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Determining the Loss Amount and Relevant Conduct

A. Loss amount
1. Relevant Conduct USSG § 1B1.3
Prior to November 1, 1992, a co-conspirator was held responsible for all reasonably foreseeable quantity of drugs involved in the conspiracy, regardless of the scope of the defendant’s agreement to participate. See United States v. Andrews, 953 F.2d 1312, 1319 (11th Cir.), cert. denied, 505 U.S. 1210, 112 S.Ct. 3007, 120 L.Ed.2d 882 (1992).
On November 1, 1992, a clarifying amendment to § 1B1.3 became effective. See, U.S. v. Butler, 41 F.3d 1435, 1443 (n.7). Section 1B1.3(a), as amended, provides that a defendant is responsible for:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity [.] U.S.S.G. Sec. 1B1.3(a).
The amendment also included commentary that explains how section 1B1.3 should be applied in cases of jointly undertaken criminal activity. Application note 2 of the commentary provides:
A “jointly undertaken criminal activity” is a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged in the conspiracy.

In the case of a jointly undertaken activity, subsection (a)(1)(B) provides that a defendant is accountable for the conduct (acts and omissions) of others that was both:

(A) in furtherance of the jointly undertaken criminal activity; and
(B) reasonably foreseeable in connection with that criminal activity.
Furthermore, the commentary states:
In order to determine the defendant’s accountability for the conduct of others under subsection (a)(1)(B), the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake ( i.e., the scope of the specific conduct and objectives embraced by the defendant’s agreement). The conduct of others that was both in furtherance of, and reasonably foreseeable in connection with, the criminal activity jointly undertaken by the defendant is relevant conduct under this provision. The conduct of others that was not in furtherance of the criminal activity jointly undertaken by the defendant, or was not reasonably foreseeable in connection with that criminal activity, is not relevant conduct under the provision.

As such, reasonable foreseeability alone is no longer sufficient to establish accountability. Instead the defendants are only accountable for other conduct that was reasonably foreseeable and within the scope of the criminal activity that the defendant agreed to undertake.
That is, “to determine a defendant’s liability for the acts of others, the district court must first make individualized findings concerning the scope of criminal activity undertaken by a particular defendant.” United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir.1993) (citing U.S.S.G. § 1B1.3, cmt. (n.2)); United States v. Bush, 28 F.3d 1084, 1087 (11th Cir.1994) (same); see also United States v. Campbell, 279 F.3d 392, 400 & n. 5 (6th Cir.2002) (same, and cases cited therein); United States v. Studley, 47 F.3d 569, 574 (2d Cir.1995) (“This determination, as it goes to prong one of the test, must be made before the issue of foreseeability, prong two, is reached.”). Only after the district court makes individualized findings concerning the scope of criminal activity the defendant undertook is the court to determine reasonable foreseeability. See Bush, 28 F.3d at 1087 (drug conspiracy); Studley, 47 F.3d at 574-75 (fraud case; citing Bush). U.S. v. Hunter, 323 F.3d 1314 (11th Cir., 2003).
In Hunter, the district court erred because it simply held that because each defendant knew that he or she was part of a ring, he or she should be held accountable for all of the acts of all of the members. Yet the Guidelines establish that the fact that the defendant knows about the larger operation, and has agreed to perform a particular act, does not amount to acquiescence in the acts of the criminal enterprise as a whole. Campbell, 279 F.3d at 400, 401; Studley, 47 F.3d at 575. The district court erred in not making particularized findings as to the scope of each Appellants’ agreement in the larger counterfeit check cashing operation.

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Combat Veterans with PTSD and Sensation Seeking Syndrome

Another excerpt from my Sentencing Memorandum for a combat veteran facing a 32 year minimum mandatory sentence.

