United States v. Tou Hang

No. 95-1360
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United
v. * States District Court for the
* District of Minnesota.
Tou Hang, *
*
Defendant - Appellant.*
Submitted: October 17, 1995
Filed: February 7, 1996
Before WOLLMAN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
FLOYD R. GIBSON, Circuit Judge.
Following a five day trial, a jury convicted appellant Tou
Hang of three counts of accepting a bribe as a public official in
violation of 18 U.S.C. § 201(b)(2)(A) (1994). The district court1
sentenced Hang to three concurrent thirty-three month terms of
imprisonment. Hang now appeals his convictions and sentence, and
we affirm.
I. BACKGROUND
From approximately January of 1985 until April of 1993, Hang
worked as an eligibility technician for the Minneapolis Public
1
The HONORABLE PAUL A. MAGNUSON, Chief United States District
Judge for the District of Minnesota.
Housing Authority ("MPHA"), an independent public corporation
organized under Minnesota law and established for the purpose of
administering federal programs. MPHA, like thousands of other
public housing authorities across the nation, implements the
Federal Low Income Housing Program, see 42 U.S.C. §§ 1404a-1440
(1988 & Supp. V 1993), by providing federally subsidized housing to
eligible low income families. While MPHA necessarily complies with
strict regulations imposed by the United States Department of
Housing and Urban Development ("HUD"), see 24 C.F.R. §§ 900.101-
999.101 (1995), it is locally operated and staffed by local
employees. MPHA receives a minute amount of money from local
sources, but federal funding comprises the overwhelming majority of
its budget. In fact, the entire budget of MPHA, including
expenditures, is subject to HUD approval.
In MPHA's written statement of policies, which was reviewed by
HUD, the eligibility technician is identified as the individual who
determines whether a particular housing applicant meets federally
imposed threshold criteria. In addition, the manual specifies that
the eligibility technician must ascertain whether an applicant
qualifies for any federal or local housing preferences.2 In
carrying out these duties during the time relevant to the charges
in this case, Hang screened applications to verify whether persons
were initially qualified or entitled to any preferences for low
income housing. After Hang confirmed an applicant's eligibility,
that individual would be placed on a waiting list to receive a
house. When an applicant for whom Hang had been responsible
reached the top of the list, a process that normally took a
significant amount of time, Hang would offer that person the next
available home. Local employees supervised Hang's activities, and
HUD did not have any direct role in paying Hang or conducting his
2
If an applicant qualifies for a preference, he will receive
more desirable placement on the waiting list for federally
subsidized housing.
2
performance reviews.
On September 14, 1994, the United States returned an amended
indictment against Hang charging him with three counts of accepting
a bribe as a public official in violation of 18 U.S.C. §
201(b)(2)(A). The Government contended that Hang, a native of
Laos, used his bilingual skills to prey on housing applicants who
were also immigrants from Southeast Asian countries. Each count in
the indictment represented one incident in which Hang allegedly
accepted money from an Asian individual in order to accelerate the
application process. Hang apparently communicated to these
unfortunate and vulnerable victims that they would have to pay him
money in order to obtain federally subsidized housing.
One day before trial, Hang's attorney made his first efforts
to contact the Government's witnesses. During these attempted
interviews, counsel learned that one of the persons who reportedly
bribed Hang, Syphong Souvannarath, had resided at the University of
Minnesota Hospital for approximately four weeks to undergo
treatment for an unspecified mental illness. Also, Hang's lawyer
discovered that another Government witness, Vanhsy Prasomsack, was
taking some sort of medication. Based on these findings, and
because of other suspicions regarding prosecution witnesses, Hang,
as an indigent defendant, made an ex parte motion requesting the
district court to authorize subpoenas requiring the University of
Minnesota Hospital and Clinic, along with various other Government
agencies, to release documents relating to the witnesses.
Nonetheless, after concluding that Hang's entreaty represented a
mere "fishing expedition" for evidence, the court refused to issue
the desired subpoenas duces tecum. The court further declined to
issue a witness subpoena for Hang Sao, Hang's Laotian uncle who had
been present during the defense's eleventh hour interviews with the
prosecution witnesses.
