What If the Government Promised a 5K1.1 Motion But Didn't File One??

Only the federal government can initiate a § 5K1.1 substantial-assistance departure. A defendant cannot request this departure on their own.

While a defendant’s cooperation is the necessary basis for a § 5K1.1 departure, it is not, by itself, sufficient to compel the government to file a § 5K1.1 motion.

In Santobello v. New York, the U.S. Supreme Court held that if a prosecutor’s promise was “material” to a defendant’s decision to enter a guilty plea, “the prosecutor must fulfill his promise.” In subsequent cases involving the federal system, federal district judges have recognized that prosecutors’ unconditional promises to file § 5K1.1 motions in criminal cases are generally “material” and judicially enforceable.

Ultimately, the prosecutor determines whether a defendant’s cooperation qualifies as “substantial.” The prosecutor then files the § 5K1.1 motion, and the federal district court judge then determines whether the request is warranted.

However, it is up to the district court judge to grant the § 5K1.1 motion, and federal judges can (and do) refuse to grant substantial-assistance motions even if federal prosecutors have recommended them.

Generally, federal prosecutors cannot be compelled to file charges against individuals, and they have broad charging discretion. The existence of probable cause to believe that a target has committed a federal crime may justify federal prosecution, but it does not compel federal prosecution.

Does my plea agreement actually require a § 5K1.1 motion?

I accepted a cooperation offer from the investigator. Can I enforce it?

Cooperation offers from federal investigators (including those made over the telephone or during interviews) generally lack the authority to bind the government to specific prosecutorial actions. In most cases, this will include § 5K1.1 motions.

However, there are cases where federal prosecutors have been held bound to investigators’ promises. One example is where a prosecutor formally adopts an investigator’s promise to negotiate a sentencing-range agreement as an express condition of an authorized written cooperation agreement. In this scenario, the prosecutor’s promise to “work towards” the specified sentencing-range agreement was deemed to incorporate the investigator’s prior promise to negotiate.

Are there legal standards for contract interpretation and constitutional fairness?

Although federal district judges approach plea agreements as contracts, they must do so while keeping in mind the requirements of constitutional fairness. Among other considerations, federal district judges will look to the agreement’s language and the federal sentencing guidelines, in addition to controlling law.

What does the “general rule” about ambiguity mean?

When interpreting federal plea agreements, “the general rule is to construe any ambiguity in favor of the defendant.” The more a federal prosecutors’ discretion seems subject to a specific obligation or standard, the more likely a federal judge will view a subsequent failure to file a § 5K1.1 motion as a breach of the plea agreement or cooperation agreement.

I don’t know what the phrases “may file,” “will file,” and “sole discretion” mean. How should I interpret these phrases?

If the government states that it “may file” a § 5K1.1 motion based upon the defendant’s substantial-assistance, this phrasing generally triggers prosecutorial discretion. However, a federal district judge may find it triggers a specific duty. While these phrases signify an offer and acceptance, federal district judges evaluate whether a § 5K1.1 motion is required upon considering the full terms and conditions of the agreement.

While the phrase “will file” signifies an intent to file, the specific meaning depends on the terms and conditions of the cooperation. If a defendant agrees to cooperate subject to certain conditions, then the government generally does not have a duty to file a § 5K1.1 motion until those conditions have been satisfied. When conditions have been satisfied, the government has a duty to file a § 5K1.1 motion.

The provision “sole discretion” generally protects the prosecutor’s discretion to determine whether a defendant’s cooperation has risen to the level of “substantial assistance.” If a prosecutor’s discretion is limited to making a determination as to whether a defendant’s assistance is substantial, then the prosecutor will not generally be bound to file a § 5K1.1 motion unless he makes this determination and recommends that the district court judge grant the § 5K1.1 motion.

What is the difference between cooperation agreements and plea agreements?

Cooperation agreements are a form of contract, the terms of which are an offer by one party to provide consideration in exchange for specific consideration from the other party. Plea agreements are a form of contract, but they involve specific requirements for the parties to enter them. Plea agreements typically reserve the government’s discretion to file a § 5K1.1 motion, but an unconditional promise to do so can be an enforceable contract obligation.

How do I prove the government wrongfully refused to file?

In Wade v. United States, the U.S. Supreme Court held that federal district court judges may review a government’s refusal to grant a § 5K1.1 motion “if the defendant can show that the government’s refusal to grant the motion is based on an unconstitutional motive.”

