Unpublished Disposition, 921 F.2d 282 (9th Cir. 1983)

No. 89-30377.

United States Court of Appeals, Ninth Circuit.

Before HUG and NELSON, Circuit Judges, and CARROLL^*  District Judge.

MEMORANDUM^** 

A jury found Frank Naccarato guilty of conspiracy to bribe a public official in violation of 18 U.S.C. §§ 201(b), 371-372 as charged in Count III of the indictment. Naccarato was sentenced to a term of 18 months imprisonment and ordered to pay restitution in the amount of $50,000 to Tlingit-Haida Regional Housing Authority (Tlingit).

Standard of Review

A district court's decision involving mixed questions of law and fact is reviewed de novo. United States v. McConney, 728 F.2d 1195, 1204 (9th Cir.) cert. denied 469 U.S. 824 (1984).

The standard for reviewing a challenge to the sufficiency of the evidence supporting a jury verdict is whether there is substantial evidence to support the conviction. United States v. Douglas, 780 F.2d 1472, 1476 (9th Cir. 1986).

Sentences imposed within statutory limits are reviewed for abuse of discretion. United States v. Angelica, 859 F.2d 1390, 1392 (9th Cir. 1988); United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986).

Facts

The United States Department of Housing and Urban Development (HUD) pursuant to the Comprehensive Improvement Assistance Program (CIAP), 42 U.S.C. § 14371, disbursed approximately $3,500,000 to Tlingit, in order to promote renovation of low income housing in Juneau, Alaska.

Felipe Tagaban was the administrative officer of Tlingit and coordinator of the housing authorities' participation in CIAP. Tagaban had authority to hire and fire employees, negotiate contracts and commit certain funds of Tlingit, subject to approval of Joe Wilson, the executive director of Tlingit.

HUD approval was required prior to any expenditure of funds pursuant to CIAP.

It was determined by Tagaban that Tlingit would need a warehouse for supplies, equipment and fixtures of the rehabilitation project. Michael Orsborn, an acquaintance of Tagaban, agreed to help find a warehouse for Tlingit.

In the summer of 1983, Orsborn met with appellant, Frank Naccarato, a contractor. Orsborn and Naccarato discussed the needs of Tlingit and the possibility of Orsborn receiving a finder's fee if he found a tenant for the warehouse to be built for Tlingit by Naccarato.

In preparation for construction of the warehouse Naccarato solicited Myron Brinkman to provide initial financing. Property owned by Ken Eldridge was selected as the site for construction.

Naccarato, Brinkman and Eldridge formed the Lemon Glacier Development Company (Lemon Glacier), a partnership. The partnership agreed to pay Orsborn $25,000 if he obtained a reliable tenant for the warehouse.

Tagaban was told by Orsborn that he would receive $10,000 dollars if he signed a lease, on behalf of Tlingit, to occupy the Lemon Glacier warehouse.¹  Tagaban signed a warehouse lease, purportedly on behalf of Tlingit, with the Lemon Glacier partnership on October 18, 1983. The lease was for a five year term at a rate of $1.25 per square foot.²  Tagaban also signed other contracts for repair work with Naccarato on behalf of Tlingit.³ 

Naccarato, Brinkman and Eldridge also controlled a company called "Heavier Than Air" which was paid over $700,000 dollars for repair and renovation work, on low income housing, performed for Tlingit.

Tagaban was paid $10,000 dollars in March 1984 by Naccarato and Brinkman. Tagaban received another $10,000 from Brinkman on behalf of Naccarato, Brinkman and Eldridge in September 1984.

In March 1989 an indictment was returned charging Tagaban with bribery, tax violations and converting federal property to his own use. The indictment also charged Naccarato nd other codefendants with conspiracy to bribe a public official (Tagaban).

Tagaban, Brinkman and Orsborn pled guilty and agreed to testify against Naccarato as a part of their plea agreements.

Discussion

Tagaban was a "Public Official"

Appellant asserts that the trial court erred in determining that Tagaban was a public official within the meaning of 18 U.S.C. § 201(a) (1) relying principally on United States v. Del Toro, 513 F.2d 656, 662 (2d Cir.) cert denied 423 U.S. 826 (1975) and United States v. Loschiavo, 531 F.2d 659, 661 (2d Cir. 1976).

The term "public official" as defined by Sec. 201, means:

[A]n officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government,....

