216 F.3d 1099 (D.C. Cir. 2000)
United States of America, Appelleev.Ellis Williams, Appellant
No. 99-3050, 99-3104 & 99-3108
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 17, 2000Decided June 23, 2000

Appeals from the United States District Courtfor 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, Assistant Federal Public Defender, argued the cause for appellants.  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:


1
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 jurisdictional question raised by all three defendants is the first  question we will take up.


2
* The statute cited in the indictments sanctions any "public  official" who--


3
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 officialact;  ...  or (C) being induced to do or omit to do anyact in violation of the official duty of such official or person.


4
18 U.S.C.  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, including the District of Columbia...."  18 U.S.C.  201(a)(1).


5
The defendants maintain that Congress's acquiescence in a  bribery statute, enacted by the D.C. Council in 1982, effectively repealed  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  201(b) and applies only to  public servants of the District of Columbia.  See D.C. Code   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  1-233(c)(1) (procedures for review by Congress).  The bill became law when Congress allowed the  requisite time period to elapse without taking action.


6
Though retaining ultimate legislative authority over the  District, Congress delegated certain specific legislative powers 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 exclusively in or to the District." D.C.  Code  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  201.We too agree that  201 continues to apply to District  officials, but for a different reason.


7
Unless there is "clear and manifest" evidence that the 1982  local bribery provision repealed the relevant portion of  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 irreconcilable."  Morton v. Mancari, 417 U.S. 535, 550 (1974).


8
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 imprisonment 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 committee 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.  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.


9
We are unpersuaded.  As far as the D.C. Council is concerned, 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 statutes--three of which appeared in the same chapter as the


10
new bribery provisions.  See Theft and White Collar Crimes  Act of 1982, D.C. Law No. 4-164,  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  201 as it  applied to District officials ever explicitly came before Congress there is no compelling reason why Congress would have  chosen repeal.  When Congress enacted another bribery provision in 1984, it explicitly covered District officials.  See 18  U.S.C.  666(d).  Retaining  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 because Congress failed to act.  Whether any member of the  Senate or House paid attention to the question of repealing   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


11
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

12
The jury found one of the defendants--Daryl Johnson-guilty of selling a motor vehicle inspection sticker, in violation of 18 U.S.C.  201(b)(2).  Johnson filed motions for a judgment 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.


13
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 Randhawa's taxicab.


14
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, Dashtizadeh reported, must have come from either Johnson or  Banks because those were the only two inspectors from whom  he purchased stickers.  (Dashtizadeh began purchasing inspection stickers in late 1997 and purchased a total of four or  five stickers from Johnson.)


15
To establish the identity of the inspector who sold the  sticker to Dashtizadeh, the government introduced the paperwork 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 stickerman.  While each of these records points to Johnson as  having custody of sticker T217137, none of them even lists  Banks.


16
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 conceivable premise inconsistent with guilt."  United States v. Carter, 522 F.2d 666, 682 (D.C. Cir. 1975).

III

17
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 respectively.


18
Under the Sentencing Guidelines, bribery of a public official 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.  2C1.1.  When calculating the  number and amount of bribes involved, the sentencing court  may consider all relevant conduct attributable to the defendant.  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 reasonably foreseeable to the defendant.  See U.S.S.G.  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.


19
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 identifying 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 demonstrating that Williams and Depp  joined the conspiracy soon  after their employment began.  See United States v. Childress, 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).


20
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 government, 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 difference to its relevant conduct determination, resentencing of  Williams is unwarranted.


21
As to Depp, the error is not inconsequential.  The district  court used a conspiracy period from 1991 through the indictment 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 particularized findings.


22
The case is remanded with respect to Leon Depp for  resentencing.  In all other respects, the judgment of the  district court is affirmed.


23
So ordered.



Notes:


1
 Congress has amended  201 twice since 1982, when the District'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,  46(a)-(1), 100 Stat. 3592, 3601-04 (1986);  Pub. L.  No. 103-322, tit. XXXIII,  330011(b), 330016(2)(D), 108 Stat.  1796, 2144, 2148 (1994).


