My lawyer tells me that if I cooperate in my Federal Court case, I will get a far lower sentence than if I don’t cooperate. Is this true? She also told me that the government has promised to file a 5k1.1. What is a 5k1.1?
If the feds are looking to indite you, your case is probably pretty serious and there is probably quite a bit of evidence in your case. The sentencing guidelines are quite harsh, but there are many ways lower the guidelines. You may be looking at a lot of time. You can reduce this time in many ways. You can get a reduction for Acceptance. This means that my admitting your crime from the beginning you can get a lower sentence.
Usually, the real issue in sentencing in federal court deals with an issue in regard to sentencing that deals with the discretion of the individual judges. The idea is whether the judge MUST follow the sentencing guidelines or MAY follow the sentencing guidelines. Obviously, this is a huge difference.
The reason i bring this up is based on your second question about the 5k1.1. The 5k1.1 is a request from the prosecutor that the judge downward depart from the guidelines using her own discretion to give you far less time.
For example, this means that the guidelines maybe five years in jail, but you cooperated with the prosecutor and really helped the United State Attorney get ten additional convictions, two of which were for major criminal drug lords. The United States Attorney was so pleased with your cooperation that she wants you to only get six months and so she tells the judge to use her discretion to give you six months instead of five years. Accordingly, because the federal sentencing guidelines case law allows the judge to apply her own discretion and because the US Attorney is allowed to file a 5k1.1 to signal to the judge their belief that the judge should depart from the guidelines, you may get a HUGE break by cooperating.
While I understand that there is a huge issue on the street about snitching, some clients are left with little options if they don’t snitch. What the federal system fails to see is the social impact on cooperation, but without cooperation, the federal system wouldn’t work and our society would be a much more dangerous place. The issue is one of the toughest we have in our office and the answers really vary among practitioners.
The issue we currently have in our office is whether the United States Attorney MUST file the 5k1.1 if the plea agreement states that they will file it so long as the defendant is truthful through out the proceedings and testifies truthfully if called upon to testify? What happens if the AUSA (assistant united states attorney) thinks that you lied, but has no proof? Do you still get the 5k1.1? Tough questions.
In United States of America: Virgin Islands v. Rupert Isaac, 50 F.3d 1175 (3d Cir. 1995), the Third Circuit said that the plea agreement and law both agree that the 5k1.1 filing itself is within the “sole discretion” of the government. That means that if the government chooses not file it, they don’t have to file it. However, the plea agreement is like a contract with basic consideration–a promise for a promise.
For example, if you promise to pay me $56 to paint your house and we shake on it, we have a contract. So if I paint your house, you had better pay me that money. If you don’t pay me, you agreed to the payment in bad faith.
Therefore, under a contract theory, the government’s “sole discretion” must be weighed against the contractual theory of bad faith. If the sentencing court rules that the government acted in bad faith in regard to their end of the contract of the plea agreement, the Court can Order the government to file the 5k1.1. What is bad faith? I have no idea! That is the question that we debate often and we all differ on the what is bad faith.
Should you cooperate? Probably. Can you get screwed for telling the truth and helping the government convict a big time criminal? Yes.