The jury subsequently convicted Hang of all counts, and the
3
district judge originally released him on bond pending sentencing.
When police officials notified the court that Hang's friends and
relatives were terrorizing certain individuals who had testified
against the convicted felon, the district judge ordered Hang to
appear at a detention hearing. Finding that Hang had failed to
establish by clear and convincing evidence that he did not pose a
danger to another person or the community, the judge ordered that
Hang be taken into custody until sentencing.
At sentencing, pursuant to the applicable sentencing
guideline, the district judge adjusted Hang's base offense level
according to the value of the benefit he conferred on those who
bribed him. In addition, influenced by the pattern of threats and
intimidation against Government witnesses effected by Hang's
intimates, the judge imposed a two point enhancement for
obstruction of justice. Choosing the lowest imprisonment term
possible under the relevant guideline range, the district judge
sentenced Hang to three concurrent thirty-three month periods of
confinement.
On appeal, Hang contests both his convictions and sentence.
He argues that the district court lacked jurisdiction over this
case because, as a local employee carrying out allegedly
ministerial duties, he was not a "public official" under 18 U.S.C.
§ 201(a)(1). Further, he feels that his conviction should be
overturned because the district court improperly refused to issue
the requested defense subpoenas. In challenging his sentence, Hang
contends that the district court improperly calculated the benefit
conferred upon those who bribed him. Finally, because he claims
that no direct evidence connected him to the terrorism perpetrated
against Government witnesses, Hang asserts that the district court
erroneously imposed the obstruction of justice enhancement. We
address each of these issues seriatim.
4
II. DISCUSSION
A. Public Officials under 18 U.S.C. § 201(a)(1)
Under 18 U.S.C. § 201(b)(2)(A), the provision applicable to
Hang's conduct, a public official is precluded from accepting a
bribe in exchange for "being influenced in the performance of any
official act." 18 U.S.C. § 201 (b)(2)(A) (1994). As relevant to
this case, the statute defines a public official as:
an officer or employee or person acting for or on behalf
of the United States, or any department, agency or branch
of Government thereof . . . in any official function,
under or by authority of any such department, agency, or
branch of Government . . . .
Id. § 201(a)(1). Hang claims that, as an employee of an
independent local public corporation, he did not act "for or on
behalf of" the United States Government. Furthermore, he argues
that he could not otherwise have been a public official because his
"low-level" position did not involve any official functions. The
classification of an individual as a "public official" is a legal
determination, and we thus review this issue de novo. See United
States v. Madeoy, 912 F.2d 1486, 1494 (D.C. Cir. 1990), cert.
denied, 498 U.S. 1105 (1991).
The Supreme Court in Dixson v. United States, 465 U.S. 482
(1984), considered the appropriate scope of the term "public
official." In that case, after extensively detailing the
historical underpinnings of 18 U.S.C. § 201, the Court explained
that Congress had intended to enact a broadly applicable federal
bribery statute. Id. at 496. The Court concluded that "§ 201(a)
has been accurately characterized as a comprehensive statute
applicable to all persons performing activities for or on behalf of
the United States, whatever the form of delegation of authority."
Id. (quotation omitted). Accordingly, when deciding whether a
5
particular individual is subject to the statute's prohibition:
the proper inquiry is not simply whether the person had
signed a contract with the United States or agreed to
serve as the Government's agent, but rather whether the
person occupies a position of public trust with official
federal responsibilities. Persons who hold such
positions are public officials within the meaning of §
201 and liable for prosecution under the federal bribery
statute.
Id. (emphasis added). In applying this newly articulated legal
standard to the facts before it, the Court had "little difficulty"
in concluding that the petitioners, executives of a private
nonprofit corporation responsible for allocating funds made
available to a municipality through a federal block grant program,
were public employees for purposes of § 201.
Following the Dixsondecision, our sister circuits have
construed § 201 to encompass a wide range of jobs involving varying
degrees of federal responsibility. See, e.g., United States v.
