5K Motions in Federal Criminal Cases
A “5K” or a “5K motion” in the federal system is a motion filed under Section 5k1.1 of the United States Sentencing Guidelines requesting a sentence below the Sentencing Guidelines based on substantial assistance by the accused.
The Prisoner’s Dilemma: Not Just Game Theory
Many people have seen films like ‘The Godfather’ which portrays a world where gangster’s would rather die in prison than betray co-conspirators.
The truth is the Government does a few things well. It can amass an army. It can grow. And it can get criminals to rat each other out. The reality is sometimes closer to ‘American Gangster,’ where a criminal is caught and then decides to cooperate with authorities to get a lower sentence. In the federal system, one way to benefit from a cooperation agreement is through a motion under Section 5K1.1 of the United States Sentencing Guidelines.
While many people who find themselves engulfed in a criminal investigation do not relish the idea of helping federal agents arrest criminal colleagues, they often do. Sure, it may not come as a surprise that a criminal would save his or her own skin by betraying others. But what may be surprising is how overtly the federal sentencing system incentivizes it.
Federal criminal sentences are no longer controlled by the United States Sentencing Guidelines. However, the guidelines are still the mandatory starting place for all criminal sentences. The guidelines are a series of sentencing considerations and policies that suggest appropriate punishment ranges for offenders. Before U.S. v. Booker, the Guidelines were mandatory. However, since that decision they are now advisory only.
Nonetheless, they still have enormous influence in federal sentences. For example, a drug defendant may be arrested and charged under 21 USC 841 and 846 with conspiracy to possess a controlled substance with intent to deliver. If the defendant comes to the conclusion that he is unable to fight the charge then a trial will no longer be a viable option.
A quick aside, it is important to know that the guidelines call for a reduction in sentence based upon timely acceptance of responsibility under U.S.S.G. 3E1.1:
(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.
At this point, the defendant will need to decide how to defend him or herself. Typically, the only real opportunity to lower a sentence will come by ratting others out. This is memorialized in the guidelines as a 5k1.1. Make no mistake, a 5k letter, which is a letter or notification that a federal prosecutor gives to a Court to indicate that a defendant cooperated, is the most powerful sentencing reduction tool available in the federal system.
5K1.1. Substantial Assistance to Authorities
Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:
(1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.
How does an accused get a 5K1 Agreement?
Does a simple plea of guilty get him there? Nope. It takes ‘substantial’ assistance to get a 5K. Simply pleading guilty can result in a 2 or 3 level reduction for acceptance of responsibility. This is meaningful and can save a defendant a substantial period of time. A 5K on the other hand, can mean a much larger departure. But as just stated, to get a 5K a defendant will have to do something special.
Typical, cooperation is substantial if it results in the prosecution of someone the Government doesn’t already know about.
How serious is the Government about getting more perpetrators? Very.
Typically, Government agents offer perpetrators to enter into a proffer interview promising that the contents of such an interview will not be used against the defendant. During these interviews, agents often bring photos of suspects to try to get identifications and learn the whereabout of others. For example, an IRS agent may seek to learn from an identity thief where he got his list of victims and whether he or she knows of others in the same racket.
In fact, it doesn’t have to be the same racket. If a defendant has information on any crime it may be beneficial for him to tell the agents about it. In the end, the Government doesn’t give unofficial benefits to cooperators. It entices and incentivizes them to rat out others in a patent and codified fashion.
It is important for persons in such a situation to understand the limits of proffer protection and ensure that they do not harm themselves through their cooperation. It is also important to recognize the difference between a proffer and a confession. While agents may act friendly and professionally it is important for people who find themselves facing a federal charge to understand that cooperation is a two edged sword and always consider all alternatives.