The media and “the Internets” are all agog over yesterday’s filing in the Mueller Investigation by which the Office of Special Counsel said that one of its cooperating witnesses in that federal criminal case, former General and National Security Advisor Michael Flynn, has provided “substantial assistance”. I’ve been handling federal criminal cases for over 35 years, and have been on the “giving” and “receiving”end of substantial assistance. Despite the furor in the media, I wanted to talk a little about how these things work in the real world.
For starters, the idea that those who cooperate with prosecutors get a better “deal” is not exactly news. This practice of trading info for jail time is probably as old as crimes and criminal justice systems. However, the absolutely horrible 1984 Comprehensive Crime Control Act, inter alia, wrote this practice into federal criminal law. For the first time, this law created specific statutes, Guidelines and Rules of Procedure that encapsulated the practice of rewarding someone for “snitching.”
The 1984 law created the Sentencing Guidelines, which included the now-infamous “Section 5K1.1.” The 1984 law also amended Rule 35 from the Federal Rules of Criminal Procedure. Both 5K1.1 and Rule 35 allow a Judge to lower a Defendant’s sentence as a reward for “substantial assistance” in the investigation or prosecution of “another person.” The 5K “motion” generally asks the Judge to go below the “range” of sentence that comes from calculating the exceedingly complex Federal Sentencing Guidelines. A “Rule 35” can, and usually does, come later. For example, if a Defendant’s information or cooperation happen within a year of the original sentencing hearing (or within a year from when the information apparently because important), then a Defendant can sometimes get a second bite at the cooperation apple.
In practice, the prosecutor holds just about all the cards in this game. Defendants sometimes provide hours and days of cooperation, only to hear the prosecutor claim, “oh well, we knew all that already, no help for you.” A Defendant generally has no right to complain if a prosecutor plays a bait-and-switch game such as this (unless the prosecutor makes his or her decision based on some unconstitutional basis).
A “substantial assistance” reduction can only come about if a prosecutor asks the Judge for it. A Defendant can moan and whine, outline his days of cooperation, and the Judge is powerless to reward the assistance without a request from the prosecutor. However, some wily defense lawyers have been known to convince the Judge that while the Court cannot reduce the sentence for “substantial assistance” in absence of a request from the prosecutor, the Judge still has the power to lower the same Defendant’s sentence so long as the reduction is tied to some other sentencing rule, such as those laid out in 18 U.S.C. section 3553(a).
Another question I am often asked is “how much of a reduction can I expect from cooperating?” As usual, “it depends.” One of the biggest factors is whether the Defendant has an ace up his or her sleeve, so to speak. If defense counsel knows that the Defendant has some evidence or information that is crucial to a prosecutor’s long-range plan, then that attorney is in a much better spot when arguing for a very large sentence reduction. Another factor that sometimes affects the quantity of a reduction is the presence of “cooperation committees” within many US Attorneys offices. These are attempts to basically standardize the amount of a reduction that prosecutors can request, so that Defendant A and Defendant B are essentially treated equally so long as the information they each provide is also basically of the same value.
OK, but what about those folks on the other end, meaning people who get indicted based on the claims of witnesses who want a reduced sentence for providing “substantial assistance”? A certain person who likes to use Twitter has issued a bunch of messages lately about how horrible it is when people lie just to get a 5K or Rule 35. Unfortunately, both that person and his friends and family will have to join the unfortunate crowd of people I’ve represented the past three-and-a-half decades who often got plastered based on stories told by people who wanted to get out of trouble by placing the blame elsewhere. It’s true, don’t believe me, it’s on The Internets.