What is a 5K1 Letter?

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A 5K1 letter is a document that the U.S. Attorney’s Office files with the federal district court judge to seek leniency on your behalf with the Court at sentencing. 5K1 letters, which are also disparagingly called “snitch letters,” or “snitch credit” are given to defendants who cooperate with the Government and provide substantial assistance in the investigation or apprehension of others for criminal conduct.

How Do I Get a 5K1 Letter?

To obtain a cooperation credit letter, pursuant to United States Sentencing Guidelines Section 5K1.1, a few things need to happen. Specifically:

1. Meet with Your Lawyer

Before you sprint into the U.S. Attorney’s Office and tell them everything you know, you should schedule a meeting with your attorney and set aside a few hours. In that meeting, you should discuss (1) how you feel about cooperation and (2) what sort of things you’ll be able to share with the Government to assist them with the investigations and prosecutions of others for criminal conduct.

Should you Cooperate Against Others?

Providing information to the Government against other individuals is inherently dangerous. No one knows better than you what sort of people you’ve been dealing with and what the repercussions may be if they figured out that you were the one who provided information to the Government that led to their arrest.

On the other hand, your attorney will review your federal guidelines with you, including the mandatory minimums on your charge. One way to get below Guidelines may be a motion pursuant to USSG 5K1.1, and the only way to below mandatory minimum may be a motion pursuant to USSG 3553(e), which usually is filed on cases with 5K1 letter credit.

Section 3553(e) of U.S. Sentencing Guidelines states:

"Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense."
Benefits of 5K1 Letter and 3553(e) Motion Example

Let’s say you have a ten year minimum (120 months) on your case, with Guidelines of 135 to 168 months. If the Government files a 5K1 letter on your behalf, the Judge will be give you a sentence of 120 months, because that’s the statutory minimum on your case. The Judge cannot go below the statutory minimum without a motion pursuant to USSG 3553(e).

However, if the Government is filing a motion pursuant to USSG 3553(e), the Judge is able to go below the mandatory minimum. Thus, in the above example, your sentence could be less than 120 months.

Tell absolutely no one that you are cooperating, or thinking of cooperating with the Government – not your spouse, not your girlfriend, not your parents, and not your priest. Details of someone’s cooperation don’t get out because the prosecutor or the agents mess up. If that was the case, no one would even cooperate. It happens because someone you confided in tells someone else. Only person who should know about your cooperation, or potential cooperation is your attorney.

What Information Can You Provide to the Government to Get a 5K1?

Your attorney will have a preliminary conversation with you about what information you can offer to the Government and also discuss with you if the proffer makes sense.

You may be thinking, I have nothing to proffer about. Before you resign yourself to that idea, you should think about the universe of bad conduct that you are aware of. Not just what relates to your case directly, but everything that you know:

  • Does your neighbor run a chop shop out of his garage?
  • Does your acquaintance considerably underreport his cash business’ income?

Since you don’t quite know exactly what the Government may be interested in pursuing, you may make a mental list to discuss with your attorney. If you are intent on writing things down, label the document “attorney client privilege” at the very top and then write down categories of things you know, not actual details.

Downside of Cooperating

The downside of cooperating in an effort to get a 5K1, is that you may be alerting the Government to your criminal conduct that they are not aware of. For example, let’s say you are arrested and charged with importing 5 kilograms of cocaine into the Eastern District of New York. You are thinking of cooperating in an effort to lower your sentence. However, you were also involved in a homicide that is associated with those drug charges.

As you have to be 100% truthful when proffering, you coming in to try to get a 5K1 letter, may be a horrible thing to do. Your involvement in the homicide, even if not charged may be factored into your Guidelines calculations as relevant conduct or uncharged conduct. Absent your disclosure, the Government may never have found out about your role in the homicide. You need to fully understand that coming in to proffer, will not always result in a benefit to you.

2. Figure Out if Government is Interested in Speaking To You

After you meet with your attorney to discuss what you know, your attorney will reach out to the Assistant United States Attorney to see if there is any interest in information from you. In some situations, from the start, the U.S. Attorney’s Office is not interested in giving you a 5K1 letter and thus you coming in for a proffer is futile from the start. This usually occurs when you decide to proffer very late in the case, especially if your co-defendants have already proffered with the Government. This can also occur if the Government isn’t interested in the information that you can offer based on speaking to your attorney. Additionally, if the Government doesn’t want to give you a 5K1 letter because of how they view you or your case, they may tell your attorney that they do not want to meet.

3. Consider If A Reverse Proffer Is An Option

In some situations, the U.S. Attorney’s Office will agree to meet with your attorney (and you if you’re invited) to explain to your attorney what their case is against you and why you should consider cooperating. This is called a reverse proffer, because it is the Government and not the client that’s sharing information. If you are considering coming in for a proffer before you have been indicted, a reverse proffer is a helpful tool to preview the Government’s case against you before you actually come in. There is no pre-indictment discovery on federal cases. Not every case will be offered a reverse proffer, just the ones where the Government wants to do a reverse proffer on, nonetheless it doesn’t hurt to ask.

4. Prep With Your Attorney for The Proffer

Before you go into the U.S. Attorney’s Office for a proffer, you need to spend time with your attorney going over what you will say about your case and about the information you know about the wrongful conduct of others. Nothing that you will say in the actual proffer meeting should be a surprise to your attorney. Although you should answer all the questions in the proffer truthfully, it is helpful to do a mock proffer with your attorney ahead of time to get you comfortable.

