                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             MAY 19 2004
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                          No. 03-6236
                                                             (W.D. Okla.)
 EDWARD ARMAH TAGOE, a/k/a Edward                      (D.Ct. No. 02-CR-195-T)
 A. Tagoe, a/k/a Kareem Ebumbo,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before TACHA, Chief Judge, and PORFILIO and BRORBY, Senior Circuit
Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Appellant Edward A. Tagoe, a federal prisoner represented by counsel,

appeals his ten-month sentence for making false statements, in violation of 18

U.S.C. § 1001(a)(3). He asserts the district court erred by: 1) enhancing his

sentence for obstruction of justice under United States Sentencing Guideline

(U.S.S.G.) §3C1.1, and 2) declining to reduce his sentence for acceptance of

responsibility under U.S.S.G. §3E1.1. We exercise jurisdiction pursuant to 18

U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirm the district court’s sentence.



                                    I. Background

      During an investigation into a series of insurance claims Mr. Tagoe

submitted to the United States Postal Service, postal inspectors determined Mr.

Tagoe used altered sales receipts and invoices to support his claims. Specifically,

Mr. Tagoe filed three separate insurance claims for packages he allegedly shipped

separately to Ghana, contending each package contained a currency counter

machine and a camcorder, as well as other merchandise. The investigation

revealed Mr. Tagoe submitted the same receipts for the currency counter and

camcorder on each of the claims, and that someone altered the receipts and

updated them to make them appear different and more recent. Similarly, Mr.

Tagoe submitted an insurance claim on four allegedly lost boxes of clothing he

sent to Italy, using a receipt altered to increase the total value of the contents of


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those four boxes to ten times their value, from $317.37 to $3,171.87. During the

course of these submissions, postal inspectors also discovered Mr. Tagoe

repeatedly used false names. Based on these submissions and Mr. Tagoe’s

admission at trial that he altered the supporting receipts or invoices to support his

insurance claims, a grand jury indicted Mr. Tagoe on six counts of devising a

scheme to defraud the United States Postal Service by submitting false insurance

claim forms supported by altered sales receipts, in violation of 18 U.S.C.

§ 1001(a)(3). The indictment also charged him with nine counts of mail fraud

under 18 U.S.C. § 1341. At trial, a jury convicted Mr. Tagoe of the six counts of

submitting false statements on claims filed with the United States Postal Service

in violation of 18 U.S.C. § 1001(a)(3), but found him not guilty of the nine counts

of mail fraud.



            II. Presentence Report, Objections Thereto, and Sentencing

      In preparing the presentence report, the probation officer increased Mr.

Tagoe’s offense level by two levels under U.S.S.G. §3C1.1 for obstruction of

justice, and did not apply a downward adjustment for acceptance of responsibility

under §3E1.1, basing both determinations, in part, on Mr. Tagoe’s perjured

testimony at trial. Applying various other sentencing factors, the probation

officer calculated Mr. Tagoe’s total offense level at 12 and his criminal history


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category at I, for a final guideline range of ten to sixteen months imprisonment.



      Through counsel, Mr. Tagoe objected to both recommendations concerning

U.S.S.G. §§3C1.1 and 3E1.1, which the district court addressed at the sentencing

hearing. The district court determined an enhancement for obstruction of justice

applied, but that no downward adjustment for acceptance of responsibility was

warranted. In so doing, the district court made explicit factual findings with

respect to both sentencing determinations, and later summarized its findings in

writing. In applying the recommended guidelines and determining Mr. Tagoe’s

final sentence, the district court applied the bottom of the sentencing range of ten

to sixteen months and sentenced him to ten months imprisonment on each of the

six counts, to run concurrently.




                                   III. Discussion

      On appeal, Mr. Tagoe raises the same two Sentencing Guidelines objections

concerning the district court’s sentence enhancement under §3C1.1 for

obstruction of justice and failure to decrease his sentence under §3E1.1 for

acceptance of responsibility. When reviewing an application of the Sentencing

Guidelines, we review the district court’s factual findings for clear error and


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questions of law de novo. See United States v. Espinoza, 338 F.3d 1140, 1151

(10th Cir. 2003), cert. denied, 124 S. Ct. 1688 (2004). This court “will not

disturb a factual finding of the district court unless the court’s finding was

without factual support in the record, or if after reviewing all the evidence, we are

left with the definite and firm conviction that a mistake has been made.” United

States v. Easterling, 921 F.2d 1073, 1077 (10th Cir. 1990) (quotation marks and

citation omitted), cert. denied, 500 U.S. 937 (1991). Applying these standards,

we affirm.



