As many know, under the federal system the most powerful departure from the United States Sentencing Guidelines exists under U.S.S.G. 5k1. This departure is warranted in cases where a defendant provides ‘substantial assistance’ to the Government. In other words, the Government rewards defendants that deliver new cases to it by recommending to the sentencing court that a departure under 5k is warranted. What happens, however, if sentencing has already taken place before the information provided by a cooperator becomes valuable? Is there a mechanism to lower a sentence after sentencing? Yes, a post-sentencing reduction is accomplished via Rule 35 of the Rules of Criminal Procedure for United States Courts. This is significant because it oftentimes takes federal authorities a substantial amount of time to develop a case. This means that a defendant’s cooperation may not become ‘useful’ until after sentencing.
Use the following scenario as an example: Imagine Thomas is arrested for wire fraud because he enticed persons to buy nonexistent jewels on eBay. This activity could be prosecuted as wire fraud under 18 USC 1343 and could carry decades of imprisonment. Suppose, however, that Thomas pleads guilty and has information regarding a different fraud scheme where a man named Frank is selling nonexistent gas leases to multiple people. That activity could be prosecuted as mail or wire fraud depending on the manner of communication pursuant to his scheme or may be prosecuted as securities fraud under 18 USC 1348. Imagine, further, that Thomas got away with $150,000 from 3 victims and Frank got away with $14 million from 38 victims. In this circumstance, Thomas may very well have information regarded as valuable. If Thomas tells authorities about Frank’s activities and the Government pursues Frank, it may take years for the Government to make a case against Frank. Most likely, because most prosecutions are concluded within 3 – 7 months, Thomas will not get any benefit for cooperation before he is sentenced. This is where a Rule 35 becomes valuable.
Rule 35 benefits the Government because it extends the season of incentivization for defendants to cooperate. Without it, the Government would oftentimes not have much to offer defendants who are charged with a crime. The Government could make a motion under Rule 35 long after sentencing. This motion can be the basis for a reduction of sentence long after the defendant is convicted. The bottom line is that the Government is more interested in cooperation than verbal proclamations of remorse and promises to ‘never break the law again.’ Because the name of the game for many defendants is cooperation, Rule 35 creates a realistic timeframe for defendants who wish to cooperate.
(a) Correcting Clear Error. Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.
(b) Reducing a Sentence for Substantial Assistance.
(1) In General. Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.
(2) Later Motion. Upon the government’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved:
(A) information not known to the defendant until one year or more after sentencing;
(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or
(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.
(3) Evaluating Substantial Assistance. In evaluating whether the defendant has provided substantial assistance, the court may consider the defendant’s presentence assistance.
(4) Below Statutory Minimum. When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute.
(c) “Sentencing” Defined. As used in this rule, “sentencing” means the oral announcement of the sentence.