Another component typically found in combat veterans with PTSD is the “sensation seeking syndrome”. This behavior is characterized by a tendency to engage in risky activities in order to recreate the level of arousal and excitement experienced in combat. It has been shown that this factor can lead to criminal behavior. The adrenaline rush of committing the robberies was consistent with the sensations (CLIENT) experienced on combat missions. (See, U.S. v. Tindall, No. 79-376-T 07 (D. Mass. Sept. 19, 1980), in which a helicopter pilot was smuggling drugs in order to regain the thrill, risk, and stress-induced adrenaline rush that he had flying in combat.) This is precisely the reason why (CLIENT) joined Blackwater after only two months as a civilian. Once he lost Blackwater, he turned to high stakes gambling as a fix which only made his life situation worse. It was at the point of desperation that committing a robbery replaced the rush he would get while on combat missions.

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Defending Combat Veterans with PTSD

Below is an excerpt from a Sentencing Memorandum I prepared for the federal sentencing hearing of a combat veteran that was facing a 32 year minimum mandatory sentence.

As American troops have started to return from Iraq and Afghanistan, there has been a steady stream of media accounts focusing on veterans that commit crimes after returning home. A high percentage of these veterans have been diagnosed with PTSD or traumatic brain injury (TBI). In 2008, the RAND Corp. study found that one in five veterans returning home had PTSD or major depression. A 2012 study of combat veterans found that 23% of the veterans studied who had PTSD and high irritability had been arrested for a criminal offense since their combat deployment. The study showed that combat trauma in the form of PTSD significantly raises the risk of criminal arrest. The Department of Veteran Affairs estimates that between 13% and 20% of those deployed have or will someday develop PTSD, which translates to more than 475,000 of the roughly 2.5 million troops who have served in Iraq or Afghanistan. The research demonstrates the need to expand the local veteran’s courts across the country, which guide veterans into treatment rather than into jail. The establishment of more than 168 veterans treatment courts nationwide is evidence that the problem is substantial.
Post Traumatic Stress Disorder was officially recognized as a distinct anxiety disorder by the American Psychiatric Association in 1980. (DSM-III). In June 2013, the release of DSM-V placed PTSD in a new category entitled Trauma and Stress Related Disorders which emphasizes that PTSD is a complex disorder that exerts influences far in excess of anxiety symptoms. The DSM-V recognizes that PTSD effects mood, cognition, awareness, affect, and physiological responses. PTSD is conceptualized as a complex manifestation of multiple symptoms.
The disorder stems from a stressor or traumatic event that commonly results in one of the following; dissociative flashbacks, hyper-arousal, survivor guilt, sensation-seeking behaviors, impaired impulse control, hyper-vigilance, over-estimation of danger. There are three typologies that closely correspond to criminal behavior in PTSD sufferers; dissociative reaction, sensation-seeking syndrome, and depression-suicidal syndrome. Research provides that there is a direct correlation between developing PTSD and participation in heavy combat. Post-Vietnam research showed that 25% of the soldiers that participated and survived heavy combat had been charged with a criminal offense.

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19 Actual Statistics About America’s Prison System

The U.S. imprisons a larger percentage of its black population than South Africa did at the height of apartheid. There is a reason for it — but not a good one.

Michelle Alexander is a civil rights lawyer, advocate, legal scholar and author of the highly acclaimed 2010 book The New Jim Crow: Mass Incarceration in the Age of Colorblindness. The book is an impressive work of nonfiction in which Alexander disproves common misconceptions about criminal justice in the United States and paints an appalling picture of where the system stands today.

Alexander builds a compelling case through her thorough research: “We have not ended racial caste in America; we have merely redesigned it.” She swiftly awakens her readers to the harsh reality that they may not have realized they were living in. Public intellectual Cornel West wrote in the book’s foreword that it is a “grand wake-up call in the midst of a long slumber of indifference to the poor and vulnerable.”

The predicament of mass incarceration is, in Alexander’s words, “a human rights nightmare.” Sadly, she is not exaggerating — the facts are startling. And our politicians are dropping the ball. Below is a mere snapshot.

