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July 25, 2008

Interesting ruling on prosecutors' filing cooperation motions

Thanks to this post at AL&P, I saw that the First Circuit yesterday issued an interesting ruling in US v. Mulero-Algarin, No. 07-1701 (1st Cir. July 24, 2008) (available here), concerning federal defendant's getting cooperation credit and motions from the government.  Here is how the opinion starts:

A criminal defendant who, after he is sentenced, elects to cooperate with the government in the prosecution of others may in certain circumstances receive a reduced sentence. See Fed. R. Crim. P. 35(b).  Within wide limits, however, the government holds the key that can unlock the door to such leniency. This appeal implicates the extent of the government's discretion in deciding when to withhold the use of that key.  Concluding, as we do, that the district court acted appropriately both in refusing to compel the government to file a Rule 35(b) motion and in declining to allow either discovery or an evidentiary hearing, we affirm its ruling.

July 25, 2008 at 04:09 PM | Permalink

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Comments

Will Gall now upon us will the need for a 5k be less important? couldnt the judge decide on his own and reduce the sentence? Where it wouldnt get overturned on appeal

Posted by: | Jul 25, 2008 4:53:46 PM

anon:

You are correct, unless there is a statutory minimum sentence. A 5K1 motion by the government allows the district court to sentence below the mandatory minimum.

Posted by: Tim S | Jul 26, 2008 9:11:02 AM

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