Just the other day, “Bridgegate” cooperator and former Port Authority of New York and New Jersey official David Wildstein, was sentenced in federal court to probation. The two defendants that he cooperated against were sentenced to 24 months and 19 months in federal prison. Despite the fact that Wildstein pled guilty to two counts of conspiracy for his role in the offense, and faced several years in prison, the sentencing judge granted the government’s downward departure motion for a much more lenient sentence – in this case probation.
In the federal system cooperators, those conspirators who assist the government by providing truthful information, assistance and testimony to the government, are rewarded at sentencing with a motion filed under section 5K1.1 of the United States Sentencing Guidelines that permits the court to depart below the advisory guideline range specified for the particular offense and its enhancements.
There are several types of cooperation that may merit these types of sentence reductions. For example, if a person is confronted by the FBI while the investigation is still pending and is interviewed about their alleged participation in an ongoing crime, she may decide to cooperate with the FBI. This cooperation could include giving truthful information about her activities and those of her co-coconspirators, and to proactively work with the agents by recording phone calls and meetings with the others involved under the direction of the FBI. In instances where conspirators have already been arrested and charged, a person could agree to cooperate with the prosecution by providing evidence and testimony against the others charged.
In either scenario, it is critical that the person has an experienced federal criminal defense attorney representing them to fully protect their rights and to make sure that they obtain the best possible result. The attorney must evaluate the client’s potential cooperation and determine whether it is of the kind and nature that would meet the threshold for such a downward departure motion. Experienced defense counsel must also prepare his client for the proffer with the government to make sure the client will make the best possible presentation and truthfully and accurately convey the information.
If the government decides that the person has provided “substantial assistance to the United States,” then the prosecutor will file a formal motion at the time of sentencing for the court to depart below the advisory Guideline range. The letter-motion will also include the details of the person’s cooperation and how significant it was to the prosecution. Experienced defense counsel will also submit a lengthy sentencing brief, along with relevant letters from family and friends, explaining why the client should receive the maximum benefit – largest downward departure – for the cooperation.
While a cooperation agreement is not possible in all cases, or even appropriate in many instances, in the right case it does provide an alternative to trial or simply pleading guilty to the lowest possible offense and exposure. Only experienced federal criminal defense counsel can properly evaluate the client’s case, information and potential for cooperation.
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