Strissel, 920 F.2d 1162, 1165-66 (4th Cir. 1990)(applying the
statute to the executive director of a local housing authority);
Madeoy, 912 F.2d at 1494-95 (determining that a fee appraiser
approved by the Veterans' Administration was a public official);
United States v. Velazquez, 847 F.2d 140, 141-42 (4th Cir.
1988)(applying § 201 to a county deputy sheriff who was responsible
for supervising federal inmates). The Fourth Circuit's decision in
Velazquez is particularly instructive. There, a federal inmate
challenged his conviction under § 201 for bribing a deputy sheriff
employed by Mecklenburg County, North Carolina. Velazquez, 847
F.2d at 141. Pursuant to a contract with the United States
Government, the Mecklenburg County Jail agreed to provide
supervision for certain federal inmates. Id. at 142. Those
inmates were not separated from state inmates, and it does not
appear that the jailers were required to treat the federal charges
differently from other prisoners. See id. Nonetheless, the court
examined the "nature of the responsibilities designated to [the
6
jailer]," id., and it determined that he was a public official for
purposes of § 201. Because the jail was subject to periodic
inspections by federal employees, and because the jailer could not
have supervised federal inmates absent some federal authority, the
Fourth Circuit concluded that the county employee fell within the
ambit of the bribery statute. Id.
Turning to the facts of this case, we must analyze the nature
of the responsibilities given to Hang in order to ascertain whether
he possessed "a position of public trust with official federal
responsibilities." Dixson, 465 U.S. at 496. It is manifest that
Hang occupied a position of public trust. He was on the front line
in the effort to provide affordable housing to eligible families.
As the person responsible for collecting, verifying, and updating
information pertaining to applicants, he acted as the liaison
between vulnerable and frequently desperate individuals and the
organization designed to furnish them with federally subsidized
homes. Especially considering the fact that Hang interacted with
many Southeast Asian applicants who did not speak English, it is
natural to assume that those persons looked up to him and expected
him to shepherd them through the often labyrinthine quest to obtain
desired government services. We have no problem, then, in
concluding that Hang occupied a position of public trust.
Similarly, we find that Hang's employment involved official
federal responsibilities. In contrast to the county jail in
Velazquez, which clearly performed important state and local
functions, the MPHA was organized for the exclusive purpose of
implementing federal programs and is subject to exacting oversight
by a federal agency. In addition, during the time period relevant
to this case, Hang was largely responsible for determining who
qualified for federally subsidized housing. According to Connie
Toavs, Hang's supervisor, eligibility technicians had "a lot" of
responsibility, and Hang was entrusted with screening, approving,
verifying, and updating applications. In addition, the eligibility
7
technician was ultimately responsible for the accuracy of
applicants' files, and he would decide who on the waiting list
would receive an available house. Although Hang would eventually
have to receive approval before actually renting a unit, his
supervisors indicated that this process basically amounted to a pro
forma affirmation of the eligibility technician's recommendations.
In essence, then, Hang had primary authority for determining who
would be the beneficiaries of federal funds. Obviously, this is an
undertaking in which Hang could not have engaged had he not
possessed some federal authority. See Velazquez, 847 F.2d at 142.
Accordingly, we determine that Hang's job involved official federal
responsibilities.
Because Hang occupied a position of public trust with official
federal responsibilities, he was a public official for purposes of
§ 201. See Dixson, 465 U.S. at 496 ("Persons who hold such
positions are public officials within the meaning of § 201 and
liable for prosecution under the federal bribery statute."). Hang
had "some degree of official responsibility for carrying out a
federal program or policy," id. at 499, and we thus reject his
assertion that the district court lacked jurisdiction over this
case.
B. The Subpoena Requests
Hang argues that the district court committed reversible error
when it refused to honor his Rule 17 requests to issue certain
subpoenas. As a preface to our consideration of Hang's
allegations, it will be useful to examine the structure and
development of Rule 17 of the Federal Rules of Criminal Procedure.
