Will My Cooperation Be Mentioned at Sentencing??

If the judge doesn’t hear about your cooperation in a specific §5K1.1 filing, a sentencing memorandum, or the arguments made by the prosecution or defense at the sentencing hearing, he or she will not be aware of it. Simply mentioning it will not guarantee you a sentence reduction. It is up to the judge to decide your sentence, and only after the government makes a motion that a reduction is warranted.

If I Have to Enter a Guilty Plea, Will the Government Make Its Assessment of My Cooperation Before the Sentencing Hearing?

In most cases, the government will not make its assessment of cooperation prior to your guilty plea. It will only be able to make such an assessment once you enter your plea. At that point, there is a time limit for the sentencing to take place.

Is There a Time Limit for Sentencing?

The Federal Rules of Criminal Procedure (Rule 32(b)(1)) state that all persons convicted of a crime are to be sentenced “without unnecessary delay.” Federal sentencing dates can be pushed back if the government’s cooperation needs can justify doing so, but this is rare.

How Much Time Can Pass Between a Defendant’s Guilty Plea and the Sentencing Hearing?

There is no fixed number of days under federal law that can pass between a guilty plea and a sentencing hearing. According to the Supreme Court case in Betterman v. Montana, there is no Sixth Amendment speedy-trial right to have a sentencing hearing.

What Can I Do About My Sentencing Date if I Am Cooperating?

If you are cooperating (or considering cooperating), there are various ways that your cooperation (and the timing of your sentencing) can be favorably impacted. When dealing with federal sentencing, it is important to be very careful.

Will my cooperation become public at sentencing?

Will the sentencing hearing be public?

Generally, federal sentencing hearings are open to the public, unless a judge closes the hearing or the public is otherwise denied access (e.g., during certain types of pandemic-related restrictions). While closing the hearing is possible, it is relatively rare. The reasons that a judge could close the hearing are typically similar to the reasons that a judge could seal a filing, meaning that the government must make a showing that some aspect of the defendant’s (or a witness’s) life or safety is at risk.

Will there be a public record of my cooperation?

Another place where a defendant’s cooperation could become public is the presentence investigation report (PSIR). The PSIR may describe the defendant’s cooperation, and copies of the PSIR are provided to the sentencing judge, the probation officer who prepares it, the United States Attorney’s Office, the defense attorney, and the defendant. By default, PSIRs are not filed on the public docket. However, the government can request to file the PSIR publicly if it deems the information to be relevenant to a sentencing judgment. When the government makes this request, it can either move the whole report to the public docket or move to have the document unsealed, partially unsealed, or kept confidential in entire or in part.

Again, if a defendant’s §5K1.1 filing (or another sentencing filing addressing the defendant’s cooperation) discloses a credible safety risk, the sentencing judge can seal or redact the motion. The sealed motion will not be on the public docket; the judge is not required to disclose the contents in open court, and, typically, the filing will not be listed as having been filed.

However, even though a filing is sealed, the sentencing hearing usually remains open to the public. The judge will typically ask whether anyone has an objection to the hearing going forward. Unless everyone involved in the case agrees to close the hearing (or to keep the hearing closed for any other reason), the judge will maintain the hearing as open to the public. As a result, if the hearing is open to the public, the judge could refer to the defendant’s cooperation or to certain types of information in the sealed filing. The judge could either redact or unseal the filing, or he or she could keep the filing sealed, but not close the hearing.

Similar to filings, sealing orders are typically temporary in nature. So, while the §5K1.1 filing may be sealed initially, it will likely be unsealed later. Again, this will be case-specific and is dependent on the judge.

Lastly, the judge could refer to the defendant’s cooperation in open court, but he or she may avoid identifying any details that would reveal the defendant’s identity as a cooperating witness. Although there are certain identifiers covered under Rule 49.1 that the court automatically redacts upon filing, being a cooperating witness is not on that list.

Which agreement controls how my cooperation is handled?

What are cooperation agreements?

A cooperation agreement is a contract between you and the government in which you agree to assist in the investigation and prosecution of criminal cases, and the government agrees to help with your sentencing if you fulfill your cooperation obligations. Your cooperation obligations could include (but are not limited to):

• Participate in debriefing interviews
• Turn over records to the government
• Use a recording device to capture audio-visual evidence
• Testify in a grand-jury investigation
• Testify at trial

What are proffer letters?

A proffer letter is similar to a cooperation agreement, but it is less comprehensive. It protects the defendant during the initial interviews with federal prosecutors, and it may allow the defendant to engage in substantive cooperation as well. However, the protections afforded under a proffer letter are usually narrower than those provided under a cooperation agreement. For instance, while proffer protections commonly restrict the government from using a defendant’s proferred statements in the defendant’s criminal case directly, they generally do not forbid investigative leads that the government derives from those statements.

What are plea agreements?