1. The United States has 5% of the world’s population, but 25% of the world’s prisoners.

2. The total incarcerated population in the U.S. is a staggering 2.4 million — a 500% increase over the past 30 years.

3. One in every 108 adults was in prison or jail in 2012.

4. One in 28 American children has a parent behind bars.

5. At the end of 2007, 1 in 31 adults was behind bars, on probation or on parole.

6. Currently, 65 million Americans have a criminal record.

7. There are more people behind bars today for a drug offense than there were in 1980 for all offenses combined.

8. The U.S. spent $80 billion on incarceration in 2010 alone.

9. About as many people were returned to prison just for parole violations in 2000 as were admitted in 1980 for all reasons combined.

10. Parole violators accounted for more than 35% of all prison admissions in 2000. Of those, only one-third were returned for a new conviction; the rest were returned for a technical violation, such as missing a meeting with the parole officer.

11. A first-time drug offense carries a sentence of 5-10 years. In other developed countries, that sentence would be six months of jail time, if any at all.

12. The vast majority of those arrested with a drug offense are not charged with serious offenses. For example, in 2005, 4 out of 5 drug arrests were for possession, not sales.

13. In the 1990s, marijuana possession accounted for nearly 80% of the spike in arrests.

14. Three out of four young black men in Washington, D.C., can expect to serve time behind bars. This is despite the fact that people of all races use and sell drugs at the same rate.

15. African-Americans comprised 12% of regular drug users, but almost 40% of those arrested for drug offenses.

16. More than 96% of convictions in the federal system result from guilty pleas rather than decisions by juries.

17. Conservative estimates put innocent people who plead guilty between 2% and 5%, which translates to tens of thousands of innocent people behind bars today.

18. Eighty percent of defendants cannot afford a lawyer. Tens of thousands of people go to jail every year without ever talking to a lawyer or going to trial.

19. A public defender will routinely have a caseload of more than 100 clients at a time.

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Marijuana Arrest Information

Can it get any more ridiculas? The jails are overcrowded and the policy is to just keep locking them up. I have a client that was growing some weed in his house for his personal use. The cops claim that they got an anonymous tip and raided the house. They found a total of 8 plants. They claim that 8 plants weighed 39 pounds. That is almost 5 pounds per plant. The problem here is that if the marijuana weighs over 25 lbs, then the law calls for a 3 year minimum mandatory sentence in prison. And we are not talking about dry harvested marijuana, we are talking about the entire wet plant. In Dade County, you get hit with the entire wet plant, in St. Lucie, you get the benefit of them drying it out. So two people in different parts of the state get much different sentences for the same amount of marijuana.

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The threatened federal prosecution against the founder of Wikileaks for “espionage” under a criminal statute dating back to World War I will clash head on with First Amendment protected speech and press. Assange will be clearly entitled to a constitutional defense as a web age investigative journalist, albeit controversial because of the highly sensitive material his vilified website has disseminated.

Read below the interesting article published today by conservative-leaning which quotes the ACLU position on the issue and other legal experts.


Lambasted as a “traitor” and “terrorist” in the United States, WikiLeaks founder Julian Assange is facing an all-out effort by U.S. officials and politicians who want him tried and arrested.

But experts say the path to prosecution is strewn with potential legal complications, including free speech protections under the First Amendment of the U.S. Constitution.

“Right now, believe me, at the Justice Department there are many lawyers that are going through all of potential statutes and trying to figure out which statute is going to be the best one to be able to prosecute him,” said Bruce Zagaris, an expert on international law at Berliner, Corcoran and Rowe.

The United States officially opened a criminal investigation after WikiLeaks released tens of thousands of secret documents on U.S. military operations in Afghanistan in July.

But now, after being embarrassed by a third massive document dump — this time a quarter of a million U.S. diplomatic cables, many with candid assessments of world leaders — U.S. officials are under intensifying pressure to act.

“To the extent that we can find anybody who was involved in the breaking of American law… they will be held responsible,” Attorney General Eric Holder said Monday, hinting the United States may go after Assange himself.

“To the extent there are gaps in our laws, we will move to close those gaps. It is not the case that anybody at this point, because of their citizenship or their residency, is not a target or the subject of an investigation.”

