Should You Cooperate with the Government?
We are often asked about the decision on whether someone should cooperate with the government in a federal criminal case.
This is a big thing that comes up a lot when someone is charged with a federal crime and is trying to decide whether or not to cooperate with the government.
So, it might be a good idea to talk about this to give you an idea of some of the issues that come up and why you might want to consider cooperating with the government.
Usually, somebody would cooperate with the federal government because they are facing many years in federal custody because they've been arrested for a particular crime. It could be a whole myriad of crimes, but usually, I see people cooperating with the federal government in drug crime cases.
The reason for that is that they are typically facing a mandatory minimum sentence. If they've got a certain amount of drugs, that could trigger the 10-year minimum sentence. If they've got a weapon with the drugs, they could begin an additional five years in prison.
So, you're looking at a minimum of 15 years in prison. That would sometimes cause people to start wanting to talk to the government. They do this because they're trying to get underneath those mandatory minimums and trying to get the lightest sentence possible. One of the most significant ways to do that, to knock time off your sentence, is to cooperate with the government.
The government is looking for information that leads them to capture other people, to find drugs, Fentanyl, which is their big drug right now, weapons, and other things, depending on who the investigating agency is. For example, if agents get you who investigate drug cases when you cooperate with them, they will want information on drug-related offenses.
If it's an agent who is involved with child pornography, they're going to want information on people who are dealing in child porn. However, I have seen a cross-reference where I have a client who has information about drugs, and he was captured because he committed some theft. We met with the prosecutors who are familiar with drug-related offenses and can assist in that regard.
There is a danger to cooperating if the persons you cooperated against find out about it. Still, the government and its agents are highly trained and equipped to keep this information secret and not divulge it to anybody because they realize the potential dangers inherent in somebody cooperating.
What is a Federal Plea Agreement?
The vast majority of federal criminal cases never get to the trial phase; instead, they get resolved by plea agreement between the defendant's criminal lawyer and the federal prosecutor.
A plea agreement usually involves a defendant pleading guilty in exchange for getting some charges dismissed or reduced or for a recommendation for a lighter sentence.
Federal prosecutors prefer plea agreements because they can secure a conviction and save significant time going to trial.
There are many situations where a defendant accepts a plea agreement in a federal criminal case. For example, a defendant who knows they are guilty is seeking a lighter sentence.
Perhaps they want to cooperate with federal agents investigating other related cases. They may have played a minor role in the crime, even possibly innocent, but will accept a plea agreement to resolve the issue quickly.
Simply put, in some federal criminal cases, cooperating with the prosecutor might be in a defendant's best interest. For instance, the evidence against them is so strong that it can't be reasonably challenged.
Maybe it was a case where undercover federal law enforcement agents recorded the illegal behavior. The risk of taking the case to trial is too significant. Our federal criminal defense lawyers will review this topic in more detail below.
What Are Crimes with a Mandatory Minimum?
The first time I see where this is very relevant is when somebody is charged with a crime that has a mandatory minimum.
For example, in drug offenses. Suppose somebody has more than 50 grams of methamphetamine that they're caught with, which involves a sales transaction or transporting for sales purposes.
This will trigger a 10-year mandatory minimum. So, the question is, will you take ten years or more in a federal prison? That's only a minimum, so it could be ten years or more than ten years, depending on the:
- where you fall in the guideline range,
- what your criminal history looks like, and
- a host of other factors.
The other option is to try to get a sentence under ten years. Of course, most people answer, I don't want a 10-year or more punishment, so what can I do to get under that ten years?
Cooperation to Get Below the Mandatory Sentence
This is why cooperation comes up. It's one of the few ways that you can try to get below the mandatory minimum. That's one reason you might want to consider cooperating because there are only a couple of two or three ways to get below that mandatory minimum:
- there's a safety valve, or
- there's cooperating with the government, or
- you could go to trial and try to get a not-guilty verdict,
If you can win the case at the trial, you won't have to worry about mandatory minimums. So, that's one reason you might want to cooperate with the government.
Another reason is that despite any mandatory minimums, you may still be facing a lot of time in federal custody. You want to do something that can help you get a lower about of time, so that is another reason to cooperate.
What Is a 5K Substantial Assistance Motion?
What you have to know about cooperation is that the language under Section 5k1.1 talks about substantial assistance to the government.
It says, “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.”
So, that's what the standard is and what people don't like often is that the government is the sole decider as to whether or not you provide substantial assistance.
They've got to decide you did, and they've got to make a motion under 5k1.1 to the judge asking for, number one, that you get a 5k, and number two, hopefully, that you get some levels knocked off your sentence.
The first talks about how they argue that you should get a sentence below ten years. The second one talks about if they will make that argument, how much below the ten years you will get.
They're going to knock levels off your sentence, 1, 2, 3, 4, 5, 6, whatever the amount of levels relates to the benefit of the cooperation you gave. So, that's a consideration.
Do You Know Any Helpful Information?
Also, a consideration is, do you even have information that would help the government? You can cooperate all you want, but you will not be helpful if you don't have any information.
For example, if you're just a drug mule in a drug case and you don't know anything – you know you got paid to move drugs from point A to point B, you may not be able to benefit the government.
You don't have the information. You're more in enough in the components of the crime to be able to help the government, but you never know. The government may want specific information you could provide, and you could benefit from it.
So, these are all considerations when it comes to cooperation. Of course, safety is another consideration.
Nobody wants to cooperate, and then it comes back to haunt them because other people are getting arrested and charged, and they're angry with you because you gave the information. There are ways to deal with that.
Documents can be sealed. The government can not tell anybody that you cooperated. A whole layering of cooperation can be done depending on your case's circumstances and the concerns you may have.
So, if you need a defense attorney, pick up the phone. Ask for a meeting with me. I've worked for prosecutors. I worked for a superior court judge, and in the early 1990s, I became a federal criminal defense attorney.
So, if you need the best, pick up the phone now. Ask for a meeting with Ron Hedding. I stand at the ready to help you. Contact us for a free case review by phone or contact form. The Hedding Law Firm is located in Los Angeles, CA.
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