Last week, I wrote about the somewhat surprising fact that Michael Cohen pleaded guilty, allocated at the plea hearing that President Trump directed him to make an illegal campaign donation, and yet didn’t have a written cooperation agreement.
In fact, the plea agreement said that neither party would move for a departure from the sentence range, which is generally how a defendant’s cooperation would be taken into account at sentencing.
I promised that I’d offer another possible way that Mr. Cohen might have a cooperation agreement with the government.
The other possible way is through Rule 35.
What is Rule 35?
Federal Rule of Criminal Procedure 35(b) allows the government to move for the reduction of a sentence after sentencing.
Rule 35 is intended to “facilitate law enforcement by enabling the government to elicit valuable assistance from a criminal defendant … after he was sentenced … by asking the sentencing judge to reduce the defendant’s sentence as compensation for the assistance that he provided.” United States v. Shelby, 584 F.3d 743, 745 (7th Cir. 2009); see also United States v. Grant, 636 F.3d 803, 810 (6th Cir. 2011).
Here’s the text of the Rule:
(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.
* * *
(3) Evaluating Substantial Assistance. In evaluating whether the defendant has provided substantial assistance, the court may consider the defendant’s presentence assistance.
The rule also allows the government to file a Rule 35 motion after more than a year if the information was not known to the government until a year or more after sentencing (think: jailhouse snitch), or the information provided did not become useful or did not appear to the defendant to be useful until a year later. Fed. R. Crim. P. 35(b)(2).
Rule 35, then, allows the government to wait to see if the defendant’s cooperation is helpful before filing a motion with the court to reduce the sentence. It also allows a defendant to testify truthfully during another defendant’s trial that he doesn’t have any deal to get credit for his cooperation, because the government has not agreed to file a Rule 35 motion.
As a practical matter, the government will file a motion to reduce the sentence under Rule 35. The defense will then have the opportunity to join the motion (who would say no?) and explain why the sentence should be reduced more than suggested by the government. The court will often hold a hearing to allow both parties to present their case and then decide the motion.
It’s worth noting that some courts have held that if the district court grants a Rule 35(b) motion, the court of appeals “has no jurisdiction to review the extent of the downward departure for substantial assistance.” United States v. Moran, 325 F.3d 790, 793 (6th Cir. 2003). The decision by the district court has a finality that many of its decisions do not have.
What Could This Rule Mean for Mr. Cohen?
Rule 35 leaves open the possibility that even if Mr. Cohen is sentenced in December within the guideline range in his plea agreement, he could ultimately have his sentence reduced.
It could mean that if Mr. Cohen follows through on his lawyer’s suggestion that he is happy to cooperate and has information about Russian interference with the 2016 election, he could see some serious benefits down the road.
Let’s be clear: Rule 35 motions are not any defense lawyer’s favorite way to proceed in a cooperation posture. A 5K motion happens before sentencing, which always makes us feel better since it is locked in at the time of the sentence. A Rule 35 motion is most likely to happen within the first year after sentencing, but that’s a long wait for a person sitting in federal prison.
Better late than never.
[…] and because the plea deal did not contain an explicit cooperation deal. (As I’ve written here and here, it seems awfully likely that Cohen is cooperating and getting a […]