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. 96-1589

_____________

United States of America, *

*

Plaintiff-Appellee, * Appeal from the United States

* District Court for the

v. * District of Minnesota.

*

Richard William Field, also *

known as Mike Field, *

*

Defendant-Appellant. *

_____________

Submitted: November 20, 1996

 Filed: April 7, 1997 

_____________

Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.

_____________

HANSEN, Circuit Judge.

Richard Field appeals the sentence imposed on him by the

district court following his conviction of one count of conspiracy 1

to defraud the United States of funds and one count of mail fraud,

and following his entry of a guilty plea to one additional count of

conspiracy to defraud the United States. Richard challenges the 
We affirm Clark Field's sentence in a separate appeal filed

2

today. See United States v. Clark Beach Field, No. 96-1588 (8th

Cir. Apr. ___, 1997). 

2

district court's findings that he did not play a mitigating role in

the offense and that he did not accept responsibility for his

offenses, and he challenges the court's refusal to depart downward

because of the economic impact of his incarceration on innocent

third parties. We affirm.

I.

On March 23, 1994, a federal grand jury indicted Richard

Field, his brother Clark Field, Rudell Oppegard, and Martin Gjerde 2

on 15 counts, including charges of conspiracy to defraud the United

States of funds in violation of 18 U.S.C. § 371 (1994), mail fraud

in violation of 18 U.S.C. § 1341, and making false statements in

violation of 18 U.S.C. § 1001. The indictment charged two separate

conspiracies, one involving the Field brothers and Rudell Oppegard

(the Twin Valley State Bank conspiracy), and the other involving

the Field brothers and Martin Gjerde (the Bonanza Valley State Bank

conspiracy). 

Both conspiracies arose out of the Field brothers' application

to the City of Clarkfield, Minnesota, for a Department of Housing

and Urban Development (HUD) Small Cities Grant Program loan in the

amount of $282,000 to establish a new whey drying business,

Clarkfield Drying, Incorporated. Their HUD loan application

indicated that funding in addition to the HUD grant, specifically

an additional $292,000 of private financing, would be necessary for

the purchase of equipment and building renovation to ensure the

success of the business. Before agreeing to release the HUD funds,

the Minnesota Department of Trade and Economic Development (MDTED),
3

which administered the federal program, required proof through a

loan commitment letter that the private financing had been secured.

Unable to secure the necessary additional funding after

numerous attempts, the Field brothers entered into a scheme with

Rudell Oppegard, President of Twin Valley State Bank in Twin

Valley, Minnesota. Oppegard agreed to provide the Fields with a

false letter of credit in the amount of $292,000, written on Twin

Valley State Bank stationery, which the Fields could use in support

of their HUD loan application. All three men knew that the money

would not actually leave the bank. The scheme convinced the

commissioner of the MDTED and the City of Clarkfield that the

required private funding had been secured. Based on this

assumption, the MDTED agreed to release the HUD funds to the city,

which would in turn lend the HUD funds to the Fields, provided the

Fields could prove that the Twin Valley State Bank had closed the

bank loan and released the private funding. Clark Field repeatedly

assured the city that the private funds allegedly secured through

the letter of credit would be released, but the Twin Valley State

Bank did not close on the bank loan and instead informed the city

attorney that the loan commitment letter from Oppegard was

unauthorized, because it purported to lend an amount that was

beyond the bank's lending limit. 

After this fraudulent attempt to obtain the HUD funds failed,

the Fields sought to obtain the $292,000 in private funding through

Martin Gjerde, president of the Bonanza Valley State Bank and a

longtime acquaintance of Richard's. Richard introduced his brother

Clark to Martin Gjerde. Initially, Gjerde indicated that he would

be unable to provide the private funding they sought because, among

other reasons, Clarkfield was outside the Bonanza Valley State

Bank's service area, and Gjerde was not familiar with Clark.

Richard and Clark then proceeded to create a Minnesota corporation,
4

Minnewaska Capital Investment, Inc., in Glenwood, Minnesota, which

is within the Bonanza Valley State Bank service area. Richard was

listed as the president of Minnewaska, a company whose sole purpose

was to funnel money from the bank to Clarkfield Drying, Inc., and

back. 

After the formation of Minnewaska, Gjerde agreed to provide a

paper loan transaction, in which $292,000 would be loaned to

Minnewaska with the understanding among the parties that it would

be repaid within six months. Richard, Clark, and Gjerde signed the

loan, and the bank advanced the funds to a Minnewaska checking

account with Bonanza Valley State Bank. The same day, the funds

were transferred to a Clarkfield Drying, Inc., checking account at

Bonanza Valley State Bank, and $173,000 was immediately transferred

back to the bank through the Minnewaska account. The balance of

$119,000 remained in Clarkfield Drying's account to serve as

evidence that the loan had in fact closed. 