The same logic that permits federal district judges to evaluate plea agreements should also, in theory, justify their review of the government’s refusal to file a § 5K1.1 motion based on “some other improperly-motivated reason.” For example, Wade also allows review when refusal “bears no rational relationship” to a legitimate government objective. However, in practice, this latter ground for judicial review has never been affirmed.

Generally, “the defendant bears the burden of proving that the government breached the terms and conditions of his plea agreement.” If the government denies having breached the agreement, the defendant must come forward with evidence in support of his allegation and then prove his allegation.

There is a circuit split over whether a showing of “bad faith” or an other improperly motivated reason defeats a provision reserving “sole discretion” with the government. As of now, the only clear federal circuit authority on the subject indicates that “the government’s bad faith” does not defeat that provision.

The issue of how much a defendant must prove to satisfy the Wade threshold is another subject of disagreement among the federal circuits. With this remaining open, the best guess is that “substantial showing” means a showing of evidence that suggests that there is at least a possibility that the government made a determination based on a non-substantial-assistance factor.

This substantial threshold showing may warrant discovery or an evidentiary hearing where the government will be required to explain why the defendant’s assistance did not rise to the level of substantial assistance.

In other words, “mere allegations that the government’s decision not to seek a downward departure was not justified by the information obtained from the defendant” or generalized assertions that the defendant provided assistance should not be sufficient. Instead, a defendant should “point to specific examples of assistance provided or the results derived” that would have been otherwise unavailable.

Along with other types of evidence, debriefing dates, Special Agent (SA) names, testimony, and documents that are the subject of a request may serve as evidence of cooperation performance.

These documents and testimony could be entered by the defendant, provided they are admissible. Defendants should gather this evidence when they can and provide it to the district court during plea hearings or when the judge allows for this, to prove their cooperation performance.

Written acknowledgment of the defendant’s assistance from a prosecutor or lead agent and evidence that federal prosecutors used the defendant’s disclosures to secure additional convictions or other results that would not have otherwise been possible can be equally useful evidence.

Todd Spodek is the managing partner of Spodek Law Group, a second generation criminal defense firm that has been practicing since 1976.

What should I do when prosecutors break the plea deal?

If a prosecutor fails to file a § 5K1.1 motion, a defendant can ask the sentencing judge to compel the government’s filing. Once the prosecutor files a § 5K1.1 motion, the sentencing judge decides whether to grant it.

The sentencing judge can also decide the amount of the recommended reduction if granted, and a prosecutor’s recommended reduction does not bind the sentencing judge.

In Santobello v. New York, the Supreme Court described two possible remedies for a breached plea deal. Withdrawal of the guilty plea is one option. In other cases, a defendant might be entitled to specific performance of the plea bargain. Both of these remedies only apply when there is a binding contract promise.

What is a remedy for a breached plea agreement?

The U.S. Supreme Court has held that “appropriate remedies for the breach of a plea agreement depend on the circumstances,” and then the court will generally decide what remedy is appropriate, subject to the defendant’s consent. This includes specific performance, which may involve resentencing before a different judge (i.e., one not involved in the initial sentencing).

As a general rule, defendants must assert any objections at sentencing. This generally includes objections to alleged breaches of a plea agreement, which will preserve it for appellate review.

What if a defendant fails to object at sentencing?

In Puckett v. United States, the U.S. Supreme Court held that if a defendant fails to object to the government’s breach of a plea agreement, he forfeits the claim, and it is reviewed on appeal only for plain error under Rule 52(b) of the Federal Rules of Criminal Procedure. A plain-error objection is one that is “clear or obvious” and that would have affected the outcome of the trial or sentencing.

However, defendants are usually allowed to challenge prosecutors’ breach of plea agreements at sentencing when the breach involves violations of a defendant’s constitutional rights. In such cases, the federal government cannot argue that “the defendant failed to timely raise the plea agreement’s breach on appeal.”

How does a federal judge participate in a plea negotiation?

Pursuant to Rule 11 of the Federal Rules of Criminal Procedure, federal judges generally will not participate in a plea negotiation. Rule 11(c)(1) states flatly that “[t]he court must not participate in these discussions,” and it provides no exception. With regard to § 5K1.1 motions, this means prosecutors’ discretion in matters of substantial cooperation is largely unreviewable unless they are found to have acted in bad faith.

Similarly, unless federal district judges are faced with an issue involving plea-agreement breach based on evidence of the government’s breach of contract or an unconstitutional motive, federal district judges will generally not inquire into the government’s § 5K1.1 decision.

