In this video, a federal criminal defense attorney discusses the complex decision of whether a defendant should cooperate with the government. He explains proffer agreements, their protective purpose, and the fact that they do not guarantee the government will file sentencing‑consideration motions such as a 5K1, a 35, or a 35B. The attorney outlines how cooperation can lead to favorable sentencing outcomes—typically through a 5K1 or 35 motion—but also highlights significant risks, including potential retaliation from the Bureau of Prisons and the possibility that a prosecutor may refuse to file any supportive motion. He stresses the importance of assessing a prosecutor’s trustworthiness, consulting other defense attorneys, and weighing the defendant’s guilt or innocence before deciding to cooperate. A real‑world anecdote illustrates a client who cooperated extensively yet received no 5K1 filing and only a limited 35B request, underscoring that cooperation does not always translate into sentencing relief. The attorney notes that even without a 5K1, a defendant may still seek a downward variance under the 5K2 guidelines. He concludes with practical advice: evaluate risks, discuss strategy thoroughly with counsel, and consider the impact on the overall case, providing his firm’s contact number for further assistance.
Chapters
I'd like to spend some time today talking about an issue that comes up all the time when we are representing federal criminal defendants, and that is whether or not they should cooperate with the government. And, you know, by cooperation, what we mean is oftentimes the government wants you to come in. They will let you sign what's called like a proffer agreement in which it, you know, they will indicate that they will not hold anything that you say against you unless they have like an independent basis for knowing any sort of incriminating information about you. Those proffer agreements are really in place in order to protect a criminal defendant who wants to cooperate. And there's usually language in there that says, you know, this should not be understood as like our agreeing to file a motion on your behalf, either a 5 motion or a 35 motion in order to get you some sort of sentencing consideration. So that's sort of like, you know, that's the landscape. I mean, that's kind of what we're talking about when we're talking about cooperation. Oftentimes it's going to be in a criminal defendant's best interest to cooperate, and that's because, you know, if it's, you know, a case of kind of overwhelming guilt, oftentimes you will get your very best number from the judge based on that cooperation. And again, that's because the government will file either a 5K1 or a 35 I'm sorry, or a 35 motion on your behalf. But there are a lot of other things to kind of consider. All right? I mean, cooperation is not always going to be the best way to resolve your case. First of all, you may not be guilty, in which case, you know, you just need to maintain your innocence and go to trial. But also, when you cooperate, it can be dangerous. People in the Bureau of Prisons and elsewhere can find out about your cooperation. Retaliation against government cooperators cooperators is a real thing. In my opinion, the BOP has not done enough to ensure the safety of people who have been cooperating. So that's a really serious concern that you need to take into account. But also you need to take into account how trustworthy the prosecutor in your case is. So for example, if you go in and you cooperate, I mean, what are the chances that that prosecutor is actually going to file a 5 on your behalf? Or a 35, or is that person going to oppose any motion that you make during sentencing for a downward variance? So, these things happen. And I will say, based on personal experience, this has happened to one of my clients recently who immediately started cooperating with the government once he was caught. I mean, he really was sort of dead to rights. For a very large amount of drugs, but he cooperated extensively. He spoke to, you know, relevant law enforcement agencies on numerous occasions. He was actually prepped for a trial. And imagine our surprise when we showed up for his sentencing. I had tried to communicate with this prosecutor on a couple of other occasions prior to the sentencing, couldn't get through to him. But at sentencing, he said, you know, we're not going to file a 5K1. And in fact, what we're going to do is we're going to wait for this other person to get sentenced, and then we're going to file a 35B asking that this person receive some assistance on the back end. I mean, I thought that was okay. It wasn't what I had really sort of initially envisioned, especially in light of this person's cooperation, but it was what we were kind of stuck with at that point. Um, come to find out later on, when it comes to the 35B, that the prosecutor still does not want to give this person enough consideration for, you know, the harm that he actually placed himself in. So that's all I'll say about that. It's something that we are currently litigating. But just know that, you know, just because your client, or, you know, if you, if you're the defendant yourself, go in to cooperate, it does not necessarily mean that the prosecutor is going to view your cooperation in the same way that you did. And you need to protect your interests on the front end. That probably is going to mean making some inquiries to other criminal defendants' attorneys to find out whether or not this particular prosecutor is trustworthy. And if not, that needs to factor into your decision whether or not you're going to cooperate. But another thing I want to say about this, I mean, if you do cooperate, even if the prosecutor in your case decides not to file a 5 on your behalf, you still have a way to get some consideration for that cooperation based on like a downward variance under 5K2 of, um, of the guidelines. So there are ways to get sentencing consideration for cooperating, but it's a complicated issue and not one size fits all. And if you're going to engage in cooperating with the government, just be aware of the dangers that exist there. Talk them over with your attorney, because at the end of the day, I mean, it's about your life and the sentence that is appropriate in your case. Um, make sure that you're handling this aspect of your case with as much thought as you do whether or not you're going to plead guilty in the first place. So if you have any questions about this, please feel free to call our law firm. We can be reached at 803- 445-1333, and have a happy New Year.
