United States v. Paul Solofa , 745 F.3d 1226 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 11, 2013 Decided March 21, 2014
No. 12-3043
UNITED STATES OF AMERICA,
APPELLEE
v.
PAUL SOLOFA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cr-00250-1)
Misha Tseytlin, appointed by the court, argued the cause
for appellant. On the briefs were Matthew D. McGill and Erik
R. Zimmerman, appointed by the court.
John-Alex Romano, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Mythiili Raman, Acting Assistant Attorney General, and
Raymond N. Hulser, Principal Deputy Chief, Public Integrity
Section. Kathleen A. Felton and Daniel A. Petalas, Attorneys,
U.S. Department of Justice, and Elizabeth Trosman, Assistant
U.S. Attorney, entered appearances.
Before: GRIFFITH and SRINIVASAN, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
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GRIFFITH, Circuit Judge: A jury convicted appellant Paul
Solofa of witness tampering and obstruction of justice, and
the district court sentenced him to 35 months in prison. Solofa
challenges his conviction on the ground that his trial counsel
provided ineffective assistance and his sentence on the ground
that the district court improperly applied an enhancement
under the Sentencing Guidelines. For the reasons set forth
below, we affirm.
I
In 2008, the FBI undertook an investigation that
uncovered a kickback scheme that defrauded the Department
of Education (DOE) of American Samoa. The scheme was
simple. Gustav Nauer, DOE’s head mechanic, ordered school-
bus parts from Oscar Mayer, who ran a company called
Pacific Products, Inc. Mayer would not ship the parts, but
Nauer would submit paperwork to the DOE vouching that he
had. Mayer would then funnel to Nauer some of the funds he
received from the DOE for the parts he never delivered. All
told, between 2003 and 2006 Mayer paid Nauer nearly
$300,000 for his involvement in this fraud. It isn’t entirely
clear, nor is it relevant to this appeal, precisely what role
Solofa played in the plot. He was the chief financial officer of
DOE during the first year of the scheme and was friends with
Mayer. At the very least, Solofa knew about the kickback
scheme and accepted hush money from Nauer to keep quiet
about it. No bribery or fraud charges were brought against
Solofa, and this case is not about his role in defrauding the
DOE. This case is about Solofa’s role in the FBI investigation
of that fraud.
The investigation led to Mayer’s door, and he was called
into the FBI’s office to be interviewed about his role in the
3
scheme. During the interview, the FBI agents confronted
Mayer with evidence of his complicity. Mayer did not
respond to the allegations during the interview, but his
lawyer, who was present, told the agents that Mayer would
“get back” to them. In a private discussion after they left the
interview, his lawyer advised Mayer to “tell them
everything.” The next day, Mayer returned to the FBI office
with his lawyer and fully acknowledged his part in the fraud.
Mayer also agreed to cooperate with the FBI’s ongoing
investigation of the scheme in exchange for a
recommendation of leniency from the FBI to the prosecutor.
The FBI arranged for Mayer to secretly record conversations
with Solofa and Nauer that were intended to draw out what
they knew about the kickbacks. In his first conversation with
Solofa, Mayer did as the FBI instructed and told Solofa that
FBI agents had mentioned him by name when explaining that
they needed to interview Mayer. Mayer voiced concern about
his upcoming interview with the FBI, putting on an air of
anxiety, and asked Solofa what he should say and do during
the questioning. In response, Solofa told Mayer to deny
giving cash to Nauer and suggested that he tell the FBI that he
and Solofa had never had any dealings with one another
regarding school-bus parts. Solofa added that the FBI could
not trace their transactions, because all of them were made in
cash.
For the next conversation, the FBI gave Mayer a fake
subpoena seeking various documents from Pacific Products
and told him to show it to Solofa as if it were genuine. Mayer
did so, and asked Solofa how he should respond to the
subpoena. Solofa told Mayer not to “hide anything” and to
“[j]ust give them copies of everything.” Solofa repeated this
advice, telling Mayer that he had to produce everything that
the FBI asked for. He even explained the best procedures for
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responding fully. But, significantly, Solofa then changed
course and reminded Mayer that “only you know[]
everything. . . . So don’t give them any copy you don’t want
to give them.” More than that, Solofa told Mayer to “burn”
the copies of any documents that “you don’t want to give
them” because that way “they won’t see it and you won’t
worry that they might see it.” If Mayer burned a document,
Solofa pointed out, then “nobody has a copy.”
