How to Get the Government to File a Rule 35 Motion.

The only entity capable of initiating a Rule 35(b) proceeding is the United States Government. In order to initiate a Rule 35(b) proceeding, federal prosecutors must file a formal motion with the United States District Court.

Although the government will often move for a reduced sentence when cooperation has “materially assisted” an investigation, this is not an obligation. A rule of federal practice is that, so long as prosecutors have some discretion as to whether to file a Rule 35(b) motion, this discretion continues to be unreviewable.

Federal prosecutors generally evaluate “substantial assistance” in light of two components. First, prosecutors assess the usefulness of the individual’s cooperation. With that in mind, “substantial assistance” refers to the use of a cooperating individual’s information and skills to protect public safety or deter future federal crimes. It does not refer to the individual’s willingness or effort. Second, prosecutors assess the reliability of the cooperating individual.

Rule 35(b) authorizes a sentence reduction for substantial assistance provided after sentencing, and Rule 35(b) is the principal mechanism that allows the government to secure a sentence reduction for post-sentencing cooperation, although 18 U.S.C. § 3582(c) provides other avenues for reducing a sentence after it has been imposed. If you have not entered a cooperation plea agreement, this means that if you are convicted and your sentencing will be unfavorable, you must negotiate a Rule 35(b) motion with federal prosecutors.

No ethical federal defense lawyers can or should guarantee that prosecutors will file a Rule 35(b) motion. This is because no ethical lawyer can control the actions of prosecutors, and no ethical lawyer can control a judge’s ruling on a Rule 35(b) motion.

The most effective way to prepare for Rule 35(b) is by negotiating cooperation plea language that is enforceable in court. This is why we focus on including language that mandates the government to file a Rule 35(b) motion. While we have seen this language recently, we have no identified data that shows that cooperation plea language has improved overall since 2019.

What can my lawyer do to strengthen my cooperation?

A Rule 35(b) sentence reduction is unique because, while it requires cooperation similar to a Section 5K1.1 sentence reduction, it applies after the sentence has been imposed. By contrast, Section 5K1.1 applies for cooperation rendered before sentencing. Understanding this distinction is critical for an attorney representing you during cooperation negotiations and your ensuing cooperation.

The government is less likely to file a Rule 35(b) motion (or grant you the right to expect that it will do so) if you have not substantially assisted the government in investigating or prosecuting another person.

Because a government prosecutor has a broad range of discretion to decide if you have substantially assisted, it is imperative that your lawyer negotiate objective cooperation benchmarks. These benchmarks should ideally be included in your cooperation agreement.

Once your cooperation agreement is in place, you and your lawyer must work together to ensure that prosecutors cannot claim, upon review, that you did not substantially assist. This begins with the documentation. Your lawyer can generate comprehensive written proffer records for every proffer session and other key interactions with federal prosecutors. Written proffer records, in addition to notes for defense purposes, should document:

• the information, resources, or skills you provided to the government;
• the date you provided them;
• why the information, resources, or skills were useful (or useful in a future investigation, prosecution, or conviction);
• the government prosecutor (or prosecutors) who received the information, resources, or skills; and
• any questions the government prosecutors had (or concerns) at that time.

Along with comprehensive written proffer records, your lawyer can generate a regular written follow-up or a summary of ongoing cooperation and assistance. This preserves the record of your continuing cooperation throughout the months (or years) during which a government prosecutor will evaluate the extent to which you have provided “substantial assistance.”

Ultimately, truthful, complete, and prompt cooperation is critical. If you have provided the government with all pertinent information and assistance and have done so truthfully and promptly, you will have done everything in your power to strengthen the government’s reason to file a Rule 35(b) motion.

If a government prosecutor or prosecutors indicate that they do not believe you have been cooperative enough to qualify for substantial assistance (or provided adequate substantial assistance to secure a sentence reduction), your lawyer can then ask them for an explanation. An explanation puts the ball back in the government prosecutors’ court. If the prosecutors are not able to provide an objective explanation, that can give your lawyer additional leverage with whom to negotiate.

Finally, if your lawyer is to strengthen the government’s obligation or reason to file a Rule 35(b) motion, he or she must ensure that you have complied with both your plea agreement and Rule 35(b) itself. For example, presentence cooperation alone is not sufficient to support a Rule 35(b) sentence reduction. If a defendant only has presentence cooperation on record, he must also provide additional substantial assistance to the government after sentencing. Furthermore, the assistance you provide must concern investigating or prosecuting another person. This helps prevent any claims that your cooperation does not meet Rule 35(b)’s requirements.

Can a judge force prosecutors to file a Rule 35(b) motion?

In Wade v. United States, the Supreme Court held that judicial review of federal prosecutors’ refusal to file a Rule 35(b) motion is only permissible when there are “substantial reasons to believe that an unconstitutional motive prompted the refusal.” A bare allegation of unconstitutional motive is not sufficient; the defendant must make a substantial threshold showing of improper motive before a court will order discovery or an evidentiary hearing.

However, the defendant’s description of extensive cooperation is not sufficient on its own to trigger judicial review. As the Supreme Court noted, “a claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing,” even if the government continues to refuse to file a Rule 35(b) motion. Defendants must meet a substantial threshold showing to justify discovery and the holding of an evidentiary hearing.

As a result, unless a defendant can show substantial reasons to believe that an unconstitutional motive prompted the refusal to file the motion, the defendant will not be able to get any judicial review for the prosecutor’s refusal to file. However, if a defendant obtains judicial review, the defendant still must have sufficient evidence to obtain the relief.

