How to Qualify for Substantial Assistance Credit.

How to Qualify for Substantial Assistance Credit What

counts as “substantial assistance” can vary from one case to the next, and what prosecutors consider valuable can change with time. The U.S. Sentencing Guidelines do not define the term; USSG §5K1.1 simply authorizes a departure “[u]pon 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.” The federal government and its prosecutors have significant discretion when it comes to taking prosecutors’ recommendations to the court, and they have significant discretion when it comes to making prosecutorial recommendations to the courts as well.

How Does the Court Qualify a Federal Defendant for Substantial Assistance Credit?

To qualify a federal defendant for substantial assistance credit, a prosecutor will make a motion to the sentencing court under USSG §5K1.1. As a condition for granting the motion, the prosecutor needs to show that:

• The defendant’s cooperation contributed to a successful investigation or prosecution of at least one other person (or, more rarely, a successful investigation or prosecution that did not involve another person);
• The defendant has been truthful, timely, and complete; and,
• The defendant is likely to continue his or her cooperation if warranted.

Although the U.S. Sentencing Commission’s Guidelines state that the prosecutor’s motion must show that the defendant’s assistance has contributed to the investigation or prosecution “of another person,” it does not require that that another person be arrested, charged, or convicted.

Do I Receive a Motion for Substantial Assistance Credit If I Cooperate as Requested?

As explained above, if you offer and provide complete, truthful, and timely information in cooperation with a federal prosecutor, the prosecutor is generally able to file a 5K1.1 motion on your behalf with the sentencing court. However, this is not guaranteed, unless you have an enforceable written agreement.

Will My Cooperation with the Federal Government Get Me Any Specific Outcome?

Providing cooperation does not itself dismiss charges, result in an acquittal, or produce a certain sentencing outcome. Additionally, no federal authority or legal principle designates any one particular criminal charge as being more likely than any others to end in a sentence reduction.

What kinds of cooperation count as substantial assistance?

The U.S. Sentencing Guidelines do not specifically define what counts as “substantial assistance,” and the information required for securing a sentence reduction varies greatly from case to case. However, as noted in the Commentary to USSG §5K1.1, a few key factors are always important: - The significance of the information: Generally speaking, information that can help prosecutors investigate or prosecute another individual’s alleged crimes will be most significant when it leads to a conviction. At the same time, this information must also be deemed “useful” to be recognized as substantial assistance.

• The practical usefulness of the information: Prosecutors look for information that is useful for developing a criminal case against another individual (or individuals). This may include information about additional suspects, the nature and scope of their involvement in the alleged criminal conduct, and other evidence that may be available to assist in the investigation.
• The truthfulness, completeness, and reliability of the information: Federal prosecutors and the courts rely on informants, cooperators, and assisting defendants to provide honest, thorough, and reliable accounts. Consequently, any indication that information provided is false, incomplete, or unreliable can raise doubts about a defendant’s willingness and ability to provide assistance. Along with these general criteria, a variety of different forms of assistance can count as substantial assistance. Based on our attorneys’ experience helping cooperators secure substantial-assistance credit, some examples of “substantial assistance” include: - Testimony: Information that helps lead to a conviction in another case can count as substantial assistance. This includes testimony given during a grand jury proceeding, in open court, or, in some cases, as a result of the defendant’s agreement to cooperate.
• Controlled Purchases and Undercover Operations: Cooperating defendants who act as informants can also provide substantial assistance by assisting investigators in carrying out controlled purchases or by helping investigators conduct undercover operations aimed at arresting others.
• Documents and Recordings: While documents and recordings are most useful when they support another criminal prosecution, providing documents and recordings that aid the prosecution’s investigation of others can also be recognized as substantial assistance.
• No Requirement to Testify: The U.S. Sentencing Commission notes that, “substantial assistance” does not necessarily require the defendant to testify. As long as the information the defendant provides helps to lead to the investigation or prosecution of someone else (or otherwise leads to some substantial outcome), it should be treated as substantial assistance.
• Investigative Assistance: Investigative assistance can also qualify as substantial assistance even when it does not lead to the prosecution of another individual. As the U.S. Sentencing Commission explains, if the defendant’s cooperation assists the government’s efforts in some other way, this may be enough to warrant a motion for substantial-assistance credit.

  Which substantial assistance motion applies to my sentence?

  There are different rules that apply to federal substantial-assistance relief depending on when the request is made and what sentence reduction is being sought. - At Original Sentencing: The U.S. Sentencing Guidelines include a provision for substantial-assistance departures imposed at original sentencing. The Guidelines’ provision for substantial-assistance credit is denoted as USSG §5K1.1. The Guidelines also include a provision for “substantial assistance” that refers back to USSG §5K1.1.

