Formulating and Presenting Effective Sentencing Arguments When Representing Cooperators

Introduction

For many defense lawyers, representing a cooperator can be a disorienting endeavor. Effective advoca- cy requires that counsel collaborate with prosecutors in order to maximize the impact of the cooperator’s assistance and, if carried out properly, this joint effort enhances the strength of the prosecution. For those who have spent decades refining the skills necessary to tear down the government’s handiwork, effectively joining forces with prosecutors can be an unfamiliar and confounding exercise. Operating in this abnormal environment some- times causes defense counsel to cede to the govern- ment three critical assessments that must be deter- mined: the value of the information the cooperator provides, the cooperator’s relative worth as compared to others similarly situated, and, ultimately, the extent of the departure due under U.S.S.G. § 5K1.1. The par- ticular forces that cause defense counsel to abdicate their responsibility — whether consciously or uncon-sciously — to advocate on any or all of these points might be an interesting study, but those are not the focus of this article. Instead, the focus here is on the measures defense counsel can undertake to overcome that tendency by gathering and presenting informa- tion that serves to boost their clients’ ability to obtain the greatest benefit for their service as cooperators.

In setting forth those measures, this article chal- lenges what is often treated as a foregone conclusion by most prosecutors, some judges, and too many defense counsel: that the government should have the exclusive authority — or at least the primary standing — to assess the value of a cooperator’s assistance and thus ultimately control the amount of the sentencing reduc- tion. That conclusion rests largely on a two-pronged hypothesis: (1) that § 5K1.1 itself contemplates that only the government can determine the true impact of a cooperator’s assistance in a particular prosecution because only the prosecutors understand fully how that assistance fits with the broader investigative effort, and (2) because § 5K1.1 departures are often litigated and resolved via in camera proceedings — which the prose- cutors, but not defense counsel, are privy to — the gov- ernment is better situated to assess the value of the assistance as compared to other cooperators, and thus a more reliable determiner of how great a reduction is due. In other words, the prevailing wisdom is that the government knows better because it knows more.

Neither the assumption that the government is bet- ter postured to evaluate cooperation efforts nor its underlying dual premises withstand scrutiny. As to the first basis, it is true that the government almost always enjoys greater access to information about a cooperator’s use- fulness in a particular case, and the application notes to § 5K1.1 plainly provide that the government’s assess- ment of the extent of the cooperator’s assistance be given “substantial weight.” However, neither the guideline nor the application notes suggest that defense counsel are prohibited from offering evidence or arguing about the value of a cooperator’s role in a given case, and the principles underlying the adversary sys- tem would not countenance such a result. While few lawyers make a con- scious decision to defer to the govern- ment on this point, too often they effec- tively do so as a matter of practice by not searching out the information nec- essary to challenge the prosecutors’ argument in a convincing fashion. In truth, virtually all the data necessary to gauge a cooperator’s usefulness in a par- ticular investigation can be compiled by defense counsel. To the extent counsel lacks certain information “material to … punishment,” Brady, as amplified by later Supreme Court precedent, man- dates disclosure. Because it may not always be clear how that information is relevant or where it fits within the larger framework of a § 5K1.1 argument, it is critical that the defense formulate and press specific discovery requests even after entering a plea.

The second component underly- ing the “government knows best” assumption is also flawed. To be sure, the safety of a cooperating witness often requires that filings and rulings be sealed, and courts are understand- ably wary of providing sweeping dis- covery that would undermine that con- cern. But that does not mean that lawyers seeking to formulate argu- ments about a particular cooperator’s comparative value lack options. Plenty of reported cases discuss the basis for and appropriate size of a § 5K1.1 departure, and publicly available tran- scripts and rulings contain even more attention to those issues. Those judicial statements can bolster arguments made on behalf of comparable cooper- ators. Moreover, in some instances counsel will find the most compelling data for formulating departures — sentencing data tracking § 5K1.1 departures across districts, circuits, and the country as a whole — is pub- licly available on the Sentencing Commission’s website.1 Targeted research efforts through traditional and nontraditional means can pay huge dividends for those who know how and where to look.

This article seeks to reorient defense counsel operating in what can seem like an inverted environment. Simply because a client’s interests might align with the government on some issues should not diminish coun- sel’s ability to zealously advocate when those interests diverge, as they almost always do. By discussing some of the tools available, this article seeks to level the playing field at least a bit and assist defense counsel in formulating and advancing compelling arguments on behalf of their cooperating clients.

