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The Pitfalls and Perils of Federal 5K for Substantial Assist

Posted by Summer McKeivier | Aug 19, 2014 | 0 Comments

In the federal system, everyone knows the term 5K.  It is legal speak for the benefit federal defendant's receive for “substantially assisting” the government.  In layman's terms it is how you receive a lower sentence by turning in someone else.  Now most defendant's initial reaction to this is “I am not a rat.”  But in the federal system, EVERYONE is “a rat”.  The only difference is he who speaks first gets the biggest hunk of cheese.

The details of obtaining a 5K was spelled out in the United States Sentencing Guidelines which is the bible for federal criminal matters.  The one jagged pill to swallow is that the decision of whether or not to make a motion for a 5K based on the defendant's substantial assistance lies solely with the US Attorney.  Trusting the government, or the people who are prosecuting you, is a very large leap of faith for most defendants.  But in some cases that leap of faith is infinitely better than the alternative.

However, the new Assistant United States Attorneys are playing it close the vest.  To obtain this kind of consideration the defendant must “proffer” or meet with the US Attorney and investigators and truthfully tell all they know.  The sooner the better.  Herein lies the rub.  Sometimes the best strategy is to have your client proffer immediately but if the defendant has not been indicted the US Attorneys are becoming increasingly more secretive about revealing the evidence they have against your client.  This is a catch-22.  Do you have your client proffer because of the potential benefit at sentencing or do you wait for your client to be indicted triggering the rules of discovery knowing that if someone else talks first all of the benefit for your client could be lost?

Then there is the US Attorney who offers your client a proffer session and then refuses to file a 5K motion claiming that none of the information provided yielded any potential lead or assistance.  Always take detailed notes on proffer sessions because although it is highly unlikely that you can convince the court to compel the government to file the motion, at least you have the ammunition for your sentencing memorandum.

About the Author

Summer McKeivier

Attorney Summer McKeivier handles a wide variety of cases in the criminal defense field and has earned a reputation for her intensive preparation and equally impressive case results. Most recently, she obtained a result of three years probation for a client caught in a Federal sting operation who was facing many years in prison.


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