Can I still avoid a statutory mandatory minimum?

A § 5K1.1 motion on its own is not enough to cross a statutory mandatory minimum. To go below a statutory mandatory minimum, the government must file a motion pursuant to 18 U.S.C. § 3553(e).

Under § 3553(e) motions, the sentencing judge decides whether a below-floor reduction is warranted “in light of the nature and circumstances of the offense and the history and characteristics of the defendant.” However, if a below-floor reduction is granted based on substantial assistance considerations, it must rest on “considerations of the defendant’s assistance to the government.”

A defendant’s defense counsel may describe his cooperation to the sentencing judge for purposes of a below-floor reduction request, even in the absence of a § 5K1.1 motion. However, if there is an applicable statutory mandatory minimum, then cooperation alone is not enough to overcome that minimum. Instead, the government must file a § 3553(e) motion that authorizes a below-floor reduction.

For eligible drug-related offenses, defendants may also potentially avoid an applicable statutory mandatory minimum under 18 U.S.C. § 3553(f). Colloquially called the “safety valve,” relief under § 3553(f) does not require the government to file a motion. However, relief under § 3553(f) does require a federal district judge to find that a defendant meets five statutory eligibility criteria:

• The defendant does not have more than 4 criminal history points (excluding points from any 1-point offense), a prior 3-point offense, or a prior 2-point violent offense, as determined under the sentencing guidelines.
• The defendant was not an organizer, leader, manager, or supervisor of others in the offense, and was not engaged in a continuing criminal enterprise.
• The defendant did not use violence or credible threats of violence, and did not possess a firearm or other dangerous weapon (or induce another participant to do so), in connection with the offense.
• The offense did not result in death or serious bodily injury to any person.
• The defendant provided “truthful and complete information” to the government.

What if my cooperation becomes useful after sentencing?

If a defendant provides federal prosecutors and investigators with substantial assistance after he or she has been sentenced, then the government can file a Rule 35(b) motion for a sentence reduction. This is similar to filing a §5K1.1 substantial-assistance motion before sentencing. For example, a defendant can obtain Rule 35(b) relief in a case involving cooperation after sentencing even if the government did not file a §5K1.1 motion.

As with a §5K1.1 motion, only the government can initiate Rule 35(b) relief. Defendants cannot request a Rule 35(b) sentence reduction on their own.

When must a Rule 35(b) motion be filed?

Under Rule 35(b)(1), the government must generally file Rule 35(b) motions “within one year of sentencing,” including sentences imposed following a defendant’s guilty plea. However, if the government obtained “substantial assistance” from the defendant prior to his or her conviction, the government does not need to file a Rule 35(b) motion to preserve the defendant’s eligibility for Rule 35(b) relief.

What about Rule 35(b)(2)?

If a defendant’s cooperation prior to sentencing did not warrant a §5K1.1 motion, but the defendant’s assistance becomes substantial after sentencing, then the government can file a Rule 35(b) motion. Under Rule 35(b)(2), if the government obtains “substantial assistance from the defendant,” the government can file a Rule 35(b) motion “within one year from the date when the government obtained new and substantial assistance,” provided that:

• The information “was new information,”
• The information “could not have been obtained earlier,” and
• The information “led to a criminal prosecution.”

As a result, if a defendant’s cooperation becomes useful after sentencing, then he or she may still be eligible for Rule 35(b) relief, even if a year has passed since sentencing.

What happens after a Rule 35(b) motion is filed?

If a Rule 35(b) motion is filed, the government does not grant the sentence reduction. Instead, the judge determines the reduction amount if he or she finds the defendant’s assistance substantial.

Can a defendant receive both a Rule 35(b) and a §5K1.1 reduction?

If a defendant’s cooperation results in a Rule 35(b) sentence reduction, he or she can still receive a §5K1.1 reduction, if a judge finds that his or her assistance prior to sentencing also warranted a reduction. For example, if a defendant’s pre-sentencing cooperation did not warrant a §5K1.1 reduction, but his or her post-sentencing cooperation was substantial, a judge could find Rule 35(b) relief warranted, then later, if the defendant’s pre-sentencing cooperation also proved substantial, a judge could find that §5K1.1 relief was also warranted.

Again, although the same cooperation cannot be used twice, separate instances of pre-sentencing and post-sentencing cooperation can both warrant substantial assistance sentence reductions.

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.