What is a 5K Motion in White Collar Crime Sentencing?

“My lawyer told me if I cooperate I might be able to get a 5K1 letter. He told me it could help my at my sentencing,” a defendant who plead guilty to conspiracy to commit mail fraud, wire fraud and securities told me. “Is he right?”

There are a handful ways to reduce a federal prison sentence. One of the easiest ways to shorten a prison sentence is to receive a coveted 5k1 letter from the government.

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What is a 5k1 exactly?

A 5K motion is a motion filed by a prosecutor under 5k1.1 of the United States Sentencing Guidelines. Essentially, this letter is given to the court to make clear that the defendant has cooperated. Prosecutors, I have learned from my clients, view cooperation differently. In other words, some are more willing to give credit than others. That is the risk a white collar defendant takes when he agrees to cooperate.

What is a 5K Motion in White Collar Crime Sentencing?

What is a 5K Motion in White Collar Crime Sentencing?

What are some measurements the government might use to determine how helpful you have been?

  • They might consider how honest and reliable you are. Was the information you provided easy to check out or verify?
  • How quickly did you provide assistance?
  • Did you incur any risk or danger while cooperating?
  • Did your cooperation lead to additional indictments, investigations or convictions?
  • The total nature and full extent of your cooperation.

Cooperating is simply a values play, nothing more.

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What is most valuable to you?

Let me explain: I have been asked if I resent my co conspirator for cooperating. I do not. He realized his family and freedom were of higher value. He choose to cooperate with the U.S. Attorney’s Office. Doing do would impact how long he served in federal prison.

While he was cooperating, I was lying, misleading government officials and denying my role in the offense. It was of higher value to me to deny than think about my freedom or how long I might serve on the wrong side of prison boundaries.

The goal of this short blog is not to judge someone who chooses to cooperate. Many of my clients have. Many of my clients have not. My goal is simply to help white collar defendants understand what is at stake. If you are under investigation and are interested in obtaining the shortest possible prison sentence, a 5K1 letter could help you. This is not the time for me to get into all the pros/cons of cooperating. Yes, cooperating can impact your prison adjustment. That said, a number of people in prison who claimed they never cooperated actually did cooperate.

While I cannot address every thing in this blog, I did film a video with White Collar Defense Attorney, David Rosenfield, that does goes deeper in 5k1 motions. We touch on:

  • How much can a 5k1 letter actually help you at sentencing?
  • How long can cooperating extend a criminal case? Weeks, months or years?
  • Who prepares you to cooperate?
  • What are some of the pros/cons of cooperating?
  • and more…

The video I filmed with David is below. I hope it helps you access whether cooperating is right for you and your family. Like most everything the decision will come down to prioritizing your values.

Best,
Justin

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