The Benefits of Booker for Cooperating Defendants

“Substantial assistance” applies where a defendant — typically an individual — gives information related to other parties. See Guidelines '' 5k1.1 and 8C4.1. For a corporation to do so, it would have to give information about parties outside the corporation because this departure “is not intended for assistance in the investigation or prosecution of the agents of the organization responsible for the offense for which the organization is being sentenced.” Application Note to ' 8C4.1. The more likely scenario is that a corporation can, and will, give information about its own people. That is considered “cooperation” and merits a reduction in sentencing independent of any “substantial assistance.” See ' 8C2.5(g).

Assistance and Its Benefits Before Booker

The old mandatory Guidelines strictly controlled when, and to what extent, a court could recognize a defendant's cooperation or assistance. For individuals, ' 5k1.1 effectively set up a “gate-keeping” measure whereby a court could recognize the individual's “substantial assistance” only if the government made a motion requesting such a departure. If the government chose not to make a motion, the defendant's assistance would not be considered in sentencing.

For corporations, the situation was somewhat different. While the Guidelines did not control who could raise the issue of cooperation, ' 8C2.5 did dictate specific levels of departure based on cooperation, and commentary in the Application Notes suggested that the biggest departure might be contingent on the corporation's waiver of the attorney-client or work-product privileges. See ' 8C2.5 and Note 12. Before Booker, these limitations had a powerful influence on when and to what extent courts recognized assistance or cooperation.

New Role for Defendants and Courts in Crediting Assistance

Booker changed the landscape by striking down the mandatory nature of the Guidelines set out in 18 U.S.C. ' 3553(b) and declaring them merely advisory. Courts are now free to depart downward under the various provisions of ' 3553(a) — something that Section 3553(b) had effectively prohibited prior to Booker. In the words of one court, “No individual factor is singled out as having greater weight; instead, the richness of factual diversity in cases calls on sentencing judges to consider all of the factors [of ' 3553(a)] and to accord each factor the weight it deserves under the circumstances.” U.S. v. Beheiri, 2005 WL 35085, * 3 n.6 (E.D. Va., Feb. 9, 2005). Booker allows individuals to emphasize their assistance, at least pre-sentencing, without waiting for the government to file a motion. It further allows courts to determine the level of departure that should be accorded specific instances of individual and corporate cooperation. Moreover, by lowering deference to the Guidelines, Booker lessens the influence that the waiver references in the Application Notes to ' 8C2.5 might otherwise have on a court's sentencing decision.

Individuals and Substantial Assistance

Pre-Booker, in plea negotiations, individual defendants could negotiate only to have the government make either a pre-sentencing motion under ' 5k1.1 or post-sentencing motion under Rule 35(b) of the Federal Rules of Criminal Procedure. These two provisions gave prosecutors virtually complete discretion on when and how to advise the sentencing court of the defendant's assistance. Plea agreements for individuals often stated that the government reserved absolute discretion whether to make the motion and when. Though the court could grant or deny a sentence reduction for substantial assistance, it could not act sua sponte, but only at the government's behest. Moreover, the government's decision was not subject to review unless it had first offered but later refused to raise the issue of a defendant's assistance.

By taking down the hurdles presented in ' 5k1.1, Booker provides individual defendants with the ability, at least before sentencing, to raise on their own their assistance to the government. The “advisory” nature of the Guidelines has restored the courts' authority to consider that assistance even if it was not raised by the government. The courts again find themselves the real decision-makers here.

Corporations and Cooperation

Before Booker, courts considering cooperation in sentencing a convicted corporation were limited by a mandatory point reduction scale — five points if a corporation self-reports, cooperates and accepts responsibility; two points if it cooperates and accepts responsibility; and a one-point reduction if the corporation accepts responsibility without doing more. See ' 8C2.5(g)(1)-(3). In addition, language recently added to the Application Notes raised the potential that courts could require corporations to waive attorney-client privilege or work product protection to receive a five-point departure. See Application Note 12 to ' 8C2.5 (effective Nov. 1, 2004). This new language put pressure on courts to enforce the government's already common practice of requesting corporations to waive either the attorney-client or work-product privileges.

Now the once mandatory departure levels for corporate cooperation are mere recommendations. Courts can depart on the basis of cooperation to the extent they deem appropriate — by two, five or even 15 points. If the government argues that rejecting its recommendation would be an abuse of discretion, a court can simply “note that the sentence imposed is, in any event, consistent with the sentencing factors set forth in 18 U.S.C. ' 3553(a).” United States v. Belvett, 2005 WL 852649 *1 n.1 (M.D. Fla. Mar. 17, 2005). Moreover, after Booker, the waiver references in the Application Notes should have less impact on courts determining an appropriate sentence and on corporations deciding whether to waive their privileges.

