Substantial Assistance

Cooperation agreements are usually embodied in the text of a plea agreement and require the defendant to perform some act of “substantial assistance” to the government. Substantial assistance can involve providing information that will lead to the investigation and arrest of other persons, going undercover, agreeing to repeated debriefings with law enforcement officers, agreeing to meetings with prosecutors and defense attorneys, and testifying in court or testifying before a grand jury.

Sentence Reduction

Under Federal Sentencing Guideline § 5K1.1 or Rule 35 of the Federal Rules of Criminal Procedure, a sentencing judge may reduce a sentence upon motion of the government stating that the defendant has given substantial assistance in the investigation and prosecution of another person who has committed an offense. In cases where a defendant offers substantial assistance to the government, the U.S. Attorney may also file a motion under 18 U.S.C. § 3553(e) allowing the sentencing judge to sentence the defendant below the statutory mandatory minimum sentence at the time of sentencing.

Use of Information Against Defendant

Federal Sentencing Guideline § 1B1.8(a) prevents the use of information provided by the defendant pursuant to a cooperation agreement to determine the Guideline range if the government has agreed not to use it.  However, in the absence of a § 1B1.8(a) agreement not to use information, the government is free to provide all relevant information to the court at sentencing.  Even with an agreement, not all information provided by the defendant is protected.  Federal Sentencing Guideline § 1B1.8(b) specifically allows use of the information against the defendant at sentencing if: (1) it was known to the government prior to entering into the cooperation agreement, (2) it concerns the existence of prior convictions and sentences, (3) it is being used in a prosecution for perjury or giving a false statement, (4) in the event there is a breach of the cooperation agreement by the defendant, or (5) in determining whether, or to what extent, a sentence reduction is warranted under a § 5K1.1 motion.

Government Breach of Cooperation Agreements

Sometimes, despite the fact that the defendant has cooperated, the government refuses to move for a sentence reduction for substantial assistance.  In such a case, the defendant may have to demonstrate by a preponderance of the evidence that he or she provided the degree of assistance contemplated by the cooperation agreement.  Where the government agrees to file a § 5K1.1 motion if the defendant provides substantial assistance, the government's failure to file after determining that the assistance was not “substantial” is not a breach.  The refusal to move for a sentencing reduction based on substantial assistance is reviewed by the district court only to determine if the refusal was arbitrary or based on an unconstitutional motive.