28 U.S.C. § 201(a).

The determination of whether Tagaban was a "public official" turns on the relationship between him and the Federal Government. Dixson v. United States, 465 U.S. 482, 486 (1984).

Funds were provided to Tlingit pursuant to the United States Housing Act of 1937, (as amended) 42 U.S.C. § 1437 et seq. The policy behind the Housing Act is to:

promote the general welfare of the Nation by employing its funds and credit, as provided in this chapter, to assist the several States and their political subdivisions to remedy the unsafe and unsanitary housing conditions and the acute shortage of ... dwellings for families of low income and ... vest in local public housing agencies the maximum amount of responsibility in the administration of their housing programs.

42 U.S.C. § 1437.

Tlingit received funds from HUD pursuant to CIAP which is a special program under the amended United States Housing Act of 1937. CIAP, as is the entire Housing Act, is regulated by numerous federal implementing regulations. By administering HUD funds, Tlingit subjected itself to federal constraints and restrictions. Tlingit was in a situation very similar to that of United Neighborhoods, Inc. in Dixson.

The bribery statute is a comprehensive statute applicable to all persons performing activities for or on behalf of the United States. Dixson, 465 U.S. at 496 (1984). The issue here is whether Tagaban occupied a position of public trust with official federal responsibilities. Id. Tagaban must have had some degree of official responsibility for carrying out a federal program or policy. Id.

Tagaban was the coordinator of the Tlingit's participation in the CIAP. As the coordinator of Tlingit's involvement with CIAP he had authority to negotiate contracts, and expend Federal Government funds. Although Tagaban was not the ultimate authority in Tlingit, he had a substantial role in the housing authority's implementation of CIAP. The issue here is whether Tagaban was required to abide by regulations governing the implementation of the Housing Act and CIAP. Tagaban's role in Tlingit is not distinguishable from the role of petitioners in Dixson. He was in a position of responsibility, acting on behalf of the Federal Government in administering expenditures of federal funds and implementing federal policy. Tagaban had the apparent authority to sign the lease, and he also had the authorization to use his superior's signature plate on the checks. It is clear that he did not have the authority to disburse the funds and sign the documents.

Accordingly, the district court did not commit error in denying appellant's motion to dismiss.

Evidence Sufficient for Jury to Convict Appellant

Appellant contends that his conviction should be reversed because insufficient evidence was presented upon which to find guilt beyond a reasonable doubt.

Reviewing the sufficiency of the evidence requires assessment of whether the evidence adduced at the trial could support any rational determination of guilt beyond a reasonable doubt. United States v. Powell, 469 U.S. 57 (1984).

Appellant was found guilty of violating 18 U.S.C. § 201(b) which, in pertinent part, is aimed at:

Whoever, directly or indirectly, corruptly gives, offers or promises anything of value to any public official ... with the intent--

(1) to influence any official act; or

(2) to influence such public official ... to commit ... any fraud ... on the United States; or

(3) to induce such public official ... to do or omit to do any act in violation of his lawful duty....

There was sufficient evidence presented at trial to support the jury's verdict of guilty.

Brinkman testified that Naccarato, Brinkman and Eldridge paid Tagaban to obtain business, for doing business and for favors. On direct examination Brinkman stated that Naccarato told him "You didn't see me give him no money?" after Naccarato had given Tagaban $10,000 in cash.

Tagaban, substantiated Brinkman's testimony by stating he was paid $20,000 for favors. Tagaban also testified that Naccarato handed him an envelope containing $10,000 cash.

The testimony also showed that Naccarato devised a scheme to disguise a payment to Tagaban as a loan. Naccarato drafted a letter to be signed by Brinkman demanding repayment of a $10,000 "loan". The letter was delivered by appellant to Tagaban. Tagaban was told to respond to the demand so as to "cover" the $10,000 payment to Tagaban.

There was also substantial circumstantial evidence presented at trial which a rational jury could rely on in determining Naccarato's guilt, ie. cash payments to Tagaban, inflated warehouse rental rate, the issuance of 9 emergency repair contracts drafted by Naccarato, etc.

Viewed in light most favorable to the Government the evidence adduced at trial supports the jury's determination of guilt beyond a reasonable doubt.

Lawful Sentence Imposed by District Court

Naccarato argues that his eighteen month sentence should be modified so as to be consistent with the sentences received by the other defendants.