When Will Booker Prove Beneficial?

Though Booker gives cooperative defendants more options at sentencing, it probably does not affect a corporation's ability to convince the government not to file charges because of the corporation's cooperation. To achieve that goal — presumably the most important one — corporations undoubtedly must cooperate when and how the government demands, even if that includes waiving attorney-client privilege or work product protection. Moreover, Booker did not change what can be done after sentencing. The government still has the complete discretion, under Rule 35(b) Fed. R. Cr. P., to decide whether or not to file a motion for re-sentencing based on a defendant's cooperation or assistance.

Essentially, the Booker changes will be useful only to those defendants who must face sentencing and are not getting the recognition they feel they deserve. For example, if the government refuses to make a motion to credit an individual defendant's assistance — because all defendants are pleading guilty even though assistance was provided, or the government decided not to prosecute the others, or the government thinks the assistance given was not “substantial” — defendants can now raise their assistance on their own to the court. Another example is where the defendant wants certainty in his or her sentence as early as possible and is not content to rely on the possibility of a Rule 35 motion for a post-sentence reduction. Now, that defendant can at least raise the issue in full to the court before sentencing. Defense counsel who want to raise the issue to preserve it even though the government says it will credit assistance later must weigh the benefit against risk of an adverse reaction from the government.

Conclusion

Booker has returned to the courts the authority to assess all the relevant sentencing factors, including cooperation. For those defendants facing criminal sentencing and wishing to cooperate, this represents a significant development in their favor. The response of the Department of Justice and Congress will be closely watched.

The Supreme Court's decision in United States v. Booker , 125 S.Ct. 738 (2005), brought significant changes to federal criminal procedure. Mandatory sentences under the federal Sentencing Guidelines (Guidelines) became advisory, and with this change came some subtle but important opportunities for criminal defendants who cooperate or provide “substantial assistance” in prosecutions. Now, convicted corporations and employees may be able to provide more input to courts about their cooperation with or assistance to the government. This may make sentencing judges more willing to grant downward departures from sentences calculated by Guidelines formulas.

What Is 'Substantial Assistance' or 'Cooperation'?

Corporations, as well as their directors, officers and employees, find themselves more and more the targets of criminal prosecutions. When they are indicted and facing a choice between going to trial or pleading guilty, the Guidelines provide mechanisms for them to seek a reduction in their sentence based on two major types of help to the government — “substantial assistance” and “cooperation.” It's important to understand the difference and where and how they apply.

“Substantial assistance” applies where a defendant — typically an individual — gives information related to other parties. See Guidelines '' 5k1.1 and 8C4.1. For a corporation to do so, it would have to give information about parties outside the corporation because this departure “is not intended for assistance in the investigation or prosecution of the agents of the organization responsible for the offense for which the organization is being sentenced.” Application Note to ' 8C4.1. The more likely scenario is that a corporation can, and will, give information about its own people. That is considered “cooperation” and merits a reduction in sentencing independent of any “substantial assistance.” See ' 8C2.5(g).

Assistance and Its Benefits Before Booker

The old mandatory Guidelines strictly controlled when, and to what extent, a court could recognize a defendant's cooperation or assistance. For individuals, ' 5k1.1 effectively set up a “gate-keeping” measure whereby a court could recognize the individual's “substantial assistance” only if the government made a motion requesting such a departure. If the government chose not to make a motion, the defendant's assistance would not be considered in sentencing.

For corporations, the situation was somewhat different. While the Guidelines did not control who could raise the issue of cooperation, ' 8C2.5 did dictate specific levels of departure based on cooperation, and commentary in the Application Notes suggested that the biggest departure might be contingent on the corporation's waiver of the attorney-client or work-product privileges. See ' 8C2.5 and Note 12. Before Booker, these limitations had a powerful influence on when and to what extent courts recognized assistance or cooperation.

