Formulating and Presenting Effective Sentencing Arguments When Representing Cooperators
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Formulating and Presenting sciously — to advocate on any or all of these points
might be an interesting study, but those are not the
Effective Sentencing focus of this article. Instead, the focus here is on the
measures defense counsel can undertake to overcome
Arguments When that tendency by gathering and presenting informa-
tion that serves to boost their clients’ ability to obtain
Representing Cooperators the greatest benefit for their service as cooperators.
In setting forth those measures, this article chal-
lenges what is often treated as a foregone conclusion by
most prosecutors, some judges, and too many defense
Introduction counsel: that the government should have the exclusive
authority — or at least the primary standing — to
For many defense lawyers, representing a cooper- assess the value of a cooperator’s assistance and thus
ator can be a disorienting endeavor. Effective advoca- ultimately control the amount of the sentencing reduc-
cy requires that counsel collaborate with prosecutors tion. That conclusion rests largely on a two-pronged
in order to maximize the impact of the cooperator’s hypothesis: (1) that § 5K1.1 itself contemplates that
assistance and, if carried out properly, this joint effort only the government can determine the true impact of
enhances the strength of the prosecution. For those a cooperator’s assistance in a particular prosecution
who have spent decades refining the skills necessary to because only the prosecutors understand fully how that
tear down the government’s handiwork, effectively assistance fits with the broader investigative effort, and
joining forces with prosecutors can be an unfamiliar (2) because § 5K1.1 departures are often litigated and
and confounding exercise. resolved via in camera proceedings — which the prose-
Operating in this abnormal environment some- cutors, but not defense counsel, are privy to — the gov-
times causes defense counsel to cede to the govern- ernment is better situated to assess the value of the
ment three critical assessments that must be deter- assistance as compared to other cooperators, and thus a
mined: the value of the information the cooperator more reliable determiner of how great a reduction is
provides, the cooperator’s relative worth as compared due. In other words, the prevailing wisdom is that the
to others similarly situated, and, ultimately, the extent government knows better because it knows more.
of the departure due under U.S.S.G. § 5K1.1. The par- Neither the assumption that the government is bet-
ticular forces that cause defense counsel to abdicate ter postured to evaluate cooperation efforts nor its
their responsibility — whether consciously or uncon- underlying dual premises withstand scrutiny. As to the
B Y W I L L I A M C . AT H A N A S , R I C H A R D J A F F E ,
AND MICHAEL WHISONANT
32 NACDL.ORG THE CHAMPIONfirst basis, it is true that the government huge dividends for those who know ment’s evaluation of the extent of the
almost always enjoys greater access to how and where to look. defendant’s assistance, particularly
information about a cooperator’s use- This article seeks to reorient where the extent and value of the assis-
fulness in a particular case, and the defense counsel operating in what can tance are difficult to ascertain.”4
application notes to § 5K1.1 plainly seem like an inverted environment. Counsel should be mindful that
provide that the government’s assess- Simply because a client’s interests despite this language, the scope of the
ment of the extent of the cooperator’s might align with the government on government’s authority is limited in
assistance be given “substantial weight.” some issues should not diminish coun- the § 5K1.1 context. As numerous
However, neither the guideline nor the sel’s ability to zealously advocate when cases have recognized, the only power
application notes suggest that defense those interests diverge, as they almost fully delegated to the government is
counsel are prohibited from offering always do. By discussing some of the the authority to ask the court to
evidence or arguing about the value of a tools available, this article seeks to level reduce the defendant’s sentence when
cooperator’s role in a given case, and the the playing field at least a bit and assist he or she has rendered substantial
principles underlying the adversary sys- defense counsel in formulating and assistance. Once the government has
tem would not countenance such a advancing compelling arguments on done so, the court alone determines
result. While few lawyers make a con- behalf of their cooperating clients. the extent of departure based on appli-
scious decision to defer to the govern- cation of § 5K1.1.