Legal Framework

Section 5K1.1 directs that:

an appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:

1. the court’s evaluation of the significance and usefulness of the defendant’s assistance, tak- ing into consideration the gov- ernment’s evaluation of the assistance rendered;
2. the truthfulness, completeness, and reliability of any informa- tion or testimony provided by the defendant;
3. the nature and extent of the defendant’s assistance;
4. any injury suffered, or any dan- ger or risk of injury to the defendant or his family result- ing from his assistance;
5. the timeliness of the defen- dant’s assistance.2

The guideline makes clear that this list of potentially relevant factors is not exhaustive, providing that because “[t]he nature, extent, and significance of assistance can involve a broad spectrum of conduct that must be evaluated by the court on an individual basis … [l]atitude is … therefore, afforded the sentencing judge to reduce a sentence based upon variable relevant factors, including those listed [in the guide- line].”3 While affirming this broad dis- cretion, the guideline’s application notes also reflect that “[s]ubstantial weight should be given to the govern-

ment’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assis- tance are difficult to ascertain.”4

Counsel should be mindful that despite this language, the scope of the government’s authority is limited in the § 5K1.1 context. As numerous cases have recognized, the only power fully delegated to the government is the authority to ask the court to reduce the defendant’s sentence when he or she has rendered substantial assistance. Once the government has done so, the court alone determines the extent of departure based on appli- cation of § 5K1.1.

Structuring Successful Arguments

A. Measuring the Dimensions of a Cooperator’s Value

The government all too often fails to appreciate the scope of disclosure necessary to undertake the full measure of a cooperator’s assistance. While defense counsel are typically provided generic data about the number of indictments or convictions in cases tied to cooperator’s assistance, counsel are encouraged to dive deeper. The meas- ure of the catch should consider not only the number but also the size of fish landed. What were the loss amounts of the cases that resulted from the cooper- ator’s assistance? How many kilos of drugs were seized — and thus prevent- ed from being distributed on the streets— because of evidence the cooperator supplied? Was there any restitution to victims or forfeiture to the government in the case made thanks to the cooper- ator? In addition to cash, was there any tangible asset forfeiture? How many vehicles, houses, and parcels of proper- ty did the government forfeit as a result of the client’s cooperation? All of this information has value in gauging the cooperator’s worth under the tradition- ally applied objective metrics, and defense counsel should strive to secure it — and make it known to the sentenc- ing judge — as a matter of course.

Counsel also can and should gath- er and present data that is more sub- jective. For example, did the coopera- tor give the government information that helped break a logjam among conspirators, indicted or otherwise? Did the information provided help advance a case which, despite the investment of substantial government resources, had been stymied? Was the government able to utilize resources in other areas because of the shortcuts provided by the cooperator? For exam- ple, as a result of the cooperator’s assistance, was the government able to reach a resolution prior to what would otherwise have been a lengthy and complicated trial? Did the cooperator allow the government to short circuit investigations, such as by alleviating the need for the government to secure and execute a search warrant or to obtain a wiretap? Did it become unnecessary for the government to obtain or review huge volumes of doc- uments, or conduct forensic examina- tions on multiple computers? Was it no longer necessary for the govern- ment to engage expert witnesses?

All of these results are exception- ally beneficial to the government because they allow finite resources to be allocated elsewhere. When that hap- pens, the cooperator’s value extends beyond the particular cases in which he or she provided information. While more difficult to measure, this form of benefit is nevertheless plainly relevant to the court’s assessment of the coop- erator’s impact, and it must be a factor in the calculus used to determine the proper sentencing reduction. Counsel should recognize and treat it as such, being creative and working to peel back the layers of value to maximize the cooperator’s worth.

B. Plan Your Work, Work Your Plan

The most important step in maxi- mizing a client’s § 5K1.1 departure is to challenge, when appropriate, the govern- ment’s attempt to undervalue clear mean- ingful assistance. Whether the govern- ment does so via application of a rigid “policy” or otherwise, recommendations designed to constrain the court’s ability to substantially reduce the defendant’s sen- tence must be challenged when they fail to reflect the true impact of the cooperator’s role. Except where the prosecutor recom- mends essentially no punishment, or in rare cases where it cannot plausibly be argued that a greater departure is appro- priate, counsel should use the govern- ment’s recommendation as a starting point and encourage the court to depart further. That process should include some or perhaps all of the following measures:

