The post-Enron, HealthSouth world of White Collar Criminal Litigation is marked by an increasing Government zeal to indict matters that were once typically handled only by civil and regulatory agencies. This expansive approach is frequently drawing career civil attorneys into the fray of federal criminal litigation. Before entering into the lair of a United States Attorney’s Office, however, a litigator must be armed with a strong bow of knowledge and a quiver of insightful arrows.
Of particular importance in the federal criminal arena is the implementation of the now advisory United States Sentencing Guidelines. The source of much controversy, these guidelines dictate the fate of a criminal defendant who has pleaded or been found guilty of a federal offense - which in most federal jurisdictions is nine out of ten defendants.At the sentencing hearing, a Judge determines the guideline range (assigning the length of incarceration) based on several factors associated with a defendant’s guilt and crime. After the guideline range is determined, if the court finds that there is a factor that the guidelines did not adequately consider, it may “depart” – up or down - from the guideline range.
One unique type of departure is the “substantial assistance” departure. This downward departure may be granted if the offender has provided “substantial assistance” in the investigation or prosecution of another offender. Though not specifically defined by statute, assistance is considered to be substantial when such conduct leads to the indictment of another individual.
This article addresses the various and sundry pitfalls associated with encouraging a client to provide ‘substantial assistance’ to the Government for the purpose of obtaining a reduced sentence. While the prospect of cooperating with the Government in exchange for spending less time in federal custody may seem appealing, receiving a downward departure based on substantial assistance may prove perilous. In fact, the harm done to a client by making herself available to the Government may outweigh the likelihood of receiving a reduced sentence.
Significantly, a motion to depart downward based on substantial assistance must be made by the prosecution. U.S.S.G. § 5K1.1. Thus, for sentencing purposes, the Government is, in a sense, both the hangman and the bondsman. Quite frequently, a criminal defendant agrees to - and in fact does - provide substantial assistance in a federal criminal investigation within the meaning of 18 U.S.C. § 3553(e), but, despite such assistance, the Government fails to make a motion for downward departure within the terms of a negotiated plea agreement. Under these circumstances, federal judges are typically without a mechanism to compensate for the Government’s failure to make a motion for downward departure.
After a client has decided to ‘purge her soul’ and plead guilty to a federal offense, an effective way to limit her exposure to a lengthy term of incarceration is to draft a favorable Negotiated Plea Agreement. For instance, by providing substantial assistance, a defendant’s sentence may be reduced significantly. There are many reported federal criminal cases, some involving millions of dollars of alleged loss, which have been greatly affected by the defendant’s willingness to provide substantial assistance to the Government. Defendants’ sentences have been reduced from lengthy terms exceeding 40 months down to levels of less than twelve months (and in some cases probation) based on the fulfillment of the terms of a Negotiated Plea Agreement – including an agreement to provide substantial assistance. Unfortunately, for purposes of downward departures, ‘substance’ is in the eye of the beholder – the Government.
A typical Negotiated Plea Agreement (often drafted by an Assistant United States Attorney) may include the following language:
The defendant agrees to make herself available to the Government to provide substantial assistance pursuant to U.S.S.G. § 5K1.1 with respect to matters other than the conduct at issue in this case. If the assistance is completed prior to sentencing, the Government agrees to consider whether such cooperation qualifies as “substantial assistance” pursuant to 18 U.S.C. § 3553(e) and/or Section 5K1.1 of the Sentencing Guidelines warranting the filing of a motion at the time of sentencing recommending a downward departure from the applicable guideline range.
This seemingly innocuous language is an Ace in the well worn sleeve of the Government. Rather than agreeing to a ‘bargained for exchange’ in which both parties may rely on the benefit of the bargain, the Government may use sufficiently illusory language which obligates it to do far less than what may be assumed by the defendant.
Imagine a situation in which a defendant does everything that is asked of him in cooperation with a Federal Government investigation. A co-operating defendant may give up names, help locate fugitives, give information against a co-defendant, help disrupt ongoing criminal conspiracies, participate in surreptitious recordings which advance and often trigger federal investigations – all of which put him at risk.
As a result of these efforts, at sentencing, the defendant and his attorney rest assured that the terms of the plea agreement have been fulfilled as the crucial time for the Government to make its motion for a downward departure based on substantial assistance comes . . . and goes. In an instant, the client’s hopes are dashed. As the now convicted client ponders his future life in a federal prison, and you consider your defenses to an imminent § 2255 motion based on ineffective assistance of counsel, all is quiet at the Government’s table.