• After Original Sentencing: After sentencing, the relevant rule is Rule 35(b). Rule 35(b) requests apply in cases where the defendant cooperates in assistance to the government. Rule 35(b)(1) allows a reduction where the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person, and Rule 35(b)(3) permits the court to consider the defendant’s presentence assistance in evaluating whether that assistance was substantial.
• Rule 35(b) Reduction: Under Rule 35(b), the defendant and prosecutor’s contributions are subject to judicial review. Rule 35(b) requires the government to make a motion; without such a motion, the court has no authority to reduce a sentence for substantial assistance.
• Below Statutory Minimums: Under Rule 35(b)(4), the court can impose a sentence below the statutory mandatory minimum. To cross a statutory minimum, 18 U.S.C. §3553(e)(2) requires the government to make a motion and makes such a sentence reduction conditional on the defendant’s assistance.
• Advisory Guideline Range: A §5K1.1 motion generally addresses the advisory guideline range rather than the statutory mandatory minimum. As a result, even if the government makes a §5K1.1 motion, it cannot, by itself, cross a statutory minimum.
• No Relation to Safety Valve: Rule 35(b) has no relation to the “Safety Valve” under USSG §5C1.2 and 18 U.S.C. §3553(f). The “Safety Valve” relieves certain defendants of mandatory minimum sentences. The “Safety Valve” does not require cooperation and is not given as a reward for cooperation.
• Other Mandatory Minimum Tools: 18 U.S.C. §3553(e) authorizes crossing a mandatory minimum for “substantial assistance,” which 18 U.S.C. §3553(e) describes as “substantial assistance in the investigation or prosecution of another person who has committed an offense”. Along with Section 3553(e), the federal government also has the following tools for avoiding mandatory minimums: 21 U.S.C. §851, Rule 11(c)(1)(C), and Rule 11(c)(4). Rule 11(c)(1)(C) allows prosecutors and defendants to make binding plea agreements. Rule 11(c)(1)(B) allows for non-binding sentencing recommendations.

  Can I File for Rule 35 Relief More Than One Year Later?

  Generally speaking, Rule 35(b)(1) only allows requests for Rule 35 relief if filed within one year after the original sentencing date. However, Rule 35(b)(2)(A), (B), and (C) allow for filing after one year in the following cases:

• If the defendant provides information that became known to the defendant after the first year,
• If the defendant provides information that became known to the defendant before the first year, but which was only found to be useful after the first year passed, or
• If the defendant provides information that could not have been known to have been useful within the first year and only became useful after the first year passed.

To invoke Rule 35(b)(2)(C), the defendant must not only know the information to have been useful for purposes of filing a Rule 35(b) motion after the first year, but the defendant must disclose the information promptly after learning that the information is useful.

Do I Need to Be Present for a Rule 35 Relief Hearing?

Federal Rule of Criminal Procedure 43(b)(4) specifies that sentencing reductions under Rule 35(b) and 35(c) may be done without the defendant’s presence.

Is a Full Resentencing Necessary?

Under Rule 35(b), a full resentencing hearing is not necessary; Rule 35(c) merely defines “sentencing” as the oral announcement of the sentence and provides no separate form of relief.

Do I Get Credit for Cooperation Provided Before My Original Sentencing Hearing?

Under Rule 35(b)(3), the court may consider the defendant’s presentence assistance in evaluating whether the defendant has provided substantial assistance. However, the assistance that was rendered prior to sentencing must be fully rendered. Partial assistance rendered before sentencing does not disqualify the defendant from Rule 35(b) relief, because Rule 35(b)(3) allows the court to consider presentence assistance in evaluating the defendant’s cooperation.

How Long Do Judges Have for Rule 35(b) Applications to Be Accepted?

Generally, Rule 35(b)(1) only allows requests for Rule 35 relief that are filed within one year of the defendant’s original sentencing. The exceptions are listed in Rule 35(b)(2)(A), (B), and (C), as explained above. These exceptions cover (i) new, (ii) newly useful, or (iii) newly recognized useful information.

Defendants wanting to seek relief after the first year must engage an experienced federal criminal defense lawyer and provide clear documentation of their entitlement to apply under Rule 35(b)(2)(A), (B), or (C). As a reminder, Rule 35(b)(2)(B) expressly covers information the defendant provided to the government within one year of sentencing that did not become useful to the government until more than one year after sentencing.

How Does the Judge Decide the Size of My Reduction?