A plea agreement specifies the terms of a defendant’s guilty plea. While plea negotiations and substantive cooperation often involve the same set of discussions, a plea agreement is distinct from a cooperation agreement. A plea agreement establishes a defendant’s sentencing benefits in exchange for a plea, while a cooperation agreement establishes a defendant’s sentencing benefits in exchange for the defendant’s assistance.

While the two agreements can be intertwined, and the plea negotiation may be the point when substantive cooperation begins, they each fulfill distinct purposes and outline a defendant’s (and the government’s) obligations under different circumstances.

Who decides whether I’ve provided “substantial assistance”?

Many cooperation agreements reserve whether a defendant’s assistance qualifies as “substantial” to the United States Attorney’s Office, or to the Department of Justice in Washington, D.C. If so, the prosecution will determine whether the defendant’s assistance was substantial, and if so, what sentencing benefits are warranted. The prosecution will base its determination on the defendant’s assistance, the extent of the defendant’s involvement in the alleged criminal conduct, and other relevant factors.

What are defense counsel’s obligations?

Your defense counsel must communicate any plea or cooperation offers received from federal prosecutors, and explain the consequences of accepting those offers. Your counsel also has an obligation to continue preserving any available defenses regardless of ongoing plea negotiations with the United States Attorney’s Office.

Which government motion can reduce my federal sentence?

What does the federal government need to do if it is willing to request that a federal judge impose a sentence below the applicable guidelines for a defendant’s substantial assistance in a criminal case?

The government will need to file a sentencing motion under USSG §5K1.1. According to the Sentencing Guidelines Commentary, if the government determines that a defendant’s substantial assistance warrants a below-guidelines sentence, it must file a written motion with the sentencing court.

This only applies to cases that are not “below the statutory minimum.” Sentencing below the statutory minimum requires the government to move for a sentencing departure under 18 U.S.C. Section 3553(e).

In federal criminal cases, the Sentencing Guidelines are advisory, so a judge may consider a defendant’s cooperation as a reason to vary below the guideline range even without a government motion; a formal departure under §5K1.1, however, requires the government to file the motion. For a sentencing judge to consider a defendant’s cooperation for a sentencing departure, the government must file the appropriate motion under §5K1.1 or 18 U.S.C. Section 3553(e), as appropriate.

Can I get credit for cooperating with the government if it won’t file a sentencing motion?

While a §5K1.1 departure is one way that the government can pursue a below-guidelines sentence for a defendant’s cooperation, cooperation may also be one of several mitigating factors the court considers. However, mitigation does not work with statutory minimums. If the judge can’t impose a sentence below the statutory minimum, mitigation has no effect on the sentence.

What does Rule 35(b) do?

Rule 35(b) is part of the federal court system’s overarching sentencing rules. It allows the government to petition for a sentence reduction after the court has already imposed its sentencing judgment. This petition must be based on the defendant’s substantial assistance. However, under Rule 35(b), the government has a gatekeeping role and the prosecutor at the U.S. Attorney’s Office that handled the case is responsible for deciding whether a Rule 35(b) motion is warranted.

What is a state cooperation agreement?

A state cooperation agreement is a contract between an individual and a state prosecution team. Unlike federal cooperation agreements, there is no federal law that requires a state prosecution to file a motion in the courts when the government decides to recommend a reduced sentence due to cooperation. State sentencing consequences are governed by state statutes, court rules, and cooperation agreements specific to the jurisdiction. At Spodek Law Group, we frequently handle cases involving cooperation agreements. We can help you understand your risks, and we can help you evaluate whether negotiating a cooperation agreement with federal or state prosecutors is appropriate.

Todd Spodek and the attorneys at Spodek Law Group handle federal cases of this kind from New York, Brooklyn, Queens and Los Angeles.

How will the judge decide what my cooperation is worth?

Why would co-defendants receive different sentences in the same case?

In criminal cases involving multiple co-defendants, different sentencing outcomes can occur for a variety of reasons. These include:

• Culpability and role within the conspiracy
• Criminal history and priors
• Timing and nature of the defendant’s plea
• Timing and nature of the defendant’s cooperation

One major factor that can lead to differing sentencing outcomes is cooperation. The government’s evaluation of a defendant’s cooperation can carry substantial weight in the judge’s determination, though it does not bind the court. The government generally only proposes a sentence reduction if it deems the defendant’s cooperation to have been substantial.

A defendant’s cooperation is judged against the assistance provided by the defendant’s co-defendants. If a defendant’s assistance is determined to be substantial, then the government will file its motion under USSG §5K1.1 or 18 U.S.C. Section 3553(e) (if applicable).

What factors does the judge consider under §5K1.1?

