Thursday, October 01, 2009

Excellent Opinion On Relevant Conduct; Rejects Speculative Findings and Incorrect Allocation of Burden of Proof

United States v. Rhine, No. 08-10502 (5th Cir. Sept. 29, 2009) (Wiener, Garza, Elrod)

Stop me if you've heard this one before: defendant is convicted of a drug charge based on a relatively small amount of drugs, but relevant conduct findings concerning drug quantity jack the Guidelines range over the statutory maximum on that count, aided and abetted by a felon-in-possession count. Fortunately for Rhine, the court of appeals held that the district court erred in doing that here. And for that reason, you'll want to keep this opinion handy. It's important not so much for the factual particulars (except to Rhine, of course), but because it once again shows that relevant conduct liability is not unlimited and that the Government has to come forward with evidence, not speculation, to support relevant conduct findings.

Rhine was arrested following the proverbial "routine traffic stop," which turned up a couple of guns and 1.89 grams of crack. He was indicted and pleaded guilty to one count of PWID crack (under 21 U.S.C. § 841(b)(1)(C)), and one FIP count. Roughly a-year-and-a-half before Rhine's arrest, the FBI had raided a large-scale drug trafficking operation in the "Fish Bowl" in Fort Worth, Texas. According to agents, some of the people involved in the Fish Bowl ring fingered Rhine as a supplier of large amounts of crack and powder cocaine. Rhine was never charged in connection with the Fish Bowl, because "agents were unsuccessful in completing a controlled drug buy from" him. After his arrest in this case, Rhine
stated that he had moved into his mother’s house several months after the Fish Bowl arrests to “lay low” and to avoid getting in trouble. Rhine said that he had been unemployed since his release from state prison in 2005, yet was unable to explain how he had supported himself, his children, or his drug habit during that time. Rhine further claimed that he had not sold any narcotics or possessed any guns since his 2005 release. [He admitted to loading the guns that were found in his car.]
You can probably see where this is going next:
To determine the total amount of drugs involved in this relevant conduct, the probation officer credited the testimony of the informant who had stated that he had regularly cooked between five and six kilograms of powder cocaine into crack cocaine for Rhine over a period of several months. Basing her calculations on this information, the probation officer concluded that Rhine had possessed at least 4.5 kilograms of crack cocaine during the course of his alleged participation in the Fish Bowl drug-trafficking operations — a figure that, according to the probation officer, represented a “very conservative estimate” that she made to avoid double-counting drug amounts.
Naturally, Rhine objected to this recommendation, which pushed his Guidelines range to 292 to 360 months. (The top end would have been higher, but the statutory maximum, assuming stacked sentences, was 30 years.) He also raised a Sixth Amendment objection to increasing his sentence on the basis of facts that he did not admit and that a jury did not find beyond a reasonable doubt.
In response to Rhine’s objections, the probation officer filed an Addendum to the PSR, in which she declined to credit the objections or amend her Guidelines calculations. Insisting that Rhine’s earlier drug-related activities were relevant conduct, the probation officer voiced the opinion that Rhine “has participated in drug-related activities since at least 1993.” In particular, the probation officer cited Rhine’s three pre-Fish Bowl convictions for drug-related crimes, noting that (1) in 1993, Rhine pleaded guilty to possession of crack cocaine with intent to deliver, (2) in 1999, he pleaded guilty to possession of marijuana, and (3) in 2002, he pleaded guilty to possession of a controlled substance. Despite having no direct evidence that Rhine had engaged in any criminal activity—much less drug activity—between May 2006 and October 2007, the probation officer nevertheless found persuasive the absence of “evidence that [he] completely removed himself from that type of lifestyle.” According to the probation officer, Rhine likely would have been distributing a large volume of drugs over that period if not for “the fact that most of the larger scale dealers had already been arrested for, and convicted of, federal drug violations.” Declining to credit Rhine’s move into his mother’s house to “lay low” as a voluntary departure from crime, the probation officer instead surmised that Rhine had silently harbored intentions to “resume his drug trafficking activities.” The probation officer concluded that Rhine’s participation in the Fish Bowl drug-trafficking ring and his offense of conviction were all part of the same course of conduct or common scheme or plan.
The district court adopted the PSR's recommended findings, over Rhine's objection. Moreover,
[d]espite the absence of any record evidence, either direct or circumstantial, that Rhine had dealt drugs since the end of the Fish Bowl operations, the government stated on the record that there was no indication that Rhine had stopped selling drugs in the period between the Fish Bowl arrests and his offense of conviction. The court explained that it had taken this into consideration in making its relevant-conduct determination.
Rhine pressed both his relevant conduct and Sixth Amendment arguments on appeal. The court of appeals agreed that the district court erred in treating the Fish Bowl offenses as relevant conduct. There was no evidence that the Fish Bowl conduct and the instant offense were part of a common scheme or plan, because there were no common participants, no common modus operandi (large-scale supplier at Fish Bowl vs. small-quantity dealer here), and no common purpose. On that last point, the court noted—as it has before—that "the only common purpose linking the two offenses is Rhine’s motivation to profit from the distribution of crack cocaine, which—like the marijuana importation in Wall—is by itself insufficient to connect the offenses as separate parts of a common scheme or plan."

