The Honorable David S. Doty, United States Dis trict 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 -- th e dist rict court's denial of a reduction for acceptance o f 1 responsibility. We affirm.W e also affirm Richard Field's sentence today in a separat e 2 appeal. See United States v. Richard William Field , No. 96-158 9 (8th Cir. Apr. ___, 1997).
For additional facts concerning Martin Gjerde's involvemen t 3 in the scheme, see United States v. Gjerde , No. 96-2033 (8th Cir. Apr. ___, 1997). 2 Clark Field and his brother Richard Field appl ied to the city 2 of Clarkfield, Minnesota, for a loan through the Small Citie s Grant Program, funded by the Departm ent of Housing and Urban Development (H UD). The Fields sought funding in the amount of $282,000 t o est ablishtheir new whey drying business, Clarkfield Drying , Incorp orated. Before agreeing to release the HUD funds, th e Minnesota Department of Trade and Economic Development, whic h admi nisteredthe federal program, required proof through a loa n commit ment letter that the Fields had secured additional privat e 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 o f credit from Rudell Oppegard, president of the Twin Valley Stat e Bank of Twin Valley, Minnesota. When this attempt also failed , theyentered into a conspiracy to secure the funds through fals e 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 variou s 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 sev ered from the counts relating to the Bonanza Valley State Bank conspiracy, and tried separately. First, the Fi elds and Oppegard, coconspirator in the Twin Valley Stat e Bank conspiracy, proceeded to trial on one count of conspiracy to defraud the United States of f unds 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 th e cha rges arising out of the Bonanza Valley State Bank conspiracy , Clark and Richard Field both pleaded guilty to one additiona l count of conspiracy to defraud the United States based upon thei r dealings with Gjerde and the Bonanza Valley State Bank (they also waived their right to appeal the guilty verdicts that result ed from the trial with Oppegard). In return, the government dismissed all remaining counts of the indictment against the Fields. Gjerd e pleaded not guilty and proceed ed to trial where the jury convicted him of one count of conspiracy.
At sentencing, the district court denied Clark's request for
anacceptance-of-responsibility adjustment to his base offens e level. The district court sentenced Clark to twenty-three months of imprisonment and two years of supervised release. Field appeals his se ntence, challenging the district court's denial of th e reduction for acceptance of responsibility. The Se ntencing Guidelines permit a two-level reduction in a defe ndant's base offense level if the defendant "clearl y 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 reductio n when the o ffense is level 16 or greater and the defendant ha s further assisted authorities i n the prosecution of his own conduct by ti mely providing complete information concerning his ow n involv ement and timely notifying authorities of his intention t o plead guilty. USSG § 3E1.1(b) . The presentence report calculated Field's total offense level at 16. No downward adjustment fo r acceptance of responsibility was recommended by the probatio n officer. "We review a distric t court's factual findings regarding [a] defendant's acceptance of responsibility for clear error and4

overturn t he court's denial of such a reduction only if it i s without foundation." United S tates v. Byrd , 76 F.3d 194, 195 (8th Cir. 1996) (internal quotations omitted).

The di strict court determined that Clark did not accep t responsibility because the evi dence indicating such acceptance was outw eighed by conduct inconsistent with an acceptance o f respon sibility. The district court found that Clark denied th e essential factual elements of the two counts relating to the Twin Valley State Bank conspiracy, he put the government to its burden of p roof at trial on those counts, and he did not agree to plea d guiltyon the count relating to the Bonanza Valley State Ban k conspiracy until the morning of the second trial, which commenced a few days after his convictio n on both counts in the first trial. Th e district court cited Clark's continued assertions that hi s illega l acts were in the best interest of the city and that h e broke the law "to satisfy the bureaucrats," as inconsistent with an acceptance of responsibility.

Clark contends that his is the rare situation where he ca n demonstrate acceptance of responsibility even though he exercised his right to a trial. He asse rts that his preindictment voluntary paym ent of a substantial amount of restitution indicates a n
ac ceptance of responsibility, and he denies that his statemen t about satisfying the bureaucrats was an attempt to blame oth ers for his conduct, insisting that he merely offered an honest expl anation for his motive. Furthermore, Clark asserts that he did not den y any f actual element at trial but exercised his right to a tria l only"to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct." USSG § 3 E1.1, comment. (n.2). See United States v. Unzueta-Gallarso , 966 F.2d 390, 391 (8th Cir. 1992).5

Whe nreviewing the grant or denial of a reduction fo r
ac ceptance of responsibility, we afford great deference to th e determinationof the district court judge, who is in a uniqu e pos itionto evaluate whether a defendant has accepte d responsibilityfor his offense. Byrd , 76 F.3d at 196; USS G § 3E1.1, comment. (n.5). We conclude that the district court did not clearly err by denying a reduction for acceptance o f 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 tria l contesting the factual elements of guilt on counts one and two

. There were no stipulations of guilty conduct eliminating factua l ele ments of guilt or limiting trial to a constitutional o r stat utorychallenge. 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 pr essure of satisfying bureaucrats is inconsistent with a tru e acceptance of responsibility. This conclusion is not withou t foundation. Such conduct is more akin to a defendant who co ntinues to deny the fraud than to one who accepts responsibility for hi s actions. See United States v. Roggy , 76 F.3d 189, 194 (8th Cir.) (noti ng that a defendant who continues to deny the fraud is no t entitl edto 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 res titution prior to an adjudication of guilt is a legitimate consideration in determining whether a de fendant is entitled to a reduction for acceptance o f 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.