DOJ-OGR-00021030.pdf

Case 22-1426, Document 58, 02/28/2023, 3475901, Page204 of 221 A-404 M6SQmax1 29 1 the defendant was an organizer or leader, and that the criminal 2 activity either involved five or more participants or was 3 otherwise extensive. The guidelines defines a participant as a 4 person who is criminally responsible for the commission of the 5 offense but need not have been convicted. 6 So I think my question for the government is, you're 7 asking the Court to look to as a criminally responsible -- a 8 person who is criminally responsible for the commission of the 9 offense over whom Ms. Maxwell exercised supervisory or 10 leadership role. 11 MS. MOE: Yes, your Honor. As we noted in our 12 briefing, our view is that the trial evidence establishes that 13 the defendant had a supervisory role over Sarah Kellen. Here, 14 we're not required to establish that there were five or more 15 participants; that is, people who were criminally responsible 16 for the charged conduct, but rather that it was extensive, and 17 that the defendant supervised at least one other person. 18 That's the text of the commentary, although as we noted, the 19 Second Circuit in applying this factor hasn't really engaged 20 with that from what we can tell, but on the factual question of 21 the trial record and whether it establishes the defendant 22 supervised another participant, it absolutely does. 23 THE COURT: And the government is pointing to Sarah 24 Kellen for that conclusion, which you agree, there has to be 25 one criminally responsible participant who we can point to. SOUTHERN DISTRICT REPORTERS, P.C... (212) 805-0300 DOJ-OGR-00021030