Rule 17 outlines the method by which the Government and
criminal defendants may procure subpoenas from the district court.
When a party requests a subpoena, subsection 17(a) directs the
clerk to issue the subpoena "signed and sealed but otherwise in
8
blank," Fed. R. Crim. P. 17(a), to that party; the party will then
fill in the omissions before service of the subpoena. To
effectuate proper service, however, the party must include with the
document the appropriate fee for one day's attendance at trial and
a reimbursement for allowable mileage. If an individual has
sufficient funds to satisfy these expenses, the entire process may
be completed without any additional intervention by the court.
In many cases, though, a defendant cannot pay the requisite
charges. Thus, Rule 17(b) offers a procedure through which
indigent persons may acquire necessary subpoenas. Prior to 1966,
this provision compelled destitute defendants to make the
substantial showing that the requested evidence would be material
and that the defendant could not safely go to trial without the
witness. 2 Charles A. Wright, Federal Practice & Procedure § 272
(2d ed. 1982). In addition, the defendant was required to submit
to the court an affidavit, available to the Government, naming the
witness and describing the testimony the person would most likely
give. Id. These burdens operated to discriminate against
impoverished people because, in order to obtain needed testimony,
indigent defendants were obliged to reveal to the Government the
identity of witnesses and the defense's trial strategy. It is
understandable, then, that this rule was the object of much
criticism. One judge was moved to comment that "Rule 17(b)
apparently presents an indigent with [a] Hobson's choice: either
make no defense or disclose his whole case to the Government before
his trial." Smith v. United States, 312 F.2d 867, 872 (D.C. Cir.
1962)(J. Skelly Wright, J., concurring in part and dissenting in
part)(footnote omitted), quoted in United States v. Florack, 838 F.
Supp. 77, 78 (W.D.N.Y. 1993).
The drafters of the Rule acted to ameliorate this inequity
when, in 1966, they amended the provision to what is, in substance,
its present day form. Under the modern version of the Rule, an
indigent defendant is entitled to submit to the court, without
9
notice to the Government, an ex parte application for a witness
subpoena. In order to obtain the subpoena, the defendant must only
make a satisfactory showing that he "is financially unable to pay
the fees of the witness and that the presence of the witness is
necessary to an adequate defense." Fed. R. Crim. P. 17(b). This
places all defendants, whether impoverished or with ample financial
resources, on equal footing, and it prevents the Government from
securing undue discovery.
Rule 17(c) addresses subpoenas duces tecum. The correct
interpretation of this subsection is a point of dispute in this
appeal. The Government argues that because this Rule, unlike Rule
17(b), does not specifically reference an indigent's right to make
an ex parte application, the Rule cannot provide such a procedure
for the issuance of subpoenas duces tecum. Hang counters that Rule
17(c) merely supplements Rule 17(b), and indigents are consequently
authorized to privately petition the district court for the
issuance of subpoenas for documents. We appear to be the first
circuit court to confront this question, and the district courts
that have considered the issue have reached conflicting results.
Compare United States v. Jenkins, 895 F. Supp. 1389, 1395-97 (D.
Haw. 1995)(finding that ex parte procedure applies to indigents'
applications for subpoenas duces tecum) and Florack, 838 F. Supp.
at 79-80 (same) with United States v. Hart, 826 F. Supp. 380, 381
(D. Colo. 1993)(reasoning in dicta that the ex parte procedure is
not available when a defendant seeks the production of documents
before trial) and United States v. Urlacher, 136 F.R.D. 550, 555-58
(W.D.N.Y. 1991)(reasoning that Rule 17 does not provide for ex
parte application where a defendant desires pretrial production of
documents, and that the procedure is probably not available for
requests seeking the production of materials at trial).
We are persuaded by the well-reasoned analysis in Florack.
That court focused upon the wording of Rule 17(c), emphasizing
language which provides that a subpoena may "also" require a person
10
to produce documents. The court elaborated:
The word "also" suggests that the subpoena described
above, that is in Rule 17(a) and Rule 17(b), in addition
to requiring the person to attend, may also require that
person to produce books, records, and documents.
