Live from Miami III: Its Relevant Conduct

Kealin Culbreath Esq and Rusty Burress. Both of the USSC. It is said that Rusty Burress is the only man in America who understands relevant conduct. I took his class yesterday and he starts out great... then he remains great but he starts speaking in greek...Maybe it's cause he is from South Carolina :)

Here we Go. Culbreath leads off:

Post Booker does relevant conduct still play a part? Yes Justice Breyer said so in the second part of Booker. Well how do you find relevant conduct under Booker?

Well in the first part of Booker, when guidelines are mandatory the Deft. either admits or the jury will make the determination. Under advisory guidelines the judge still makes the call and he makes it still by the preponderance of the evidence.
That applies to the issues of Uncharged conduct, Dismissed conduct and Acquitted conduct as per US v. Watts 519 US 1144(1997)

In the Second Circuit the US v. Shiek 433 F3d 905 case holds that judicial fact finding is still the norm. Second circuit upholds the use of Acquitted conduct in People v. Vaughn 430 F3d 518.

Who has the burden of persuasion?
Burden of persuasion falls on the party seeking the adjustment
Rules of Evid doesn't apply the Evidence must have a sufficient indicia of reliability.

Relevant Conduct USSG 1B1.3(a)

(a)(1)& (a)(2): Analysis to establish Relevant acts

The analysis starts with looking at two elements Who and WHen.

WHO?
Are we holding the Deft. responsible for her own action? Then its (a)(1)(A)

Now When? Offense of Conviction
In prep of the crime, During the crime or to Avoid Detection.

Now we want to come up with the total loss of a crime
take a bank Robb. The day before she steals a getaway car. what is the total law, we get the robbery (say 10k) and then the car value 5k =15 k loss

Now lets say the who is to hold the deft

query 1 what did the deft agree to do. Scope of Liability in our ex she agreed to rob a bank
query2 IF the acts were in furtherance of what the deft agreed to do
query3 IF the act were in the furtherance of what she agreed to do AND it was forseeable to the Deft inconnectionwiththe defts undertaking.

The When is the same as above

Scope of Criminal Activity is not necessarily the same as the scoe of the entire conspiracy

Try one:
3yr conspiracy where med clinic billed insurance companies for procedures never performed; Fraud billings of 500k per yr of a tot of 1.5 mill
During the course of the conspiracy the clinic had three doces each there for a single yr. one doc starting when the previous one left.
Doc 2 was at clinic for the second yr.
What is scope of DR.2 undertaking? 500K the one year.

Reasonably Foreseeablity 1)is only applied to the work of others. Not to the actual actor
RF is only one part of the 3 part anal. if you dont also have Scope or furtherance it don't matter.

Another example:

THree yr drug conspiracy distributing one K of Coke a week
Deft B was one of 10 individuals working togethr
Some of the participants carried firearms but B didn't ever.
do the Analysis'
Scope- drug seller
Acts in the furtherance of the conspiracy? yes
Reasonably forseeable? yes
Then will the firearm specific offense characteristic at 2D1.1 be applied? Yes

Once more with gusto:
Three year Drug Conspiracy to distibute 1kilo of Coke a week
Deft C was one of 10 people working together to distribute
Deft C was only in Conspiracy for the first year
None of the participants carried firearms in the first year but they did talk about the need to have guns
after 1st year they carrt
were the firearms reasonably foreseeable to C_Trick question you don't get there because the guns weren't during his scope.

"Expanded R.C." (not the phrase but a usage thing)
ie 1B1.3(a)(2)applies for Offenses included at 3D1.2(d)
WHat is included: Drug Trafficking, Fraud, Theft, Embezzlement, Money Laundering, Firearms a2 applies.

Whats excluded: Robbery, Assault, Murder, Kidnapping. a2 does not apply to these
will the firearm SOC at 2D1.1 be applied

OK in order to be psart of this expanded relevant conduct,you need two things
is Rule (d)grouping would it apply
and Same course of conduct or a commonscheme or plan
Well how do we know if it applies to rule (d)
3d1.3(b),App. note3
IF the counts use the same or similar guidelines

and if that guideline is included at 3D1.2(d)
use the aggregate quantity and combinde offense behavior, apply the guidelines asif for a single count

Ex
convict theft a nd I have more acts of theft
ok you have expanded rel conduct acc to 1b1.3(a)(2) you got grouping.

Now you have conviction for fraud with addition acts of theft: still good because the two use 3D1.2(d)
Now you have cconviction for fraud with additional act of burg.: no good. You can't use it it won't group under Rule (d)even if it was under course of conduct and foreseeable

Now Drug trafficking with acts of Drug sales - Ok you got expaned rel conduct
but now try this
Conviction is drug Trafficking with additional acts of passing counterfeit currency?Drugs are at 2B1.1
2b5.1 is for counterfeit money and both are in 3D1.2(d) you can't group under rule (d) so no expansion'

Convict is for Robbery with additional acts or theft. Robb is excluded from Rule (d)

Conviction for Bribery of Public Official 2c1.1 w/ additional acts of commercial bribery now you get 3d1.2 both are there So it may or maynot make it because they are different guidelines but they measure the same thing so they may group.

Conviction Tax Evasion with acts of Fraud. It seems to work but it doesn't really get together because you are measuring money but you are measuring different types of loss. One measures tax loss the other is a loss for a different type of loss. Second circuit doesn't see the difference and groups them.

Ok Now IF you can group under rule (d)do you have a common scheme or plan or the same course of conduct?
If you are looking at common scheme the offense must be conneted to each other by at least 1 common factor common victim accomplice or purpose or modus operandi

IF you are looking at same course of Conduct do you have similarity AND regularity (repetition)AND Temporal proximity.

Lets try it together
YOu have an offense of conviction: theft form interstate of shipment of sporting good store 17k val
additional theft next two weeks and previous two weeks

value 6k of lawn equiptmenet from a transfer truck off a train.
value of 12k on appliances from a rail cr at rail line
balue of 5k from another transfer at rail car
value of 12 k from rail car aon rail line
then thertof appliances from store loading dock after coming off the transfer truck.

Well the thefts all seem to meet and then it seems to be similar and regular and in temporal proximity now though the thefts aren't exactly similar you have strong regularity and temporal proximity so they very likely all group. And come in under the expanded rel.cond.

Now try this:
offense of convict: Sale of 1kilo of Marijuana to street level distributors
additional drugsales on the preceeding 12 weeks and on 8 afterward as follows
16 sales 1k apiece of maryjane. this will be included. It groups and is similar regular and temporal
four sales of 200grams of hash to street level distributors: this groups and is a little less similar but pretty close and is regular and temporal
additional sales of 1000 capsules of amphetomines sold individually to fellow college students ovr two semesters four years earlier: Probably not gonna be used for relevent conduct because its not temporal or even similar.

WHat about Relevant Conduct and Criminal conduct

You have a conviction for bank robbery and a state sentence for assault on a seller.
Well is it a Prior Sentence
Well 4A1.2(a)(1)& App. Note 1 says "a Prior Sentence is one previously imposed for conduct not part of Relevent conduct. So to determine you run thru the analysis of relevent conduct and you see that it was relevent. It was the defendants act and the assault was during the crime of bank robbery. The assault is used as relevent conduct.

but

You have a felon in possession and a state sentence for DUI but the stop of which gave probable cause for discovery the firearm that is the basis of the fed conviction.

During must be more than contemporaneous it should also be in furtherance of the offense of conviction(See amendment 3 or 439) the DUI is not part of the before after or during the crime so its not relevant but it is a prior conviction.? yes it is. So if the court is going to use it it is in the criminal history.