1. Explain the process to the client in detail at the outset. Defense counsel should thoroughly explain the process to the client, including the danger of the cooperator minimiz- ing or otherwise failing to provide information fully and Any cooperator might well find it coun- terintuitive that minimizing his or her conduct or otherwise failing to disclose all relevant information, no matter how bad it might appear, could not only reduce the amount of the § 5K1.1 departure received, but also jeopardize whether or not such a motion is ever made. The client must also understand that cross- examination will be rigorous even when the testimony is corroborated, and that efforts to embellish, includ- ing fabrications, will not make the process easier. The client must recog- nize that, if anything, such efforts will turn out to be disastrous. While it may seem obvious to the lawyer that making things up not only dis- qualifies a cooperator from a sen- tencing reduction but likely exposes him to enhanced punishment, a first-time cooperator may fail to appreciate this or overlook the risk in his or her haste to claim the reward. The time invested in providing the client painstaking detail about the course of cooperation — and the hazards that exist along the way — minimizes the risk of turning the effort into a catastrophic failure.

2. Prepare a “cooperation log” that doc- uments the universe of the defen- dant’s cooperation. This includes compiling every written communi- cation (particularly texts and emails) wherein the cooperator provides assistance (either directly or through counsel) as well as recording the date, location, and length of all of the cooperator’s meetings and phone communica- tions with the government. Counsel should also take and maintain detailed notes of the information provided to the In addition, after each proffer or wit- ness preparation meeting, it is a good idea for defense lawyers to ask the prosecutors to let defense coun- sel know if the prosecution was sat- isfied with the truthfulness and quality of the cooperation, and defense counsel should duly note the response in a memo to the client’s file. It is not uncommon for the prosecutor to comment favor- ably, and these comments can be utilized in furtherance of efforts to maximize § 5K1.1 credit. Too often, counsel who know they will not have to try the case can get compla- cent in their preparation efforts, relying on interview memoranda

prepared by government agents. This can be problematic in two respects. First, those memoranda are mere summaries and often lack the detail necessary to capture the full extent of the defendant’s coop- eration. Secondly, while counsel often receive copies of those mem- oranda, that is not always the case. Counsel’s efforts to build their own record can pay large dividends down the line.

3. Understand fully the degree to which a client’s cooperation aided the gov- ernment’s case. In light of 5K1.1’s directive to afford “substantial weight” to the government’s evalua- tion, some defense counsel con- clude that only the government’s assessment is relevant and decline to weigh in on the question in a meaningful way. But the guideline simply mandates that the court lis- ten to what the government has to say on the topic — it does not sug- gest that only the government can be heard. Defense counsel should be fully prepared to offer an evaluation as well, and doing so requires a thorough analysis of the volume of the information and its value. For example, was the cooperator the sole source of information used to formulate charges against others? To answer this, counsel would need to compare that information to those charges and compare infor- mation received by others. While often a tedious process, the reward can be significant when counsel is able to show that the cooperator was singularly essential to the gov- ernment being able to move for- ward against a particular individual or on a particular theory.
4. File a response to the government’s

• 5K1.1motion. Because the goal of cooperation is securing a § 5K1.1 motion, counsel sometimes view fil- ing a response to that motion as the equivalent of looking a gift horse in the mouth. But a “response” in this context is not an “opposition” sug- gesting that a reduction is not due; it is merely an effort to ensure that the size of that reduction is properly cal- ibrated. Counsel who fail to file a response to the government’s motion often rationalize that choice based on the narrower range of dis- pute than in traditional sentencings and their plan to argue the issue at the sentencing hearing. This is tenuous logic for any number of reasons, but the most obvious is that in many cases the court has at least formulat- ed a rough plan for its ruling, if not resolved it almost in full, before the hearing begins. Leaving the govern- ment’s filing without a response can be a recipe for failure in even the simplest of cases, but certainly so when the analysis involves compli- cated issues of fact (e.g., the nature, scope, timing, and usefulness of the defendant’s cooperation; what other similarly situated cooperators have received) or law (e.g., the applicable legal framework for determining what constitutes a “risk of injury” to the defendant; the degree to which defendant should be credited with prosecutions not tied directly to the information he provided). Even where the parties agree on the appli- cation of certain elements of

• 5K1.1, a written submission from

the defendant is critically important to allow the court to make fully informed decisions about the issues.

5. Make a substantive presentation at sentencing. In addition to filing a response to the government’s

• 5K1.1 motion, counsel should be prepared not only to argue the issue at the sentencing hearing, but also offer testimony and exhibits as nec- essary. To be clear, this presentation should be made separately from the

discussion of other guideline issues and the factors set forth in 18 U.S.C.