After hearing the recordings of these conversations, a
grand jury returned an indictment charging Solofa with
witness tampering in violation of 18 U.S.C. § 1512(b)(3) and
obstruction of justice in violation of 18 U.S.C. § 1503. At
trial, Solofa’s primary defense to both charges was that he
lacked the requisite intent because he had no motivation to
conceal the workings of a kickback scheme in which he had
no part. The jury was not persuaded, and convicted Solofa on
both counts. The Guidelines range for each offense was 15-21
months. At sentencing the district court applied an
enhancement to Solofa’s base sentence because the offense
“involved obstructing the investigation or prosecution of a
criminal offense” as opposed to a civil or administrative
investigation. U.S.S.G. § 2J1.2(c)(1). The enhancement called
for by (c)(1) resulted in a Guidelines range of 41-51 months
for each offense. The court subtracted six months because, as
a non-citizen, Solofa would not be able to spend that time in a
halfway house. When all was said and done, the district court
sentenced Solofa to 35 months for each offense, to be served
concurrently. Solofa’s counsel objected to the district court’s
use of the enhancement, arguing that although (c)(1) could be
lawfully used to enhance a sentence based on Solofa’s crimes,
its application to him resulted in a sentence that, compared to
Nauer’s sentence of 25 months, was arbitrary and longer than
necessary.
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Solofa timely appealed his conviction and sentence. We
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742.
II
Solofa challenges his conviction on the ground that his
trial counsel gave him ineffective assistance by failing to raise
an entrapment defense. To make out a case of ineffective
assistance, an appellant must show not only that counsel’s
performance was deficient, but that he suffered prejudice as a
result. Strickland v. Washington, 466 U.S. 668, 687 (1984).
The prejudice inquiry focuses on whether there is “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Id. at 694. Where the error claimed is a failure to
pursue an affirmative defense, “the resolution of the
‘prejudice’ inquiry will depend largely on whether the
affirmative defense likely would have succeeded at trial.” Hill
v. Lockhart, 474 U.S. 52, 59 (1985). Solofa’s argument
founders on this requirement because he had no entrapment
defense to raise.
Entrapment “has two related elements: government
inducement of the crime, and a lack of predisposition on the
part of the defendant to engage in the criminal conduct.”
Mathews v. United States, 485 U.S. 58, 63 (1988). A
defendant arguing entrapment must show that “the criminal
design originate[d] with the officials of the government, and
[that] they implant[ed] in the mind of an innocent person the
disposition to commit the alleged offense and induce[d] its
commission in order that they may prosecute.” Sorrells v.
United States, 287 U.S. 435, 442 (1932). At a minimum, this
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requires a showing that the government agent actually
solicited or suggested the criminal conduct. See United States
v. Russell, 411 U.S. 423, 436 (1973) (government deception
does not constitute inducement unless the idea for the crime
originated with the government agent); Sherman v. United
States, 356 U.S. 369, 372-73 (1958); Sorrells, 287 U.S. at
439-41; United States v. Borum, 584 F.2d 424, 428 (D.C. Cir.
1978). There is no suggestion in the record that Mayer asked
or encouraged Solofa to tamper with a witness, obstruct
justice, or participate in any form of criminal activity. Mayer
simply stated that he had been contacted by the FBI and asked
Solofa what he should do in response. Solofa could have
given a wide variety of meaningful, lawful answers to the
question; he chose instead to suggest that Mayer lie and burn
documents.
That Mayer lied to Solofa about the investigation is no
help to Solofa’s argument. “[N]ot all fraudulent
misrepresentations constitute inducement . . . .” United States
v. Burkley, 591 F.2d 903, 913 n.18 (D.C. Cir. 1978) (internal
quotation marks omitted). They might “when the
Government’s deception actually implants the criminal design
in the mind of the defendant,” Russell, 411 U.S. at 436, but
Solofa makes no claim that Mayer suggested the criminal
activity. Instead, Solofa urges upon us a rule that any
misrepresentation by the FBI absolves him of responsibility
for the choice he made to tell Mayer to destroy evidence of a
crime. But banning the use of undercover agents, which is
essentially what Solofa is asking for, would “severely hamper
the Government in ferreting out those organized criminal
activities that are characterized by covert dealings.” Lewis v.
United States, 385 U.S. 206, 210 (1966); id. at 208-09(“Indeed, it has long been acknowledged by the decisions of
this Court that, in the detection of many types of crime, the
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Government is entitled to use decoys and to conceal the
identity of its agents.” (citations and footnote omitted)). In the
context of entrapment, the Court has long held that “[a]rtifice
and stratagem may be employed to catch those engaged in
criminal enterprises.” Sorrells, 287 U.S. at 441. In Russell, an
undercover government agent perpetrated an elaborate
deception, playing the part of a drug dealer. 411 U.S. at 426.