Therefore, Rule 17(c) should be interpreted in accordance
with the provisions of Rule 17(a) and (b). . . . It is,
o[f] course, true that Rule 17(c) does not specifically
discuss a process for obtaining [document] subpoenas by
an ex parte application. It is also true, however, that
the section does not describe any process for obtaining
the subpoena. Nothing in Rule 17(c) suggests that the
initial application should be any different from the
application for a subpoena which does not happen to
require that the subpoenaed witness produce documents.
Florack, 838 F. Supp. at 79 (citations omitted). The structure of
Rule 17, then, indicates that an indigent may make an ex parte
application for the issuance of a subpoena duces tecum.
Consequently, we conclude that an indigent defendant may,
pursuant to Rule 17(c), make an ex parte request to the district
court for issuance of a subpoena duces tecum. See 2 Wright, supra,
§ 272 (2d ed. 1982 & Supp. 1995)("A district court seems clearly
right in construing Rule 17(b) as applying to a subpoena duces
tecum as well as to a subpoena to testify."). This result, which
is supported by principles of fundamental fairness and equality, is
consistent with the objectives of the 1966 amendments to Rule 17.
Having thus decided this issue,3 we apply the requirements of Rule
3
Hang contends that his conviction should be overturned
because the district court wrongfully based its denial of his
subpoena requests on his refusal to disclose the basis of the
requests to the prosecution. Of course, as we discussed above, an
indigent defendant is entitled to petition the court ex parte for
the issuance of subpoenas under Rule 17(b) and (c). By giving Hang
an opportunity to submit ex parte letters in support of the
subpoenas, we believe that the court satisfied the Rule's
requirement. In addition, although the court may have made certain
statements which, taken in isolation, might tend to indicate an
improper reason for denying the requests, our reading of the entire
record reveals that the court's refusal to honor the petitions was
grounded primarily in Hang's complete failure to establish the
11
17 to the facts of this case.
1. The Witness Subpoena
On September 7, 1995, the day that the trial began, Hang
petitioned the court to issue a subpoena for Hang Sao, the
defendant's uncle. In an ex parte communication to the court,
Hang's attorneys stated that Sao, who at the time of the request
had recently returned from Minneapolis to his residence in
Michigan, had assisted in the preparation of Hang's case.
Furthermore, Sao, who was fluent in the Laotian language, had been
present during defense counsel's attempts to interview Government
witnesses, many of whom did not speak English. Although Hang's
attorneys claimed these reasons justified issuance of the subpoena,
the district court refused to honor the request.
We review a district court's decision whether to grant a
request for a Rule 17(b) subpoena only for an abuse of discretion.
United States v. LeAmous, 754 F.2d 795, 798 (8th Cir.), cert.
denied, 471 U.S. 1139 (1985). The burden is upon the requesting
party to show that the desired witnesses are necessary to an
adequate defense, and reversal is only appropriate if "the
exceptional circumstances of the case indicate that the defendant's
right to a complete, adequate and fair trial is jeopardized."
United States v. Wyman, 724 F.2d 684, 686 (8th Cir. 1984).
We believe that the district court correctly refused to issue
the subpoena for Sao. While Sao's pretrial contributions were
undoubtedly helpful to Hang, the defense utterly failed to
establish that Sao's presence at trial was necessary to an adequate
defense. Further, although Sao was bilingual and assuredly
necessary prerequisites to issuance of subpoenas. In any case, to
the extent that the court may have based its denial of the requests
on improper reasons, we find that error to be harmless.
12
assisted the defense during interviews with witnesses, the parties
had already hired interpreters for the trial itself. Sao had no
personal knowledge of facts relevant to the charges in the
indictment, and it is unclear what, if any, material testimony he
could have offered. Importantly, "Rule 17(b) was not promulgated
to afford an indigent defendant a right to subpoena witnesses at
Government expense whose testimony clearly would be lacking in
materiality to the trial at hand." Terlikowski v. United States,
379 F.2d 501, 508 (8th Cir.), cert. denied, 389 U.S. 1008 (1967).
Because Hang failed to carry his burden under Rule 17(b), the
district court properly declined to issue the requested subpoena.
