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Appellate Law

: Appellate Law and Practice

CA1: No under Fed. R. Crim. P. 35 relief for providing assistance

By S. COTUS

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US v. Ellis, No. 07-1997. A guy serving a 25-year sentence who claims to have provided assistance to a ?warden of the federal prison where he was once incarcerated? moved under Fed. R. Crim. P. 35 to shorten his sentence. What kind of assistance. ?...it suffices to say that the assistance was of value to the warden in running the prison.? But, according to the convict, the warden made some promises. ?[T]o transfer Ellis to a lower-security prison and to write a letter to the sentencing court to "create an opportunity to have the sentencing judge consider reducing [the defendant's] sentence[] as a reward for [his] service." Only an idiot would believe such a promise. Despite the fact that the convict was an idiot, the warden did write a letter, and the sentencing judge got it, the US Attorney did not move under R. 35 for a reduction. The court didn?t move on its own motion to reduce the sentence. The US Attorney, seeing that the convict was dumb enough to believe that a warden could help, did nothing either. A law-abiding person would have retained a lawyer.

Thirteen years later, after the sentencing judge died, the convict moves himself under R. 35. The District Court denied the motion and ordered the case ?closed.? The First, of course, says that such a ?promise? can?t be enforced by the warden, because 18 U.S.C. § 3582(c)(1)(A) only gives the director of the Bureau of Prisons the power to file such a motion, and the BOP didn?t do this unless the prisoner had medical problems. Moreover, the current R. 35 has a 120-day limit.

The First adds that the warden doesn?t have necessary or apparent authority to bind the BOP or the US Attorney. A long discussion of ?agency? principles and how they impact the government (mostly under government contract law) ensues.

Anyway, the moral of the story is clear: prisoners should retain counsel before ?providing? assistance.

Full post as published by Appellate Law and Practice on May 23, 2008 (boomark / email).