ment on this point, too often they effec- Legal Framework
tively do so as a matter of practice by Structuring
not searching out the information nec- Section 5K1.1 directs that:
essary to challenge the prosecutors’ Successful Arguments
argument in a convincing fashion. In an appropriate reduction shall A. Measuring the Dimensions
truth, virtually all the data necessary to be determined by the court of a Cooperator’s Value
R E P R E S E N T I N G C O O P E R AT O R S
gauge a cooperator’s usefulness in a par- for reasons stated that may The government all too often fails
ticular investigation can be compiled by include, but are not limited to, to appreciate the scope of disclosure
defense counsel. To the extent counsel consideration of the following: necessary to undertake the full measure
lacks certain information “material to of a cooperator’s assistance. While
… punishment,” Brady, as amplified by 1. the court’s evaluation of the defense counsel are typically provided
later Supreme Court precedent, man- significance and usefulness of generic data about the number of
dates disclosure. Because it may not the defendant’s assistance, tak- indictments or convictions in cases tied
always be clear how that information is ing into consideration the gov- to cooperator’s assistance, counsel are
relevant or where it fits within the larger ernment’s evaluation of the encouraged to dive deeper. The meas-
framework of a § 5K1.1 argument, it is assistance rendered; ure of the catch should consider not
critical that the defense formulate and only the number but also the size of fish
press specific discovery requests even 2. the truthfulness, completeness, landed. What were the loss amounts of
after entering a plea. and reliability of any informa- the cases that resulted from the cooper-
The second component underly- tion or testimony provided by ator’s assistance? How many kilos of
ing the “government knows best” the defendant; drugs were seized — and thus prevent-
assumption is also flawed. To be sure, ed from being distributed on the streets
the safety of a cooperating witness 3. the nature and extent of the — because of evidence the cooperator
often requires that filings and rulings defendant’s assistance; supplied? Was there any restitution to
be sealed, and courts are understand- victims or forfeiture to the government
ably wary of providing sweeping dis- 4. any injury suffered, or any dan- in the case made thanks to the cooper-
covery that would undermine that con- ger or risk of injury to the ator? In addition to cash, was there any
cern. But that does not mean that defendant or his family result- tangible asset forfeiture? How many
lawyers seeking to formulate argu- ing from his assistance; vehicles, houses, and parcels of proper-
ments about a particular cooperator’s ty did the government forfeit as a result
comparative value lack options. Plenty 5. the timeliness of the defen- of the client’s cooperation? All of this
of reported cases discuss the basis for dant’s assistance.2 information has value in gauging the
and appropriate size of a § 5K1.1 cooperator’s worth under the tradition-
departure, and publicly available tran- The guideline makes clear that this ally applied objective metrics, and
scripts and rulings contain even more list of potentially relevant factors is not defense counsel should strive to secure
attention to those issues. Those judicial exhaustive, providing that because it — and make it known to the sentenc-
statements can bolster arguments “[t]he nature, extent, and significance of ing judge — as a matter of course.
made on behalf of comparable cooper- assistance can involve a broad spectrum Counsel also can and should gath-
ators. Moreover, in some instances of conduct that must be evaluated by er and present data that is more sub-
counsel will find the most compelling the court on an individual basis … jective. For example, did the coopera-
data for formulating departures — [l]atitude is … therefore, afforded the tor give the government information
sentencing data tracking § 5K1.1 sentencing judge to reduce a sentence that helped break a logjam among
departures across districts, circuits, based upon variable relevant factors, conspirators, indicted or otherwise?
and the country as a whole — is pub- including those listed [in the guide- Did the information provided help
licly available on the Sentencing line].”3 While affirming this broad dis- advance a case which, despite the
Commission’s website. 1 Targeted cretion, the guideline’s application investment of substantial government
research efforts through traditional notes also reflect that “[s]ubstantial resources, had been stymied? Was the
and nontraditional means can pay weight should be given to the govern- government able to utilize resources in
NACDL.ORG APRIL 2021 33other areas because of the shortcuts cooperator might well find it coun- prepared by government agents.
