What Happens After I Finish Cooperating With the Government??

Even after you have completed your cooperation, there is no certainty that this will lead to reward or closure. Finishing your cooperation is not the same as having your case dismissed. You have no certainty of reward or closure until your case is dismissed.

Once you have completed your cooperation obligations, you still face the possibility of your case progressing through the courts. If you have a cooperation agreement, the benefits of this agreement will still apply:

• Your reward may be for a specific benefit or it may be broadly described. The reward you receive may take the form of a recommendation to the prosecutor not to charge you with a federal crime, or the prosecutor may agree to seek a downward departure from your sentencing judge.
• Under § 5K1.1 of the United States Sentencing Guidelines (U.S.S.G.), if you have provided assistance that has a substantial assistance impact on the investigation, prosecution, or sentencing of another party, the government must file a motion for a substantial assistance departure. However, ultimately it is the court’s decision whether to grant this motion. The reduction you receive will depend upon the circumstances of your specific case, and you will have to wait for the judge to render his or her decision.
• In order for the government to be entitled to a substantial assistance departure under U.S.S.G. § 5K1.1, you must provide cooperation. While this was traditionally limited to providing information to the government and testifying in front of a grand jury or in court, the term cooperation has been expanded to include debriefings, conducting undercover work, and other forms of criminal activity in order to dismantle criminal organizations.
• A “safety valve” also exists under § 3553(f), not § 3553(e). This provision allows for the court’s judge to impose a sentence below the statutory minimum in specific cases.

What sentence reduction can completed cooperation actually earn?

Section 5K1.1 of the U.S. Sentencing Guidelines (U.S.S.G.) is entitled the “substantial assistance departure,” and it allows for the court to apply a departure below the sentencing judge’s advisory guideline range. This provision doesn’t allow for an exception to a statute’s mandatory minimum, but, along with other provisions, it can allow for a sentence that is lower than the statutory floor.

Section 3553(e) of the federal sentencing statute allows the government to request a departure from the statutory mandatory minimum sentence. Once the government files a Section 3553(e) motion, the court has the discretion to determine whether the proposed sentence is deserved and within the guidelines to allow. To be fully effective, a Section 3553(e) motion must specifically authorize the court to depart below the statutory floor.

Does Truthful Cooperation Qualify as Substantial Assistance?

Truthful cooperation does not necessarily qualify as “substantial assistance” for the purposes of a Section 5K1.1 motion. The extent of the assistance provided will be considered, as will its usefulness, its truthfulness, and other factors. While cooperating truthfully and fully will be key to showing substantial assistance, it won’t automatically entitle the defendant to substantial assistance.

Can the Prosecutor Reward Cooperation Through Its Charging Decision?

Can the prosecutor reward cooperation through its charging decision? Yes, in fact, prosecutors generally do reward cooperation through their charging decision rather than through a Section 5K1.1 motion, especially when the defendant has a safety valve option available.

The prosecutor will usually only consider a Section 5K1.1 motion if the defendant’s cooperation has a substantial impact on the investigation, prosecution, or sentencing of another party.

How Will the Prosecutor Determine Whether to Recommend a Section 5K1.1 Departure?

The prosecutor will consider the defendant’s usefulness, his or her truthfulness, the extent of the cooperation, the risks involved, and the timing of the cooperation, among others. While these are important factors, each situation will have its own set of unique factors, which the prosecutor will take into consideration when deciding whether to file a Section 5K1.1 motion.

What if prosecutors delay or break their cooperation promise?

What if prosecutors delay?

In Wade v. United States, the United States Supreme Court addressed the issue of when a prosecutor must file a Section 5K1.1 motion. The Court noted that, where the prosecutor’s motive for not filing the motion was unconstitutional in nature, such as the defendant’s race or religion, the decision not to file the motion could be challenged.

What does this mean for the defendant, then? Here, it means that if a prosecutor’s motive for not filing a Section 5K1.1 motion was based on unconstitutional grounds, he or she may be able to challenge the decision. This is a high bar to clear, and success will depend upon the facts at hand and the particular facts surrounding the prosecutor’s decision.

Is a promise to seek a Section 5K1.1 departure motion enforceable? The answer is not clear. It is not clear whether it is a promise to seek an application to filing the motion, or a promise to consider filing the motion. The enforceable nature of a prosecutor’s promise to seek a Section 5K1.1 departure is an issue that remains unsettled to some extent.

When will my sentence hearing take place?

Rule 32(b)(1) of the Federal Rules of Criminal Procedure requires sentencing hearings to be held “without unnecessary delay,” though it does not specify a particular timeframe. This means that scheduling a sentencing hearing requires balancing the need to make sure all necessary information is available before sentencing against the need to avoid an unnecessary delay in sentencing.

What if prosecutors break their cooperation promise?

In Santobello v. New York, the U.S. Supreme Court addressed the issue of what should happen when prosecutors break their promises as it relates to a plea bargain. The Court explained that “a defendant who has been entitled to a certain benefit is entitled to either specific performance or the opportunity to withdraw his plea,” which, in turn, may lead to a trial on the merits.

