5 Critical Steps to Take Today If Your Federal Case Involves Relevant Conduct

1. Immediately Secure and Analyze All Discovery to Identify the Government’s Relevant Conduct Theory

In my 25 years as a federal prosecutor, I saw too many defendants wait until the eve of sentencing to understand the full scope of relevant conduct under U.S.S.G. §1B1.3. This guideline allows a court to consider all acts and omissions that were part of the same course of conduct or common scheme, even if you were never charged for them. You must file a prompt request under Federal Rule of Criminal Procedure 16 for all discovery, including grand jury transcripts, agent reports, and any proffer agreements involving co-defendants. Once you have these materials, work with your attorney to map every alleged transaction, phone call, or financial transfer the government might use. I cannot overstate how critical it is to know the full universe of facts the prosecutor will present, because once the presentence report is drafted, challenging the scope becomes exponentially harder. Do not assume the indictment defines the boundaries of your exposure—it almost never does.

2. Cease All Communications with Third Parties and Preserve Every Document

Federal agents often interview witnesses, business partners, or family members to build a relevant conduct narrative that extends far beyond your charged offense. Under 18 U.S.C. § 1519, destroying or altering documents—even those you believe are irrelevant—can trigger separate obstruction charges. You should immediately instruct everyone in your orbit not to discuss the case with anyone except your legal team, and to preserve all emails, financial records, calendars, and text messages. In one of my own cases, a client’s casual email about a “side deal” from five years prior became the cornerstone of the government’s argument that his fraud involved a broader scheme under U.S.S.G. §1B1.3(a)(2). The easiest way to lose control of your narrative is to let evidence disappear or to let witnesses speak without counsel present. Remember, the government’s burden for relevant conduct is only a preponderance of the evidence, so any gap in your records will be filled by their interpretation.

3. Prepare a Detailed, Proactive Factual Narrative to Limit the Scope of Uncharged Conduct

Once you understand the government’s potential theory, you must immediately work with your attorney to draft a factual proffer that distinguishes charged conduct from mere background activity. Federal courts regularly rely on the commentary to U.S.S.G. §1B1.3, which defines “same course of conduct” as acts that are sufficiently connected by temporal proximity, similarity, or a common victim. You can defeat this connection by demonstrating that uncharged acts were isolated, lacked a common purpose, or involved different victims. For example, if the government tries to aggregate multiple years of minor tax errors into a single fraud scheme, you can present evidence of changed business practices or intervening events that break the chain. I have seen judges exclude relevant conduct when the defense provided clear, documented boundaries between charged and uncharged periods. This is not a passive exercise—you must gather affidavits, business records, and expert declarations now, before the probation officer writes the presentence report.

4. Engage a Sentencing Consultant to Challenge the Probation Office’s Preliminary Calculations

Federal probation officers begin drafting the presentence report almost immediately after a guilty plea or conviction, and they rely heavily on the government’s version of relevant conduct. Under Federal Rule of Criminal Procedure 32, you have the right to object to the presentence report, but you must do so with specific factual and legal support. I strongly recommend hiring a certified sentencing consultant who understands the intricacies of U.S.S.G. §1B1.3 and can perform a shadow calculation of your advisory guideline range. These professionals can identify cases where courts have rejected relevant conduct for lack of a common scheme or for being too remote in time. In my practice, I have seen a well-timed objection reduce a client’s offense level by six points simply by showing that the government’s aggregation of losses violated the Eighth Circuit’s holding in United States v. Hodge. Do not assume the probation officer will be impartial—they receive their information from the prosecutor, and your silence will be interpreted as agreement.

5. Do Not Discuss Your Case with Anyone Except Your Attorney—Including the Court Without Counsel

I have witnessed defendants inadvertently expand their relevant conduct exposure by making well-intentioned statements during proffer sessions or even casual conversations with pretrial services officers. Under Federal Rule of Evidence 801(d)(2), any statement you make can be admitted as a party-opponent admission, and it can be used to prove the scope of your relevant conduct. This includes statements about uncharged acts that you might think are harmless, such as mentioning an old business partner or a prior transaction. You must also never speak to a judge without your attorney present, because the court may interpret your remarks as a waiver of your Fifth Amendment rights or as an acknowledgment of additional conduct. In my experience, the safest course is to say nothing about the facts of your case to anyone—including family members—until your attorney has fully vetted the government’s discovery. The moment you speak, you give the prosecutor ammunition to argue that your relevant conduct is broader than what is alleged in the indictment.

If you are facing a federal investigation or indictment, the clock is ticking on your ability to control the scope of relevant conduct. In my 25 years as a federal prosecutor and now as a defense attorney, I have seen the difference that immediate, aggressive action makes in reducing guideline ranges by years. Do not wait for the presentence report to arrive. Call my office today at [your firm number] or schedule a confidential consultation through our website. We will review your discovery, identify the government’s potential relevant conduct theory, and develop a strategy to limit your exposure before it is set in stone. Your future is too important to leave to chance.