5k, Rule 35, 3553(e)
5k, Rule 35, and 3553(e) are numbers that refer to U.S. Sentencing Guideline provisions or federal criminal statutes. Although there are subtle differences among these legal provisions, they share a common concept in practice. The concept involves you providing information or “substantial assistance” to the government. In exchange for the information or assistance, the government may file a “Motion for Downward Departure” pursuant to U.S.S.G. § 5k1.1 or Rule 35 of the Federal Rules of Criminal Procedure. These motions may contain references to 18 U.S.C. 3553(e).
These provisions come up in almost every federal criminal prosecution. Almost every federal criminal defendant will have to consider whether he or she wants to cooperate with law enforcement. Cooperation typically involves telling law enforcement officers everything that you know about other criminal activity. It could involve wearing a wire or giving historical information. There are risks and benefits for this type of cooperation.
Each case is unique. The key to cooperation is commitment. Cooperation requires a defendant to provide accurate, complete and helpful information. Whether you will cooperate or not will depend on the information you have, the government’s desire for that information and whether you are willing to accept the risks associated with cooperation. Your lawyer should take steps to insure that your statements are protected in a plea agreement or proffer agreement. There may be limitations on that protection.
You should also consider your sentencing judge and what benefit you are likely to receive as a result of your cooperation. You should thoroughly discuss cooperation with your lawyer in determining what is best for you. In some cases where the government has a particularly strong case, cooperation may be the best way for you to get home to your family as soon as possible.
In any event, the decision to cooperate or not is exclusively your decision. No one can or should make the decision for you. Your lawyer is not bad or weak because brings it up to you. It is his job to talk with you about any opportunity you may have to get home more quickly.