Richard, Clark, and Gjerde represented that $173,000 of the

loan funds had been used to purchase equipment as promised in the

funding letter. The false loan documents were provided as proof

that the Fields had obtained the necessary private funding.

Richard and Clark stated in an affidavit that the funds had been

used to purchase equipment. In reliance on this false

documentation, the MDTED released the HUD funding. After the HUD

funds had been released, Richard paid the remaining balance of the

loan to Bonanza Valley State Bank, as well as $3,571, purportedly

a payment of interest. Bank records reveal that the loan was

merely a paper transaction, that the bank never intended to allow

the funds to leave the bank, and that Gjerde had frozen Clarkfield
For additional facts concerning Martin Gjerde's involvement

3

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

Apr. ___, 1997).

5

Drying's accounts to assure that the money would not be spent.3

The Fields eventually defaulted on the HUD loan. 

As noted above, numerous federal criminal charges arose out of

these two conspiracies to defraud the United States. The district

court severed the counts relating to the Twin Valley State Bank

conspiracy from those related to the Bonanza Valley State Bank

conspiracy, and tried them separately. The first trial involved

the Field brothers and Rudell Oppegard, all charged with one count

of conspiracy to defraud the United States and one count of mail

fraud, arising from the Twin Valley State Bank conspiracy. The

jury returned guilty verdicts against all three defendants on both

counts. Facing a second trial on multiple additional counts

relating to the Bonanza Valley State Bank conspiracy, Richard and

Clark decided to plead guilty to one additional count of conspiracy

to defraud the United States, based on their dealings with Gjerde,

and they waived their right to appeal the guilty verdicts resulting

from the first trial. In return, the government dismissed all

remaining counts of the indictment against them. Gjerde pleaded

not guilty and proceeded to trial, where he was convicted on one

count of conspiracy to defraud the United States of funds but

acquitted on all other counts.

At sentencing, the district court denied Richard's requests

for a reduction based on acceptance of responsibility and his role

in the offense, and also denied his motion for a downward departure

based on economic hardship to innocent third parties. The district

court sentenced Richard to twenty-one months of imprisonment and 
6

two years of supervised release, and ordered partial payment of

restitution in the amount of $5,000. Richard appeals his sentence.

II. 

Richard Field contends that the district court erred in

calculating his sentence by not granting him a four-level reduction

for his claimed minimal role in the offense or a two-level

reduction for his claimed role as a minor participant. The

Guidelines provide that a defendant's offense level is decreased by

four levels if the defendant was a minimal participant in the

criminal activity and two levels if he was a minor participant.

United States Sentencing Commission, Guidelines Manual, § 3B1.2

(Nov. 1995). A "minor" participant is one "who is less culpable

than most other participants, but whose role could not be described

as minimal." USSG § 3B1.2, comment. (n. 3). For conduct that

falls somewhere between these two categories, a three-level

decrease is appropriate. USSG § 3B1.2. A "participant['s] status

depends on culpability, which is a determination requiring

sensitivity to a variety of factors." United States v. Hall, 949

F.2d 247, 249 (8th Cir. 1991) (internal quotations omitted).

Because the evaluation of a participant's status in the offense

involves a factual determination, we must accept the district

court's findings regarding a defendant's role in the offense unless

they are clearly erroneous. United States v. Shaw, 94 F.3d 438,

443 (8th Cir. 1996), cert. denied, Barnes v. United States, 117 S.

Ct. 786 (1997). 

The district court denied any reduction for Richard's role in

the offense, concluding that he was an average participant.

Richard now argues that, although he committed certain criminal

acts, he was ignorant of the fact that he was breaking the law. He
7

contends that he did not sign the false loan documents with

knowledge of fraud. Such an assertion is contrary to the guilty

verdicts entered against him as well as his guilty plea. The

district court found that while Clark was the impetus behind the

scheme, Richard was "deeply involved in the criminal conspiracy"

and "the scheme to defraud would not have succeeded without his

participation." (Sent. Tr. at 160.) The record reveals that

Richard incorporated and was an officer of Clarkfield Drying and

was the president of Minnewaska, the vehicles through which the

schemes to defraud were carried out. Richard aided in obtaining

the false letter of credit from the Twin Valley State Bank and the

paper transaction loan from Bonanza Valley State Bank. All

critical documents bore his signature as well as Clark's, Richard

was present at the loan negotiations, and Richard understood that

the money from the Bonanza Valley State Bank loan would never

really leave the bank. 