So far, though, only one person has been arrested in relation to the disclosures — a 23-year-old private, Bradley Manning, who was taken into custody in May after WikiLeaks released a video showing a 2007 U.S. Apache helicopter strike in Baghdad in which journalists were killed.

Representative Peter King, the top Republican on the House Homeland Security Committee, has urged Holder to prosecute Assange for espionage and for the State Department to designate WikiLeaks a “foreign terrorist organization.”

Conservative icon Sarah Palin, a former Republican vice presidential candidate and potential White House contender in 2012, has called Assange “an anti-American operative with blood on his hands.”

The main legal avenue to pursue potential suspects is considered to be the Espionage Act, which was passed in 1917, during World War I.

The Espionage Act allows for prosecutions of anyone who “receives and obtains or agrees or attempts to receive or obtain for any person, or from any source whatever, any documents, writing… or note of anything connected with the national defense” without proper authorization.

But the success of such a move remains unclear, according to Duke University law professor Scott Silliman.

“This might be difficult… unless you’re able to show some motive on his part and that he actively solicited the information,” he told The Wall Street Journal.

Zagaris told AFP such an obstacle could be removed if prosecutors identify a few of the leaked documents that were officially classified.

But he rejected suggestions that 39-year-old Assange should face the death penalty for “treason.”

“In the EU, the death penalty prohibits extradition. It just makes it more complicated when politicians start calling for the death penalty. It makes it more legally and diplomatically difficult.”

According to Zagaris, Assange may be arrested in the coming days or weeks in Britain through an Interpol arrest warrant issued as part of an investigation into rape allegations against him in Sweden.

Regardless of the legal justifications used to prosecute Assange, freedom of expression, a right enshrined in the First Amendment of the U.S. Constitution, is likely to come into play.

“The courts have made clear that the First Amendment protects independent third parties who publish classified information,” said ACLU National Security Project director Hina Shamsi, warning the move could threaten investigative journalism.

“Prosecuting WikiLeaks would be no different from prosecuting the media outlets that also published classified documents.”

Senate Foreign Relations Committee chairman John Kerry said Tuesday the law should be changed.

“We’ll probably have to look at the potential of some kind of… tweaking of what the law says,” he said.

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Let’s just say that criminal defense counsel has accepted the responsibility of representing a client who has been charged with the commission of a battery on a “law enforcement officer” in violation of Fla. Stat. § 784.07.   This statute punishes persons who commit a battery against law enforcement officers during the lawful performance of their duties more severely than persons who commit the same act against any other person.  See Fla. Stat. § 784.03.

It has been common for bar owners operating in South Florida to hire off-duty police officers to provide security for their establishments which are commonly frequented by rowdy young adults with a weekend passion for alcohol consumption.  In many instances, these off-duty officers don their best police duds complete with crime-deterring police-issued weapons.  However, whenever a police officer is off-duty, he or she is arguably no more than a private citizen in the eyes of the law despite his or her 24-hour access to police gear and equipment.

The Florida Supreme Court in the case of Soverino v. State, 356 So.2d 269 (Fla.1978), discussed this battery statute at page 271:

“Because the public welfare is protected by the performance of these duties, the legislature in its wisdom has chosen to accord greater protection to one who performs these indispensable public services. When an officer is not performing his official duties, he is no longer protecting the public welfare and, consequently, the statute yields him no greater protection than that accorded to members of the general public.”

(Emphasis added).

Twenty years later, applying well-settled principles of statutory construction to the same battery statute, the Florida Supreme Court held that a federal law enforcement officer is not a “law enforcement officer” as defined in Fla. Stat. § 943.10(1).  See McLaughlin v. State, 721 So.2d 1170, 1172-73 (Fla.1998) (“we note that section 784.07(1)(a) states that the term ‘law enforcement officer’ includes a law enforcement officer … [as] defined in §943.10.  Section 943.10 provides at the outset that ‘[l]aw enforcement officer’ means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof. The meaning of these words cannot be plainer: A ‘law enforcement officer’ for section 784.07 purposes must be either a state or local officer.”) (internal quotations omitted).

