United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 17, 2000 Decided June 23, 2000
No. 99-3050
United States of America,
Appellee
v.
Ellis Williams,
Appellant
Consolidated with
Nos. 99-3104 & 99-3108
Appeals from the United States District Court
for the District of Columbia
(98cr00090-01)
(98cr00090-02)
(98cr00090-04)
---------
Edward C. Sussman, appointed by the court, H. Heather
Shaner, appointed by the court, and Gregory L. Poe, Assis-
tant Federal Public Defender, argued the cause for appel-
lants. With them on the briefs was A. J. Kramer, Federal
Public Defender.
Jean W. Sexton, Assistant United States Attorney, argued
the cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, and John R. Fisher, Assistant U.S.
Attorney. Asuncion C. Hostin, Assistant U.S. Attorney,
entered an appearance.
Before: Williams, Randolph, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: In the District of Columbia,
taxicabs must be inspected every six months. A sticker
affixed to the windshield signifies that the vehicle has passed
inspection. The three defendants in this appeal had worked
as motor vehicle inspectors at one of the District's inspection
stations. While so employed they engaged in a conspiracy to
sell inspection stickers to taxicab drivers and others. A jury
found one of the defendants guilty of receiving a bribe in
violation of federal law, and another guilty of conspiring to
receive a bribe. The third defendant entered a guilty plea to
receiving a bribe, while reserving the right to challenge the
district court's jurisdiction on appeal. The so-called jurisdic-
tional question raised by all three defendants is the first
question we will take up.
I
The statute cited in the indictments sanctions any "public
official" who--
directly or indirectly, corruptly demands, seeks, receives,
accepts, or agrees to receive or accept anything of value
personally or for any other person or entity, in return for
(A) being influenced in the performance of any official
act; ... or (C) being induced to do or omit to do any
act in violation of the official duty of such official or
person.
18 U.S.C. s 201(b)(2)(A), (C). Enacted in 1962, the statute
applied to District officials through the following language:
"the term 'public official' means ... an officer or employee or
person acting for or on behalf of the United States, or any
department, agency or branch of Government thereof, includ-
ing the District of Columbia...." 18 U.S.C. s 201(a)(1).
The defendants maintain that Congress's acquiescence in a
bribery statute, enacted by the D.C. Council in 1982, effec-
tively repealed s 201's applicability to District officials. The
local bribery statute, introduced as part of the District of
Columbia Theft and White Collar Crimes Act, D.C. Law
4-164, uses language similar to s 201(b) and applies only to
public servants of the District of Columbia. See D.C. Code
ss 22-711(6), 22-712. Pursuant to the District of Columbia
Self-Government and Governmental Reorganization Act, Pub.
L. No. 93-198, 87 Stat. 774 (1973) (the "Home Rule Act"), the
mayor signed the bill including the new bribery provision, and
the Council forwarded the statute for review by Congress.
See D.C. Code s 1-233(c)(1) (procedures for review by Con-
gress). The bill became law when Congress allowed the
requisite time period to elapse without taking action.
Though retaining ultimate legislative authority over the
District, Congress delegated certain specific legislative pow-
ers to the D.C. Council in the Home Rule Act. Among the
explicit limitations on the Council is that the Council may not
"enact any act, or enact any act to amend or repeal any Act of
Congress, ... which is not restricted in its application exclu-
sively in or to the District." D.C. Code s 1-233(a)(3). The
district court held that this limitation barred the Council from
putting before Congress a provision that would repeal the
local portion of a nationally-applicable statute such as s 201.
We too agree that s 201 continues to apply to District
officials, but for a different reason.
Unless there is "clear and manifest" evidence that the 1982
local bribery provision repealed the relevant portion of s 201,
the federal bribery statute stands as enacted. Posadas v.
National City Bank of N.Y., 296 U.S. 497, 504 (1936); see
Navegar, Inc. v. United States, 192 F.3d 1050, 1063 n.8 (D.C.
Cir. 1999); United States v. Hansen, 772 F.2d 940, 944 (D.C.