Nevertheless, Richard asserts that he is entitled to a

reduction because he is less culpable than his brother, Clark, whom

the district court found to be the driving force behind the scheme

to defraud. Even though Richard may have been less culpable than

his brother, the record clearly indicates that he played an

integral part in the offense throughout the entire scheme. One

defendant can be less culpable than another participant without

necessarily qualifying for a reduction as a minor participant. See

United States v. Rodamaker, 56 F.3d 898, 904 (8th Cir. 1995). We

conclude that the district court did not clearly err in its

determination that Richard was an average participant in the

offense. 

Richard also contends that the district court erred by not

granting him a reduction for acceptance of responsibility. A

district court's decision as to whether a defendant has accepted 
8

responsibility for his criminal acts is largely a factual question

that turns on issues of credibility, and we therefore reverse such

a decision only if it is clearly erroneous. United States v. Behr,

33 F.3d 1033, 1036-37 (8th Cir. 1994). 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. United States v. Byrd, 76 F.3d

194, 196 (8th Cir. 1996); USSG § 3E1.1, comment. (n.5). 

Richard asserts that the district court clearly erred in

concluding he had not accepted responsibility because he pleaded

guilty before the start of the bifurcated trial on the charges

arising from the Bonanza Valley State Bank conspiracy. The

district court found that Richard did not demonstrate an acceptance

of responsibility because he did not timely notify the government

of his intention to plead guilty. Richard went to trial on the two

counts arising out of his activities in the Twin Valley State Bank

conspiracy. He denied the factual elements of his guilt. Only

after the jury found him guilty on those counts did he enter his

plea of guilty to the Bonanza Valley State Bank conspiracy, and

then not until the first day of the second trial. The timeliness

of his conduct in manifesting an acceptance of responsibility is an

appropriate consideration when determining whether a defendant

qualifies for a reduction on this basis. USSG § 3E1.1, comment.

(n.1(h)). Accordingly, we conclude that the district court did not

clearly err in denying Richard a reduction to his offense level for

acceptance of responsibility. 

Finally, Richard contends that the district court erred by not

recognizing its authority to depart downward on the basis of

economic hardship to innocent third parties. The district court

may impose a sentence outside the guideline range "if the court

finds that there exists an aggravating or mitigating circumstance
9

of a kind, or to a degree, not adequately taken into consideration

by the Sentencing Commission in formulating the guidelines that

should result in a sentence different from that described." USSG

§ 5K2.0 (internal quotations omitted). A circumstance that is not

ordinarily relevant to the sentencing determination may be relevant

under this section provided it is "present to an unusual degree and

distinguishes the case from the `heartland' cases covered by the

guidelines in a way that is important to the statutory purposes of

sentencing." Id. 

We accord a unitary abuse-of-discretion review to "[a]

district court's decision to depart from the Guidelines," Koon v.

United States, 116 S. Ct. 2035, 2046 (1996), but a discretionary

decision not to depart from the Guidelines is unreviewable on

appeal absent an unconstitutional motive, United States v.

McCarthy, 97 F.3d 1562, 1578 (1996), cert. denied, 117 S. Ct. 1011

(1997); United States v. Deitz, 991 F.2d 443, 447 (8th Cir. 1993).

We have jurisdiction to review a district court's decision not to

depart only where the decision is based on the district court's

legally erroneous determination that it lacked authority to

consider a particular mitigating factor. Deitz, 991 F.2d at 447.

See also Koon, 116 S. Ct. at 2047 ("whether a factor is a

permissible basis for departure under any circumstances is a

question of law, and the court of appeals need not defer to the

district court's resolution of the point"). 

In this case, Richard moved for a downward departure on the

ground that his imprisonment will cause economic hardship to

innocent third parties, namely his family and those persons

employed by his lutefisk business. The district court concluded

that "under the facts of this case, a downward departure based on

the impact that the defendant's incarceration will have on his

business and employees is not warranted." (Sent. Tr. at 163.) 
10

This record fairly indicates to us that the district court

recognized its authority to depart in an exceptional circumstance,

even though family and community ties are not ordinarily relevant

in determining whether to depart from an identified guideline

range, see USSG § 5H1.6, but exercised its discretion not to

depart. "The court has considered the defendant's argument in

support of departing downward from the applicable guideline range.

. . . The court concludes that . . . there are no grounds that

justify a departure from the guideline range in this case." (Sent.

Tr. at 164.) See United States v. Bieri, 21 F.3d 811, 818 (8th

Cir.), cert. denied, 115 S. Ct. 208 (1994) (recognizing that a

district court's refusal to depart "under the facts of this case"

indicates an acknowledgement of authority to depart; departure

simply was not justified). Thus, the district court's decision not

to depart is unreviewable. 

III.

Accordingly, we affirm the judgment of the district court. 

A true copy.

Attest:

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