United States v. Clark Beach Field ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-1588
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United States of America, *
*
Plaintiff-Appellee, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Clark Beach Field, *
*
Defendant-Appellant. *
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Submitted: November 20, 1996
Filed: April 7, 1997
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Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.
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HANSEN, Circuit Judge.
Clark Beach Field appeals one aspect of his sentence -- the
district court's1 denial of a reduction for acceptance of
responsibility. We affirm.
1
The Honorable David S. Doty, United States District Judge for
the District of Minnesota.
Clark Field and his brother Richard Field2 applied to the city
of Clarkfield, Minnesota, for a loan through the Small Cities Grant
Program, funded by the Department of Housing and Urban Development
(HUD). The Fields sought funding in the amount of $282,000 to
establish their new whey drying business, Clarkfield Drying,
Incorporated. Before agreeing to release the HUD funds, the
Minnesota Department of Trade and Economic Development, which
administered the federal program, required proof through a loan
commitment letter that the Fields had secured additional private
financing. Unable to secure additional private funding totalling
$292,000 after numerous attempts, the Field brothers entered into
a conspiracy to obtain the HUD funds through a false letter of
credit from Rudell Oppegard, president of the Twin Valley State
Bank of Twin Valley, Minnesota. When this attempt also failed,
they entered into a conspiracy to secure the funds through false
documentation of private funding through the Bonanza Valley State
Bank of Brooten, Minnesota, and its president, Martin Gjerde.3
The Field brothers and the bankers were indicted on various
charges of mail fraud and two charges of conspiracy to defraud the
United States government. The counts relating to the Twin Valley
State Bank conspiracy were severed from the counts relating to the
Bonanza Valley State Bank conspiracy, and tried separately. First,
the Fields and Oppegard, coconspirator in the Twin Valley State
Bank conspiracy, proceeded to trial on one count of conspiracy to
defraud the United States of funds in violation of 18 U.S.C. § 371
(1994), and one count of mail fraud in violation of 18 U.S.C.
2
We also affirm Richard Field's sentence today in a separate
appeal. See United States v. Richard William Field, No. 96-1589
(8th Cir. Apr. ___, 1997).
3
For additional facts concerning Martin Gjerde's involvement
in the scheme, see United States v. Gjerde, No. 96-2033 (8th Cir.
Apr. ___, 1997).
2
§ 1341. The jury convicted all three defendants on both counts.
Thereafter, on the first day of the separate trial involving the
charges arising out of the Bonanza Valley State Bank conspiracy,
Clark and Richard Field both pleaded guilty to one additional count
of conspiracy to defraud the United States based upon their
dealings with Gjerde and the Bonanza Valley State Bank (they also
waived their right to appeal the guilty verdicts that resulted from
the trial with Oppegard). In return, the government dismissed all
remaining counts of the indictment against the Fields. Gjerde
pleaded not guilty and proceeded to trial where the jury convicted
him of one count of conspiracy.
At sentencing, the district court denied Clark's request for
an acceptance-of-responsibility adjustment to his base offense
level. The district court sentenced Clark to twenty-three months
of imprisonment and two years of supervised release. Field appeals
his sentence, challenging the district court's denial of the
reduction for acceptance of responsibility.
The Sentencing Guidelines permit a two-level reduction in a
defendant's base offense level if the defendant "clearly
demonstrates acceptance of responsibility for his offense." United
States Sentencing Commission, Guidelines Manual, § 3E1.1(a) (Nov.
1995). The Guidelines permit an additional one-level reduction
when the offense is level 16 or greater and the defendant has
further assisted authorities in the prosecution of his own conduct
by timely providing complete information concerning his own
involvement and timely notifying authorities of his intention to
plead guilty. USSG § 3E1.1(b). The presentence report calculated
Field's total offense level at 16. No downward adjustment for
acceptance of responsibility was recommended by the probation
officer. "We review a district court's factual findings regarding
[a] defendant's acceptance of responsibility for clear error and
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overturn the court's denial of such a reduction only if it is
without foundation." United States v. Byrd, 76 F.3d 194, 195 (8th
Cir. 1996) (internal quotations omitted).
The district court determined that Clark did not accept
responsibility because the evidence indicating such acceptance was
outweighed by conduct inconsistent with an acceptance of
responsibility. The district court found that Clark denied the
essential factual elements of the two counts relating to the Twin
Valley State Bank conspiracy, he put the government to its burden
of proof at trial on those counts, and he did not agree to plead
guilty on the count relating to the Bonanza Valley State Bank
conspiracy until the morning of the second trial, which commenced
a few days after his conviction on both counts in the first trial.
The district court cited Clark's continued assertions that his
illegal acts were in the best interest of the city and that he
broke the law "to satisfy the bureaucrats," as inconsistent with an
acceptance of responsibility.
Clark contends that his is the rare situation where he can
demonstrate acceptance of responsibility even though he exercised
his right to a trial. He asserts that his preindictment voluntary
payment of a substantial amount of restitution indicates an
acceptance of responsibility, and he denies that his statement
about satisfying the bureaucrats was an attempt to blame others for
his conduct, insisting that he merely offered an honest explanation
for his motive. Furthermore, Clark asserts that he did not deny
any factual element at trial but exercised his right to a trial
only "to make a constitutional challenge to a statute or a
challenge to the applicability of a statute to his conduct." USSG
§ 3E1.1, comment. (n.2). See United States v. Unzueta-Gallarso,
966 F.2d 390, 391 (8th Cir. 1992).
4
When reviewing the grant or denial of a reduction for
acceptance of responsibility, we afford great deference to the
determination of the district court judge, who is in a unique
position to evaluate whether a defendant has accepted
responsibility for his offense. Byrd, 76 F.3d at 196; USSG
§ 3E1.1, comment. (n.5). We conclude that the district court did
not clearly err by denying a reduction for acceptance of
responsibility in this case. As indicated above, the presentence
investigation report did not recommend a reduction for acceptance
of responsibility. The record reveals Clark went to trial
contesting the factual elements of guilt on counts one and two.
There were no stipulations of guilty conduct eliminating factual
elements of guilt or limiting trial to a constitutional or
statutory challenge. The district court concluded that Clark's
attempt to minimize his role, to maintain that his illegal actions
were in the city's best interest, and to blame his conduct on the
pressure of satisfying bureaucrats is inconsistent with a true
acceptance of responsibility. This conclusion is not without
foundation. Such conduct is more akin to a defendant who continues
to deny the fraud than to one who accepts responsibility for his
actions. See United States v. Roggy, 76 F.3d 189, 194 (8th Cir.)
(noting that a defendant who continues to deny the fraud is not
entitled to a reduction for acceptance of responsibility), cert.
denied, 116 S. Ct. 1700 (1996). Furthermore, the "mere expression
of remorse does not warrant a reduction under section 3E1.1." Id.
While voluntary payment of restitution prior to an adjudication of
guilt is a legitimate consideration in determining whether a
defendant is entitled to a reduction for acceptance of
responsibility, USSG § 3E.1., comment (n.1(c)), in light of Clark's
other actions and statements, we conclude that the district court
did not abuse its discretion by denying a reduction for acceptance
of responsibility.
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Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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