Cir. 1985). The fact that the D.C. law covers " 'some or even
all of the cases provided for by [the prior act]' " is not a basis
for finding a repeal. Posadas, 296 U.S. at 504 (quoting Wood
v. United States, 41 U.S. (16 Pet.) 342, 362-63 (1842)). It is
not uncommon for laws to be cumulative. Local criminal laws
may cover the same offenses as federal criminal laws. "In
the absence of some affirmative showing of an intention to
repeal, the only permissible justification for a repeal by
implication is when the earlier and later statutes are irrecon-
cilable." Morton v. Mancari, 417 U.S. 535, 550 (1974).
The local bribery statute and the federal statute are not
irreconcilable. They are instead quite consistent. They both
prohibit the same conduct by District employees; the only
significant difference between them is that the maximum
penalty for the federal offense is up to 15 years of imprison-
ment while the District offense carries a maximum of 10
years' imprisonment. The defendants therefore do not spend
much time trying to convince us that the two statutes cannot
stand together. They rely instead on a 1981 Senate commit-
tee report on a criminal code reform bill that was never
enacted. See S. Rep. No. 97-307, at 432 (1982). Among
other things, the bill would have replaced 18 U.S.C. s 201(b)
with a new provision that excluded District of Columbia
public servants. The bill responded to the D.C. Council's
concurrent efforts to revise the D.C. criminal code, including
the enactment of the bribery provision now found in section
22-712. The defendants tell us that one of the D.C. Council's
objectives in enacting its own bribery provision was "to
consolidate and clarify" the District of Columbia criminal
laws. Brief for Appellants at 26, quoting Report by D.C.
Council's Committee on the Judiciary, June 1, 1982, Bill No.
4-133. This, the defendants say, amounts to "clear and
manifest" evidence of an implied repeal.
We are unpersuaded. As far as the D.C. Council is con-
cerned, we cannot find any intent to repeal: at the same time
it sent the local bribery provision up to Congress, the Council
sent up legislation expressly repealing fifty-eight other stat-
utes--three of which appeared in the same chapter as the
new bribery provisions. See Theft and White Collar Crimes
Act of 1982, D.C. Law No. 4-164, s 602(a)-(fff), Act No.
4-238. As far as Congress is concerned, a report by one
Congressional committee on a bill that was never enacted
counts for very little. If the question of repealing s 201 as it
applied to District officials ever explicitly came before Con-
gress there is no compelling reason why Congress would have
chosen repeal. When Congress enacted another bribery pro-
vision in 1984, it explicitly covered District officials. See 18
U.S.C. s 666(d). Retaining s 201 as enacted might seem
desirable to Congress, if only because this gives the United
States Attorney the option of filing in either the local courts
or the federal courts. That is an option the United States
Attorney enjoys with respect to many offenses, particularly
those dealing with drugs. See United States v. Mills, 964
F.2d 1186, 1188 (D.C. Cir. 1992) (en banc). Federal court has
sometimes been the venue of choice because federal sentences
are higher. See id. Furthermore, the District's bribery
provision became law not because Congress acted, but be-
cause Congress failed to act. Whether any member of the
Senate or House paid attention to the question of repealing
s 201 is impossible to know. Still less is there clear and
manifest evidence that a majority of the members of both
houses considered their inaction a vote for repeal.1
Because the statutes are not irreconcilable and there is no
convincing evidence that the later act was intended as a
substitute, we hold that a repeal by implication did not occur.
See Posadas, 296 U.S. at 503.
II
The jury found one of the defendants--Daryl Johnson--
guilty of selling a motor vehicle inspection sticker, in violation
__________
1 Congress has amended s 201 twice since 1982, when the Dis-
trict's bribery statute took effect, but it never took the opportunity
to exclude District officials from the statute's coverage. See Pub.
L. No. 99-646, s 46(a)-(1), 100 Stat. 3592, 3601-04 (1986); Pub. L.
No. 103-322, tit. XXXIII, ss 330011(b), 330016(2)(D), 108 Stat.
1796, 2144, 2148 (1994).
of 18 U.S.C. s 201(b)(2). Johnson filed motions for a judg-
ment of acquittal and a new trial, contending that there was
insufficient evidence to convict him on the bribery charge
either as a principal or as an aider and abettor, a contention
he renews on appeal. The district court denied the motions.
Viewing the evidence most favorably to the government, as
we must, see United States v. Clark, 184 F.3d 858, 863 (D.C.
