United States v. John Doe

CONCURRENCE

LAWSON, District Judge

(concurring).

I concur in the judgment of the Court and I join in the majority’s adoption of *415Judge Collier’s well-reasoned opinion. The plain language of Rule 35 precludes district courts from considering motions to reduce sentences which are not filed “within one year after the sentence is imposed,” unless the exception stated in the Rule applies. Since only the government may file such a motion under Rule 35 after the 1987 amendments took effect, allowing the government to “waive” the time limit would improperly cede to it the authority to determine when court-rule-imposed deadlines would be enforced. See United States v. McDowell, 117 F.3d 974, 979-80 (7th Cir.1997).

I write separately, however, to emphasize that a rule such as this which does not contain a “safety valve” that allows trial judges the measured flexibility to deal with circumstances unforeseen by the drafters will yield unjust results which can undermine the policies the rule is intended to promote. Among Rule 35’s policy goals identified by the Fourth Circuit, for example, are finality in sentencing by discouraging manipulation of the process, and motivating criminal defendants to be prompt and complete in their cooperation. United States v. Carey, 120 F.3d 509, 511-12 (4th Cir.1997), cert. denied, 522 U.S. 1120, 118 S.Ct. 1062, 140 L.Ed.2d 122 (1998). Both of those goals were fulfilled in this case, yet the defendant did not receive the benefit of his efforts because of the government’s failure to promptly perform. Allowing that default to remain uncured will undermine confidence in the government and possibly jeopardize future cooperation when the result of this case filters back to those from whom cooperation is sought.

The one exception presently included in Rule 35-that of permitting adjudication of a motion to reduce sentence when the cooperating defendant does not learn of the helpful information until after the one-year deadline has expired-does not address all of the exigencies that can arise. It likewise does not allow courts to address the manifest unfairness that was caused by the government’s failure to abide by Rule 35’s filing requirements for reasons solely within the control of the government, as occurred here. Nor does the Rule provide a mechanism for dealing with defendants who cooperate more than one year after sentencing when the information is known to them beforehand, see United States v. Carey, supra, or when the government belatedly realizes the usefulness of timely-disgorged information. See United States v. Orozco, 160 F.3d 1309 (11th Cir.1998).

In my view, this Court should join with other courts in urging an amendment to Rule 35(b) which will permit district courts to administer substantial justice. See, e.g., Orozco, 160 F.3d at 1316 n. 13, in which the Court noted: “[W]e agree with the district judge that this case demonstrates a factual situation that Congress should consider when it next contemplates revision of this rule. That is, we hope that Congress will address the apparent unforeseen situation presented in this case.... ” See also id. at 1317 (Hill, J., concurring) (“The facts of this case illustrate the near impossibility of codifying that which ought to be left to judicial discretion.... [A]ll that we can do is suggest that Congress, in its own good time, attempt by further codification to see that it does not happen to someone else. We ought to do better than this.”) and Id. at 1317-18 (Kravitch, J., concurring)(“That the language of the rule itself fails to carry out ... obvious and important policies] manifests an urgent need for Congress to reconsider Rule 35.”).

When the government makes a promise, it ought to keep it. The rules of criminal procedure should facilitate, not inhibit, *416good faith and fair dealing within the federal criminal justice system.