                              A. Obstruction of Justice

      We first consider whether the district court erred in enhancing Mr. Tagoe’s

sentence for obstruction of justice under U.S.S.G. §3C1.1 for providing perjured

testimony. Section 3C1.1 provides:

      If (A) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice during the course of
      the investigation, prosecution or sentencing of the instant offense of
      conviction, and (B) the obstructive conduct related to (i) the
      defendant’s offense of conviction and any relevant conduct; or (ii) a
      closely related offense, increase the offense by 2 levels.

The commentary to §3C1.1 provides “a non-exhaustive list of examples of the

types of conduct to which [a §3C1.1] enhancement applies.” U.S.S.G. §3C1.1,

cmt. n.4. This includes “committing, suborning, or attempting to suborn perjury”

or “producing or attempting to produce a false, altered, or counterfeit document

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or record during an official investigation or judicial proceeding.” U.S.S.G.

§3C1.1, cmt. n.4(b) and (c). For the purposes of §3C1.1, a witness commits

perjury by: 1) giving false testimony under oath; 2) concerning a material matter;

3) with the willful intent to provide false testimony, rather than as a result of

confusion, mistake or faulty memory. See United States v. Hawthorne, 316 F.3d

1140, 1146 (10th Cir.) (relying on United States v. Dunnigan, 507 U.S. 87, 94

(1993)), cert. denied, 124 S. Ct. 209 (2003). A district court’s findings regarding

the obstruction of justice adjustment must encompass all of the factual predicates

of perjury, but generalized findings will suffice. See Hawthorne, 316 F.3d at

1146 (relying on Dunnigan, 507 U.S. at 95). Under the law of this circuit, the

district court must identify the perjurious testimony before making an adjustment

under §3C1.1. See Hawthorne, 316 F.3d at 1146 (relying on United States v.

Massey, 48 F.3d 1560, 1573 (10th Cir.), cert. denied, 515 U.S. 1167 (1995)).




      On appeal, Mr. Tagoe contends the district court erred in applying the two-

level enhancement because it “failed to make the necessary findings establishing

perjury.” In an apparent attempt to explain what findings the district court

omitted, Mr. Tagoe recounts his testimony at trial to show he admitted making

false statements, but did so without the necessary element of wilful intent.


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Specifically, Mr. Tagoe points to testimony where he admitted the receipts and

statements made in support of his postal insurance claims were false, but

explained he submitted the altered receipts only to recover money actually due

him when the Postal Service lost or failed to deliver the packages. Because a

postal worker lost the applicable original receipts, without which Mr. Tagoe could

not prove his insurance claim, he claimed he altered the other receipts to recover

what was rightfully due him. Mr. Tagoe claims his testimony concerning the loss

or misplacement of the original receipts by the postal worker is not material in

terms of a finding of perjury. The government contends otherwise, recounting

Mr. Tagoe’s incredible, contradictory testimony at trial that he provided the

original receipts to the postal worker, as well as the numerous times and details of

each false claim Mr. Tagoe submitted to the Postal Service, and his continued

submission of altered or falsified receipts when he responded to postal inspectors

investigating and challenging his initial claims.



      The government aptly implies that Mr. Tagoe’s pretrial actions, providing

false statements and altered receipts to postal inspectors during their official

investigation of his claims, may justify an obstruction of justice enhancement

under commentary note 4(c) to §C1.1. See, e.g., United States v. McGovern, 329

F.3d 247, 250-52 (1st Cir. 2003) (applying §3C1.1 to administrative audit


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investigation conducted by Medicare and Medicaid where the defendants

submitted false statements to investigators). Nevertheless, because it appears the

district court based the obstruction of justice enhancement solely on the perjury

issue, we address only that issue on appeal.



      In this case, the district court expressly found Mr. Tagoe “lied under oath

and committed perjury.” In so doing, the district court pointed to the explicit

perjurious testimony involving Mr. Tagoe’s statement under oath that he gave the

original receipts or invoices to the postal clerk. In comparing his testimony with

that of the postal clerk, the district court found the postal clerk to be a

“profoundly ... more credible witness,” whose testimony directly contradicted Mr.

