In United States v. Rothstein, No. 18-11796 (Sept.
30, 2019) (Tjoflat, William Pryor, Grant), the Court affirmed the grant
of a government motion to withdraw a Rule 35 motion.
The Court rejected the defendant's argument that, although
the government had discretion not to file a Rule 35 motion at all, the
government lacked discretion to withdraw the placeholder motion that it filed
for purposes of preserving the court's jurisdiction in the event it elected to
proceed. Although the cooperation
agreement itself said nothing about withdrawing a Rule 35 motion, the Court
reasoned that accepting the defendant's argument would allow a technicality to
intrude on prosecutorial discretion. In
addition, the government specifically advised the defendant in the placeholder
motion that it retained the right to withdraw the motion if the defendant
breached the cooperation agreement, and that the cooperation was not yet
complete. Finally, the Court found no
abuse of discretion in denying the defendant an evidentiary hearing to show
that he complied with the cooperation agreement, because the only issue was a
legal one about whether the government retained the discretion to withdraw the
motion.