Substantial Assistance Motions Are Not Binding Recommendations

If the prosecutor makes a motion for a substantial-assistance departure under USSG §5K1.1 or a reduction under Rule 35(b), the judge will need to determine whether a reduction is warranted. In addition, the judge will determine the size of the reduction as well. The judge will not be bound by the prosecutor’s assessment, but generally speaking, a prosecutor’s assessment of what constitutes useful or “substantial” assistance will hold substantial weight in the sentencing court. This is because, as the U.S. Sentencing Commission notes in the Commentary to USSG §5K1.1, “[t]he nature, extent, and significance of assistance can involve a broad spectrum of conduct that must be evaluated by the court on an individual basis,” and “[l]atitude is, therefore, afforded the sentencing judge to reduce a sentence based upon variable relevant factors.”

No Fixed Percentage Reduction

No federal statute or guideline establishes a fixed percentage reduction for substantial assistance. While a 5K1.1 motion by prosecutors often implies an “uncapped” departure, the actual reduction granted depends on the judge’s determination.

What Factors Do Judges Consider Under USSG §5K1.1?

As a guide, USSG §5K1.1 suggests that judges should consider several factors when determining how much of a reduction to grant for substantial assistance. These include:

• The nature and extent of the defendant’s cooperation (i.e., whether the defendant’s cooperation was useful or substantial);
• The presence of any hazards or injury that the defendant (or his or her family members) incurred as a result of cooperating;
• How promptly the defendant offered to cooperate with the government;
• 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;
• The truthfulness, completeness, and reliability of any information or testimony provided by the defendant; and,
• Other applicable sentencing factors (i.e., the sentencing factors that apply generally to criminal proceedings, such as those listed under 18 U.S.C. § 3553(a)).

  Acceptance of Responsibility vs. Substantial Assistance The U.S. Sentencing Commission

  emphasizes that “acceptance of responsibility” and “substantial assistance” are distinct sentencing factors. While accepting responsibility helps at sentencing (to some degree), offering substantial assistance is a more rigorous process that requires additional considerations. These include:

• Truthfulness, completeness, and promptness (all as a result of the defendant’s cooperation with the government);
• Truthfulness, completeness, and promptness (as a result of the defendant’s efforts to help others come forward to reveal information about federal investigations or criminal offenses); and,
• The presence of mitigating factors, such as a dangerous criminal environment or involvement with individuals that may intimidate witnesses and potential co-defendants.

  What Can I Do if Prosecutors Refuse to File a Motion for Substantial Assistance Credit on My Behalf?

  If the prosecutor refuses to file a motion on your behalf, then you have options depending on your circumstances. - No Agreement. If you have no enforceable agreement with the prosecutors who are handling your case (i.e., you only offered cooperation and provided information based on the prosecutors’ request and representation), then your legal options are very limited. While the prosecutors’ motive for not filing might be improper, it is generally understood that prosecutors have ampla latitude in their decision to either reward a defendant for cooperating or to withhold a reward based on what they determine is the value of the defendant’s assistance.

• There is an Explicit Agreement to Support a Substantial-Assistance Departure or Reduction. As discussed above, while no agreement (and even an explicit agreement) guarantees a reduction at sentencing or a motion for Rule 35 relief, courts do enforce promised Rule 35 assistance motions in certain cases. In order to be enforceable, the promise to support a Rule 35 motion must be based on (i) express terms and (ii) satisfying the agreement’s stated conditions. In Santobello v. New York (1971), the U.S. Supreme Court found that “the prosecutors’ promise in open court may not be revoked without adequate means of relief.” The means of relief may involve withdrawal of a plea, granting of the induced benefit, or some other appropriate remedy in the prosecutors’ breach.
• You Are Facing Discrimination. In Wade v. United States (1968), the U.S. Supreme Court established a remedy for constitutional issues when prosecutors refuse to support a federal substantial-assistance motion (including an agreement for sentencing). Specifically, the rule in Wade authorizes Rule 35(b) reductions when it can be demonstrated that the prosecutors “refused to file an application... that did not have ‘even a rational relationship to a legitimate governmental objective.’” Among examples for improper motivations under Wade are: “such as in a case involving discrimination on the basis of race or religion.”

  Can a Judge Grant Rule 35 Relief?

  No. In all scenarios, the judge cannot grant Rule 35 relief without a supporting motion by the prosecutors. The judge also cannot force the prosecutors to make an assistance motion. Instead, the judge will review prosecutors’ assessments and make their own determination as to whether a motion is warranted.

  What Can Happen if My Prosecutors Refuse to Support a Motion for Substantial-Assistance Credit or for Rule 35 Relief Based on an Improper Motive?

