Federal sentences can be reduced for substantial assistance in investigating or prosecuting another, and the mandatory minimum may not have to be followed. Rules under which a sentence is commonly reduced for “substantial assistance " include Section 5K1.1 of the U.S. Sentencing Guidelines and Rule 35 of the Federal Rules of Criminal Procedure.
Both of these motions fall under 18 U.S.C. § 3553(e). These rules can be used to reduce a mandatory minimum sentence.
When it comes to cooperation in federal cases across the nation, prosecutors aim to get individuals charged with crimes to cooperate. This cooperation, which they refer to as substantial assistance, can lead to significant benefits. It involves assisting in prosecuting other people who are already indicted or who have not been indicted by the federal government.
When a person cooperates with the government, this cooperation is documented in their plea agreement. If they provide substantial assistance, the government will reciprocate with a benefit. This benefit can be a reduction in the sentence, often referred to as a 5 K departure, which can significantly reduce the time a person spends in prison. For more information, see related: Use of Federal Rule Criminal Procedure 35(b).
What is Substantial Assistance?
Substantial assistance is a somewhat ambiguous term, as it is up to the government to determine whether an individual has provided it. It often involves providing information that leads to the arrest or conviction of other individuals involved in criminal activities. However, the specifics can vary depending on the case. This ambiguity can sometimes lead to disputes over whether substantial assistance was provided.
At times, the Judge may need to be involved in the process. However, the ultimate goal is to have the prosecutor make a motion for a 5K departure, which can allow a person to go under a mandatory minimum and reduce their sentence significantly.
We see it going on right now in our government. People are cooperating in this investigation regarding the President of the United States, and the prosecutor, in that case, is meeting with these people along with agents and asking them questions and getting answers.
Depending on the answers and whether they feel they're being honest, they can give them time off their sentence if they've already been convicted of a crime or have pled guilty to a crime and will soon be sentenced. Again, this is cooperation.
As stated above, the 5K departure is the departure that allows the federal sentencing guidelines that allow the government to give points or levels off a person's sentence, which will ultimately result in less time.
Proffer Session
So, they have you come in and meet with them. They do what's called a proffer session where you basically first give all the information about yourself — your involvement, what you did, answer all their questions honestly — and then they start to talk about and ask questions about other targets that they're interested in getting information about.
Depending on the usefulness and accuracy of your information, the government can reward you. Sometimes, this involves testifying against individuals. If your testimony is truthful, honest, and accurate, it could lead to a 5 K departure, a significant reduction in your sentence.
There are all sorts of ways to cooperate with the government depending on what the circumstances are. Of course, there are ramifications when you cooperate with the government. Other people could potentially find out that you cooperated, and you could be in danger.
The government does its best to ensure that people's identities are not revealed to anybody when they're cooperating, but sometimes, it's unavoidable because they only possess the information that would get the other person. The other person is obviously able to figure out that someone must have given that information, and there are only a limited number of people who could have given the information.
Is Cooperating In Your Best Interest?
Deciding whether to cooperate with the government is a crucial decision that must be made in consultation with your attorney. This ensures you make an educated and informed decision that is truly in your best interest.
But, again, ultimately, you must be able to give good information to the government. Sometimes, people just don't have good information to give. So, they can cooperate all they want, but if it doesn't provide substantial assistance to the government, then they're just wasting their time and will not get any benefit.
That's one of the first things you must discuss with your attorney, and your attorney needs to talk to the government about it as well — whether you could actually give them information that would help them. Sometimes, it's pretty clear that you can or cannot. Other times, it's unclear, and you have to sit down and talk to them before you can really assess what type of information you have that might be valuable to them and whether or not they're actually interested in it.
Sometimes, they already have the information you're going to give them, so it doesn't provide that much value other than to corroborate other information they have. Contact the federal criminal defense lawyers at the Hedding Law Firm to review the details of your case and whether substantial cooperation is in your best interest.
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