If the government moves to have the sentencing judge consider the defendant’s cooperation under USSG §5K1.1, the sentencing judge has discretion to decide how much weight to give. The §5K1.1 provisions list several potential factors to consider:

• The significance and practical usefulness of the assistance provided
• The truthfulness, completeness, and reliability of the information provided
• The degree to which the information provided led to additional prosecutions
• Any injury suffered, or any danger or risk of injury, to the defendant or the defendant’s family resulting from the assistance
• Whether the defendant is the first, second, or last to cooperate with the government, and whether his or her cooperation led to prosecutions that would otherwise have been difficult or impossible to pursue

While the timing of the assistance is one of several factors, it is not a deciding factor on its own, and defense counsel can argue for a sentencing departure that is larger than the government recommended in the §5K1.1 filing.

Is it true that the first person to cooperate will get the biggest reduction?

There is no rule or precedent requiring the sentencing judge to reduce the first cooperator’s sentence more than any other cooperator’s sentence. Some federal courts may lean towards giving a larger reduction if the first person provided critical information and if that person’s assistance led to more prosecutions in the same case. However, it is not a requirement, and it will ultimately be up to the judge to decide if a specific defendant should receive a particular sentencing benefit.

How can I verify what prosecutors will tell the judge?

What if the government won’t move to have the judge consider my cooperation?

If the government refuses to move to have the sentencing judge consider the defendant’s cooperation (or to move for a sentence below the statutory minimum in appropriate circumstances), the defendant can object. If the government’s decision is based on unconstitutional or irrational grounds, then this may provide grounds to ask a court to order the prosecution to file a sentencing motion.

The Ninth Circuit Court of Appeals case in United States v. Wade provides a precedent that a district court should consider a prosecutorial refusal to seek a sentence reduction if a defendant makes a substantial showing of an unconstitutional or irrational reason.

This process is complex, though. A federal court will not order a prosecutorial sentencing motion based solely on the defendant’s request. The defendant must first be able to demonstrate an unconstitutional or irrational refusal, and then the federal court will determine if the evidence supports the defendant’s claims.

With this in mind, it is essential to thoroughly document any cooperation with federal prosecutors. Your defense counsel should maintain contemporaneous records of each and every cooperation session and contribution. This ensures the ability to document your substantial assistance, and the potential to uncover any unconstitutional and/or irrational decision by the government to refuse to file the appropriate motion.

Will the prosecutors be talking to the person preparing my presentence report?

This will depend on the specifics of the defendant’s plea agreement. If a defendant decides to plead guilty and he or she is still in the middle of cooperation discussions with the government (and hasn’t yet resolved a cooperation or proffer agreement), then the defendant will not have to accept a plea deal for his or her cooperation efforts to impact the presentence report’s contents.

Although you have no right to correct errors on the public record unless they concern the factual basis of your guilty plea or a specific sentencing issue, it is essential to correct errors on the presentence report that might affect your sentencing. Your defense attorney can file an objection to the probation report if it contains errors or if you have questions about the fact that you accepted a plea deal.

When will I get to see my presentence report?

Your defense counsel will receive your presentence report, and will give you sufficient time to review it. In federal cases, the standard timeline is governed by Rule 32(f), which gives the parties 14 days after the defendant receives the presentence report to object.

What should I tell my lawyer before I cooperate?

What do I need to know about my attorney-client relationship before I discuss cooperation with my attorney?

When working with your defense attorney, keep the following in mind:

• Do not conceal any information that is materially incriminating. While your attorney cannot testify against you, concealing information from your attorney prevents them from effectively representing you. This is especially true when your attorney is assisting you in negotiating a plea deal or deciding whether you should cooperate with the government.
• Do not discuss your case with anyone else. Even if you are certain that your conversations will not be shared with the government, prosecutors may learn of your communications with other parties, and it could impact the prosecutor’s decision to offer you a plea deal or other leniency.
• You alone decide whether to plead guilty or cooperate. Your attorney will advise you based on the information you have shared with them and what they can do to protect you. However, it will be up to you to decide whether you want to enter a plea or work with the government in exchange for leniency.
• Remember to be honest with your attorney about everything you know. As your defense attorney will explain, your obligation to cooperate with the government will require you to give truthful, complete, and reliable information. The government may not be obligated to offer you a sentencing reduction if you are not entirely open about the information you have that could help the government.

What if I have never given a proffer?

If you enter a proffer agreement and then later change your story, the government can use your statements against you for impeachment purposes. Specifically, the government can impeach you at your sentencing if you materially contradict a statement you made during a proffer statement. If you provided a false proffer statement, you can face prosecution for that statement, consequences for obstruction of justice, and a complete loss of your cooperation benefits. If you provided a false proffer statement as a result of a plea deal, then you may also face revocation of that plea deal.

What is attorney-client privilege?

Attorney-client privilege protects confidential communications with your lawyer when you sought legal advice. For example, it protects what you tell your lawyer about your guilty plea, the facts of the case, the existence of other co-conspirators, and anything else that your lawyer may have shared with you. Attorney-client privilege does not protect information that is independently existent. For example, it does not protect a document you wrote that is in the government’s possession; it protects the fact that you discuss the document with your lawyer.

Attorney-client privilege does not protect communications that further a crime or fraud. This is known as the crime-fraud exception.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.