provided by the cooperator? For exam- terintuitive that minimizing his or This can be problematic in two
ple, as a result of the cooperator’s her conduct or otherwise failing to respects. First, those memoranda
assistance, was the government able to disclose all relevant information, no are mere summaries and often lack
reach a resolution prior to what would matter how bad it might appear, the detail necessary to capture the
otherwise have been a lengthy and could not only reduce the amount of full extent of the defendant’s coop-
complicated trial? Did the cooperator the § 5K1.1 departure received, but eration. Secondly, while counsel
allow the government to short circuit also jeopardize whether or not such a often receive copies of those mem-
investigations, such as by alleviating motion is ever made. The client oranda, that is not always the case.
the need for the government to secure must also understand that cross- Counsel’s efforts to build their own
and execute a search warrant or to examination will be rigorous even record can pay large dividends
obtain a wiretap? Did it become when the testimony is corroborated, down the line.
unnecessary for the government to and that efforts to embellish, includ-
obtain or review huge volumes of doc- ing fabrications, will not make the 3. Understand fully the degree to which
uments, or conduct forensic examina- process easier. The client must recog- a client’s cooperation aided the gov-
tions on multiple computers? Was it nize that, if anything, such efforts ernment’s case. In light of § 5K1.1’s
no longer necessary for the govern- will turn out to be disastrous. While directive to afford “substantial
ment to engage expert witnesses? it may seem obvious to the lawyer weight” to the government’s evalua-
All of these results are exception- that making things up not only dis- tion, some defense counsel con-
ally beneficial to the government qualifies a cooperator from a sen- clude that only the government’s
because they allow finite resources to tencing reduction but likely exposes assessment is relevant and decline
be allocated elsewhere. When that hap- him to enhanced punishment, a to weigh in on the question in a
pens, the cooperator’s value extends first-time cooperator may fail to meaningful way. But the guideline
R E P R E S E N T I N G C O O P E R AT O R S
beyond the particular cases in which appreciate this or overlook the risk in simply mandates that the court lis-
he or she provided information. While his or her haste to claim the reward. ten to what the government has to
more difficult to measure, this form of The time invested in providing the say on the topic — it does not sug-
benefit is nevertheless plainly relevant client painstaking detail about the gest that only the government can
to the court’s assessment of the coop- course of cooperation — and the be heard. Defense counsel should be
erator’s impact, and it must be a factor hazards that exist along the way — fully prepared to offer an evaluation
in the calculus used to determine the minimizes the risk of turning the as well, and doing so requires a
proper sentencing reduction. Counsel effort into a catastrophic failure. thorough analysis of the volume of
should recognize and treat it as such, the information and its value. For
being creative and working to peel 2. Prepare a “cooperation log” that doc- example, was the cooperator the
back the layers of value to maximize uments the universe of the defen- sole source of information used to
the cooperator’s worth. dant’s cooperation. This includes formulate charges against others?
compiling every written communi- To answer this, counsel would need
B. Plan Your Work, Work Your Plan cation (particularly texts and to compare that information to
The most important step in maxi- emails) wherein the cooperator those charges and compare infor-
mizing a client’s § 5K1.1 departure is to provides assistance (either directly mation received by others. While
challenge, when appropriate, the govern- or through counsel) as well as often a tedious process, the reward
ment’s attempt to undervalue clear mean- recording the date, location, and can be significant when counsel is
ingful assistance. Whether the govern- length of all of the cooperator’s able to show that the cooperator
ment does so via application of a rigid meetings and phone communica- was singularly essential to the gov-
“policy” or otherwise, recommendations tions with the government. Counsel ernment being able to move for-
designed to constrain the court’s ability to should also take and maintain ward against a particular individual
substantially reduce the defendant’s sen- detailed notes of the information or on a particular theory.
