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What is Providing “Substantial Assistance” in Federal Criminal Cases?

Posted by John Rogers | Feb 18, 2021

When a defendant is charged with a federal crime, they may earn sentencing credits by providing substantial assistance to the government. Providing substantial assistance may occur prior to, or after, pleading guilty but before sentencing. It ordinarily involves meeting privately and confidentially with federal prosecutors, and provide information that will aid in the prosecution of someone else.

Providing substantial assistance allows a defendant to be sentenced below the mandatory minimum for drug crimes if the defendant is not otherwise eligible for a safety valve. It also allows the judge to lend credit to the defendant before deciding upon an appropriate sentence. Moreover, it is common for someone to receive credit for their cooperation otherwise it would provide no incentive for future defendants to cooperate with federal authorities. Cooperation is a major aspect of government investigations because it helps direct federal agents to certain people and activity to investigate.

Substantial assistance can come in different forms. It may be a single proffer session with the prosecution, or it may involve testifying before the grand jury. In some instances, the government may request your testimony at a hearing or in a jury trial. How much credit the judge decides to allot for your cooperation can depend on the level of cooperation.

For instance, a single cooperation session could help lead to the charging and subsequent convictions of members of a large scale conspiracy – a conspiracy the government was initially unaware of prior to your cooperation session. Or you may provide information that is helpful in the prosecution of someone else. In the earlier, you should be awarded more sentencing credits versus the latter because you were instrumental in aiding in the prosecution of others.

Sentencing credits for providing substantial assistance is upon motion by the government. In other words, the government files a motion under seal informing the judge of the extent of your cooperation. Unfortunately, a judge is not obligated to grant the government's substantial assistance motion. It is important for the defense attorney to sensationalize the level and extent of cooperation for the defendant. The following factors are considered by the judge at a sentencing hearing:

  • The significance and usefulness of your assistance, taking into account the government's evaluation of the assistance renders;
  • The truthfulness, completeness, and reliability of any information or testimony provided;
  • Nature and extent of your assistance;
  • Any injury suffered, or any danger or risk of injury to you or your family resulting from your cooperation;
  • The timeliness of your assistance.[1]

Prior to cooperating with the prosecution, a defendant is usually given a proffer letter outlining the terms of cooperation. Alternatively, the parties may enter into a cooperation agreement by adding a cooperation provision in the plea agreement. This means that a defendant must cooperate as requested by the government or it can be considered a plea agreement breach.

Whether to cooperate with the government, or move forward litigating your case is a serious decision. Consequently, you must have competent and experienced representation on your side to adequately inform you of your options. Contact us today to schedule a free confidential consultation with a respected federal criminal defense attorney.

Legal Footnotes:

[1] See United States Sentencing Guidelines §5K1.1.

About the Author

John Rogers

*State Bar Board Certified Specialist in Criminal Law *Top 40 Under 40 by the National Trial Lawyers Association *Selected “Rising Star” by Super Lawyers Magazine *Federal Criminal Defense Representation Nationwide *Personalized Attention & 24/7 Accessibility


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