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  • What Are 5K Motions in Federal Criminal Cases?

    Posted on by JACK MKHITARIAN

    What Are 5K Motions in Federal Criminal CasesIf you have watched a mob movie or crime TV, you are probably familiar with the scene where the cops or prosecutor offers the mobster a deal to rat out co-conspirators or give up information regarding the criminal enterprise. Although this scene is often sensationalized in the movies, the general concept is pretty common in real life.

    The idea of negotiating a more favorable plea deal in exchange for vital information or the names of co-conspirators occurs on both the state and federal levels. However, there is a specific statute about this scenario on the federal level. 

    If you are facing federal criminal charges, you need a licensed federal criminal defense attorney to protect your rights. At the New Mexico Criminal Law Offices, our experienced attorneys are familiar with and well-versed in the federal court system. Contact us today.

    What Defines a Criminal Case in a Federal Court?

    Depending on the facts, a criminal case can be prosecuted at the state or federal level. Generally, a criminal offense will be in federal court if it violates federal law or if it violates the law of multiple states. 

    What Is a 5K Motion?

    In a federal prosecution, the government can file a motion stating that you have provided substantial assistance in the investigation or prosecution of another criminal suspect. In such a motion, the prosecutor asks the court for a downward departure from the normal sentencing guidelines based on your cooperation. 

    The court determines the appropriate reduction based on the following:

    • An evaluation (by the court and the prosecution) of the significance and usefulness of your assistance;
    • The truthfulness, completeness, and reliability of any information or testimony provided;
    • The nature and extent of your assistance;
    • Any injury suffered or any risk of injury to you or your family that results from your assistance; and
    • The timeliness of your assistance.

    Ordinarily, federal judges are required to abide strictly by the sentencing guidelines. However, in 2005, the United States Supreme Court ruled that the guidelines would only be advisory and not mandatory. The guidelines are to act as a starting point. Many federal offenses impose mandatory minimum sentences. A 5K motion allows a judge to depart downward from the guidelines and mandatory minimums under certain circumstances. 

    When to File a 5K Motion?

    A 5K motion is generally filed by the federal prosecutor requesting the court to depart from the sentencing guidelines due to your substantial assistance under § 5K1.1 of the United States Sentencing Guidelines

    As stated, the 5K motion differs from an ordinary plea deal in that you must provide “substantial assistance to authorities” in another case against a different defendant. If you agree to cooperate before sentencing, the prosecution can file a 5K motion. However, if you decide to cooperate after you are sentenced, the prosecutor can try to lessen the sentence by filing a Rule 35 motion

    Proffer Sessions

    Often, the sought-out information comes through a proffer session. A proffer session is a meeting between you and law enforcement during which you provide information. Sometimes this information can be self-incriminating. The proffer agreement protects you from picking up additional charges as a result of your honesty and assistance. 

    It is imperative to have an attorney to help protect your interests throughout a proffer session. Proffer agreements do not always fully protect your rights or best interests. Having an attorney during the session will help ensure you are protected.

    Types of Cases and 5K Motions

    A 5K motion can apply to any federal criminal defendant. However, they are prevalent in cases including:

    • Drug offenses,
    • White-collar crimes,
    • Fraud, and
    • Racketeering 

    Often these motions will arise when the prosecutor has their eyes set on a bigger fish. 

    Federal Criminal Case Timeline

    Every case is unique and will follow a specific trajectory. However, the general timeline of a federal criminal case is as follows.

    Investigation and Charges

    The first step in a federal criminal case is investigating a person, people, or a crime. A federal investigation agency (e.g., the FBI) gathers evidence of the alleged crime and presents it to a federal prosecutor. Upon review of the evidence, the prosecutor determines whether to present the case to a grand jury. Charges are forthcoming if the prosecutor succeeds and an individual defendant is indicted.

    Initial Hearing and Arraignment

    Shortly after the arrest, you will have an arraignment and initial hearing before a federal judge. At this hearing, you will learn of the charges against you. Bail should also be addressed at this hearing. 


    Discovery will be ongoing between the time of the arrest and the start of the trial. During this time, the prosecutor must produce or turn over certain information to the defense, including potential witnesses, expert reports, etc. 

    Plea Negotiation

    Depending on the strength or weakness of the prosecutor’s case, they may offer a plea bargain. Generally, people accept a plea deal to reduce their exposure at trial and potential sentence. The prosecution may offer a favorable plea bargain for testimony or information from the defendant regarding the “bigger fish” they may be investigating. Here is where a proffer and 5K motion can come into play.

    Pretrial Motions 

    The case will proceed to trial if the defendant does not accept a plea bargain. But before going to trial, pretrial motions are filed, argued, and ruled upon. One of the most common pretrial motions for the defense is a motion to suppress evidence. 


    Finally, the case will proceed to trial after all the relevant motions have been resolved. The trial involves jury selection, presentation of the cases, jury deliberation, and verdict.


    If convicted, you will return to the courthouse for sentencing. The exact sentencing will depend on the offense.

    The above timeline is a typical outline of what to expect from the start to the conclusion of a federal criminal case. The timeline can differ depending on exact circumstances and may include extra steps such as a preliminary hearing and appeal. The timeline may have fewer steps if there is no plea bargain on the table or pretrial motions filed. If you are facing a federal crime, contact us to schedule an appointment to discuss what to expect for your case.

    Federal Criminal Defense Attorneys

    Are you facing a federal offense? Are you hoping for a lighter sentence, or has the prosecutor approached you for a proffer session? If so, our experienced and skilled criminal defense lawyers are here for you. We are knowledgeable in federal law and the federal justice system. In our 20-plus years of experience, we have had great success obtaining favorable 5K motions for our clients. Contact us today to schedule a free, no-obligation consultation to discuss your case.