• 3553(a) factors. In addressing the court on § 5K1.1 issues, counsel should consider steps such as:
  • Seeking a stipulation or, if nec- essary, calling the case agent to elicit testimony about the extent of the defendant’s coop- eration efforts (e.g., number of times interviewed, length of interviews, form and frequency of other communications such as emails and phone calls, recordings made, ), the sub- stance of those communica- tions (e.g., original information provided about activities and conduct, recommendations about avenues of investigation and new subjects), and the manner in which that coopera- tion was used by the govern- ment (inclusion in search war- rant applications, surveillance of identified individuals, as a means of securing pleas and cooperation from those impli- cated, or otherwise).5
  • Offering exhibits that reflect the connection between the cooper- ator’s assistance and subsequent government successes, such as memoranda of the defendant’s interviews implicating others

and indictments or plea agree- ments echoing those allegations. Counsel should also prepare and submit to the court — ide- ally in response to the govern- ment’s § 5K1.1 motion but at least as an exhibit at sentencing filed under seal — the “coopera- tion log” referenced above. The ultimate goal is to demonstrate to the court that the defendant was a fully engaged and com- mitted cooperator, by showing both the frequency of interac- tion and the degree to which the government used the informa- tion the cooperator provided, both directly and indirectly, to enhance existing prosecutions or initiate new ones.

• Submitting evidence of sen- tences imposed on other coop- There are at least three ways to define the scope of cooperator sentences worthy of comparison: the nature of the cooperation’s efforts; the results realized from those efforts, and the district where the sentence was imposed (or perhaps even judge who imposed it). Ideally, these three would overlap: counsel would be able to point to cooperator in the same dis- trict or even before the same judge who received a larger departure than that recom- mended by the government despite providing assistance in a volume and also producing results equal to or less than the defendant. But perfect should not be the enemy of good — evidence of other cases can be valuable even if just one of the defining criteria is present. See (E), infra, for a discussion of the process of researching and com- piling sentences that can be used for their precedential value.

C. Challenge the Notion

That the § 5K1.1 Policy of an Individual U.S. Attorney’s Office Should Carry Any Weight

It has become increasingly common for individual U.S. Attorney’s Offices to create and maintain policies seeking to reduce the process of a evaluating a cooperator’s value to a rigid framework. Under this approach, § 5K1.1 departure recommendations are tethered to specif- ic forms of cooperation such as wearing a wire, making consensual phone record-

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ings, or conducting controlled transac- tions of illegal goods. Most often, these policies mandate that a cooperator testify in order to be eligible for a significant level departure or percentage reduction.

Policies of this type are grounded in the notion that uniformity is critical to applying § 5K1.1 properly. While consistency is a laudable goal, efforts to reach it through an inflexible frame- work can undermine the substance and purpose of the guideline, create per- verse incentives, and negate an individ- ualized level and quality of your clients’ cooperation. Interpreting § 5K1.1 incorrectly on a consistent basis does not somehow validate those interpreta- tions; it simply means that the govern- ment reliably reaches the wrong result. Recognizing that § 5K1.1 affords the court substantial discretion to calibrate departures based on a range of factors, the government’s use of a formulaic approach signals that the court should as well. From the government’s per- spective, even if the court’s formula is not as stingy as the government’s, the fact that the process has been reduced to a mathematical exercise can be bene- ficial. If the government can calculate a departure level through what appears to be a rationally based and consistently applied system, any methodology that produces a materially different result can be perceived as inherently suspect.

It is not difficult to envision a sce-nario where even the most well-inten- tioned but nevertheless unyielding system produces an irrational result. Requiring that a cooperator testify before receiving substantial credit can, in theory, appear logical: testifying can be difficult, requir- ing more time to prepare and a height- ened dedication to the government’s cause, and represents a form of coopera- tion that arguably increases the potential for harm to the cooperator because of its public nature. To be sure, when a charged defendant insists on going to trial, the cooperator’s testimony will be vital to suc- cess. But as often happens when general- ized policies are applied rigidly, requiring testimony necessarily undervalues the cooperative efforts of one who provides information of such high quality that the government is able to use it to secure quick guilty pleas. Is the cooperator in that scenario less valuable than the one who testifies at trial, particularly where multi- ple guilty pleas result? Of course not. If anything, cooperation that comes in a form and volume so compelling as to avoid the need for trial should be reward- ed, not diminished. But under a system that mandates testimony in order to receive the maximum sentencing reduc- tion, the nontestifying but nevertheless exceedingly productive cooperator loses out. Making the dubious nature of that type of logic clear to sentencing judges can effectively overcome the government’s effort to obscure incongruous sentencing recommendations behind purportedly logical and consistently applied individual office policies.

