Friday, December 19, 2014

Eighth Circuit Reverses Aggravating Role Ajustment

The Guidelines provide for a three-level upward adjustment for an “aggravating role” in the offense where “the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.”  USSG § 3B1.1.  Before a court may apply this adjustment, the government must prove not only that the offense involved five or more participants (that is, people who are criminally responsible), but also that the defendant either recruited participants, planned or organized their criminal activity, or exercised some decision-making authority over them.  The Eighth Circuit recently reversed an aggravating role adjustment in a case involving five or more participants where the government offered insufficient evidence to support it.  The Court rejected the prosecution’s contention that the defendant was a manager or supervisor because he had photos of other participants in the storage locker where he kept materials related to the conspiracy.  The Court also rejected the prosecution’s claim that the fact that the defendant expressed concern for the success of the conspiracy in telephone calls made him a manager.  The Court noted that it is likely that all participants in a conspiracy share a similar concern.  In the absence of any evidence that the defendant recruited or supervised any participant, the Court reversed the adjustment and remanded for further proceedings.  United States v. Adejumo, 2014 WL 6653283(8th Cir., Nov. 25, 2014).

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