  Generally speaking, unless the prosecutor makes an assistance motion, the sentencing judge has no obligation (and in fact has no authority) to consider substantial assistance at sentencing (and, after sentencing, has no authority to grant a Rule 35 reduction). While the prosecutors’ failure to apply an approved sentencing condition to a sentence doesn’t by itself mean your prosecutors are breaking any rule, the U.S. Supreme Court noted in Wade v. United States (1968) that if a defendant can present “concrete preliminary evidence that would have been good enough to support a Rule 35(b)(1) motion for substantial-assistance relief,” then the prosecutors may have to provide an evidentiary hearing or may allow for discovery of their decisions. If a defendant has proof of improper prosecution under the standards of Wade, then the federal judges will examine the prosecutorial motives for the refusal. The remedy for such refusal will, if available, allow for additional relief under Rule 35(b)(2).

  How can I protect myself before giving a proffer?

  When thinking about cooperating as a federal informant, one of the most important questions is, “How can I protect myself before agreeing to talk to the government and give up potentially incriminating information about myself?” To properly protect yourself before giving a proffer, there are three main steps you need to take:

• Negotiate an Explicit Proffer Agreement. A proffer agreement is a negotiated contract between the defendant and the prosecutors. It is generally signed before the defendant begins disclosing potentially incriminating information to the government. Typically, signed proffer agreements will address (i) the prosecutors’ filing commitment, (ii) the defendant’s duties, (iii) restrictions on the prosecutors’ use of the information obtained during the proffer, and, (iv) what will happen if the agreement is breached. A proffer agreement is also sometimes referred to as a “queen for a day” agreement since it typically only protects the defendant for a very short period of time.
• Create and Maintain a Cooperation Log. It is also advisable for defendants to create and maintain a cooperation log. The purpose of creating a cooperation log is to ensure that defendants can preserve debriefing dates, the identities of individuals present at debriefings, what material was supplied to the government, and any other follow-up requests from the prosecutors. If, at the end of the case, the prosecutors say the defendant has not cooperated or did not do enough, then a cooperation log is important evidence showing the government has no grounds to deny a motion for Rule 35 relief.
• Seek Written Confirmation of Filing Commitments. In addition to a signed agreement and cooperation log, it is also advisable for defendants and their legal counsel to seek written confirmation of filing commitments whenever possible. If the prosecutors explicitly make a filing commitment that is a condition of the defendant’s continuing cooperation, this should be communicated in writing to ensure all parties understand the prosecutors’ position and commitment to Rule 35 relief.

These three steps are essential to protecting your rights, and an experienced federal criminal defense lawyer can help you make sure your rights are protected throughout the proffer and cooperation process.

Along with these three steps, it is also important to understand how to protect your rights in order to maintain your eligibility to seek substantial-assistance credit or Rule 35 relief. There are five ways you can protect yourself in this regard:

• Be Careful not to Unknowingly Waive your Federal Rule of Evidence 410 Protections. Federal Rule of Evidence 410 protects statements and conduct offered during plea negotiations in criminal cases. However, not all interviews with federal prosecutors are protected by Federal Rule of Evidence 410. Unless federal prosecutors offer full immunity, a defendant should never assume that Federal Rule of Evidence 410 covers a particular statement or conduct. In United States v. Mezzanatto (1994), the U.S. Supreme Court held that “defendant-specific waivers of Rule 410,” which are known as “use” and “limited-use” agreements, are valid in “appropriate circumstances.” If a defendant does not understand or agree to waive protection under Federal Rule of Evidence 410, then the defendant must ensure that the proffer agreement explicitly addresses Rule 410.
• Negotate a Derivative-Use Restriction into the Proffer Agreement. A derivative-use restriction prohibits prosecutors from using the information disclosed in a proffer to develop other evidence for use against a defendant. In most cases, the protections from Federal Rule of Evidence 410 or “use” waivers do not apply to derivative uses of a defendant’s proffer statements. Therefore, a derivative-use restriction must be specifically negotiated and included in a defendant’s proffer agreement, unless the defendant has received immunity under another source of protection.
• Do Not Assume Derivative-Use Protections Unless You Have Negotiated them into the Proffer Agreement. As noted above, derivative-use protections are not automatic, and them being implied is not sufficient.
• Be Extremely Truthful. In proffer agreements, it is standard for federal prosecutors to include provisions that state that, “If the [Defendant] makes any false or misleading statement, then no protection will apply.”
• Be Extremely Thorough. As noted above, “substantial assistance” is not a guaranteed relief, and it can have many different definitions. You must ensure that the federal prosecutors believe your cooperation is “substantial,” “useful,” “timely,” “complete,” and that it was “without prompting.”

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.