1. The Challenge of Asserting Ownership Over Positive Prosecutorial Developments Defense counsel too often fall into the trap of trusting that the court will apply the reasoning of “post hoc ergo propter hoc” (“after this, therefore because of this”) in apportioning credit for positive developments following a client’s cooperative efforts. For example, when the client provided specific infor- mation and another individual was later charged, many counsel assume that the cooperator will get credit for that devel- opment. But the post hoc fallacy is falla- cious for a reason: it can sometimes rep- resent an oversimplification of cause and effect, overemphasizing the significance of temporal proximity.

All too often, the government attempts to undermine cooperator efforts

to claim credit for positive investigative developments by pointing to intervening factors. Whether by arguing that the information supplied was already known or that evidence from other sources in fact generated the positive development, the government often resists the notion of giving the cooperator credit. Because the government has access to more informa- tion than the defense, it frequently enjoys the ability to at least raise doubt about whether a direct causal link exists between information and results. But defense counsel has remedies; most notably, Brady-based motions intended to determine whether and to what extent information provided by the cooperator can be linked to prosecutorial successes. Because Brady applies to “guilt or punish- ment,” its import extends beyond the plea and mandates the disclosure of informa- tion that impacts sentencing. By filing such motions to determine when and how the government used the coopera- tor’s information, defense counsel can often gather insight regarding the true value of the client’s cooperation, particu- larly when its impact may not be obvious.

E. Pointing to Comparators

Section 5K1.1 says nothing about the need to ensure that the defendant’s sentence aligns with those imposed on similarly situated cooperators. For this reason, some defense counsel believe that such arguments must await the court’s evaluation of “the need to avoid unwarranted disparities” in the

• 3553(a) analysis. But that process comes after the § 5K1.1 evaluation, and waiting to raise these points effectively forfeits a valuable opportunity to maxi- mize the sentencing reduction. Nothing in § 3553(a) or elsewhere prohibits counsel from pointing to sentences received by other similarly situated cooperators to challenge the govern- ment’s recommendation where the gov- ernment proposed, or the court imposed, a greater sentence reduction. Counsel who fail to argue those points forgo an opportunity.

To be sure, gathering information about similarly situated cooperators can be challenging. Significantly reduced sentences are obviously not widely publicized by the government. Section 5K1.1 motions are often filed under seal, particularly when there is a risk of harm to the cooperator. But even when that is not the case, the gov- ernment typically seeks to keep its rec- ommendations under wraps. Even if the recommendation and ruling are made in open court, they seldom find their way into reported or unreported decisions at the district, much less cir- cuit, court level.

Counsel seeking to overcome these challenges can employ several methods. First, counsel should identify the metrics most effective for comparison. Does the volume of information provided, the use to which it was put, or the circumstances under which it was provided matter most? If, as often happens, the answer is some combination of the three, counsel should seek to define what a relevant comparator looks like.

Having done so, counsel should con- sider the following sources of information:

• Other counsel practicing in the dis- trict. Defense attorneys should reach out to other counsel in the Often those in the district’s Federal Public Defender’s Office or attorneys on the CJA list have the most experience in dealing with

5K1.1 motions, but counsel should also consider a wider appeal to other defense counsel who fre- quently practice in federal court.

• PACER. Though cumbersome, searches on PACER can reveal cases containing publicly filed 1

motions. Once identified, counsel should review those filings — as well as the defendant’s response and the court’s ruling — in order to col- lect information of value.

• Motion practice. Whether tethered to Brady or otherwise, counsel should make full use of the court’s authority to order the government to provide information that may be of value in this To be sure, challenges exist when the informa-

tion sought is contained in sealed filings, and the court will need to balance the defendant’s need for the requested information against the risk of harm disclosure presents, even where a protective order limits further dissemination of the infor- mation. Regardless, counsel should endeavor to determine whether the government has taken positions in analogous cases or otherwise pos- sesses information that would sup- port a greater sentencing reduction than it has recommend in the defendant’s case.

• USSGwebsite. Often overlooked, this site contains a wealth of valuable information about sentencing prac- tices district, circuit and The Sentencing Commission pub- lishes its Sourcebook of Federal Sentencing Statistics (https://www.ussc.gov/topic/sourcebook), and its website contains such information back to 1996. Within those materials, counsel can access the data capturing the extent of 5K1.1 departures by type of crime and readily determine the mean and median sentences bro- ken down by type of offenses. With this information, counsel can quickly determine how the government’s recommendation in a given case stacks up to the reductions others have received.

