Tag Archives: Rule 35

No Right to Hearing on Rule 35(b) Motion, 5th Circuit Says – Update for October 11, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


retro_vintage_kitsch_cop_police_are_your_friends_card-r61c98e4f7d4f40a6b764aedbdb6dfd4c_xvuat_8byvr_324When we were kids, we quickly learned from well-meaning parents that the policeman was our friend. That was quite true, at least up until we hit puberty or so. Then we learned, some of us later than others, that at some point the policeman has ceased being our friend, but rather was just another guy on the public dole who had been trained to believe that all “civilians” – that’s what they call us, like their Boy-Scouts-with-guns organization has anything to do with military service – are suspects and all cases have to be cleared by arrest. Arrest of the guilty party is preferred, but by no means mandatory.

In adulthood, we also came to realize that the prosecutor is as much our friend as is the cop, which is to say ‘not at all’? Cynical, you say? Ask the suddenly-disgraced Harvey Weinstein. Harv is clearly a guy who gives lechery a bad name, someone who used power and money to abuse women. Sure, his hormone-driven nihilism makes Bill Clinton and Donald Trump look like eunichs, and his depravity ought to earn him a one-way ticket to infamy. But that’s not enough. Word today is that the feds are investigating Harvey, a criminal-justice piling on that is as puzzling as it is troubling.

Free Harvey!
You’re not likely to be seeing many of these posters around… but if the Feds can target Harvey for merely being a scumbag, they can target anyone else suddenly not in favor, too.

To be sure, Harvey could be convicted of multiple federal crimes. We know that for a fact, because with well over 4,000 federal criminal statutes and untold additional regulations that have been criminalized as well, anyone – from Mother Teresa to Anthony Weiner – has probably committed multiple federal crimes, often just be getting up in the morning.

Our point to all of this is one that Aaron McMahan would appreciate. Aaron was convicted of drug trafficking in federal court, and then – like other federal inmates who come to the party late – he assisted the government in nailing a former associate. Six months after Aaron’s sentencing, his cooperation resulted in the other guy getting federal time. After that, the Government filed a post-sentence Rule 35(b) motion asking for a reduction in Aaron’s sentence as a reward for his assistance in nailing the other dude.

When defendants help the feds before sentencing, the Government rewards them by filing a motion at sentencing pursuant to 18 USC 3553(e) and Sec. 5K1.1 of the Sentencing Guidelines. This 5K1.1 motion is like a magic sentencing elixir, letting the sentencing judge ignore any advisory sentencing range, and even statutory mandatory minimums, and sentence the cooperating defendant to as little as probation.

Sometimes, however, the cooperation comes after sentencing, or – as in Aaron’s case – cooperation before sentencing has not yet brought the desired results. Then, the Government may file a motion pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. The Rule 35 motion is made of the same fairy dust as the 5K1.1 motion, letting the sentencing court pretty much do what it wants regardless of other statutes or guidelines.

wink171012When a defendant cooperates, no one from the U.S. Attorney’s Office promises him any reward whatsoever. Wink. Wink. This is because the defendant may be called on to testify, and the defense attorney will invariably ask him or her what has been promised. In the cross-examination pas de deux, the cooperating witness is expected to be able to respond, with rather precise honesty, that no one has promised him a thing. Of course not. Wink. Wink. Everyone knows what is really going on except for the jurors, who no doubt retire to the jury room impressed at the civic-mindedness of the felon on the stand who is willing to stand up for justice because it’s the right thing to do.

Of course, after the cooperating defendant delivers, the government does not have to reward him with a 5K1.1 or Rule 35 motion, and in all but very limited cases, there is not a thing a defendant can do about it. Likewise, the court may decide not to grant a 5K1.1/Rule 35 motion, or may decide to reward the defendant with a lousy orange in his stocking instead of that pony the government recommended. In that case, a defendant’s options are pretty limited.