tence must be challenged when they fail to provided to the government. In
reflect the true impact of the cooperator’s addition, after each proffer or wit- 4. File a response to the government’s
role. Except where the prosecutor recom- ness preparation meeting, it is a § 5K1.1 motion. Because the goal of
mends essentially no punishment, or in good idea for defense lawyers to ask cooperation is securing a § 5K1.1
rare cases where it cannot plausibly be the prosecutors to let defense coun- motion, counsel sometimes view fil-
argued that a greater departure is appro- sel know if the prosecution was sat- ing a response to that motion as the
priate, counsel should use the govern- isfied with the truthfulness and equivalent of looking a gift horse in
ment’s recommendation as a starting quality of the cooperation, and the mouth. But a “response” in this
point and encourage the court to depart defense counsel should duly note context is not an “opposition” sug-
further. That process should include some the response in a memo to the gesting that a reduction is not due; it
or perhaps all of the following measures: client’s file. It is not uncommon for is merely an effort to ensure that the
the prosecutor to comment favor- size of that reduction is properly cal-
1. Explain the process to the client in ably, and these comments can be ibrated. Counsel who fail to file a
detail at the outset. Defense counsel utilized in furtherance of efforts to response to the government’s
should thoroughly explain the maximize § 5K1.1 credit. Too often, motion often rationalize that choice
process to the client, including the counsel who know they will not based on the narrower range of dis-
danger of the cooperator minimiz- have to try the case can get compla- pute than in traditional sentencings
ing or otherwise failing to provide cent in their preparation efforts, and their plan to argue the issue at
information fully and credibly. Any relying on interview memoranda the sentencing hearing. This is tenu-
34 NACDL.ORG THE CHAMPIONand indictments or plea agree-
Assessing a Cooperator’s Assistance ments echoing those allegations.
Counsel should also prepare
True | False
The government almost always enjoys and submit to the court — ide-
greater access to information about a ally in response to the govern-
cooperator’s usefulness. ment’s § 5K1.1 motion but at
least as an exhibit at sentencing
filed under seal — the “coopera-
False
True | Defense lawyers are prohibited from tion log” referenced above. The
offering evidence or arguing about ultimate goal is to demonstrate
the value of a cooperator’s role. to the court that the defendant
was a fully engaged and com-
mitted cooperator, by showing
False
True | Section 5K1.1 contemplates that only both the frequency of interac-
the government can determine the true tion and the degree to which the
impact of a cooperator’s assistance. government used the informa-
tion the cooperator provided,
both directly and indirectly, to
False
True | The court and the prosecution determine enhance existing prosecutions
the extent of departure based on or initiate new ones.
application of Section 5K1.1.
v Submitting evidence of sen-
tences imposed on other coop-
True | False
Nearly all the data necessary to gauge a
R E P R E S E N T I N G C O O P E R AT O R S
erators. There are at least three
cooperator’s usefulness can be compiled ways to define the scope of
by defense counsel. cooperator sentences worthy of
comparison: the nature of the
cooperation’s efforts; the results
ous logic for any number of reasons, discussion of other guideline issues realized from those efforts, and
but the most obvious is that in many and the factors set forth in 18 U.S.C. the district where the sentence
cases the court has at least formulat- § 3553(a) factors. In addressing the was imposed (or perhaps even
ed a rough plan for its ruling, if not court on § 5K1.1 issues, counsel judge who imposed it). Ideally,
resolved it almost in full, before the should consider steps such as: these three would overlap:
hearing begins. Leaving the govern- counsel would be able to point
ment’s filing without a response can v Seeking a stipulation or, if nec- to cooperator in the same dis-
be a recipe for failure in even the essary, calling the case agent to trict or even before the same
simplest of cases, but certainly so elicit testimony about the judge who received a larger
when the analysis involves compli- extent of the defendant’s coop- departure than that recom-
cated issues of fact (e.g., the nature, eration efforts (e.g., number of mended by the government
scope, timing, and usefulness of the times interviewed, length of despite providing assistance in a
defendant’s cooperation; what other interviews, form and frequency volume and also producing
similarly situated cooperators have of other communications such results equal to or less than the
received) or law (e.g., the applicable as emails and phone calls, defendant. But perfect should
legal framework for determining recordings made, etc.), the sub- not be the enemy of good —
what constitutes a “risk of injury” to stance of those communica- evidence of other cases can be
the defendant; the degree to which tions (e.g., original information valuable even if just one of the
defendant should be credited with provided about activities and defining criteria is present. See
prosecutions not tied directly to the conduct, recommendations (E), infra, for a discussion of the
information he provided). Even about avenues of investigation process of researching and com-
where the parties agree on the appli- and new subjects), and the piling sentences that can be used
cation of certain elements of manner in which that coopera- for their precedential value.
