The Honorable David S. Doty, United States District Judge for 1

the District of Minnesota. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 96-1588

_____________

United States of America, *

*

Plaintiff-Appellee, * Appeal from the United States

* District Court for the

v. * District of Minnesota.

*

Clark Beach Field, *

*

Defendant-Appellant. *

_____________

Submitted: November 20, 1996

 Filed: April 7, 1997 

_____________

Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.

_____________

HANSEN, Circuit Judge.

Clark Beach Field appeals one aspect of his sentence -- the

district court's denial of a reduction for acceptance of

1

responsibility. We affirm. 
We also affirm Richard Field's sentence today in a separate

2

appeal. See United States v. Richard William Field, No. 96-1589

(8th Cir. Apr. ___, 1997). 

For additional facts concerning Martin Gjerde's involvement

3

in the scheme, see United States v. Gjerde, No. 96-2033 (8th Cir.

Apr. ___, 1997).

2

Clark Field and his brother Richard Field applied to the city 2

of Clarkfield, Minnesota, for a loan through the Small Cities Grant

Program, funded by the Department of Housing and Urban Development

(HUD). The Fields sought funding in the amount of $282,000 to

establish their new whey drying business, Clarkfield Drying,

Incorporated. Before agreeing to release the HUD funds, the

Minnesota Department of Trade and Economic Development, which

administered the federal program, required proof through a loan

commitment letter that the Fields had secured additional private

financing. Unable to secure additional private funding totalling

$292,000 after numerous attempts, the Field brothers entered into

a conspiracy to obtain the HUD funds through a false letter of

credit from Rudell Oppegard, president of the Twin Valley State

Bank of Twin Valley, Minnesota. When this attempt also failed,

they entered into a conspiracy to secure the funds through false

documentation of private funding through the Bonanza Valley State

Bank of Brooten, Minnesota, and its president, Martin Gjerde. 

3

The Field brothers and the bankers were indicted on various

charges of mail fraud and two charges of conspiracy to defraud the

United States government. The counts relating to the Twin Valley

State Bank conspiracy were severed from the counts relating to the

Bonanza Valley State Bank conspiracy, and tried separately. First,

the Fields and Oppegard, coconspirator in the Twin Valley State

Bank conspiracy, proceeded to trial on one count of conspiracy to

defraud the United States of funds in violation of 18 U.S.C. § 371

(1994), and one count of mail fraud in violation of 18 U.S.C. 
3

§ 1341. The jury convicted all three defendants on both counts.

Thereafter, on the first day of the separate trial involving the

charges arising out of the Bonanza Valley State Bank conspiracy,

Clark and Richard Field both pleaded guilty to one additional count

of conspiracy to defraud the United States based upon their

dealings with Gjerde and the Bonanza Valley State Bank (they also

waived their right to appeal the guilty verdicts that resulted from

the trial with Oppegard). In return, the government dismissed all

remaining counts of the indictment against the Fields. Gjerde

pleaded not guilty and proceeded to trial where the jury convicted

him of one count of conspiracy. 

At sentencing, the district court denied Clark's request for

an acceptance-of-responsibility adjustment to his base offense

level. The district court sentenced Clark to twenty-three months

of imprisonment and two years of supervised release. Field appeals

his sentence, challenging the district court's denial of the

reduction for acceptance of responsibility.

The Sentencing Guidelines permit a two-level reduction in a

defendant's base offense level if the defendant "clearly

demonstrates acceptance of responsibility for his offense." United

States Sentencing Commission, Guidelines Manual, § 3E1.1(a) (Nov.

1995). The Guidelines permit an additional one-level reduction

when the offense is level 16 or greater and the defendant has

further assisted authorities in the prosecution of his own conduct

by timely providing complete information concerning his own

involvement and timely notifying authorities of his intention to

plead guilty. USSG § 3E1.1(b). The presentence report calculated

Field's total offense level at 16. No downward adjustment for

acceptance of responsibility was recommended by the probation

officer. "We review a district court's factual findings regarding

[a] defendant's acceptance of responsibility for clear error and 
4

overturn the court's denial of such a reduction only if it is

without foundation." United States v. Byrd, 76 F.3d 194, 195 (8th

Cir. 1996) (internal quotations omitted). 

The district court determined that Clark did not accept

responsibility because the evidence indicating such acceptance was

outweighed by conduct inconsistent with an acceptance of

responsibility. The district court found that Clark denied the

essential factual elements of the two counts relating to the Twin

Valley State Bank conspiracy, he put the government to its burden

of proof at trial on those counts, and he did not agree to plead

guilty on the count relating to the Bonanza Valley State Bank

conspiracy until the morning of the second trial, which commenced

a few days after his conviction on both counts in the first trial.

The district court cited Clark's continued assertions that his

illegal acts were in the best interest of the city and that he

broke the law "to satisfy the bureaucrats," as inconsistent with an

acceptance of responsibility.

Clark contends that his is the rare situation where he can

demonstrate acceptance of responsibility even though he exercised

his right to a trial. He asserts that his preindictment voluntary

payment of a substantial amount of restitution indicates an

acceptance of responsibility, and he denies that his statement

about satisfying the bureaucrats was an attempt to blame others for

his conduct, insisting that he merely offered an honest explanation

for his motive. Furthermore, Clark asserts that he did not deny

any factual element at trial but exercised his right to a trial

only "to make a constitutional challenge to a statute or a

challenge to the applicability of a statute to his conduct." USSG

§ 3E1.1, comment. (n.2). See United States v. Unzueta-Gallarso,

966 F.2d 390, 391 (8th Cir. 1992). 
5

When reviewing the grant or denial of a reduction for

acceptance of responsibility, we afford great deference to the

determination of the district court judge, who is in a unique

position to evaluate whether a defendant has accepted

responsibility for his offense. Byrd, 76 F.3d at 196; USSG

§ 3E1.1, comment. (n.5). We conclude that the district court did

not clearly err by denying a reduction for acceptance of

responsibility in this case. As indicated above, the presentence

investigation report did not recommend a reduction for acceptance

of responsibility. The record reveals Clark went to trial

contesting the factual elements of guilt on counts one and two.

There were no stipulations of guilty conduct eliminating factual

elements of guilt or limiting trial to a constitutional or

statutory challenge. The district court concluded that Clark's

attempt to minimize his role, to maintain that his illegal actions

were in the city's best interest, and to blame his conduct on the

pressure of satisfying bureaucrats is inconsistent with a true

acceptance of responsibility. This conclusion is not without

foundation. Such conduct is more akin to a defendant who continues

to deny the fraud than to one who accepts responsibility for his

actions. See United States v. Roggy, 76 F.3d 189, 194 (8th Cir.)

(noting that a defendant who continues to deny the fraud is not

entitled to a reduction for acceptance of responsibility), cert.

denied, 116 S. Ct. 1700 (1996). Furthermore, the "mere expression

of remorse does not warrant a reduction under section 3E1.1." Id.

While voluntary payment of restitution prior to an adjudication of

guilt is a legitimate consideration in determining whether a

defendant is entitled to a reduction for acceptance of

responsibility, USSG § 3E.1., comment (n.1(c)), in light of Clark's

other actions and statements, we conclude that the district court

did not abuse its discretion by denying a reduction for acceptance

of responsibility. 
6

Accordingly, we affirm the judgment of the district court. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.