Where specific performance will result in a resentencing, is the defendant entitled to have his or her case resentenced by the original judge? Santobello did address this: the Court stated that if the circumstances require only specific performance of the plea agreement, the petitioner should be resentenced by a different judge. While the original judge was the one who heard the defendant’s case, and it makes sense for the original judge to have some familiarity with the case, there is no legal principle that requires a defendant to be resentenced by the same judge. As a result, the sentencing judge in this situation may not be the original judge.

Can my cooperation reduce my sentence after sentencing?

What is Rule 35?

Rule 35(b) of the Federal Rules of Criminal Procedure (FRCP) addresses the possibility of sentencing reductions for “substantial assistance” provided by the defendant after sentencing. While assistance provided before sentencing falls under U.S.S.G. § 5K1.1, assistance provided after sentencing falls under Rule 35(b).

With Rule 35, the government is generally required to file its motion within one year. However, there are exceptions to this one-year period, including cases where the assistance provided by the defendant only became useful to the government after the expiration of the one-year period.

Can the court grant a Rule 35(b) reduction on its own?

No, under Rule 35(b), the government must move for the sentencing reduction. As a result, without the prosecutor’s consent, Rule 35(b) sentencing reductions are out of reach.

What are the defenses to a Rule 35(b) sentencing reduction?

Rule 35(b)(4) is titled “Below Statutory Minimum,” and it provides that when acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute. While a defense based on ineffective assistance of counsel may be available in some cases, the defense of “incompetent” representation under Rule 35(b)(4) will be more difficult.

What is the interaction between a Rule 35(b) motion and a Section 2255 motion to vacate?

There are several important interactions between Rule 35(b) motions and Section 2255 motions to vacate.

• Limitation period: In most cases, Section 2255 motions are subject to a one-year limitation period. This period, however, is completely separate from the Rule 35(b) limitation period.
• Suspension of the § 2255 deadline: Negotiating for a Rule 35(b) sentencing reduction does not suspend the filing deadline for a Section 2255 motion.
• Nature of the assistance provided: Here, Rule 35(b) refers to the defendant’s “substantial assistance” to the government. This is a key difference between Rule 35(b) and Section 2255, since, under Section 2255, the defendant may be able to receive the benefits of a successful motion to vacate without cooperation with the government.
• The requirements for a Rule 35(b) reduction are different from those for a Section 2255 motion to vacate. The burden of proof is on the prosecutor for a Rule 35(b) reduction, but the burden is on the defendant for a Section 2255 motion to vacate.
• In most cases, a court that grants a Rule 35(b) sentencing reduction will not, at the same time, grant a Section 2255 motion to vacate. This is not because the two are contradictory, but rather because the Court likely views a Rule 35(b) reduction as a superior alternative to the relief afforded under Section 2255.

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 federal charges be dropped after I cooperate?

Can federal charges be dropped after you cooperate?

Yes, according to Rule 48(a) of the Federal Rules of Criminal Procedure, prosecutors may dismiss charges, provided the court approves the prosecutor’s decision. As a result, it is possible for a defendant’s charges to be dropped at various stages of the process, including after cooperating.

In a study of federal criminal cases, federal court data indicate that about 8 percent of federal criminal defendants have their cases dismissed, i.e., the prosecutors dropped all charges. In addition, the study showed that a higher percentage of all counts within cases were dropped before trial. The study concluded that the government drops about 74 percent of all criminal charges at the federal level.

How is a “drop in charges” different from an “acquittal” or “dismissal”?

There is a legal distinction between acquittal, dismissal, charge reduction, and the government’s decision not to prosecute. This includes the difference between a defendant being acquitted of a crime and the prosecutor making the decision to drop the charges. The fact that the charges have been dropped doesn’t mean that the defendant was acquitted of the crime.

What is a partial dismissal of charges?

A partial dismissal is a form of dismissal in which the prosecutor drops selected counts of the indictment. The charges contained in the remaining counts remain pending against the defendant.

Is a dismissal of charges a common concession in federal cooperation agreements?

Yes, a dismissal of charges is a common concession when a defendant cooperates. For example, the prosecutor may agree to drop some counts, reduce charges from a felony to a misdemeanor, or only pursue charges in some of the defendant’s pending federal cases.

What is the difference between a criminal plea and a proffer?

The federal rules governing a criminal plea are the same rules that apply when a suspect has a federal criminal investigation pending against them. These are both the rules that apply to a defendant facing federal charges. However, Rule 11 of the Federal Rules of Criminal Procedure only applies to criminal pleas. As a result, a proffer interview will not be governed by this rule.

Does federal cooperation require you to plead guilty to any charges?

No. While federal prosecutors often want defendants to plead guilty to some charges, federal cooperation can begin even before an indictment is handed down. As a result, cooperating doesn’t necessarily require you to plead guilty to any charges.