For example, if the government has given an express promise to file a Rule 35(b) motion upon the defendant’s substantial assistance, the court will likely enforce the government’s promise to file the motion. By contrast, if the government reservation of sole discretion appears in a Rule 35(b) provision of a defendant’s cooperation agreement, it substantially limits the defendant’s ability to rely on contractual or constitutional grounds to obtain judicial enforcement of the government’s obligation to file the Rule 35(b) motion.

Different federal circuit courts also apply different standards to the refusal to file a Rule 35(b) motion. For example, the Ninth Circuit does recognize “bad faith” as an exception to the principle that federal prosecutors have sole discretion to file Rule 35(b) motions. In contrast, the First Circuit considers a bad faith refusal to file a Rule 35(b) motion as a violation of due process. Finally, the Fourth Circuit has held that bad faith alone is insufficient for judicial review. This explains the disparate circumstances under which defendants may be able to pursue judicial enforcement of a Rule 35(b) motion.

Regardless of the circumstances involved, a defendant who cannot obtain Rule 35(b) relief through the government cannot obtain it independently. A defendant who is not able to get the government to file a Rule 35(b) motion cannot seek the court’s intervention to compel the government to file a Rule 35(b) motion, and the defendant cannot go to the court to seek Rule 35(b) relief on his or her own. Rule 35(b)(1) expressly states, “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.” This makes clear that the government is the only party with the authority to initiate Rule 35(b) proceedings.

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

What deadlines apply to filing and deciding a Rule 35(b) motion?

There are two relevant deadlines in Rule 35(b) regarding filing and deciding a motion for a sentence reduction based on substantial assistance:

• Filing within one year after sentencing: Generally, Rule 35(b)(1) requires that a motion to reduce a sentence be filed within one year after sentencing.
• Deciding after one year: Although a Rule 35(b) motion must be filed within one year after sentencing, a timely Rule 35(b) motion may still be pending.

These two rules combined mean that a timely Rule 35(b) motion may be decided after the first year following sentencing.

Under Rule 35(b)(2), federal prosecutors may seek a Rule 35(b) reduction more than one year after sentencing for any of these three enumerated circumstances:

• Information unknown during the first year: “information not known to the defendant until one year or more after sentencing.”
• Information not useful until after the first year: “If the information learned during the first year became useful in the second year (or beyond).”
• Usefulness not reasonably foreseeable: “If the use of the information during the first year was not reasonably foreseeable, and the defendant disclosed the information promptly.”

These last two circumstances apply if you provided useful, relevant information to the government during the first year after sentencing. If you provided this information to the government promptly, and then the information’s usefulness became foreseeable, federal prosecutors may be able to file for a Rule 35(b) sentence reduction later on.

Rule 35(b) does not limit a defendant to a single sentence reduction, and it contains no express one-motion limit for continuing assistance. For example, if a defendant continues to provide useful, relevant information that allows prosecutors to investigate, prosecute, or secure an indictment after the government has already sought a sentence reduction under Rule 35(b), then the government can still seek another Rule 35(b) sentence reduction. This is a unique feature of Rule 35(b), and is one of many reasons why you should seek representation from a competent federal criminal defense lawyer.

A Rule 35(a) motion is different because a judge can correct clear errors only within 14 days after sentencing. Rule 35(b) motions for sentence reductions based on substantial assistance are a different matter, and this explains the deadlines for filing and deciding these Rule 35(b) motions.

If you have substantial questions about your present or past sentencing, speak to the legal team at Spodek Law Group Our attorneys are here to answer your questions and represent your interests in all federal criminal proceedings.

Can Rule 35 dismiss charges or erase my conviction?

Rule 35 cannot dismiss charges or erase a conviction. Instead, Rule 35 is a federal rule of criminal procedure. The primary purpose of Rule 35 is to provide a means for correcting a sentence after a defendant has been found guilty.

Dismissal of charges is generally governed by Federal Rule of Criminal Procedure 48(a) rather than Rule 35, and to dismiss charges in a criminal proceeding the government must:

• The prosecutor must file a motion to dismiss; and
• The prosecutor must seek and obtain a judge’s permission to dismiss.

While a timely government motion to dismiss a criminal prosecution does not guarantee any sentence reduction, a court will generally not be able to sentence the defendant to more than the original charges allowed.

A Rule 35(b) motion, on the other hand, is filed by the government when the defendant provides “substantial assistance” to the government after sentencing. While an experienced lawyer can negotiate for prosecutors to file such a motion and, if necessary, the underlying plea agreement should include an express requirement to file Rule 35(b) motions, the Judge still has sole discretion in two important aspects:

• The judge can refuse to reduce the sentence
• The judge can reduce the sentence by a minimal amount or a large amount.

Under Rule 35(b)(4), the amount reduced can be below the statutory mandatory minimum sentence for the offenses to which a defendant was sentenced. This is in contrast to Section 5K1.1 which, by its very nature, cannot seek to reduce a sentence below the mandatory minimum.

Federal Rule of Criminal Procedure 35 applies in federal criminal cases. State criminal cases use the state rules of criminal procedure.

Under Rule 35(a), a judge is authorized to correct clear arithmetical, technical, or other clear sentencing errors. The court may correct such errors, but it is not required to do so. However, Rule 35(a) sentence corrections must be completed within 14 days after the original sentencing.

The information in this article is for informational purposes only. It does not constitute legal advice. If you are charged with a federal offense or you are facing criminal charges, do not rely on this information. Reach out to our office and speak with an experienced defense lawyer immediately.

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If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.