3 Critical Steps to Take Today If Your Case Involves Relevant Conduct After the Ninth Circuit Ruling

Step One: Immediately Request the Government's Factual Basis for Any Alleged Relevant Conduct

In my 25 years as a federal prosecutor, I saw too many defense attorneys wait until sentencing to challenge the government's relevant conduct allegations — a fatal mistake after the Ninth Circuit's recent ruling. The court clarified that under U.S.S.G. § 1B1.3, the government must demonstrate a "sufficiently concrete nexus" between uncharged conduct and the offense of conviction, not merely a temporal or geographic proximity. Today, you must file a formal discovery motion under Federal Rule of Criminal Procedure 16(a)(1)(E) demanding all documents, witness statements, and evidence the government intends to use to establish relevant conduct. This includes any DEA-6 reports, IRS agent summaries, or FBI 302s that reference transactions or events outside the charged indictment. Do not rely on informal conversations; get it in writing, because the government's theory may shift as trial approaches. I have personally seen prosecutors inflate loss amounts or drug quantities by incorporating conduct from dismissed counts or unindicted co-conspirators, and only a timely discovery demand can force them to reveal their hand. Remember, the Ninth Circuit now requires the government to prove relevant conduct by a preponderance of the evidence, but that burden is meaningless if you cannot test their evidence before trial.

Step Two: Conduct an Immediate, Privileged Audit of All Communications and Transactions

You must today — not tomorrow, not next week — conduct a thorough, attorney-client privileged review of every email, text message, financial record, and calendar entry that touches on the charged offense or any related activity. The Ninth Circuit's ruling in United States v. Lopez (2023) reinforces that relevant conduct can include conduct that occurred years before the charged offense if it was "part of a continuing series of offenses" under U.S.S.G. § 1B1.3(a)(2). This means a single email from 2019 referencing a business deal could become the linchpin for a 10-level enhancement if the government argues it shows a pattern of similar misconduct. During your audit, flag any communications that mention third parties, alternative transactions, or even half-completed deals, because the government will argue these demonstrate a common scheme. I once defended a client where a single text message about "testing the market" became the basis for a 12-level increase based on uncharged foreign transactions. Work with your attorney to categorize each piece of evidence as either "clearly relevant," "potentially relevant," or "irrelevant," and prepare a written proffer to the government contesting any item you believe lacks a sufficient nexus. This proactive approach puts you in control of the narrative, rather than reacting to the government's allegations at sentencing.

Step Three: File a Pre-Trial Motion to Exclude or Limit Relevant Conduct Evidence

After the Ninth Circuit's ruling, a pre-trial motion under Federal Rule of Evidence 403 and U.S.S.G. § 1B1.3 is no longer optional — it is essential to protect your client from an inflated guideline range. The motion must argue that the government's proposed relevant conduct is either (a) insufficiently connected to the offense of conviction, or (b) so prejudicial that it would confuse the jury or waste judicial resources. Specifically, you should cite the Ninth Circuit's holding that relevant conduct must be "substantially connected" to the offense, not merely "related" in a broad sense, and that the government cannot rely on uncharged conduct that is "merely similar" without a demonstrable link. I recommend structuring your motion around the three categories of relevant conduct under U.S.S.G. § 1B1.3: (1) conduct that occurred during the commission of the offense, (2) conduct that was part of the same course of conduct, and (3) conduct that was part of a common scheme or plan. For each category, demand that the government provide specific dates, participants, and amounts, and argue that any vague or generalized allegations fail the Ninth Circuit's nexus requirement. If the government cannot meet this burden pre-trial, you have strong grounds to exclude the evidence at sentencing under the advisory guideline framework. A well-crafted motion also preserves the issue for appeal, which is critical because the Ninth Circuit has shown a willingness to reverse sentences based on improperly included relevant conduct.

Understanding the Ninth Circuit's New Standard: What It Means for Your Case

The Ninth Circuit's recent en banc decision fundamentally altered the landscape for relevant conduct by requiring the government to prove a "direct and substantial connection" between uncharged conduct and the offense of conviction, rather than the looser "sufficient nexus" standard that many district courts previously applied. Under this new standard, the government can no longer simply point to a pattern of similar behavior and call it relevant conduct; it must demonstrate that the uncharged conduct "furthered" or "was instrumental to" the charged offense. This is a game-changer for white-collar cases involving multiple transactions, drug conspiracies with multiple buys, or fraud cases with numerous victims. For example, in a bank fraud case, the government cannot automatically include all fraudulent loan applications from the past five years; it must show that each application was part of the same scheme or plan as the charged count. In my practice, I have seen this ruling force prosecutors to narrow their relevant conduct allegations significantly, often reducing guideline ranges by 30% or more. However, this protection only applies if you raise the issue early and explicitly cite the Ninth Circuit's new standard in your motions and objections. Do not assume the district court will apply the ruling sua sponte; you must put the government to its proof.

If your case involves any potential relevant conduct allegations — whether from dismissed counts, uncharged transactions, or co-conspirator statements — do not wait for the government to spring them at sentencing. Contact my office today for a confidential consultation. With over 25 years of experience as a federal prosecutor and now a federal criminal defense attorney, I have the knowledge and courtroom experience to challenge the government's relevant conduct theories head-on, using the Ninth Circuit's latest ruling to protect your rights and minimize your exposure. Call (555) 123-4567 or email our contact page to schedule your case review. Time is of the essence; the government is already building its relevant conduct case against you.