Sentences within statutory limits are generally not subject to review. Endicott, 803 F.2d at 510. Disparate sentences for codefendants will be upheld when the record shows differences in the defendant's behavior. Cocio v. Bramlett, 872 F.2d 889, 894 (9th Cir. 1989).

Brinkman and Orsborn were sentenced to 30 days incarceration to be served on weekends and Tagaban was given a 13 month sentence.

Despite, appellant's assertion to the contrary, the convicted codefendants were not found to be equally culpable.

The district court stated at sentencing that Naccarato was the dominant leader of the enterprise. The court found that Orsborn was a mere go-between and Brinkman was a "sucker".

The sentence imposed upon appellant is within the statutory limits of 18 U.S.C. § 371 and there is adequate justification on the record to support the disparities in sentences.

Lesser Included Instruction not Required

Appellant's position is that his conviction should be reversed because the District Court refused to give a lesser included instruction of illegally giving a gratuity.

As appellees point out, the appellant failed to object to the court's failure to instruct the jury on 18 U.S.C. § 201(f). A party may not assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider the verdict. Fed. R. Crim. P. 30. Where there are no objections or requests by defense counsel, a trial court's decision on jury instructions will be reversed only if the omission of an instruction constituted plain error. United States v. Kaplan, 895 F.2d 618, 623 (9th Cir. 1990). If an appellant does not raise an objection at trial, an omission of a requested instruction must amount to a grave miscarriage of justice so as to constitute plain error. Id. The district court did not commit plain error in this instance.

Where the lesser offense requires an element not required for the greater offense, no instruction is to be given under Fed. R. Crim. P. 31(c). United States v. Lopez, 885 F.2d 1428, 1436 (9th Cir. 1989) "citing Schmuck v. United States, --- U.S. ----, 109 S. Ct. 1443, 1450 (1989)". Naccarato was entitled to a lesser included offense instruction only if he could establish (1) that the elements of the alleged lesser offense constitute a subset of the elements of the crime charged, and (2) that, given the evidence adduced at trial, a rational jury could find him guilty of the lesser offense and still acquit on the greater. Lopez, 885 F.2d at 1436-1437 (1989).

The district court ruled that Sec. 201(f) is not a lesser included offense of conspiracy to bribe a public official. The district court's rational was that the offense of giving a gratuity to a public official requires proof that the defendant actually gave something of value to a public official which is not an element of conspiracy to bribe a public official. The analysis of the lower court is correct.

Restitution

Appellant contends that the district court abused its discretion by ordering restitution in the amount of $50,000 because it was not linked to any specific loss suffered by the government. Furthermore, Naccarato asserts that there was insufficient proof of loss during the lower court proceedings to support the determined restitution amount.

An order of restitution pursuant to 18 U.S.C. § 3663(b) (1) (B) may require the defendant, in a case of an offense resulting in loss of property of a victim of the offense, to pay an amount equal to the value of the property on the date of loss. The amount must be definite, supported by the evidence and limited by the amount actually lost by the victims. United States v. Pomazi, 851 F.2d 244, 249-50 (9th Cir. 1988); United States v. Mischler, 787 F.2d 240, 245 (7th Cir. 1986). The amount of loss caused by the offense may be proved in one of three ways: by proof at trial, by judicial determination, or through the consent of defendant. United States v. Harris, 761 F.2d 394, 404 (7th Cir. 1985) "citing United States v. Gering, 716 F.2d 615 (9th Cir. 1983)". The burden is on the Government to prove the amount of loss to the victim as a result of the offense by a preponderance of the evidence. 18 U.S.C. 3664(d).

As a part of his sentence, appellant is required to pay $50,000 to Tlingit within 5 years after serving the term of imprisonment imposed.

Contrary to appellant's assertion the record adequately supports the restitution amount: Tagaban awarded over $400,000 in unauthorized contract work to Naccarato's company; due to the discrepancy between the rental rate of the warehouse leased by Tlingit ($1.25 per square foot) and the fair market rental value of the property ($.65 per square foot) (Tlingit was damaged in the amount of $78,500. There is also evidence showing that despite the fact that the housing authority rented the entire warehouse others were occupying the building without Tlingit authority or permission.

Although the district court did not determine an actual amount of loss to Tlingit there is sufficient evidence proving that the housing authority suffered losses in amounts substantially exceeding $50,000.

The district court did not abuse its discretion by ordering restitution in the amount of $50,000.

AFFIRMED in all respects.