Cir. 1999), leads to the conclusion that on November 6, 1997,
while working as a vehicle inspector for the District, Johnson
sold inspection sticker T217137 to Mohammed Dashtizadeh
for approximately $70.00. Prem Randhawa, a taxicab driver,
asked Kamal, a body shop repairman, to fix the grille on his
cab so that it would pass inspection. Kamal told Randhawa
that the grille could not be fixed but that he could arrange for
a person known as Mr. Mo to pass inspection in Randhawa's
cab. Randhawa went to see Mr. Mo and paid him $150.00 to
take the car to be inspected. Mr. Mo later returned the cab
to Randhawa with a sticker on it. The parties stipulated that
government agents removed sticker T217137 from Randha-
wa's taxicab.
The middleman, Mohammed Dashtizadeh, testified about
his role in the transaction. Dashtizadeh said that he knew of
Randhawa and was able to identify him in court. When
asked how they knew each other, Dashtizadeh recounted that
his friend Kamal had phoned him regarding the grille on
Randhawa's taxicab. Kamal sent Randhawa to Dashtizadeh
to obtain an inspection sticker. Dashtizadeh testified that he
sold a sticker to Randhawa for $150.00. The sticker, Dashti-
zadeh reported, must have come from either Johnson or
Banks because those were the only two inspectors from whom
he purchased stickers. (Dashtizadeh began purchasing in-
spection stickers in late 1997 and purchased a total of four or
five stickers from Johnson.)
To establish the identity of the inspector who sold the
sticker to Dashtizadeh, the government introduced the paper-
work used during the inspection process. Johnson's initials
on the sign-out log indicate that sticker T217137 was in his
possession on the day the corresponding inspection card was
printed for inspection of a taxicab. Johnson's custody of
T217137 is further confirmed by the lane report for that day
which lists him as the stickerman--the person who affixes the
sticker to the windshield--and by his signature on the sticker
inventory log. In addition, the government produced the
inspection card for sticker T217137 which lists Brooks as the
entrance booth inspector, co-defendant Depp as the lane
inspector, and Johnson working the exit booth as the sticker-
man. While each of these records points to Johnson as
having custody of sticker T217137, none of them even lists
Banks.
Johnson views the evidence as insufficient to support the
verdict because the government never established directly
that he sold the sticker to Dashtizadeh. How, he asks, could
the jury decide that he, rather than Banks, sold the sticker
without direct proof? The answer is through circumstantial
evidence. The sort of direct evidence Johnson thinks was
needed was not needed. As the Supreme Court has said,
"direct evidence of a fact is not required. Circumstantial
evidence is not only sufficient, but may also be more certain,
satisfying and persuasive than direct evidence." Michalic v.
Cleveland Tankers, Inc., 364 U.S. 325, 330 (1960); see also
United States v. Fadayini, 28 F.3d 1236, 1239-40 (D.C. Cir.
1994). Those who have tried criminal cases are familiar with
this example of the power of circumstantial evidence: if you
go to bed on a winter's night and the ground is clear and you
wake up the next morning and see snow on the ground, you
have circumstantial evidence that it snowed last night. The
circumstantial evidence here, while not that powerful, leads us
to conclude that, with respect to Johnson, "any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S.
307, 319 (1979). It is true that Dashtizadeh's testimony left
open the possibility that Banks was the seller. But a rational
juror could see this possibility as remote indeed in light of
evidence we have discussed and, at all events, it is settled that
the government's evidence need not "foreclose every conceiv-
able premise inconsistent with guilt." United States v. Car-
ter, 522 F.2d 666, 682 (D.C. Cir. 1975).
III
Defendants Ellis Williams and Leon Depp challenge the
district court's calculation of the relevant conduct attributable
to them for their roles in the bribery scheme. They complain
that the court failed to make specific findings concerning
when they joined the conspiracy and attributed bribe amounts
to them that were not reasonably foreseeable in furtherance
of jointly undertaken criminal activity. The district court
held, and the government now argues, that Depp and
Williams are responsible for all bribes taken after they began
working at the inspection station, in 1991 and 1992 respective-
ly.