2. The Subpoenas Duces Tecum
Hang also petitioned the district court, again on the first
day of trial, to authorize the issuance of certain subpoenas duces
tecum. These broadly worded subpoenas, which were directed toward
a hospital and various Government agencies, were primarily designed
to uncover documents relating to the mental health of certain
prosecution witnesses. In an ex parte letter to the district
court, Hang's attorney explained that he sought documents relating
to one of Hang's accusers, Syphong Souvannarath, largely because
she indicated during an interview that she had spent some time at
the University of Minnesota Hospital and Clinic. Further, based on
nothing but sheer speculation, Hang requested documents which he
felt might reveal that Ms. Souvannarath was defrauding the Social
Security Administration. In addition, Hang desired Government
documents relating to his other accusers, even though the defense
was admittedly "hard-pressed" to describe the information it hoped
to discover in the materials. After examining Hang's ex parte
submission, the district court refused to authorize the issuance of
the subpoenas.
We do not feel that the district court abused its discretion
in declining to authorize the issuance of the subpoenas duces
13
tecum. See United States v. Kalter, 5 F.3d 1166, 1169 (8th Cir.
1993)(stating that a decision whether to quash a subpoena for
documents is committed to the district court's discretion). The
Supreme Court established long ago that Rule 17(c) "was not
intended to provide an additional means of discovery." Bowman
Dairy Co. v. United States, 341 U.S. 214, 220 (1951). Thus, in
order to warrant the issuance of a subpoena duces tecum, a party
must show that "(1) the subpoenaed document is relevant, (2) it is
admissible, and (3) it has been requested with adequate
specificity." United States v. Arditti, 955 F.2d 331, 345 (5th
Cir.)(citing United States v. Nixon, 418 U.S. 683, 700 (1974)),
cert. denied, 113 S. Ct. 597 (1992); see also Kalter, 5 F.3d at
1169. Notably, "[t]hese specificity and relevance elements require
more than the title of a document and conjecture as to its
contents." Arditti, 955 F.2d at 345. In our opinion, Hang failed
to carry his burden as to any of these three elements. To be sure,
Hang's subpoenas did not even identify by name the documents
desired, and his request is replete with conjecture as to the
contents of the materials that might have turned up.
At most, Hang's broad request exemplified his "mere hope" that
the desired documents would produce favorable evidence, and a Rule
17(c) subpoena cannot properly be issued upon a "mere hope." See
United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980)("We
do not think that [a] 'mere hope' justifies enforcement of a
subpoena under [R]ule 17(c)."), cert. denied, 449 U.S. 1126 (1981).
The district court correctly characterized Hang's subpoena request
as a "pure total fishing expedition," and we therefore conclude
that the court appropriately refused to authorize the issuance of
the subpoenas duces tecum.
C. Calculation of Benefit Received
In bribery cases, a district court must adjust the defendant's
base offense level pursuant to the table contained in USSG §2F1.1
14
where "the value of the payment, the benefit received or to be
received in return for the payment, or the loss to the government
from the offense, whichever is greatest, exceeded $2,000." USSG
§2C1.1(b)(2)(A). Here, because the bribes themselves involved
relatively small sums, and as the Government evidently sustained no
measurable loss, the district court, in adopting the Presentence
Investigation Report, sentenced Hang based on the benefit received
by his victims in return for their payments. Hang challenges the
methodology employed by the district court in computing this value.
In making this computation, the district court initially
determined that the value obtained by the victims was federally
subsidized public housing. The court then ascertained the fair
rental value for houses similar to the buildings acquired by the
victims. By subtracting from this figure the rent actually paid by
these individuals, the court derived the net monthly benefit
received in exchange for the bribe. Because the victims might have
stayed indefinitely within the federally subsidized homes, the
court used one year as a baseline from which to determine the total
actual benefit received. Thus, the court multiplied by twelve the
net monthly benefit received by each victim. This yielded a total
benefit of $33,660, which resulted in a four level increase in
Hang's base offense level.