New Role for Defendants and Courts in Crediting Assistance

Booker changed the landscape by striking down the mandatory nature of the Guidelines set out in 18 U.S.C. ' 3553(b) and declaring them merely advisory. Courts are now free to depart downward under the various provisions of ' 3553(a) — something that Section 3553(b) had effectively prohibited prior to Booker. In the words of one court, “No individual factor is singled out as having greater weight; instead, the richness of factual diversity in cases calls on sentencing judges to consider all of the factors [of ' 3553(a)] and to accord each factor the weight it deserves under the circumstances.” U.S. v. Beheiri, 2005 WL 35085, * 3 n.6 (E.D. Va., Feb. 9, 2005). Booker allows individuals to emphasize their assistance, at least pre-sentencing, without waiting for the government to file a motion. It further allows courts to determine the level of departure that should be accorded specific instances of individual and corporate cooperation. Moreover, by lowering deference to the Guidelines, Booker lessens the influence that the waiver references in the Application Notes to ' 8C2.5 might otherwise have on a court's sentencing decision.

Individuals and Substantial Assistance

Pre-Booker, in plea negotiations, individual defendants could negotiate only to have the government make either a pre-sentencing motion under ' 5k1.1 or post-sentencing motion under Rule 35(b) of the Federal Rules of Criminal Procedure. These two provisions gave prosecutors virtually complete discretion on when and how to advise the sentencing court of the defendant's assistance. Plea agreements for individuals often stated that the government reserved absolute discretion whether to make the motion and when. Though the court could grant or deny a sentence reduction for substantial assistance, it could not act sua sponte, but only at the government's behest. Moreover, the government's decision was not subject to review unless it had first offered but later refused to raise the issue of a defendant's assistance.

By taking down the hurdles presented in ' 5k1.1, Booker provides individual defendants with the ability, at least before sentencing, to raise on their own their assistance to the government. The “advisory” nature of the Guidelines has restored the courts' authority to consider that assistance even if it was not raised by the government. The courts again find themselves the real decision-makers here.

Corporations and Cooperation

Before Booker, courts considering cooperation in sentencing a convicted corporation were limited by a mandatory point reduction scale — five points if a corporation self-reports, cooperates and accepts responsibility; two points if it cooperates and accepts responsibility; and a one-point reduction if the corporation accepts responsibility without doing more. See ' 8C2.5(g)(1)-(3). In addition, language recently added to the Application Notes raised the potential that courts could require corporations to waive attorney-client privilege or work product protection to receive a five-point departure. See Application Note 12 to ' 8C2.5 (effective Nov. 1, 2004). This new language put pressure on courts to enforce the government's already common practice of requesting corporations to waive either the attorney-client or work-product privileges.

Now the once mandatory departure levels for corporate cooperation are mere recommendations. Courts can depart on the basis of cooperation to the extent they deem appropriate — by two, five or even 15 points. If the government argues that rejecting its recommendation would be an abuse of discretion, a court can simply “note that the sentence imposed is, in any event, consistent with the sentencing factors set forth in 18 U.S.C. ' 3553(a).” United States v. Belvett, 2005 WL 852649 *1 n.1 (M.D. Fla. Mar. 17, 2005). Moreover, after Booker, the waiver references in the Application Notes should have less impact on courts determining an appropriate sentence and on corporations deciding whether to waive their privileges.

When Will Booker Prove Beneficial?

Though Booker gives cooperative defendants more options at sentencing, it probably does not affect a corporation's ability to convince the government not to file charges because of the corporation's cooperation. To achieve that goal — presumably the most important one — corporations undoubtedly must cooperate when and how the government demands, even if that includes waiving attorney-client privilege or work product protection. Moreover, Booker did not change what can be done after sentencing. The government still has the complete discretion, under Rule 35(b) Fed. R. Cr. P., to decide whether or not to file a motion for re-sentencing based on a defendant's cooperation or assistance.

Essentially, the Booker changes will be useful only to those defendants who must face sentencing and are not getting the recognition they feel they deserve. For example, if the government refuses to make a motion to credit an individual defendant's assistance — because all defendants are pleading guilty even though assistance was provided, or the government decided not to prosecute the others, or the government thinks the assistance given was not “substantial” — defendants can now raise their assistance on their own to the court. Another example is where the defendant wants certainty in his or her sentence as early as possible and is not content to rely on the possibility of a Rule 35 motion for a post-sentence reduction. Now, that defendant can at least raise the issue in full to the court before sentencing. Defense counsel who want to raise the issue to preserve it even though the government says it will credit assistance later must weigh the benefit against risk of an adverse reaction from the government.

Conclusion

Booker has returned to the courts the authority to assess all the relevant sentencing factors, including cooperation. For those defendants facing criminal sentencing and wishing to cooperate, this represents a significant development in their favor. The response of the Department of Justice and Congress will be closely watched.