If a federal law enforcement officer falls outside the statutory definition of a law enforcement officer, then the rationale of McLaughlin should apply a fortiori to off-duty police officers and support the legal position that police officers are just plain citizens whenever off-duty.  Read in conjunction with its earlier Soverino decision, the Supreme Court decision in McLaughlin makes clear that officers should only be accorded the statutory status of “law enforcement officer” while performing official police duties.

It would behoove defense counsel to seek the dismissal of any charges premised on the victim’s alleged status as a “law enforcement officer” if, at the time of the alleged offense(s), the officer was “off-duty” or working as a private security officer while off-police-duty.

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Criminal defense issues aside, the right to privacy also includes personal decisions affecting one’s health and welfare.  The voice of medical expertise is being added to the growing chorus of dissent against the new backscatter x-ray technology being employed by the government at airports throughout the United States.

It is well-established that cases involving medical issues require immediate resolution.  See generally Roe v. Wade, 410 U.S. 113 (1973).  The recently published opinion of a medical expert supports the concern that the new x-ray technology poses dangerous health risks.  Therefore, we have reached the dangerous intersection of health risk and the fundamental constitutional right to privacy.

The other side of the coin is the threat of terroristic bloodshed carried out by inculcated “martyrs” who may be ready and willing to secrete difficult to detect plastic explosives inside of body cavities to carry out their “life mission” in the name of their extremist “cause.”

Read on and educate yourself about all of the facets of this important social debate as we approach a “brave new world” where technology is poised to transcend the values of a “free society.”

Dr. Blaylock has offered his “opinion” (“Body Scanners More Dangerous Than Feds Admit”) based on his understanding of the facts, and there will be other experts who will offer their diagonally-opposed “opinions” based on their “facts” holding out the hope that the new x-ray technology will never pose any threat to human health.  It is a thorny debate and a legal issue of constitutional magnitude.

If you travel by airplane, staying informed is in your own best interest.  As trial judges instruct juries on qualified expert witnesses, you are free to accept or reject all or part of any doctor’s “expert opinion.”  My concerns continue to be health and privacy tempered with a heavy dose of realism.

Dr. Blaylock: Body Scanners More Dangerous Than Feds Admit

Wednesday, November 24, 2010 9:58 AM

By Dr. Russell Blaylock

Dr. Russell Blaylock is a board-certified neurosurgeon, health practitioner, author, and lecturer.

The growing outrage over the Transportation Security Administration’s new policy of backscatter scanning of airline passengers and “enhanced pat-downs” brings to mind these wise words from President Ronald Reagan: “The nine most terrifying words in the English language are: ‘I’m from the government and I’m here to help you.’”

So, what is all the concern really about — will these radiation scanners increase your risk of cancer or other diseases? A group of scientists and professors from the University of California at San Francisco voiced their concern to Obama’s science and technology adviser John Holdren in a well-stated letter back in April.

The group included experts in radiation biology, biophysics, and imaging, who expressed “serious concerns” about the “dangerously high” dose of radiation to the skin.

Radiation increases cancer risk by damaging the DNA and various components within the cells. Much of the damage is caused by high concentrations of free radicals generated by the radiation. Most scientists think that the most damaging radiation types are those that have high penetration, such as gamma-rays, but in fact, some of the most damaging radiation barely penetrates the skin.

One of the main concerns is that most of the energy from the airport scanners is concentrated on the surface of the skin and a few millimeters into the skin. Some very radiation-sensitive tissues are close to the skin — such as the testes, eyes, and circulating blood cells in the skin.

This is why defenders using such analogies as the dose being “1,000-times less than a chest X-ray” and “far less than what passengers are exposed to in-flight” are deceptive. Radiation damage depends on the volume of tissue exposed. Chest X-rays and gamma-radiation from outer space is diffused over the entire body so that the dose to the skin is extremely small. Of note, outer space radiation does increase cancer rates in passengers, pilots, and flight attendants.