Nor was there sufficient evidence from which to conclude that the offense were part of the same course of conduct, which is assessed with reference to "'the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses.'" First, at least 17 months passed between the Fish Bowl conduct and the instant offense.
Although not dispositive, a hiatus this large suggests that temporal proximity is lacking. We also find counter-indicative the lack of evidence that Rhine engaged in any intervening criminal activity, the presence of which might link his earlier conduct to the offense of conviction. The government urges us to overlook this shortcoming, insisting that the apparent lack of intervening criminal activity is solely the result of the informants’ imprisonment on federal drug convictions—and not Rhine’s voluntarily abstention from criminal activity. This argument is unpersuasive, as it suggests that Rhine has the burden of proving the negative fact that he did not engage in any intervening criminal activity, when in fact it is incumbent on the government to show the positive fact of Rhine’s continued drug distribution activities.
(emphasis added). Second, there were significant differences between the two offenses: "The quantities, methods of distribution, participants, and nature of the transactions—as well as the defendant’s role in them—all vary substantially." The instant offense involved a sale of a small quantity to an individual user, whereas Rhine's Fish Bowl participation involved supplying large quantities to a number of mid-level dealers. There was also "no evidence that the cocaine forming the basis for Rhine’s offense of conviction shared a common source, supplier, or destination with the cocaine involved in the Fish Bowl activities." Third,
[a]fter reviewing the instant record, we conclude that regularity is lacking, as there is no evidence that Rhine engaged in any intervening criminal activity—much less drug distribution—between the Fish Bowl drug-trafficking ring and his offense of conviction. Without even a scintilla of evidence that Rhine sold drugs in the interim, the government nevertheless seeks to shift the burden to Rhine, insisting that he must prove the negative fact that he did not engage in a series of similar drug transactions. But we decline to adopt the government’s assertion that regularity is present merely because of Rhine’s inability to disprove an assertion that already finds no support in the record, and conclude instead that there is no evidence of intervening or repetitious criminal behavior that might link the two incidents together.
(emphasis added).

I think there's a couple of important things worth noting about this case. First, the court of appeals accepted the allegations concerning Rhine's alleged Fish Bowl participation as true. It nevertheless held that the Fish Bowl offenses weren't relevant conduct. So,depending on the facts of the case, you might be able to fight relevant conduct on sufficiency-of-the-evidence-type grounds, notwithstanding plenty of unfavorable case law on burdens and the evidentiary weight given to PSRs. Second, and related to the first point, the court twice emphasized where the burden lies on this issue: with the Government. Even assuming the truth of the Fish Bowl allegations, there still wasn't enough evidence to show a common scheme or plan or a same course of conduct. The Government can't carry its burden by saying that a defendant has failed to disprove a link.

Now you might be asking yourself: why was this opinion published? Strictly speaking, it just applies existing precedent, doesn't break any new ground, and the issue is very fact-specific. One obvious possibility is the severity of the sentence. I'm not sure what the Guidelines range would have been without the Fish Bowl conduct, but it probably wouldn't have been anywhere near 30 years. And there's something that just seems wrong about effectively sentencing a defendant for conduct for which the Government evidently concluded it couldn't even secure an indictment, much less a conviction. Another possibility is that court sees a need to police overbroad application of the relevant conduct guideline, as it has done in other recent decisions like this, this, and this.

One more thing: Rhine's Sixth Amendment argument. Here's what the court had to say about that:
Having concluded that Rhine’s alleged participation in the Fish Bowl drug-trafficking-ring cannot properly be considered relevant conduct, we need not address the merits of his Sixth Amendment claim. We note, however, that the claim is foreclosed by our precedent.
It's hard to say what to make of this, because the opinion doesn't explain Rhine's argument in detail. Was he arguing that any judicial fact-findings categorically violate the Sixth Amendment (a tough row to hoe post-Booker), or was it an as-applied argument that Justice Scalia suggested in his Rita concurrence? It's hard to say without looking at the briefs, but note that the two cases the court cites as foreclosing the issue were both decided before Rita; nothing in those opinions indicates that the court was passing on an as-applied argument of the sort that Justice Scalia posited; and in one of them the defendant admitted the relevant conduct, which eliminates the Apprendi issue.

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