But “the mere fact of deceit,” which is what Solofa relies
upon here, could not “defeat [the] prosecution.” Id. at 435-36;
see also Jacobson v. United States, 503 U.S. 540, 548 (1992)
(observing, in an entrapment case, that “there can be no
dispute that the Government may use undercover agents to
enforce the law”).
Solofa also argues that Mayer induced the crimes by
invoking their friendship. Although we have raised the
possibility that “pleas based on . . . friendship can satisfy the
inducement prong,” we have yet to find an instance where
they have been sufficiently strong to do so. United States v.
Evans, 216 F.3d 80, 90 (D.C. Cir. 2000) (internal quotation
marks omitted). In any event, a resort to the bonds of
friendship can only be an inducement if it is a plea to break
the law. Even assuming that Mayer’s words and conduct
elicited feelings of friendship from Solofa, the fact remains
that Mayer never asked or suggested that he engage in
criminal activity. See id. (finding no inducement where the
defendant “independently decided to provide the drugs out of
friendship,” not “because of any plea from” his friend). This
case is thus a far cry from Sherman v. United States, cited by
Solofa. There, an informant played on the defendant’s
sympathy by pretending to be an addict struggling toward
recovery and expressly and repeatedly asking for illegal
narcotics. See 356 U.S at 371, 373. At most, Mayer provided
Solofa the opportunity to obstruct an investigation and tamper
8
with a witness, but Solofa made the decision to commit these
crimes on his own. To make out the defense of entrapment, it
is not enough that the “government merely afford[ed]
opportunities or facilities for the commission of the offense.”
Sorrells, 287 U.S. at 441; see also Mathews, 485 U.S. at 66.
Given that Mayer did not suggest, solicit, or encourage
Solofa’s participation in any criminal activity, his counsel had
no viable entrapment defense to invoke. This conclusion is so
clear from the record that there is no need to remand Solofa’s
ineffectiveness claim to the district court for factual
development. See United States v. Bell, 708 F.3d 223, 225
(D.C. Cir. 2013).
Because Solofa cannot show that his counsel’s failure to
invoke the defense of entrapment prejudiced him, we need not
address whether his counsel’s decision not to pursue the
defense was somehow an unprofessional error. See Strickland,
466 U.S. at 697 (“If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course
should be followed.”).
III
The district court sentenced Solofa under section 2J1.2 of
the Guidelines to concurrent sentences of the same length, one
for witness tampering, the other for obstruction of justice.
Section 2J1.2(c)(1) provides for an enhancement where “the
offense involved obstructing the investigation or prosecution
of a criminal offense.” U.S.S.G. § 2J1.2(c)(1). Solofa, who
was convicted of attempting to tamper with a witness and
obstruct justice, argues that (c)(1) does not reach his crimes.
That enhancement, he maintains, applies only to those cases
9
in which a defendant actually tampers with a witness or
obstructs an investigation and not where he only makes the
attempt. Appellant’s Br. 38. Nowhere in the text of (c)(1),
Solofa observes, is there mention of “attempt” or “intent” or
“effort” or “purpose,” the words used elsewhere in the
Guidelines to capture inchoate crimes. Id. at 38-40. But
Solofa raises this argument for the first time on appeal, and
we can consider its merits only under plain error review. See
In re Sealed Case, 573 F.3d 844, 847 (D.C. Cir. 2009).
An error is plain only when the district court failed to
follow an “absolutely clear legal norm.” United States v.
Purvis, 706 F.3d 520, 524 (D.C. Cir. 2013) (internal quotation
marks omitted). Here, every circuit to consider the issue has
held that the (c)(1) enhancement covers attempts. See United
States v. Gallimore, 491 F.3d 871, 876 (8th Cir. 2007); United
States v. Giovanelli, 464 F.3d 346, 354 (2d Cir. 2006); United
States v. Brenson, 104 F.3d 1267, 1284-85 (11th Cir. 1997);
United States v. Aragon, 983 F.2d 1306, 1315-16 (4th Cir.
1993); see also United States v. Flemmi, 402 F.3d 79, 96 n.27
(1st Cir. 2005); United States v. Roche, 321 F.3d 607, 610 n.2
(6th Cir. 2003). We cannot say that there is “an absolutely
clear legal norm” against applying (c)(1) to attempts when six
of our sister circuits have unanimously ruled otherwise. See
United States v. Andrews, 532 F.3d 900, 909 (D.C. Cir. 2008)
(finding the absence of plain error partly because of a circuit
split on the issue); United States v. Sullivan, 451 F.3d 884,
896 (D.C. Cir. 2006) (same). Solofa’s sentence stands.
IV
For the foregoing reasons, we affirm Solofa’s conviction
and sentence.