We also know that certain groups of people are at a much higher risk than others. These include babies, small children, pregnant women, the elderly, people with impaired immunity (those with HIV infection, cancer patients, people with immune deficiency diseases, and people with abnormal DNA repair mechanism, just to name a few).

As we grow older, our DNA accumulates a considerable amount of unrepaired damage, and under such circumstances even low doses of radiation can trigger the development of skin cancers, including the deadly melanoma. I would also be concerned about exposing the eyes, since this could increase one’s risk of developing cataracts.

About 5 percent of the population have undiagnosed abnormal DNA repair mechanism. When exposed to radiation, this can put them at a cancer risk hundreds of times greater than normal people.

It also has been determined that when skin is next to certain metals, such as gold, the radiation dose is magnified 100-fold higher. What if you have a mole next to your gold jewelry? Will the radiation convert it to a melanoma? Deficiencies in certain vitamins can dramatically increase your sensitivity to radiation carcinogenesis, as can certain prescription medications.

As for the assurances we have been given by such organization as the American College of Radiology, we must keep in mind that they assured us that the CT scans were safe and that the radiation was equal to one chest X-ray. Forty years later we learn that the dose is extremely high, it is thought to have caused cancer in a significant number of people, and the dose is actually equal to 1,000 chest X-rays.

Based on these assurances, tens of thousands of children have been exposed to radiation doses from CT scanners, which will ruin the children’s lives. I have two friends who were high-ranking Environmental Protection Agency scientists, and they assure me that in government safety agencies, politics most often override the scientists’ real concerns about such issues.

When the real effects of these scanners on health become known, Secretary of Homeland Security Janet Napolitano and the rest of the gang who insist the scanners are safe will be long gone.

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The web news have been abuzz with rumors of a grass-roots rebellion against the new “advanced imaging technology” being employed by the TSA throughout the airport system of the United States.   There is even some talk of an ill-advised Thanksgiving x-ray boycott which would only create long delays and inconvenience for all airport passengers.

As a traveler in a world of random “hate crimes” against the U.S. and its allies, crimes also known in the aggregate as “terrorism,” I will feel much safer flying with the advent of this technology.  However, I am also deeply troubled and saddened by the end of the “free society” that we enjoyed not too long ago.

In a world of hard-core martyrs who might be willing to “keyster” (as rectal contraband smuggling is better known in hard-core penitentiaries) plastic explosives and blow themselves up along with hundreds of other innocent passengers (in a possible post-9/11 scenario), I appreciate the importance of being a “grown-up” about it and embracing technology that helps save human life.  Nevertheless, the fabric of a truly free society is being torn asunder by unstoppable advances in science and technology.

“Boycotts” against technology are not the answer and are futile in the relentless, long-term future of greater technological advances.  In the end, it will all boil down to circumscribing the boundaries of permissible use of this new x-ray technology and strictly enforcing the governing regulations. Preferably, an Act of Congress will intervene after plenary hearings on the privacy and highly nuanced political implications.

In the meantime, feast your eyes on this “advanced imaging technology” (AIT) snapshot.  It could be your family under the government scope. Think about it… like a “grown up,” and keep in mind that the future stops for nobody.  My issues are health and privacy tempered with reality.

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The United States government riding the crest of a tidal wave of terrorist fears has unleashed the ultimate 21st century weapon in the “police state” arsenal. The police is shouting “Say hello to my little friend!” while pointing a backscatter x-ray gun into your vehicle or your home if the heart of a policeman so desires. The surreptitious police exploitation of this “Superman” x-ray vision device threatens to eviscerate the Fourth Amendment.  American society is sliding down a slippery slope toward a terrorized acceptance of a national security state, also known as a “police state.”

Get another opinion on this serious subject by reading the “in-depth” thoughts of expert Frederick Lane.   Just copy and paste the safe virus-free link below for an interesting read on this subject of great public importance.

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