Practically speaking, however, the system grinds out rewards for cooperating defendants, because if it did not, word would quickly get around the jails and prisons, and cooperation would dry up.

nothing170125Aaron no doubt figured that because he had delivered for the government, the U.S. Attorney was now his friend. Indeed, his “friend” delivered, filing the not-promised but reasonably-expected Rule 35 motion. Unfortunately, it seems the court was not his friend, because two days after the Rule 35 motion hit his desk, Aaron’s district judge denied the motion — before Aaron had received notice or had an opportunity to respond — explaining “even if the court were to accept as accurate all allegations of fact alleged in such motion, the court would not be persuaded that the sentence imposed on McMahan… should be reduced.”

Shocked, Aaron appealed, arguing that the district court should not have denied the Rule 35 motion without first providing him with notice and an opportunity to be heard.

Aaron was shocked again when his former friends at the U.S. Attorney’s Office argued against him in the Court of Appeals, contending that “adopting a notice and hearing requirement in Rule 35(b) motions would “create tension with the authority recognizing that a defendant possesses many more rights during the sentencing phase of criminal proceedings than during post-sentencing proceedings.”

noright171012Aaron’s dismay was complete last week, when the 5th Circuit agreed with the government. “A defendant does possess fewer rights during post-sentencing proceedings,” the Circuit held. “Indeed, Federal Rule of Criminal Procedure 43(b) provides, ‘a defendant need not be present…[where t]he proceeding involves the correction or reduction of sentence under Rule 35…” Further, a defendant does not have a right to counsel during Rule 35(b) sentence reduction proceedings… Thus, a notice and hearing requirement for Rule 35(b) motions would be in conflict with Rule 43 and this Court’s previous decisions that the attendant rights of presence and counsel do not exist at that post-sentencing stage.”

English statesman Henry Temple, 3rd Viscount Palmerston, once observed that “nations have no permanent friends or allies, they only have permanent interests.” Writ small, that is something every defendant – even someone as powerful as former Obama and Clinton buddy Harvey Weinstein – should remember about his relationship with the government.

United States v. McMahan, Case No. 16-10255 (5th Cir., October 5, 2017)

– Thomas L. Root


The Legend of Petey Candlewood – Update for April 6, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.



Anyone reading what we put out often enough might get the sense that we’re no fans of long prison sentences, or – in many cases – of any prison sentences at all. But there are exceptions, and yesterday, we came across one.

snitch161004It’s a fairly well known fact that a substantial minority of federal prisoners trade information for lower sentences. We’re down with that: a defendant’s got to do what a defendant’s got to do. Most people who do this jump aboard the train early, but a few go through sentencing without cooperating, only to regret their decision when they walk through the prison doors. For them, there’s Rule 35(b).

Federal Rule of Criminal Procedure 35(b) lets the government file a motion asking that a prisoner’s sentence be cut for post-sentencing cooperation. The Rule 35(b) motion is discretionary on the government’s part, and the sentencing court does not have to grant it. But it works and works well: about 9,500 inmates a year get sentence reductions under Rule 35(b), with the average prisoner getting a 37% sentence cut.

The biggest hurdle for a prisoner seeking a Rule 35(b) sentence reduction is to have some juicy information to trade. After all, the inmate’s locked up, and there are not a lot of opportunities to come up with the kind of first-hand dirt that case agents and U.S. Attorneys like to feast on. In the last decade, inmate scuttlebutt has invented a way around that: third-party Rule 35(b)s.

winwinwinThe concept is simple: the inmate pays someone to arrange a third party on the street to come up with some good confidential information that helps the Feds bag some bad guys. The people with the information ask the U.S. Attorney to credit their information to the inmate, who gets a Rule 35(b) motion for sentence reduction. A real win-win! A bad guy’s off the street, the informant makes some money, and the inmate gets a sentence cut. What could possibly go wrong?