§ 5K1.1, a written submission from tion was used by the govern-
the defendant is critically important ment (inclusion in search war- C. Challenge the Notion
to allow the court to make fully rant applications, surveillance That the § 5K1.1 Policy of an
informed decisions about the issues. of identified individuals, as a Individual U.S. Attorney’s Office
means of securing pleas and Should Carry Any Weight
5. Make a substantive presentation at cooperation from those impli- It has become increasingly common
sentencing. In addition to filing a cated, or otherwise).5 for individual U.S. Attorney’s Offices to
response to the government’s create and maintain policies seeking to
§ 5K1.1 motion, counsel should be v Offering exhibits that reflect the reduce the process of a evaluating a
prepared not only to argue the issue connection between the cooper- cooperator’s value to a rigid framework.
at the sentencing hearing, but also ator’s assistance and subsequent Under this approach, § 5K1.1 departure
offer testimony and exhibits as nec- government successes, such as recommendations are tethered to specif-
essary. To be clear, this presentation memoranda of the defendant’s ic forms of cooperation such as wearing
should be made separately from the interviews implicating others a wire, making consensual phone record-
36 NACDL.ORG THE CHAMPIONings, or conducting controlled transac- receive the maximum sentencing reduc- to claim credit for positive investigative
tions of illegal goods. Most often, these tion, the nontestifying but nevertheless developments by pointing to intervening
policies mandate that a cooperator testify exceedingly productive cooperator loses factors. Whether by arguing that the
in order to be eligible for a significant out. Making the dubious nature of that information supplied was already known
level departure or percentage reduction. type of logic clear to sentencing judges or that evidence from other sources in
Policies of this type are grounded can effectively overcome the government’s fact generated the positive development,
in the notion that uniformity is critical effort to obscure incongruous sentencing the government often resists the notion of
to applying § 5K1.1 properly. While recommendations behind purportedly giving the cooperator credit. Because the
consistency is a laudable goal, efforts to logical and consistently applied individual government has access to more informa-
reach it through an inflexible frame- office policies. tion than the defense, it frequently enjoys
work can undermine the substance and the ability to at least raise doubt about
purpose of the guideline, create per- D. The Challenge of Asserting whether a direct causal link exists
verse incentives, and negate an individ- Ownership Over Positive between information and results. But
ualized level and quality of your clients’ Prosecutorial Developments defense counsel has remedies; most
cooperation. Interpreting § 5K1.1 Defense counsel too often fall into notably, Brady-based motions intended
incorrectly on a consistent basis does the trap of trusting that the court will to determine whether and to what extent
not somehow validate those interpreta- apply the reasoning of “post hoc ergo information provided by the cooperator
tions; it simply means that the govern- propter hoc” (“after this, therefore can be linked to prosecutorial successes.
ment reliably reaches the wrong result. because of this”) in apportioning credit Because Brady applies to “guilt or punish-
Recognizing that § 5K1.1 affords the for positive developments following a ment,” its import extends beyond the plea
court substantial discretion to calibrate client’s cooperative efforts. For example, and mandates the disclosure of informa-
departures based on a range of factors, when the client provided specific infor- tion that impacts sentencing. By filing
the government’s use of a formulaic mation and another individual was later such motions to determine when and
R E P R E S E N T I N G C O O P E R AT O R S
approach signals that the court should charged, many counsel assume that the how the government used the coopera-
as well. From the government’s per- cooperator will get credit for that devel- tor’s information, defense counsel can
spective, even if the court’s formula is opment. But the post hoc fallacy is falla- often gather insight regarding the true
not as stingy as the government’s, the cious for a reason: it can sometimes rep- value of the client’s cooperation, particu-
fact that the process has been reduced resent an oversimplification of cause and larly when its impact may not be obvious.
to a mathematical exercise can be bene- effect, overemphasizing the significance
ficial. If the government can calculate a of temporal proximity. E. Pointing to Comparators
departure level through what appears All too often, the government Section 5K1.1 says nothing about
to be a rationally based and consistently attempts to undermine cooperator efforts the need to ensure that the defendant’s
applied system, any methodology that
produces a materially different result
can be perceived as inherently suspect.