5. Meet with the U.S. Attorney’s Office for Proffer

After you have been sufficiently prepared and your attorney has gotten up to speed on your case and the information you would like to share with the U.S. Attorney’s Office, you will go to the U.S. Attorney’s Office for a meeting. Usually, the prosecutor and the case agent will be present in the proffer. If the information that you have pertains to other cases, or involves other agencies, representatives from those other agencies may be present. For example, if you are coming in to speak about your drug distribution case and also share information that you know about a homicide, agents from the DEA, FBI, Homicide Detectives and federal and state prosecutors may be present in that meeting.

Before any questioning starts, the prosecutor will introduce everyone in the room and provide you a proffer agreement. A proffer agreement is not a cooperation agreement, but it is a document that provides you with limited protections for sharing information with the prosecutor and the agents.

Generally, the proffer agreement has the following provisions:
1. You must be truthful. If you are not truthful, you may be prosecuted for perjury i.e. Giving a False Statement to Government Authorities under 18 United States Code Section 1001. 
2. Information that you share with the Government authorities cannot be used directly against you, however:
- The government is able to use that information to derive leads and other information that can be used against you in the future
- If down the road, you are to testify at your trial, or if your attorney takes a position that's contrary to what you said in the proffer, the proffer information may be used against you. 
- The proffer information can be provided by the Government to the Probation Department to assist with a pre-sentence investigation or correct a statement of fact made by the defense counsel. 
3. The proffer agreement is not a cooperation agreement and you understand that only the Government decides if they will give you a cooperation agreement, and down the road a 5K1 letter. 

Once you sign the proffer agreement, the agents and the prosecutor will ask you questions. Your attorney is present in an advisory capacity. If you have questions for your attorney, you can ask to leave the room and speak to your attorney privately.

6. Sign Cooperation Agreement

If the initial proffer meeting(s), went well, the prosecutor will offer you a cooperation agreement. A cooperation agreement indicates that the Government is interested in the information you have and they are considering with providing you with a 5K1 letter. Whether you get a 5K1 letter, or how good it is will depend on the quality of your information and the scope of your assistance.

7. Have Follow Up Meetings or Active Cooperation

After you sign the cooperation agreement, the meetings and communications will transition from having the attorneys involved to you interacting with the agents directly. Many AUSAs will require that you agree not to have your attorney present for subsequent meetings. This is generally done to move things along quicker, that way your attorney’s schedule or the AUSA’s schedule won’t hold anything up.

You will have multiple meetings with the agents, and the agents may even ask you to engage in active cooperation. Active cooperation is something more than just giving up information, like making phone calls or wearing a wire. Although at this stage, your attorney is not actively involved in your cooperation, you should nonetheless keep your attorney up to date on agent contact and what they are asking you to do.

8. Keep An Activity Log

This is the single most important thing you need to do to ensure your 5K1 letter gives you credit for all of your assistance to the prosecutor and the case agents. By keeping an activity log of every meeting, phone call, active cooperation as well and topics that you help the Government with, you will ensure that the 5K1 letter gives you as much credit for your cooperation as you deserve.

9. Enter a Guilty Plea

At some point during your cooperation, the Government will schedule your case for a guilty plea either before a District Court or a Magistrate Judge. Usually, cases on which individuals have been cooperating are done under seal. Meaning, your active case won’t show up on PACER. Only you, your attorney, prosecutor, case agents and the judge and their court staff will know that you have pleaded guilty and have an ongoing criminal matter.

10. Receive and Review Your 5K1.1 Letter

Once your cooperation is complete, and shortly before your sentencing, if all goes well, you will be receiving a 5K1 letter from the Government. You should go over the letter with your attorney to make sure that the letter includes everything that you did. If there are any mistakes or omissions from the 5K1 letter, your attorney will contact the prosecutor, who will then confer with the agents. Your cooperation activity log will be very useful in addressing these discrepancies in the 5K1 letter.

What happens If I Don’t Get a 5K1.1 Letter After Cooperating?

If the prosecutor decides that despite your efforts, your cooperation does not rise to the level of substantial assistance in the apprehension or prosecution of others, and your attorney can’t talk them into giving you the 5K1 letter, not all is lost. There is extensive case law that efforts to cooperate, even if they didn’t yield a 5K1 letter from the Government, should be taken into consideration by the Court at sentencing under 3553(a) factors. See U.S. v. Fernandez, 443 F.3d 19 (2d Cir. 2006).

How Much Credit Will the Judge Give Me For Cooperating?

Ultimately, it is up to the federal judge whether to reduce your sentence based on the 5K1 letter, and if so, how much to reduce it by. The U.S. Sentencing Guidelines provide several factors for the District Court Judge to consider in determining how much to reduce your sentence by based on the Government’s 5K1 letter. This list is not exhaustive. Specifically, the factors under USSG 5K1.1 that the judge should consider are:

  • The significance and usefulness of your assistance;
  • The truth and accuracy of the information provided;
  • The nature and extent of your assistance;
  • Whether you suffered any injury or risked harm as a result of your cooperation; AND
  • The timeliness of your assistance.

In certain jurisdictions, the prosecutors recommend how many points or by what percentage your sentence should be reduced by as a result of your cooperation. Ultimately, it is up to the judge how much credit to give you for the 5K1 letter for substantial assistance.

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