Tagoe’s statement he gave her the original receipts, rather than only the altered,

falsified receipts. In applying the three-prong perjury analysis required, the

district court found Mr. Tagoe made: “(1) a false statement under oath, (2)

concerning a material matter, (3) with the wilful intent to provide false

testimony.” In support of this finding, the district court noted Mr. Tagoe’s

“perjury about the original receipts was not only false, but ... material,” given he

was charged with knowingly and willfully making or using “a false document

knowing the same to contain a materially false, fictitious and fraudulent

statement.” (Emphasis added.) The district court noted that when Mr. Tagoe


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“was faced with overwhelming evidence that he submitted false invoices to

support his postal insurance claims,” he committed perjury “designed to defeat the

charges that he ‘knowingly and willfully made’ [those] false claims.” The district

court pointed out Mr. Tagoe did this by attempting to shift the blame for his

actions to the Postal Service, claiming he gave the original receipts to the postal

clerk who lost them.



      Under the circumstances of this case and the law of this circuit, it is clear

the district court sufficiently identified Mr. Tagoe’s perjurious testimony before

making an enhancement adjustment under §3C1.1 and found the specific

necessary elements for perjury. Mr. Tagoe’s general admissions at trial and

contention he only used altered receipts to claim what was rightfully his are

insufficient to overcome the district court’s finding he intentionally committed

perjury when he lied about giving the postal clerk the original receipts, or to

otherwise show the district court’s factual findings of perjury are in clear error.



                          B. Acceptance of Responsiblity

      We next consider whether the district court erred in not reducing Mr.

Tagoe’s sentence for acceptance of responsibility under U.S.S.G. §3E1.1. Section

3E1.1(a) directs the sentencing court to “decrease the offense level by 2 levels” if


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“the defendant clearly demonstrates acceptance of responsibility for his offense.”

Acceptance of responsibility is a factual question and our review of the court’s

determination is limited to clear error. See United States v. Spedalieri, 910 F.2d

707, 712 (10th Cir. 1990). The defendant has the burden of proving by a

preponderance of the evidence that he accepted responsibility. Id. “The

sentencing judge is in a unique position to evaluate a defendant’s acceptance of

responsibility. For this reason, the determination of the sentencing judge is

entitled to great deference on review.” U.S.S.G. §3E1.1, cmt. n.5. The district

court is “in a better position than the appellate court to weigh the defendant’s

sincerity of remorse and contrition.” United States v. Ochoa-Fabian, 935 F.2d

1139, 1143 (10th Cir. 1991), cert. denied, 503-U.S. 961 (1992).



      We recognize that conviction by trial, where the defendant puts the

government to its burden of proof, does not automatically preclude consideration

of a reduction where the defendant clearly demonstrates an acceptance of

responsibility for his criminal conduct. U.S.S.G. §3E1.1, cmt. n.2. However, in

instances where a defendant goes to trial, “a determination that a defendant has

accepted responsibility will be based primarily upon pre-trial statements and

conduct.” Id.




                                         -10-
      On appeal, Mr. Tagoe contends he expressly admitted at trial he altered or

made false statements regarding his receipts in support of his postal insurance

claims, thereby showing his acceptance of responsibility for his criminal conduct.

In support of this argument, Mr. Tagoe renews his argument that he admitted

knowingly and willfully making materially false statements, but that he did not

intend to defraud, or devise a scheme to defraud, the Postal Service. The district

court determined otherwise, stating:

      The Court found that defendant never accepted responsibility for
      anything other than the inescapable fact that he blatantly altered
      documents when the evidence of alteration was so clear that he could
      not deny the acts. Beyond that, he did not come close to accepting
      responsibility for criminal conduct and indeed, almost consistently
      tried to shift the blame to the United States Postal Service.


      Under the circumstances of this case, we conclude the district court did not

commit clear error in refusing to adjust Mr. Tagoe’s offense level downward for

acceptance of responsibility. As previously discussed, it is clear Mr. Tagoe made

his “admissions” more in the nature of shifting the blame, or attempting to

mitigate his conduct, rather than accepting full responsibility or expressing

remorse for his conduct. This lack of acceptance of responsibility is further

evidenced in his brief on appeal, where he continues to assert he submitted the

altered receipts only to recover money actually due him when the Postal Service

lost or failed to deliver his packages and the postal worker lost the applicable


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original receipts, without which he could not prove his insurance claim.



      Moreover, as we previously noted, determinations of acceptance of

responsibility are based primarily on pre-trial statements and conduct, but in this

case, Mr. Tagoe points to no such statements or conduct to help carry his burden

of showing he accepted responsibility for his criminal conduct. See U.S.S.G.

§3E1.1, cmt. n.2. Given the circumstances of this case, our deference to the trial

court’s assessment of credibility, and the clearly erroneous standard we apply, we

sustain the district court’s conclusion a downward reduction for acceptance of

responsibility under §3E.1.1 does not apply in this case.



                                   IV. Conclusion

      For the reasons set forth above, we AFFIRM Mr. Tagoe’s sentence.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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