Under the Sentencing Guidelines, bribery of a public offi-
cial carries a base offense level of ten, which is increased
when the offense involves multiple bribes or amounts more
than $2,000. See U.S.S.G. s 2C1.1. When calculating the
number and amount of bribes involved, the sentencing court
may consider all relevant conduct attributable to the defen-
dant. In the case of a jointly undertaken criminal activity,
this includes any acts and omissions of others in furtherance
of the jointly undertaken criminal activity that were reason-
ably foreseeable to the defendant. See U.S.S.G. s 1B1.3.
Applying this standard, the district court held that Depp and
Williams were accountable for the bribes taken by the other
inspectors because those actions were both in furtherance of
jointly undertaken activity and reasonably foreseeable to
them. Accordingly, the court held Williams responsible for
payments totaling between $40,000 to $70,000 and Depp for
payments between $70,000 to $120,000.
The court based its determination, which we review for
clear error, see United States v. Pinnick, 47 F.3d 434, 437
(D.C. Cir. 1995), on the assumption that Depp and Williams
began participating in the bribery scheme as soon as they
began working at the inspection station. Instead of identify-
ing specific facts to establish that their involvement began at
that time, the court relied on the fact that the "conspiracy ...
started back in the '80s" and required the cooperation of
other inspectors to make it work. With respect to Depp, the
court found it significant that "there was never any indication
that he was not involved from the beginning." From this, the
court inferred--unreasonably, we think--that both must have
joined the scheme quite soon after starting work at the
station. That inference is without an evidentiary basis. For
one thing, the record shows that not all of the inspectors at
the inspection station were involved in the conspiracy. It is
possible that Williams and Depp waited some time before
opting to join in. The district court's conclusion was thus
improper in the absence of particularized findings demon-
strating that Williams and Depp joined the conspiracy soon
after their employment began. See United States v. Chil-
dress, 58 F.3d 693, 722 (D.C. Cir. 1995) (requiring that
sentencing court make individualized findings on whether
actions were reasonably foreseeable to defendant); United
States v. O'Campo, 973 F.2d 1015, 1022-26 (1st Cir. 1992)
(finding that cocaine sales by coconspirators before defendant
joined conspiracy were not "relevant conduct" for sentencing).
Nevertheless, as applied to Williams, the district court's
erroneous determination is harmless. The court held
Williams responsible for bribes taken as of 1992. Williams
maintains the evidence established his involvement began no
earlier than 1994. Even if Williams is correct, and we
subtract the bribe amounts from 1992 to 1994, Williams is still
accountable for more than $40,000. The district court relied
on figures submitted by the probation officer and the govern-
ment, both of whom put the total amount at more than
$49,000. Eliminating bribes taken before 1994 only reduces
the total amount by about $4,700. Had the district court
included only bribes taken after Williams is known to have
joined the scheme, the total would still have been more than
$44,000. Because the district court's error made no differ-
ence to its relevant conduct determination, resentencing of
Williams is unwarranted.
As to Depp, the error is not inconsequential. The district
court used a conspiracy period from 1991 through the indict-
ment in 1998. At the sentencing hearing, Depp disputed the
length of this period, contending the evidence establishes his
involvement only as of February 1996. Refusing to shorten
the conspiracy period, the court held Depp responsible for
bribes valued at the low end of the $70,000 to $120,000
range--calculating the total as $70,065 but conceding that the
government's figure of $86,325 was largely credible. If we
recalculate the amount without bribes taken from 1991
through 1995 the total figure is significantly reduced. The
reduction for bribes provided by just one individual (Otoo) to
Johnson alone, even crediting Depp's objections, amounts to
at least $24,500. Given the potential for such a substantial
reduction, a remand for a new assessment of Depp's relative
conduct is necessary. In making that reassessment, the
district court may rely on either of the two methods the
government presented for calculating relevant conduct--the
testimony of the inspectors' customers or the extrapolation
from a sampling of illegal stickers. It may not, however,
decide that Depp's participation in the scheme began at the
same time as his employment without the support of particu-
larized findings.
The case is remanded with respect to Leon Depp for
resentencing. In all other respects, the judgment of the
district court is affirmed.
So ordered.
United States v. Williams, Ellis
Court: Court of Appeals for the D.C. Circuit
Date filed: 2000-06-23
Citations: 216 F.3d 1099, 342 U.S. App. D.C. 256
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