Understanding Rule 35 Motions

One way in which federal criminal defendants can increase the likelihood they will receive a lower or reduced is by cooperating with the government.

When a federal defendant “cooperates” with the government, it means he or she assists or helps the government prosecute someone else.  If a defendant cooperates after sentencing or continues to cooperate after sentencing, the federal prosecutor can file a Rule 35 motion for reduction of sentence.

“Cooperating” is not guaranteed to cause a prosecutor to file a Rule 35 motion.  The cooperation must be considered “substantial assistance” before the federal prosecutor will file a Rule 35 Motion.

Since 2002, my practice, Law Offices of Paul J Donnelly, has handled numerous post-conviction matters, including helping scores of clients receive the benefit of a Federal Rule 35 Motion.

In almost every case, I have been able to convince the sentencing judge to grant a greater reduction of sentence than the reduction argued for by the federal prosecutor after the motion is filed.

What is a Rule 35 Motion?

A Rule 35 motion is filed by a federal prosecutor under Rule 35(b) of the Federal Rules of Criminal Procedure. The motion is filed by the prosecutor, and it asks the sentencing judge to reduce a previously-imposed sentence based upon the “substantial assistance” by a defendant after his or her sentencing.

The sentencing judge may consider all cooperation, whether performed before or after sentencing, but if a defendant received a sentence reduction at the time of sentencing for cooperation given prior to sentencing, the defendant will not be credited twice for the same cooperation.

If a defendant received a reduction at the time of sentencing for cooperation performed before sentencing, the defendant can receive a Rule 35 Motion for cooperation given after his or her sentencing if the cooperation is considered “substantial.

Who can File a Rule 35 Motion?

Under the Rule, only the federal prosecutor can file may file a Rule 35 Motion.  It is highly rare that a court will consider a motion filed by a defendant, and the defendant would have the burden to prove that the prosecutor did not file a Rule 35 Motions based upon some constitutionally- protected basis, such as race, creed, or gender.

Is a Rule 35 Motion Guaranteed if Someone Cooperates?

A Rule 35 motion is only “guaranteed” if the cooperation is deemed “substantial”.  What is “substantial” to one prosecutor’s office may not be considered “substantial” to another’s.

If a defendant has provided truthful information that led to the prosecution of another, this would be considered “substantial cooperation”. If a defendant testifies against another defendant, all prosecutors would consider this cooperation “substantial”.

Merely giving prosecutors or law enforcement information about others may not rise to the level of being considered “substantial assistance” – unless the information provided leads to an arrest, indictment, or a conviction.

If a Rule 35 Motion is Filed, Can a Court Go Below a Mandatory Minimum Sentence?

Yes, the Rule specifically states that where a judge previously-imposed a mandatory minimum sentence, the judge can reduce the sentence below the mandatory minimum sentence.  Some charges carry a 10-year or 5-year mandatory minimum sentence.

With the filing of a Rule 35 motion for reduction of sentence, the sentencing judge can go below the mandatory minimum sentence to whatever the court deems “reasonable” and is supported by the level of cooperation.

Upon the Filing of a Rule 35 Motion, How Much Can a Court Reduce a Sentence?

Generally, prosecutors will give their recommendation as to how much of a reduction is supported by the level of cooperation.  The court is not bound by the prosecutor’s recommendation.

In every instance, I ask the court to give a greater reduction than what is requested by the prosecutor in support of the Rule 35 Motions.  The court is not bound or constrained to impose what is asked for by the prosecutor.

The court could grant time served or a much lesser sentence than sought by a prosecutor, as long as the sentence is deemed “reasonable” and is backed by the level of cooperation itself.

Every case is different, and the reduction is supposed to be supported by what level of cooperation is given.. If the cooperation is very extensive, the reduction should be equal to the given amount and helpfulness of the cooperation.

What are the Pros and Cons of Cooperating to Obtain a Rule 35 Motion?

The “pro” or benefit is obvious.  When one’s cooperation rises to the level of substantial assistance, his or her sentence is reduced.  This means the get out of jail before they would have under the original sentence and may have their term of supervised release or probation reduced too.

The “con” or risk in cooperating may be that the person is putting himself or herself in harm’s way by assisting he government.  This is generally not an issue for those who cooperate, but it must be considered and discussed with an attorney.

There are safeguards that can be put in place by the government and law enforcement if necessary.  If one is in custody and cooperating against another person in custody, the can be separation orders issued that prevent any further contact between the two persons.

In the rare and extreme cases, the federal government can place cooperators into a witness protection program, if the need arises for such measures.

Can a Person Cooperate to Help Another Person Obtain a Rule 35 Motion?

When one person cooperates with the federal government in order for another party to receive a Rule 35 Motion, this is called “third-party cooperation”.

Whether third-party cooperation will be considered by the prosecutor’s office truly depends on what federal district you are in and what the cooperation entails.  Some federal districts are more willing to accept “third-part cooperation” than others.

In the federal district you wish to receive a Rule 35 motion based on the cooperation of a third-party, it is always wise to speak to the prosecutors first in the federal district where the Rule 35 motion is sought.

The cooperation of the third-party may be of such significance that the prosecutors would welcome the cooperation, and if the third-party’s cooperation is “substantial” file a Rule 35 Motion on behalf of the non-cooperating person.

This is an area that has to be addressed case-by-case and district-by-district.  It is certainly not impossible to obtain, but “third-party cooperation” is generally viewed differently than regular cooperation, and some districts frown upon third-party cooperation.

Is It Necessary to Use the Services of an Attorney to Help Obtain a Rule 35 Motion?

An attorney who is experienced in Rule 35 Motion practice can help immensely in obtaining a Rule 35 Motion and in obtaining the maximum reduction of the sentence possible.

Most persons seeking a Rule 35 Motion are in jail, and attempting to persuade a prosecutor to file a Rule 35 Motions is very difficult from jail.

Having an attorney represent you or a loved one at this critical period is vital.  The attorney can pursue the prosecutor and ensure that the Rule 35 motion is in fact filed and filed timely.

Also, once the Rule 35 Motion is filed, a rule 35 motion lawyer experienced in this area can be tremendously helpful in guaranteeing you or a loved one the greatest reduction possible based upon the level of cooperation that has been provided.

Like most things, experience matters, and its no different when considering cooperation and pursuing a Rule 35 Motion.

Contact Miami Rule 35 Motion Lawyer

If you or someone close to you needs an criminal attorney who is highly experienced in handling cases where clients cooperate with the government and seek a Rule 35 Motion, please call Law Office of Paul J Donnelly at 305-757-3331 to discuss how I can help you. My office is locate in Miami, but I handle federal cases throughout the United States.