Case Analysis:

Plea Bargaining, Substantial Assistance and Downward Sentencing Departures



Investigations that relied upon an informant or cooperating witness for success can provide unique opportunities for the defense to leverage to their client’s advantage. Dennis G. Fitzgerald can assist the criminal defense lawyer by conducting an in-depth case file analysis. During the two decades that he has been assisting the defense bar, he has discovered investigative flaws in case files that were missed by some of the nation’s most seasoned defense attorneys. Fitzgerald’s assistance has provided potent weapons during pre-trial negotiations and trial.


It is no secret that the majority of defendants don’t go down fighting at trial. Those who go to trial before a jury of their peers are a distinct minority. Nationwide, approximately 5% of criminal defendants go to trial. They are true gamblers. According to the Bureau of Justice Statistics, only 1% of those who went to trial walked away free men.


According to the Bureau of Justice Statistics, only 1% of those who went to trial walked away free men.The vast majority of criminal cases are disposed of during pre-trial negotiations. During plea-negotiating sessions, state and federal prosecutors alike may offer one or a combination of inducements to encourage a defendant to plead guilty and become a cooperating witness. These may include any of the following:

  • Promises to dismiss one or more charges.
  • Reduction of offenses to lesser included charges.
  • An assurance that there will be a recommendation or an agreement not to oppose the defendant’s request for a particular sentence.
  • The prosecutor will agree that a specific sentence is the appropriate disposition of the case.
  • An offer of immunity.
  • An agreement by the prosecutor to forgo prosecuting a witness’s family member.
  • An agreement not to forfeit property.
  • The return of forfeited property.

5K1.1: Substantial Assistance

The most sought after resolution of a federal criminal case, aside from a dismissal of charges, is that the prosecutor will file a 5K1.1 motion. Section 5K1.1 of the US Sentencing Guidelines provides, “Upon motion of the government [the prosecutor] stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the [sentencing] guidelines.”


A “departure” is typically a change from the final sentencing range computed by examining the provisions of the Guidelines themselves. It is frequently triggered by a prosecution request to reward cooperation . . . or by other factors that take the case “outside the heartland” contemplated by the Sentencing Commission when it drafted the Guidelines for a typical offense.

Client Debriefing

Competition for a departure is keen. Only one in six defendants is awarded a 5K1 letter from prosecutors. The assistance has to be substantial, not just lip service or idle rumors about another criminal. Providing solid, actionable information about significant on-going criminal activity or information about crimes that have already been committed is what prosecutors and agents are looking for. Identifying the location of forfeitable assets including real estate and bank accounts may fast track your 5K1. As a U.S. Attorney in Birmingham, Alabama put it, using 5K1s “puts a lot more scores on the board a lot quicker.”


Identifying the location of forfeitable assets including real estate and bank accounts may fast track your 5K1.Fitzgerald is available to conduct a full criminal intelligence debriefing of the client. He will provide the defense attorney with a comprehensive analysis of the client’s information that will enhance counsel’s understanding of the client’s value to the government.

The Surrogate and Third Party Cooperation

Some clients have nothing of value for their attorney to offer the government in exchange for a downward sentencing departure. Others cannot cooperate with the government because of very real threats against themselves or members of their family. Individuals in both predicaments have become extremely resourceful. Some have resorted to recruiting surrogates, usually family members, friends, or associates, who can provide information or produce cases and become cooperating witnesses or informants on their behalf.


Dennis G. Fitzgerald can debrief the surrogate, evaluate the intelligence information and maximize its value for the defense attorney. The brokered information or informant, if valuable, may garner the client favorable consideration at sentencing.


Not all courts or U.S. Attorneys Offices are receptive to the services of a surrogate. One court instituted a four part test for determining whether a motion for sentence reduction may be based on third-party assistance. The test asks:

  1. Did the defendant play a material role in requesting, encouraging, facilitating, or persuading a third party to provide substantial assistance to the prosecution?
  2. Was the defendant a motivating factor for the third party to provide substantial assistance to the prosecution?
  3. Did either the defendant or the third party act with any impermissible motivation that undermines the court’s confidence in the integrity of the substantial assistance process or the information provided?
  4. Are there any other circumstances that weigh against granting the substantial assistance motion?

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