It is not difficult to envision a sce-
nario where even the most well-inten-
tioned but nevertheless unyielding system
produces an irrational result. Requiring
that a cooperator testify before receiving
substantial credit can, in theory, appear
NACDL Elections
logical: testifying can be difficult, requir-
ing more time to prepare and a height- Update
ened dedication to the government’s
cause, and represents a form of coopera-
tion that arguably increases the potential In 2021, NACDL will elect members to its Board of
for harm to the cooperator because of its
public nature. To be sure, when a charged
Directors, in addition to the President-Elect, First and
defendant insists on going to trial, the Second Vice Presidents, and Secretary. The Nominating
cooperator’s testimony will be vital to suc- Committee has announced its nominated candidates for
cess. But as often happens when general-
ized policies are applied rigidly, requiring these offices. Interested NACDL members may still become
testimony necessarily undervalues the candidates for these positions via the petition process.
cooperative efforts of one who provides
information of such high quality that the
government is able to use it to secure See www.NACDL.org/Elections for election
quick guilty pleas. Is the cooperator in that
scenario less valuable than the one who procedures and deadlines, or download a petition
testifies at trial, particularly where multi- at www.NACDL.org/Elections/Petition.
ple guilty pleas result? Of course not. If
anything, cooperation that comes in a
form and volume so compelling as to
avoid the need for trial should be reward-
ed, not diminished. But under a system
that mandates testimony in order to
NACDL.ORG APRIL 2021 37sentence aligns with those imposed on motions. Once identified, counsel vided has not fully ripened, there
similarly situated cooperators. For this should review those filings — as can be a tendency to trust (or
reason, some defense counsel believe well as the defendant’s response and worse, assume) that any deficien-
that such arguments must await the the court’s ruling — in order to col- cies in the § 5K1.1 recommenda-
court’s evaluation of “the need to avoid lect information of value. tion will be rectified via motion to
unwarranted disparities” in the reduce the sentence under Rule 35.
§ 3553(a) analysis. But that process v Motion practice. Whether tethered There are two major problems with
comes after the § 5K1.1 evaluation, and to Brady or otherwise, counsel this line of thinking. First, there is
waiting to raise these points effectively should make full use of the court’s no guarantee the government will
forfeits a valuable opportunity to maxi- authority to order the government make a subsequent request, and
mize the sentencing reduction. Nothing to provide information that may be virtually no remedy (short of
in § 3553(a) or elsewhere prohibits of value in this context. To be sure, establishing a rarely provable
counsel from pointing to sentences challenges exist when the informa- unconstitutional motive) if it does
received by other similarly situated tion sought is contained in sealed not. Second, as a recent study by
cooperators to challenge the govern- filings, and the court will need to the U.S. Sentencing Commission
ment’s recommendation where the gov- balance the defendant’s need for the determined, even when the govern-
ernment proposed, or the court requested information against the ment files a Rule 35 motion, reduc-
imposed, a greater sentence reduction. risk of harm disclosure presents, tions under it benefit the defen-
Counsel who fail to argue those points even where a protective order limits dant less than those granted under
forgo an opportunity. further dissemination of the infor- § 5K1.1.6 Bottom line: assume that
To be sure, gathering information mation. Regardless, counsel should the § 5K1.1 recommendation is the
about similarly situated cooperators endeavor to determine whether the client’s one and only shot at a sen-
can be challenging. Significantly government has taken positions in tence reduction.
