Sentencing Order in Multi-Defendant Cases: Why Going First Matters.

Which Sentencing Mechanisms Can Cooperation Actually Unlock?

A successful cooperation effort in a federal codefendant case should aim to secure a government motion for substantial-assistance sentencing relief under U.S.S.G. § 5K1.1. Unlike other aspects of the federal sentencing guidelines, though, section 5K1.1 is unique because it grants relief only if the government affirmatively requests it through a motion. A defendant’s request for a 5K1.1 departure alone will not grant eligibility; federal prosecutors will decide whether to file a motion stating that the defendant provided substantial assistance in the investigation or prosecution of another person who committed an offense. Once the government files this substantial-assistance motion, the court may impose a sentence below the otherwise applicable guideline range. If a defendant is facing mandatory minimum sentencing exposure as well, the government should also move for a sentence reduction under section 3553(e) of Title 18 of the U.S. Code. Absent a government motion under 18 U.S.C. § 3553(e), a federal judge generally cannot impose a sentence below a statutory minimum unless another statutory exception applies, such as the safety valve in 18 U.S.C. § 3553(f). By filing a substantial-assistance motion that includes relief under section 3553(e) as well, the government may help a defendant avoid mandatory minimum sentencing in favor of a sentence that reflects the defendant’s cooperation. For eligible defendants charged under federal drug laws, receiving substantial-assistance relief under 5K1.1 may present an opportunity to seek relief under section 3553(f). Under this section, eligible drug defendants can receive relief under certain conditions without a government motion. In cases not qualifying for another exception, if the government refuses to move for relief under 18 U.S.C. § 3553(e), a defendant generally will not be eligible for a sentence below the applicable statutory minimum. A substantial-assistance motion under section 5K1.1 can affect a defendant’s mandatory-minimum exposure, a defendant’s federal guidelines sentencing range, and both. However, federal judges still retain substantial discretion over sentencing decisions under the federal guidelines. While judges will consider the information about a defendant’s cooperation in a substantial-assistance motion, they will also consider all other relevant aggravating and mitigating factors. Judges can refuse to apply a substantial-assistance departure as well, as have many judges. This is an important consideration for defendants in federal codefendant cases with cooperation-related sentencing strategies.

What Must Counsel Protect When a Codefendant Starts Cooperating?

While agreeing to provide information under a proffer agreement can offer some protection, these protections depend on the specific terms and conditions negotiated between the defendant and the federal government. In most proffer agreements, a defendant who wishes to obtain cooperation-related sentencing benefits must agree to provide complete and truthful disclosure of all information they know relevant to the federal government’s ongoing investigation. This generally includes not only information about others involved in the alleged crimes but also information regarding the defendant’s own culpability or liability. This means that the government can revoke a proffer agreement if a defendant fails to meet these obligations. If a defendant fails to meet the obligations laid out in a proffer agreement, they may be at risk of facing the consequences agreed upon in the agreement, and they may also face additional evidentiary risks at trial. If multiple defendants are represented by a single lawyer or law firm, joint representation conflicts can also present a significant issue. In cases involving joint representation, defense lawyers must carefully assess potential conflicts between clients and consider whether it is ethically appropriate or legally permitted to share confidential information among jointly represented defendants. This is particularly important in federal cases, where the likelihood of conflicts increases when multiple defendants share the same legal counsel and work together to defend against the government’s accusations. Furthermore, while witnesses who cooperate in federal cases can receive significant sentencing benefits, and may even be granted immunity from prosecution for testifying, they are still witnesses who are subject to cross-examination. The nature and scope of the witness’s cooperation and the promises they received from the government can be highly relevant when the witness testifies in court. Therefore, to maintain an effective defense, it is essential for defense attorneys to ensure they can question witnesses about promises the federal government has made, the extent of the witness’s own liability, any potential deals to drop or reduce a criminal sentence, and any other benefits the witness may receive in exchange for cooperating. Finally, while defense counsel can lawfully obtain information regarding a codefendant’s cooperation and a defendant’s proffer disclosures through government disclosures, cooperating defendants are not entitled to access a defendant’s confidential information simply because they are helping the government.

Talk It Through With a Lawyer

Every case turns on its own facts. Todd Spodek is the managing partner of Spodek Law Group, a second generation firm his father opened in 1976, and the firm takes federal criminal and white collar matters nationwide. Call 888 348 8028 to talk it through.