Lots. The sad fact is that only a very few courts have granted third-party Rule 35(b) motions, and only when stringent standards are applied. Some courts ban third-party Rule 35(b)s altogether, but the trend is to not turn down a chance for the Feds to enforce the law. The courts that approve them generally require that (1) the inmate play some role in instigating, requesting, providing, or directing the assistance; (2) the government would not have received the assistance but for the inmate’s participation; (3) the assistance is rendered for free; and (4) no other circumstances weigh against rewarding the assistance.

Fraud170406In other words, anyone planning on getting a third-party Rule 35(b) would want to be sure that he or she was personally involved in getting the person to step forward, and that the inmate can easily show that the Government wouldn’t have gotten the help without him or her. Most important, the prisoner had better be absolutely sure that the person providing the assistance is not getting paid anything for it.

So who does a third-party Rule 35(b) work for? A wife bailing out her husband, a father bailing out his son, brother helping brother… that kind of thing. It definitely does not work for a stranger being paid by an inmate to snitch on another stranger. One can only imagine the field day a defense lawyer would have with a government witness who had been paid under the table by an inmate to inform on someone else.

EasterBunny170406So a third-party Rule 35(b) cannot happen. But that technicality does not keep inmates from hoping, and where inmates hope, there’s usually someone standing there ready to take their money.

Someone like Alvin Warrick. Or maybe we should call him “Pete Candlewood,” one of the aliases he employed as he ripped off federal inmates and their families. “Pete” and his co-conspirators were indicted in federal court for their third-party Rule 35(b) scheme last fall, and a few weeks ago, they pled guilty. Having enjoyed seven rich years living off money they defrauded from inmates’ families, they now are looking forward to seven lean years (at least).

Relatives of at least 22 inmates paid “Pete” and his sidekicks something like $4.4 million, based on their vague promises to set up third-party Rule 35(b) deals. Through a Beaumont, Texas, company called Private Services, “Pete” and his girlfriend Colitha Bush (who went by “Diane Lane”) told the relatives that they “used a network of informants to make undercover drug deals and to provide information and third party cooperation in other criminal cases under the supervision of prosecutors, federal agents, and the courts.” They said that, “if successful, such deals and information would be credited to the inmate and used to secure their early release through a Rule 35 motion.”

fraud160530Private Services promised families that substantial assistance was being provided to the government on behalf of their inmate loved one. “Pete” even provided fake invoices and phony documents showing that Private Services had inked deals with U.S. Attorneys to provide assistance. In the Factual Proffer “Pete” agreed to in his plea, he admitted that he had “assured and consoled family members of federal inmates that he would work on their case and help to coordinate third party cooperation, but in truth and in fact, and as he well knew, no such work was ever done.”

In its usual celebratory press release, the Acting U.S. Attorney for South Florida fulminated, ““Sentencing reduction fraud schemes that prey on the desperation, vulnerability and trust of federal inmates and their families exploit both the victims and the justice system. The U.S. Attorney’s Office in South Florida and our federal partners across the nation will continue to target such schemes and prosecute the offenders.” While we tend to discount government pontification in criminal cases like the media discount President Trump’s tweets, we’re with him on this one.

Apparently, the FBI is still trying to find additional victims. “If you are a victim, it is critical that you reach out to us,” FBI Special Agent in Charge Perrye K. Turner is quoted as saying in the March 30th USAO press release. “This case highlights that justice is blind and underscores the FBI’s impartiality when investigating cases.”

Unsurprisingly, none of “Pete’s” inmate clients received a shorter prison term during the course of the 7-year scheme. Not a one. But the scam was mightly good to “Pete” and “Diane,” who received regular payments from the inmates’ families, which they spent on luxury cars, vacations and gambling.

scam170406“Pete” and “Diane” – along with Private Services’ treasurer (who had the sense to make a cooperation deal with the government himself rather than through Private Services) – have signed plea deals. And it’s a fair prediction the inmates’ families will never recover a dime.

Miami Herald, Conning the convicts: trio admits to ripping off South Florida inmates (Apr. 3, 2017)

United States v. Warrick, Case No. 1:17-cr-20194 (S.D. Fla.)

– Thomas L. Root