eligible for a sentence reduction based on substantial assistance can still qualify for a reduction if he or she:

“truthfully and fully disclosed all information and evidence in his or her possession, custody, or control regarding the offense or offenses for which such defendant was convicted.”

This is different from providing assistance in investigating or prosecuting another person (or persons).

7. Incomplete Disclosure Fails §3553(f)(5) Requirement

If a defendant’s disclosure is incomplete, it will fail to satisfy 18 U.S.C. §3553(f)(5) and will do so even if all of the defendant’s disclosed statements are entirely truthful.

8. Inconsistent Accounts Failure to Truthfully and Fully Disclose

If a defendant provides inconsistent accounts of his or her involvement in a federal crime, then it’s possible for the inconsistency to establish the defendant’s failure to “truthfully and fully disclose all information and evidence” required for §3553(f)(5) relief.

Can prosecutors refuse to file a cooperation motion?

1. Wade v. United States

The Supreme Court has held in Wade v. United States that “review by the district court is appropriate only if a defendant can demonstrate that his prosecutor’s refusal to file a motion based on information and assistance provided by the defendant was motivated by ‘some unconstitutional motive.’”

2. Substantial Assistance as a Constitutional Protection

The Supreme Court also has noted in Wade v. United States that “substantial assistance is not a constitutional protection.” This means that simply because a defendant believes that providing substantial assistance warrants a sentence reduction, that is not enough to grant him or her a Rule 24(a) right to judicial review.

3. Enforcement of Prosecutorial Plea Promises

Under Santobello v. New York, federal courts can enforce a prosecutorial promise to file a Rule 35(b) substantial-assistance motion if this promise is material. If a defendant provides “substantial assistance” and the prosecutor refuses to file a Rule 35(b) motion in direct violation of a material prosecutorial promise, then the defendant can seek to enforce the promise in federal court. If the defendant can’t demonstrate a violation of a material prosecutorial promise, then he or she will still have to prove an unconstitutional motive in order to receive judicial review.

4. Material Breaches of Cooperation Agreements

A material breach of a cooperation agreement or Rule 11(c) plea agreement could release prosecutors from their duty to file a substantial-assistance motion for the defendant. In this case, judicial review under Wade v. United States is not appropriate because the prosecutor’s refusal to file the motion is not based on an unconstitutional motive.

5. Refusals Based on Factors Unrelated to Defendant’s Assistance

Another circumstance in which a Rule 24(a) right to judicial review attaches is when the prosecutor’s refusal to file a Rule 35(b) substantial-assistance motion is based on factors that lack “any rational relationship to the legitimate governmental objective of enhancing a defendant’s sentencing due to the amount of assistance rendered.” If the defendant can establish this lack of rational relationship, then a federal court will intervene to ensure that the prosecutor’s decision to withhold relief is constitutionally permissible.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.