How long can the government wait to charge me?

When must the government charge a defendant with a noncapital federal offense?

Generally, if the government fails to file a criminal complaint or indictment within five years of the defendant’s offense, the defendant cannot be prosecuted. Under 18 U.S.C. § 3282(a), this is the general statute of limitations for noncapital offenses. However, certain offenses have their own specific statutes of limitation that replace § 3282’s five-year limit.

When does the government have to charge a defendant in a conspiracy case?

In conspiracy cases, the five-year limitations period generally runs from the date of the last overt act, unless the government charges the defendant with a conspiracy offense that has its own specific statute of limitations.

What if the defendant withdraws from the conspiracy? If the defendant withdraws from the conspiracy, his or her individual limitations period generally begins to run from the date of the withdrawal. The burden of proving a withdrawal is on the defendant, as established in Smith v. United States, 568 U.S. 106 (2013).

What if the federal charge is a capital offense?

If the federal charge is a capital offense, there is no limitation period for charges in most cases, including under 18 U.S.C. § 3281. If you are facing a capital offense, you should speak with a federal criminal defense attorney right away.

Can a defendant’s case be dismissed for a delay in prosecution?

Yes, as a result of an unnecessary delay. Under Federal Rule of Criminal Procedure 48(b), “the court may dismiss an indictment, information, or complaint” if “the government has been dilatory in prosecuting the case.” The court will, in all cases, apply a balance approach, weighing the defendant’s interests against those of the government.

What is the difference between the statute of limitations and a delay in prosecution defense?

The statute of limitations is a substantive defense that denies criminal liability. On the other hand, a delay in prosecution defense is a procedural defense that prevents the government from prosecuting. To understand how this could apply to your case, it is imperative that you speak with an experienced federal criminal defense attorney who will know the nuances of these legal concepts.

What obligations and consequences continue after cooperation ends?

Does a reduction in sentence impact any other consequences or obligations?

Generally, a reduction in sentence for cooperation will not affect other criminal and civil consequences of a defendant’s federal criminal conviction. As a result, several categories of consequences and obligations remain:

Restitution for Criminal Acts

Restitution for qualifying criminal offenses is mandatory under the Mandatory Victims Restitution Act (“MVRA”). For defendants who received a substantial-assistance reduction, this means that a restitution order will still be imposed if the defendant received a reduction under Section 3553(e), or if the court found that a substantial-assistance reduction was justified.

While not applicable to criminal forfeitures, restitution to the victims in criminal cases is mandatory and does not get offset by sentencing reductions.

Criminal Forfeitures

Unlike restitution, criminal forfeiture is not mandatory. However, it also does not automatically reduce as a result of a substantial-assistance reduction. Criminal forfeiture is governed by Federal Rule of Criminal Procedure 32.2. Under Rule 32.2(a), the court can order a criminal forfeiture judgment either at the time of sentencing or in a separate judgment. The Rule also notes that “A criminal forfeiture judgment is not a judgment for monetary liability.” With the judgment being civil or criminal in nature, this means that a criminal forfeiture order does not have the same mandatory requirements as a criminal restitution order.

Immigration Consequences

Generally, a substantial-assistance reduction will not automatically result in a vacatur of the defendant’s conviction for immigration purposes. For a defendant who received the reduction as a result of cooperation with the government, the reduction should not negatively impact the defendant’s chances of avoiding deportation or other immigration issues. However, this requires careful analysis of both the Immigration and Nationality Act and the specific immigration proceedings.

Consequences to Professional Licenses

Generally, cooperation reductions do not affect a defendant’s eligibility to receive professional licenses. As a result, if a defendant’s conviction bars them from receiving their medical license, law license, nursing license, or other professional license, the defendant’s cooperation will not protect them from this collateral consequence of their criminal conviction.

Is there a possibility that I will have to continue to cooperate?

Yes. When a prosecutor and a defendant enter into a cooperation agreement, the agreement may contain a clause requiring the defendant to testify as needed in cases where the defendant’s cooperation will be substantial. While the defendant may have satisfied the requirements of the agreement at the time of sentencing, the defendant may still be required to testify at future trials.

Another situation in which the defendant may still be required to testify is in the case of a criminal subpoena. Under Federal Rule of Criminal Procedure 17, a witness may be compelled to testify before a grand jury or at trial. This applies even if the defendant has completed debriefing or otherwise satisfied their obligations under a cooperation agreement. However, the defendant may have grounds to decline to testify under Rule 17(g), which requires the court to make a determination before a warrant of arrest can be issued for a grand jury witness.

Can I rely on the protections of my proffer agreement when testifying in other cases?

As a result of the broad protections afforded under proffer agreements, defendants who have complied with their proffer agreements generally have a degree of immunity when testifying in other cases. However, most proffer agreements only provide a limited form of immunity. Thus, in most cases, defendants who have given truthful and complete proffers can still face criminal liability in some circumstances.

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.