The federal “safety valve” for drug cases: an important tool if you can’t get a reduction for “substantial assistance,” says drug trafficking lawyer John Helms.

In many federal drug cases, a defendant’s best option is to cooperate with the Government in order to try to earn a reduction in their sentence for “substantial assistance” to the Government, reports drug trafficking lawyer John Helms.  The reduction occurs if a prosecutor asks the judge to sentence the defendant below the range called for by the federal Sentencing Guidelines and if the judge agrees to the request, which they usually do.

“Substantial assistance” is a phrase that comes straight out of section 5K1.1 of the Sentencing Guidelines.  That is why the Government’s request for a reduction in the sentence based on “substantial assistance” is often called a “5K” or a “5K” motion.

Many defendants, however, cannot realistically qualify for a “substantial assistance” reduction.  “Substantial assistance” usually means either testifying in court against another person or giving law enforcement information about someone else that actually helps to arrest or prosecute them.

A lot of defendants may not be able or willing to testify against another person.  For example, all of the people against whom the defendant could testify may plead guilty so that they do not go to trial.  Or, a defendant may have a legitimate fear that testifying against someone could endanger them or their family, adds federal drug defense attorney Helms.

As far as information goes, a defendant may give law enforcement information about other people’s crimes, but if the Government already knows about it from their own investigation or from another defendant who talked to them first, then the defendant’s information probably will not substantially assist the Government.  Even if the Government does not already know it, if the defendant’s information is not important enough or cannot be verified, it still may not be enough to get credit.

If a defendant cannot get “substantial assistance” credit, is there any reason to cooperate with the Government?  In many cases, the answer is, “Yes.”  This is because cooperation may qualify the defendant for the Safety Valve.

The Safety Valve is a federal law at 18 USC section 1335(f).  It is also in section 5C1.2 of the Sentencing Guidelines.  It allows a judge to sentence a defendant below a mandatory minimum sentence if the defendant meets five criteria:

1.  The defendant has no more than one criminal history point under the Sentencing Guidelines.  This is technical, but it generally means either no past criminal convictions or one conviction with a sentence of less than sixty days in custody.

2.  The defendant did not use, or encourage anyone to use, violence, a credible threat of violence, a firearm, or a dangerous weapon.

3.  The crime did not result in death or serious bodily injury to anyone.

4. The defendant was not an organizer, leader, manager, or supervisor of others who were involved in the crime.

5.  Before sentencing, the defendant truthfully provides all information to the Government that the defendant has about the crime and the same criminal course of conduct and scheme.

Number 5 is about cooperation. It does not require testimony at trial. It also does not require that the information must be unknown to the Government or actually helpful to the Government.  In fact, the law and the Sentencing Guidelines specifically state “the fact that the defendant has no relevant or useful information to provide or that the government is already aware of the information shall not preclude a determination by the Court that the defendant has complied with this requirement.” 18 USC section 3553(f).

This means that someone who has no useful information about other people’s crimes can still get a benefit. For example, in situations where a defendant is so low on the totem pole that he is kept in the dark about the other members of a drug organization and knows almost nothing, I have heard federal agents refer to a defendant’s information as “safety-valve information, rather than 5K information.”

It is important for defendants to realize that they still have to tell the Government everything they know.  Some defendants think they can cooperate, but keep damaging information about others a secret. Federal agents will almost always test someone who is claiming to cooperate.  I have seen it happen over and over again that they know much more about the criminal activity than the cooperator thinks they do.

I remember one meeting in which agents asked a defendant if he had ever been to a store owned by a member of the drug organization. Trying to protect that person, he said he had not. The agents casually asked if he was sure.  He said he was. They then pulled out a surveillance photo of the defendant going into the store and put it on the table. “Is this you?” they asked, and it clearly was. So much for being truthful and complete.

The benefit of the Safety Valve is that the judge can sentence below a mandatory minimum sentence.  Many federal drug crimes have a mandatory minimum sentence of ten years. Yet in many cases, especially for people with no criminal history, the Sentencing Guidelines call for a sentence of less than ten years. In this situation, the mandatory minimum trumps the Sentencing Guidelines, and the judge has to give a sentence of at least ten years, unless there is an exception to the mandatory minimum. The Safety Valve is an exception. When it applies, the judge can sentence below ten years, in this example.

Anyone accused of a federal drug crime should consult an experienced federal drug defense attorney about whether the Safety Valve applies to them, and what benefit they might receive if it does.  More importantly, a skilled drug defense attorney, especially one who has been a federal prosecutor and knows how Government agents think, can prepare you so that you do well in your meetings with the Government. Even if you cannot qualify for a substantial assistance reduction, the Safety Valve might save you from the harsh effects of a mandatory minimum sentence.

If you or a family member have been charged with a federal drug crime or any other drug related crime in Dallas or the nearby counties and have any questions about drug laws, contact drug trafficking lawyer John Helms at 214-666-8010 or fill out this online contact form. We can talk about the situation, how the law could apply in your case and the best legal options to protect your rights and maintain your freedom.