Even after sentencing in federal criminal cases there is still hope for federal prisoners to be re-sentenced within a year of the original sentencing date to a lower period of prison time based on Rule 35 substantial assistance for the best possible sentencing outcomes.
In a typical federal criminal case in which a defendant either pleads guilty or is found guilty after trial, the defendant will be given an opportunity to give a proffer before sentencing. A proffer is a statement of knowledge of criminal acts that not only constitute the charged misconduct in the indictment, but often includes knowledge of other criminal conduct.
In many Federal jurisdictions including the Middle District in Tampa the Department of Justice Assistant United States Attorneys will make a motion for a substantial assistance departure from sentencing guidelines only if the quality of the information is likely to result in further arrests or indictments.
Under federal law only the Government may file a motion for substantial assistance. If the proffer results in a substantial assistance motion before sentencing, then part 5k of the Federal Sentencing Guidelines governs; whereas if the proffer results in a substantial assistance after sentencing, then it is Rule 35 of the Federal Guidelines that governs. Even when the Government deems that there is an insufficient proffer of alleged criminal conduct to provide a 5k motion before sentencing, there is still a possibility for new information to be considered for substantial assistance under Rule 35.
What should a federal defendant who has already been sentenced do to persuade the Government to provide him with a Rule 35 substantial assistance? Here is a five step process to consider:
1. The prosecutor most likely to file the Rule 35 is the very one who prosecuted the federal prisoner. The prosecutor will be most interested in expanding the federal indictments that led to the underlying criminal case against the federal defendant. Therefore, the most important information that a defendant may possess is any new information about the initial criminal conduct.
2. The prosecutor is busy prosecuting other cases. In fact his or her knowledge about the facts and circumstances of the case is often more limited than that of the government agent involved. Therefore, the most important person to contact with any new information is the government agent.
3. The Government agent must be convinced that the information has the following attributes:
- The information is new. Any information that was given in the original proffer before sentencing is no longer new nor original. The government agent can not be expected to spin wheels over old facts.
- The information is timely. If the information is no longer of use, then it will not help the Government.
- The information is credible, trustworthy and reliable. Any inconsistencies within the framework of alleged facts makes all of the facts given more difficult to believe.