Federal sentences can be reduced for substantial assistance in the investigation or prosecution of another, and the mandatory minimum may not have to be followed. There are rules under which a sentence is commonly reduced for “substantial assistance,” including 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 a federal case across the nation, basically what prosecutors do is they try and get people who are charged with crimes to cooperate with them and give them what they refer to as substantial assistance in prosecuting other people who are already indicted or who have not been indicted by the federal government.
What they do when they do this cooperation, they put it in the person's plea agreement that if they give the government substantial assistance in cooperating, the government will give them a benefit for that. See related: Use of Federal Rule Criminal Procedure 35(b).
What is Substantial Assistance?
It's a very nebulous thing because they really don't define what substantial assistance is. It's in the government's hands as far as deciding whether or not the individual gave substantial assistance. So, a lot of times there are arguments about whether or not there was substantial assistance or not.
Sometimes you even have to get the Judge involved. But ultimately, you want the prosecutor to make the motion to give a 5K departure. A lot of times you can get under a mandatory minimum and you can really shave a lot of time off a person's sentence.
We see it going on right now in our government where people are cooperating in this investigation regarding the President of the United States and what's happening is, the prosecutor in that case is meeting with these people along with agents and asking them questions and getting answers.
Depending on what the answers are 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 they have pled guilty to a crime and are soon to be sentenced. Again, this is cooperation.
As stated above, the 5K departure is the departure that allows the federal sentencing guidelines that allows the government to give points or levels off a person's sentence, which will ultimately result in less time.
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.
And then again, depending on how useful and helpful you are they can give you a benefit for that. Also, sometimes people testify against individuals and that could give them a 5K departure as well, if their testimony is truthful and honest and accurate.
There's all sorts of ways to cooperate with the government depending on what the circumstances are. Of course, there's 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 make their best efforts to make sure that people's identities are not revealed to anybody when they're cooperating, but sometimes its unavoidable, because they only possess the information that would get the other person, so the other person is obviously able to figure out that someone must have given that information and there's a limited amount of people who could have given the information.
Is Cooperating In Your Best Interest?
So, whether to cooperate or not with the government is something you obviously have to discuss with your attorney and make an educated and informed decision on whether it's in your best interest to do so. Sometimes people are looking at so much time federal prison that they feel they have to cooperate if they want to have any chance of not serving a huge double-digit sentence in the federal system at 85%.
But, again, ultimately you have to 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 they're not going to get any benefit.
That's one of the first things you have to talk about 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 not clear 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 that you're going to give them so it really doesn't provide that much value other than to corroborate other information that they have. Contact the federal criminal defense lawyers at the Hedding Law Firm to review the details of you case and whether substantial cooperation is in your best interest.