Aftermath Of A Federal Arrest In Michigan
To Cooperate Or Not Cooperate With The Feds
Whether or not to cooperate with the Feds is one of the most important decisions every defendant must make with their lawyer once they are the subject to a federal criminal accusation. Importantly, it must be made early in the process.
The fact of the matter is, 91% of federal cases are resolved by plea and not going to trial. While it is true that as United States Attorney’s offices throughout the country are becoming increasingly unreasonable in their plea offers, more defendants and their lawyers are choosing to plead guilty as charged and not take a plea offer. However, it remains true that many of those plea cases involve some level of cooperation by the defendant
If you are going to take a Rule 11 plea offer, one of the general requirements that the federal government will impose is that you sit down and talk to them. Sometimes those early discussions lead to cooperation that you will ultimately get credit for through reducing years from your sentence. But not all cooperation leads to a reduction in your sentence or substantial assistance.
If a defendant’s cooperation rises to the level of providing “substantial assistance” to the government, that person may get what is called a 5K motion – 5K is simply the provision or section of the United States sentencing guidelines that allows the government to go in front of the judge and ask the judge to give a defendant some credit (in the form of a reduction in sentence) for the substantial assistance in the prosecution of others.
But before a defendant get to the point of getting a 5K for substantial assistance, his cooperation must begin – and importantly, not all cooperation results in substantial assistance and a 5K. So whether or not a defendant wants to testify against other people, and receive the opportunity to try and earn a 5K because of substantial assistance, negotiating a Rule 11 plea offer typically begins with what’s called a “Proffer.”
A Kastigar Letter
A proffer is a meeting between a defendant, his lawyer, the federal investigators, and nearly always the federal prosecutor assigned to the case. That Proffer happens under a form of immunity provided in a “Kastigar letter.”
A Kastigar letter is a form of immunity that says, “Mr. Defendant. You agree to tell us everything and anything you know about the commission of this offense. And if you don’t lie, nothing you say can be used against you in our case-in-chief to prosecute you if we go to trial, or to raise your sentencing guidelines if you get sentenced. However, if you lie, exaggerate, minimize, leave anything out, or fail to volunteer information related to the questions you’re asked in this Proffer, this immunity promised goes out the window”.
This initial Proffer is done whether you want to try and get a Rule 11 Plea Agreement and a 5K with cooperation, or alternatively if you merely intend to talk only about what you did and not try to get substantial assistance for your cooperation. If you are not attempting to secure a 5K substantial assistance reduction, the proffer interview will focus initially on what you did. However, even in that case the agents can and will ask you about co-defendants, co-conspirators, and other participants. Under the terms of the Kastigar letter, you must answer those questions.
In addition, in some cases a Proffer must be done in order to qualify for certain considerations at sentencing. For example, a Proffer is required for a before he is eligible for sentencing relief that would allow a judge to go below the mandatory minimum in certain offenses (particularly drug offenses), such as the “safety valve,” a Rule 35 motion, or a motion under 18 USC 3553.
In cases where the cooperation is not being done in an attempt to get a plea offer from the government, the defendant will frequently be required to give a Proffer about his involvement. That defendant will participate in a Proffer under the terms of the Kastigar Agreement, the US Attorney’s office will provide a plea offer, the defendant signs the plea offer and then proceeds to sentencing without any further cooperation.
If, however, your cooperation is designed to attempt to provide substantial assistance and get a 5K motion, that will be just the beginning of your cooperation. Frequently, there will be a second and sometimes even a third meeting or Proffer that will still be under the terms of that original Kastigar letter and the immunity promised in that letter. Then, if the cooperation leads to a 5K substantial assistance motion, that will usually leads to an appearance as a witness in front of a grand jury. In the grand jury you will have to testify against co-defendants, co-conspirators, or other participants.
Once a defendant has testified in front of a grand jury, that defendant will usually would be offered a 5K motion for that cooperation because the government will have determined that the defendant has provided substantial assistance. But some defendants’ cooperation goes even further and culminates with testimony at trial against co-defendants, co-conspirators, or other participants. If you appear in a courtroom and testify, you will get even more credit for that substantial assistance. The theory behind the extra credit is that your assistance has been even more significant than somebody who just testifies in front of a grand jury.
Put another way, a 5K motion from the government will give a defendant credit for his cooperation as substantial assistance. The more cooperation and substantial assistance you provide, the more credit the government will ask the judge to give you in a 5K motion. A 5k motion may ask the judge to provide up to a 50% time cut in your sentence. It extremely uncommon to see more than a 50% time cut. Somebody who testifies before a grand jury will get a more significant 5K motion than somebody who doesn’t. Somebody who testifies at trial will get more of a 5K grade than somebody who only testifies in front of a grand jury.
With the guidance of a skilled attorney for Criminal Law Cases, you can have the peace of mind that comes with knowing that every available option to resolve your case has been explored. For more information on the Aftermath Of A Federal Arrest In Michigan, a free initial consultation is your next step. Get the information and legal answers you seek by calling (248) 509-0056 today.