Hang's main objection to this calculation is his assertion
that each of the victims was otherwise eligible for public housing.
Therefore, according to Hang, the computation should be based on
the money the housing recipients saved by more quickly accessing
public housing. Hang's theory of the case, though, is inconsistent
with the facts developed at trial. The accusations of Hang's
victims were linked by a consistent theme, which is perhaps best
exemplified by Syphong Souvannarath's statement that Hang told her
"[i]f [she] didn't pay him, then [she] won't have home to live.
[She] wouldn't get a house." This testimony demonstrates that Hang
completely withheld public housing from certain Southeast Asian
15
individuals until they would pay him bribes. The egregiousness of
Hang's behavior is, if anything, underscored by the fact that the
victims in this case were, indeed, eligible for public housing, for
Hang manipulated his position to prevent them from receiving
Government services to which they were entitled.
The value of the benefit received in exchange for a bribe is
a factual finding that we review for clear error. See United
States v. Dijan, 37 F.3d 398, 403 (8th Cir. 1994), cert. denied,
115 S. Ct. 1418 (1995). Consequently, we may reverse the sentence
only if we are "left with the definite and firm conviction that the
sentencing court erred." United States v. Garrido, 995 F.2d 808,
812 (8th Cir.), cert. denied, 114 S. Ct. 331 (1993). Additionally,
the value of the benefit received need not be determined with
precision. See United States v. French, 46 F.3d 710, 715 (8th Cir.
1995)(stating that the amount of loss need not be determined with
precision)(citing USSG §2B1.1, comment. (n.3)). We cannot say that
the district court committed clear error in calculating the benefit
received in exchange for the victims' bribes,4 and we thus affirm
the four level increase in Hang's offense level assessed according
to the table in USSG §2F1.1.
D. Obstruction of Justice
Finally, Hang claims that the district court improperly
imposed a two point enhancement under USSG §3C1.1 for obstruction
of justice. The district judge imposed this enhancement because of
the harassment perpetrated by Hang's friends and family members
against Government witnesses. Hang contends that the Government
did not introduce sufficient evidence to show that he willfully
4
Indeed, it appears that the district court's methodology was
charitable to Hang. For instance, though the court used one year
as the baseline figure for determining the total value received, in
this case each of the victims actually resided in federally
subsidized housing for longer periods of time.
16
impeded the administration of justice by masterminding this odious
scheme.
We review a district court's findings of fact in support of
this enhancement for clear error. United States v. Grady, 997 F.2d
421, 425 (8th Cir.), cert. denied, 114 S. Ct. 416 (1995). Although
we evaluate de novo the district court's application of the
guidelines to the facts, we give due deference to the district
court's application of the guidelines. United States v.
Bellrichard, 62 F.3d 1046, 1050 (8th Cir. 1995), petition for cert.
filed on Nov. 22, 1995 (No. 95-6845)(unreported). There is no
evidence suggesting that Hang himself ever directly tormented
Government witnesses. Still, under the guideline at issue, Hang is
chargeable "for conduct that he aided or abetted, counseled,
commanded, induced, procured, or willfully caused." USSG §3C1.1,
comment. (n.7). We feel the testimony in this case, as adduced at
trial and during the several related hearings, provided the
district court with an adequate foundation from which it could
logically infer that Hang was directing the nefarious activity of
his confederates. We cannot say that the district court committed
clear error when it found by a preponderance of the evidence that
Hang engaged in conduct which justified the imposition of this
enhancement.
III. CONCLUSION
Hang has failed to persuade us that any of his arguments merit
reversal. Accordingly, we affirm his convictions for accepting a
bribe as a public official in violation of 18 U.S.C. §
201(b)(2)(A), as well as the three concurrent thirty-three month
terms of imprisonment imposed by the district court.
A true copy.
Attest:
17
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
18