Last week, in United States v. Baker, the Tenth Circuit held that a district court has no jurisdiction to rule on a substantial assistance motion filed more than one year after sentencing if the defendant provided information that was useful to the prosecution both before and after this one-year period. If this does not make sense to you, you are not alone. But let's talk practice first.
If your client provides substantial assistance, make sure that the government moves for a substantial assistance reduction at the time of sentencing. If the government is hesitant to do it because the cooperation is ongoing, continue the sentencing hearing until the cooperation is complete. If your client does not begin to cooperate until after sentencing, you might adopt the strategy suggested by the Tenth Circuit in Baker: have the government file the motion within one year of the sentencing hearing, but ask the district court to hold the motion in abeyance pending the completion of your client's cooperation. I'm concerned about this latter option because a district court could refuse to hold the motion in abeyance (this might sound like a ridiculous thing for a district court to do, but the facts of Baker suggest that it is possible; in Baker, the district court dismissed a substantial assistance motion made by the government, asking for a 6-month downward departure, because the client's information was too useful (both before and after the one-year post-sentencing deadline). I am guessing that I am not the only person who finds this decision unbelievable.). Or, have the government file a motion prior to the one-year cutoff, then another motion after the one-year cutoff.
On the decision itself, the Tenth Circuit is obviously wrong on this one. For one, the Supreme Court has repeatedly admonished courts not to label as jurisdictional similar emphatic time restrictions in rules of court. The Tenth Circuit ignored all of this precedent in favor of a 35-year-old Supreme Court decision that itself relied on the 54-year-old Supreme Court decision criticized by the Supreme Court as broadening the concept of jurisdiction beyond its breaking point.
For another, the Supreme Court recently held that a lower court cannot invoke a procedural timeliness bar when the government has refused to rely on it. That is this case. The government filed the motion; clearly, it had no intention of enforcing a procedural bar to thwart the success of its own motion.
Then there is Dolan v. United States, which holds that a district court has the power to order a restitution order beyond the 90-day deadline set forth in the federal Restitution statute. Dolan is relevant here because the government in Baker delayed filing the Rule 35(b) substantial assistance motion because it thought it might need Baker's testimony at a restitution hearing. So, a court can ignore a statutory 90-day deadline in order to impose restitution, but it cannot "ignore" a much more amorphous rule-based deadline to grant a substantial assistance departure tied to a delayed restitution hearing. That is too inconsistent to be correct.
But the frustration with the Tenth Circuit's decision in this case goes well beyond inconsistencies with Supreme Court decisions. Rule 35(b)'s language allows substantial assistance motions more than one year after sentencing where the defendant's assistance "involved" information provided prior to the one-year cutoff but became useful only after the one-year cutoff. Nothing in the language of this rule suggests that a substantial assistance motion is improper if the assistance "involved" other information as well. Consider this from a logical standpoint:
a court can grant a substantial assistance motion for information provided prior to the one-year cutoff;
a court can grant a substantial assistance motion for information provided after the one-year cutoff;
thus (multiple choice quiz here):
(1) a court can grant a substantial assistance motion for information provided both before and after the one-year cutoff; or
(2) a court cannot grant a substantial assistance motion for information provided both before and after the one-year cutoff.
The first answer must be correct (a court can do A; a court can do B; thus, a court can do both A and B), but the Tenth Circuit picked the second answer. It is not at all clear why. Congress could not have meant this result, especially when one considers that it was the government's delay, and not the defendant's, that apparently divested the district court of jurisdiction.
This is a mess. Perhaps the Supreme Court will fix it.