The Less Than Substantial Understanding About Substantial Assistance

All everyone has been talking about is the “substantial assistance” that prosecutors say that former Trump lawyer Michael Cohen and former National Security Adviser Michael Flynn gave prosecutors. Many pundits and commentators have seized on the notion that the cooperation that both men gave was so substantial, yet few really understand the context of the term’s origin.

Substantial assistance is a term of art that is discussed in Section 5K1.1 of the United States Sentencing Guidelines. Enacted by Congress more than 30 years ago, the Guidelines provide advisory ranges of sentences for federal judges to impose.

When a defendant cooperates with federal prosecutors, they may file a motion or request that the sentencing judge depart downward or go below the advisory sentencing range that would otherwise apply. In other words, when someone cooperates and prosecutors think the information is helpful, they will tell a judge that the defendant has given “substantial assistance” and that a reduction in sentence is warranted.

While there are a number of other factors to consider in a request for a downward departure, the prosecution’s assessment of whether the information provided is “substantial” is, perhaps, the most important for a federal judge to consider. In the end, though, it’s the judge’s call as Michael Cohen recently learned.

Even after a sentence is imposed, a defendant can still provide substantial assistance to prosecutors in some cases. When this occurs, prosecutors may elect to file a request, under Rule 35 of the Rules of Federal Criminal Procedure, for a reduction in the defendant’s sentence. Rule 35 motions are far less common that motions for downward departures at the time of a sentencing.

Substantial assistance only comes into play in the defense of federal crimes. Given the nuances of defending federal crimes in Arizona, it’s important to have a criminal defense attorney who is experienced at representing clients charged in federal court. If you are someone who has charged or even being investigated for a federal crime, now is the time to contact a criminal defense attorney. Confidential consultations can be scheduled by calling (602) 663-9100. Because federal cases are so complex, it’s important to take action right away and get in front of the situation by hiring the right attorney to defend you.

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