Acceptance of Responsibility, Relevant Conduct and the Fifth Amendment (7/23/11)

Tax crimes fans know the critical role that acceptance of responsibility plays in the tax enforcement system. A very high number of criminal tax indictments are resolved by plea agreement. The plea agreement has two salutary effects based on acceptance of responsibility. First, S.G. 3E1.1 gives a reduction for acceptance of responsibility. Second, acceptance of responsibility, when credible, puts the sentencing judge in the right frame for the exercise of Booker discretion.

Acceptance of responsibility requires that the defendant admit at least the criminal conduct related to the offense of conviction. This can be a delicate exercise if, in the course of providing a full admission of the offense of conviction, the defendant must disclose information that could potentially convict him or her of another as yet uncharged crime. Perhaps the most commonly encountered situation is with regards to relevant conduct which, as readers will recall, is uncharged criminal conduct related to the offense(s) of conviction. Relevant conduct, a key concept in the Guidelines, can be used to increase the Guidelines range but does not allow incarceration beyond that allowed by the offense(s) of conviction. For example, in tax cases, tax losses in years other than the year(s) of conviction can increase the base offense level and thus increase the Guidelines range. While the defendant must be forthcoming to the Probation Office and the Court about the conduct underlying the offense of conviction, what about the relevant conduct? Must the defendant be forthcoming and admit relevant conduct which, after all, is conduct for which he is not convicted?
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