F. Avoiding the Pitfalls

Counsel should be mindful of sev- eral hazards when representing coopera- tors. Errors of commission and omission are numerous in that context, and coun- sel who are forewarned are forearmed. Below is a non-exhaustive list of pitfalls:

1. Assuming that reductions under R. Crim. P. 35 will be forthcom- ing and will rectify inadequate

• 5K1.1recommendations. Where a

cooperator is expected to provide ongoing assistance, or where the information he has previously pro-

vided has not fully ripened, there can be a tendency to trust (or worse, assume) that any deficien- cies in the § 5K1.1 recommenda- tion will be rectified via motion to reduce the sentence under Rule 35. There are two major problems with this line of thinking. First, there is no guarantee the government will make a subsequent request, and virtually no remedy (short of establishing a rarely provable unconstitutional motive) if it does not. Second, as a recent study by the U.S. Sentencing Commission determined, even when the govern- ment files a Rule 35 motion, reduc- tions under it benefit the defen- dant less than those granted under

• 5K1.1.6Bottom line: assume that

the § 5K1.1 recommendation is the client’s one and only shot at a sen- tence reduction.

2. Confining cooperation-based argu- ments to the 5K1.1 discussion. The Application Instructions contained in § 1B1.1 direct sentencing courts to adopt a three-step process in fashioning a sentence. First, the court must apply the guidelines to calculate the appropriate guideline range. Second, the court must determine whether and to what extent a departure is appropriate. Finally, the court must consider the factors listed in § 3553(a) to arrive at the appropriate sentence.

In light of this framework, counsel often conclude that cooperation-related arguments are prohibited outside of the second step of the process and forbidden altogether if the government does not file a § 5K1.1 motion. This is incorrect. Even where the government refuses to file a § 5K1.1 motion, arguments based on the defendant’s cooperation are validly considered. While a court may not depart downward absent the govern- ment’s motion, it is well-settled that fol- lowing the ruling in United States v. Booker,7 a sentencing judge may consid- er the defendant’s cooperation in deter- mining whether to grant a variance.8 Accordingly, counsel should not be deterred in alerting the court to the defendant’s efforts to cooperate even where the government declines to file a

• 5K1.1 motion. The defendant loses nothing — and could gain much — by making the court aware, in the context of the § 3553(a) analysis, of efforts to remedy or at least mitigate the harm caused by the offense.

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3. Assuming the government and court are fully versed in the relevant issues. Most judges have handled vast numbers of sentencings, and that experience includes frequent- ly applying the § 5K1.1 factors. Defense counsel should not, how- ever, assume that familiarity with that process necessarily translates into proficiency in all of the vari- ous areas discussed above. This advice is not meant to cast asper- sions on any judge, but instead simply to highlight an obvious fact: because defense counsel are often less aggressive in litigating

• 5K1.1 issues — or even less aware that some of those issues exist to be litigated — sentencing judges confront those issues less frequently, and discussion of them is less common. Recognizing this, counsel should be prepared to educate the court on both the law and the nuanced aspects of these issues as part of advocating for greater sentence departures.

4. Failing to recognize the impact of public filings. Even judges resistant to accepting filings under seal rec- ognize the risks presented when a defendant’s cooperation becomes For this reason, motions to file pleadings related to § 5K1.1 under seal are routinely granted even when there is no direct threat of physical harm. Counsel should not assume that the government will always file its motion under seal; the government often com- bines its § 5K1.1 motion with its

sentencing memo and files it as a publicly available pleading. Defense counsel should commu- nicate with the government beforehand to avoid that result. In addition, counsel should request that the court edit related docket entries as appropriate to maintain the appropriate level of secrecy.9

Conclusion

Because representing cooperators is a less common aspect of criminal defense work, the issues such work presents are less familiar. That unfa- miliarity can mean that key issues are sometimes misunderstood, underesti- mated, or overlooked. But the stakes are no less important even when it appears that the client’s interests are aligned with the government. By better understanding the challenges present- ed in the cooperation context, defense counsel will find themselves better equipped to overcome them. More importantly, being fully informed about the difficulties means that the client will be best situated to reap the fullest return on the risks undertaken by cooperating.

The article "Formulating and Presenting Effective Sentencing Arguments When Representing Cooperators" was originally published by the NADCL Champion Magazine in April 2021.