Everything that seemed so cordial and pleasant while negotiating the terms of the plea agreement – the suggestions of a lighter sentence, the mutual cooperation - has been soured. Although the implicit understanding may have been that the Government would make a motion for downward departure in exchange for the defendant’s substantial assistance, the terms of the actual plea agreement are often more slippery. In the example cited above, for instance, the Government merely “agrees to consider whether such cooperation qualifies as ‘substantial assistance.’” Because the Government is the arbiter of what constitutes substantial assistance, such an assurance is problematic, if not altogether hollow.
‘Keeping the Faith’
Because a Federal District Court cannot compel the Government to make a motion for downward departure based on substantial assistance, a criminal defendant has little appellate recourse. In fact, only under very limited circumstances may a jilted defendant obtain relief based on alleged Government bad faith. In Wade v. United States, 504 U.S. 181 (1992), the United States Supreme Court held that federal district courts have authority to review a prosecutor's refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive.
In Wade, the Supreme Court stated that under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, the Government has "a power, not a duty, to file a motion when a defendant has substantially assisted." Wade, 504 U.S. at 185. The Court limited the exercise of that power only to the extent that the Government cannot fail to exercise that power based on an improper unconstitutional motive. Id. at 186 (citing race and religion as examples of unconstitutional motive).
Relying on this decision, the Eleventh Circuit also noted that judicial review of such a decision is appropriate only "when there is an allegation and a substantial showing that the prosecution refused to file a substantial assistance motion because of a constitutionally impermissible motivation, such as race or religion." United States v. Forney, 9 F.3d 1492, 1502 (11th Cir. 1993) (footnote omitted). Thus, absent a showing of unlawful discrimination, courts are rue to second guess the Government’s decisions concerning motions for downward departure based on substantial assistance.
The ray of hope for criminal defense attorneys comes, of course, from a dissenting opinion. In his lengthy dissent in Forney, Judge Clark refers to the seminal case of Santobello v. New York, 404 U.S. 257 (1971), and argues that contract law should control and urges for the creation of “a bad faith exception for judicial review in cases involving plea agreements, where the Government has reserved discretion to file a 5K1.1 motion.” Forney, 9 F.3d at 1507. The dissent asserts that “under Santobello, a district court is obligated to enforce the Government's promise to file a 5K1.1 motion just as it is obligated to enforce other promises in plea agreements. There is no dispute over this general principle.” Id. at 1505.
“Since Wade,” Judge Clark continued, “every circuit that has addressed the issue in a published opinion has either specifically decided or assumed that the principles announced in Santobello are applicable to the Government's conditional promise in a plea agreement to file a 5K1.1 motion.” Judge Clark concluded his discussion by noting that “As a trustee of the people, the Government is held to a higher standard in carrying out our common duties, including the prosecution of crimes. This higher standard requires the sovereign to perform its contractual duties with a sharpened sense of good faith and fair dealing. The fact that the other party to the contract is a criminal defendant does not alter the Government’s duty.” Forney, 9 F.3d at 1509.
Judge Clark’s dissent notwithstanding, defense attorneys must be prepared to navigate the slippery slope of plea negotiations in a federal criminal case. The semantics and illusory language associated with negotiated plea agreements, for instance, are effective tools in the Government’s arsenal. Therefore, before entering into plea negotiations with the Government, tighten your bow, sharpen your arrows, and don’t be fooled by the smiling foe.
 In 1984, Congress passed the Sentencing Reform Act. This Act created a new federal agency, the United States Sentencing Commission, and instructed it to develop uniform guidelines for sentencing in federal cases. Accordingly, the United States Sentencing Guidelines became effective November 1, 1987, and apply to all federal felonies and most serious misdemeanors. Under United States v. Booker, 543 U.S. 220 (2005), a district court is not bound to apply the federal sentencing guidelines, but must consult those guidelines and take them into account to formulate a reasonable sentence.
 If the substantial assistance is provided after sentencing, a motion for downward departure may be made pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure.
 The Government may also contend, with success, that while a defendant’s assistance is ‘significant,’ it is not ‘substantial.’
 Santobello addressed the Government's failure to keep an oral promise to the defendant that it would not make a sentence recommendation if the defendant would plead guilty to a lesser-included offense.