R E P R E S E N T I N G C O O P E R AT O R S
reduced sentences are obviously not analogous cases or otherwise pos-
widely publicized by the government. sesses information that would sup- 2. Confining cooperation-based argu-
Section 5K1.1 motions are often filed port a greater sentencing reduction ments to the § 5K1.1 discussion. The
under seal, particularly when there is a than it has recommend in the Application Instructions contained
risk of harm to the cooperator. But defendant’s case. in § 1B1.1 direct sentencing courts
even when that is not the case, the gov- to adopt a three-step process in
ernment typically seeks to keep its rec- v USSG website. Often overlooked, this fashioning a sentence. First, the
ommendations under wraps. Even if site contains a wealth of valuable court must apply the guidelines to
the recommendation and ruling are information about sentencing prac- calculate the appropriate guideline
made in open court, they seldom find tices district, circuit and nationwide. range. Second, the court must
their way into reported or unreported The Sentencing Commission pub- determine whether and to what
decisions at the district, much less cir- lishes its Sourcebook of Federal extent a departure is appropriate.
cuit, court level. Sentencing Statistics (https://www. Finally, the court must consider the
Counsel seeking to overcome these ussc.gov/topic/sourcebook), and its factors listed in § 3553(a) to arrive
challenges can employ several methods. website contains such information at the appropriate sentence.
First, counsel should identify the metrics back to 1996. Within those materials,
most effective for comparison. Does the counsel can access the data capturing In light of this framework, counsel
volume of information provided, the use the extent of 5K1.1 departures by often conclude that cooperation-related
to which it was put, or the circumstances type of crime and readily determine arguments are prohibited outside of the
under which it was provided matter the mean and median sentences bro- second step of the process and forbidden
most? If, as often happens, the answer is ken down by type of offenses. With altogether if the government does not
some combination of the three, counsel this information, counsel can quickly file a § 5K1.1 motion. This is incorrect.
should seek to define what a relevant determine how the government’s Even where the government refuses to
comparator looks like. recommendation in a given case file a § 5K1.1 motion, arguments based
Having done so, counsel should con- stacks up to the reductions others on the defendant’s cooperation are
sider the following sources of information: have received. validly considered. While a court may
not depart downward absent the govern-
v Other counsel practicing in the dis- F. Avoiding the Pitfalls ment’s motion, it is well-settled that fol-
trict. Defense attorneys should Counsel should be mindful of sev- lowing the ruling in United States v.
reach out to other counsel in the eral hazards when representing coopera- Booker,7 a sentencing judge may consid-
district. Often those in the district’s tors. Errors of commission and omission er the defendant’s cooperation in deter-
Federal Public Defender’s Office or are numerous in that context, and coun- mining whether to grant a variance.8
attorneys on the CJA list have the sel who are forewarned are forearmed. Accordingly, counsel should not be
most experience in dealing with Below is a non-exhaustive list of pitfalls: deterred in alerting the court to the
5K1.1 motions, but counsel should defendant’s efforts to cooperate even
also consider a wider appeal to 1. Assuming that reductions under where the government declines to file a
other defense counsel who fre- Fed. R. Crim. P. 35 will be forthcom- § 5K1.1 motion. The defendant loses
quently practice in federal court. ing and will rectify inadequate nothing — and could gain much — by
§ 5K1.1 recommendations. Where a making the court aware, in the context
v PACER. Though cumbersome, cooperator is expected to provide of the § 3553(a) analysis, of efforts to
searches on PACER can reveal cases ongoing assistance, or where the remedy or at least mitigate the harm
containing publicly filed 5K1.1 information he has previously pro- caused by the offense.
38 NACDL.ORG THE CHAMPION3. Assuming the government and sentencing memo and files it as a value, and hope remains that the
court are fully versed in the relevant publicly available pleading. Commission will at some point restore the
issues. Most judges have handled Defense counsel should commu- detail to its previous levels.
vast numbers of sentencings, and nicate with the government 2. See U.S.S.G. § 5K1.
that experience includes frequent- beforehand to avoid that result. In 3. See § 5K1.1, Background.
ly applying the § 5K1.1 factors. addition, counsel should request 4. See § 5K1.1, App. Note 3.
Defense counsel should not, how- that the court edit related docket 5. Counsel taking this approach should
ever, assume that familiarity with entries as appropriate to maintain expect the government to object and
that process necessarily translates the appropriate level of secrecy.9 should therefore follow the Touhy procedure
into proficiency in all of the vari- set forth in 28 C.F.R. §§ 16.21 et seq. well in
ous areas discussed above. This Conclusion advance of the sentencing hearing.
advice is not meant to cast asper- 6. The Use of Federal Rule of Criminal
sions on any judge, but instead Because representing cooperators Procedure 35(b) (2016) (https://www.ussc
simply to highlight an obvious is a less common aspect of criminal .gov/sites/default/files/pdf/research-and
fact: because defense counsel are defense work, the issues such work -publications/research-publications/2016/
often less aggressive in litigating presents are less familiar. That unfa- Rule35b.pdf).
§ 5K1.1 issues — or even less miliarity can mean that key issues are 7. United States v. Booker, 543 U.S. 220
aware that some of those issues sometimes misunderstood, underesti- (2005).
exist to be litigated — sentencing mated, or overlooked. But the stakes 8. See, e.g., United States v. Landron-
judges confront those issues less are no less important even when it Class, 696 F.3d 62, 66 (1st Cir. 2012)
frequently, and discussion of them appears that the client’s interests are (“a sentencing court has discretion to
is less common. Recognizing this, aligned with the government. By better consider the defendant’s cooperation with
counsel should be prepared to understanding the challenges present- the government as an 18 U.S.C. § 3553(a)
R E P R E S E N T I N G C O O P E R AT O R S
educate the court on both the law ed in the cooperation context, defense factor, even if the government has not
and the nuanced aspects of these counsel will find themselves better made a … § 5K1.1 motion for a downward
issues as part of advocating for equipped to overcome them. More departure”); United States v. Judge, 649 F.3d
greater sentence departures. importantly, being fully informed 453, 460 (6th Cir. 2011) (“district courts
about the difficulties means that the may, at a defendant’s request, grant
4. Failing to recognize the impact of client will be best situated to reap the variances at sentencing based on the
public filings. Even judges resistant fullest return on the risks undertaken defendant’s substantial assistance to the
to accepting filings under seal rec- by cooperating. government”); see also 18 U.S.C. § 3661
ognize the risks presented when a © 2021, National Association of (“No limitation shall be placed on the
defendant’s cooperation becomes Criminal Defense Lawyers. All rights information concerning the background,
public. For this reason, motions to reserved. character, and conduct of a person
file pleadings related to § 5K1.1 convicted of an offense which a court of
under seal are routinely granted Notes the United States may receive and
even when there is no direct threat 1. For reasons not entirely clear, the consider for the purpose of imposing an
of physical harm. Counsel should Sentencing Commission website recently appropriate sentence”).
not assume that the government modified its structure in a way that reduces 9. See, e.g., United States v. Doe, 870 F.3d
will always file its motion under the level of granular detail previously 991, 993 n.1 (9th Cir. 2017) (referencing
seal; the government often com- available. As discussed below, the defendant by “the pseudonym ‘Doe’ to
bines its § 5K1.1 motion with its information that remains may still be of protect his identity and safety”). n
About the Authors
Bill Athanas represents companies and Richard S. Jaffe, the author of Quest for Michael Whisonant’s practice focuses on
individuals in all Justice (2020), has criminal defense as
facets of govern- 40 years of experi- well as practice
ment investigations, ence in white collar before administra-
including grand jury crime matters and tive agencies in
investigations and criminal litigation Alabama.
other government practice.
enforcement actions.
NACDL MEMBER
William C. Athanas Richard S. Jaffe Michael W. Whisonant Jr.
Waller Lansden Dortch & Davis, LLP Jaffe, Hanle, Whisonant & Knight, P.C. Jaffe, Hanle, Whisonant & Knight, P.C.
Birmingham, Alabama Birmingham, Alabama Birmingham, Alabama
205-226-5703 205-900-7714 205-900-7714
E MAIL bill.athanas@wallerlaw.com E MAIL rjaffe@rjaffelaw.com E MAIL mwhisonant@rjaffelaw.com
W EBSITE www.wallerlaw.com W EBSITE www.rjaffelaw.com W EBSITE www.rjaffelaw.com
T WITTER @WallerLansden
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