The Honorable James M. Rosenbaum, United States District Judge for the

1

District of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-2198

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United States of America, *

Plaintiff-Appellee, * Appeal from the United States

 v. * of

Nam Xuan Ngo, *

Defendant-Appellant. *

*

* District Court for the District

* Minnesota.

*

*

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Submitted: December 12, 1997

Filed: December 30, 1997

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Before MURPHY, JOHN R. GIBSON, and MAGILL, Circuit Judges.

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MURPHY, Circuit Judge.

Nam Xuan Ngo was indicted on twenty-four counts of possessing

counterfeit securities in violation of 18 U.S.C. § 513, nine counts of money

laundering in violation of 18 U.S.C. § 1956(a)(1), and one count of

conspiracy to commit these offenses in violation of 18 U.S.C. § 371. Ngo

pled guilty to one count of possession and the district court sentenced him 1

to thirty months in prison and two years of supervised
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release. Ngo now appeals the district court’s denial of a sentencing

reduction for acceptance of responsibility and the imposition of an

enhancement for a leadership role in the criminal activity. We affirm.

On June 14, 1995, Ngo, Hao Huy Le, and Sang Minh Tu were arrested in

Edina, Minnesota after police stopped their car because a passenger matched

the description of a man who had just attempted to pass a counterfeit check

at First Bank Edina. Police found twelve $100 bills in Ngo’s pants pocket

and seventeen more in a slit in his shirt cuff. On the adjacent sidewalk

they found fifteen checks wrapped in a piece of paper; the checks had the

same payee, amount, and issuer as the check presented to First Bank Edina.

They also found a brochure in the car which listed hours and locations of

Minneapolis area First Bank branches and which had a signature on it in the

name of one of the payees of the counterfeit checks. Ngo’s fingerprints

were found on several of the checks and the brochure.

Ngo pled guilty to one count of possession of a counterfeit security

as part of a plea agreement which also provided for dismissal of the other

thirty three counts with which Ngo was charged. During his change of plea

hearing Ngo admitted his involvement in the criminal offense and said that

he had joined Le and Tu on June 14 after calling them on his cellular phone

and learning that they were negotiating counterfeit checks with Cuong Nguyen

and had already that day passed checks at three First Bank facilities. Ngo

claimed that he asked to join them so he could get some money but that he

told Tu he would only serve as a lookout. Nguyen left the group when Ngo

arrived and Ngo, Le, and Tu then went on to First Bank Southdale where they

negotiated a check for $2900 before proceeding to First Bank Edina. In the

course of two days, members of the group presented counterfeit checks with

a total value of $72,300.
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The prosecution requested an evidentiary hearing and sought enhancements for obstruction of justice and

a leadership role in the offense, but the government withdrew the request for a leadership enhancement on the day

of sentencing because Le, Tu, and Nguyen refused to testify against Ngo. The court adopted the

undisputed factual statements in the presentence report and received

transcripts of several phone conversations Ngo had from jail with Tu and Le

and a stipulation that Ngo had been charged with driving while intoxicated

after his guilty plea. Ngo objected to several aspects of the presentence

report, including statements that the four men where members of a gang known

as the “Minneapolis Boys,” that Ngo had taken over the check counterfeiting

scheme from his brother and was operating it from his house, that he had

previously recruited Nguyen and another man to participate and provided them

with checks and false identification, and that Le, Tu, and Nguyen had said

that Ngo was the leader of the operation. The court stated that it would

not consider the challenged statements in the report in making its

sentencing determinations. After hearing arguments from counsel and

statements by Ngo and his father, the court imposed a sentence of thirty

months in prison and two years of supervised release. In applying the

United States Sentencing Guidelines the court declined to adjust downward

for acceptance of responsibility under U.S.S.G. § 3E1.1, imposed a two level

enhancement for Ngo’s leadership role in the operation under U.S.S.G. §

3B1.1, and refused to add an enhancement for obstruction of justice under

U.S.S.G. § 3C1.1.

Ngo claims that the district court erred in denying him a two level

reduction for acceptance of responsibility. Ngo had the burden to establish

a clear acceptance of responsibility, U.S. v. Byrd, 76 F.3d 194, 196 (8th

Cir. 1996), and the district court’s factual determination is entitled to

great deference. Id; U.S.S.G. § 3E1.1 n. 5. Such a determination should

only be reversed if it is so clearly erroneous as to be without foundation.

Byrd, 76 F.3d at 195. 

The district court found Ngo’s story a conscious attempt to mislead

and to minimize his involvement and that it was thus inconsistent with

acceptance of
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responsibility. U.S.S.G. § 3E1.1 n. 1(a). Ngo told the court that he

participated in the scheme for fun and to make some money, but that he only

held money because of someone else’s instructions. Ngo’s fingerprints were

found on several checks and on the brochure listing the location and hours

of First Bank facilities where checks had been passed, however, and police

found $2900 in cash hidden on his person. The district court was also

entitled to consider his subsequent driving conduct because continued

criminal conduct, even if minor and unrelated to the offense of conviction,

can make a sentence reduction for acceptance of responsibility

inappropriate. Byrd, 76 F.3d at 197. The district court had the

opportunity to observe Ngo’s demeanor and evaluate his credibility at the

time he entered his guilty plea and again at the sentencing hearing. Its

finding that Ngo was not entitled to credit for acceptance of responsibility

was not clearly erroneous.

Ngo also contests the imposition of a two level enhancement for his

leadership role, and this factual determination also can only be reversed

if clearly erroneous. United States v. Edwards, 91 F.3d 1101, 1104 (8th

Cir. 1996). An enhancement for a leadership role in the criminal

enterprise must be based on control of other participants in the offense.

U.S.S.G. § 3B1.1 n. 2. The sentencing guidelines support several factors

that may be considered: decision making authority, planning or organizing,

control or authority over others, recruiting others, and the nature of

participation. U.S.S.G. § 3B1.1 n. 4. 

The district court found that transcripts of Ngo’s phone conversations

from jail with Le and Tu showed his leadership role in the check

counterfeiting scheme. During these conversations, Ngo repeatedly

instructed Tu and Le on how to tell their stories to the police and court.

He informed them that his sentence would turn on their testimony and

directed them how to testify in order to minimize his involvement. He also

made several statements about killing an individual who had not done what

he wanted, and he threatened prosecution witnesses if he ever got out of

jail. Both Le and Tu appeared deferential to Ngo and his instructions.

These recorded conversations
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support the finding that Ngo directed the counterfeiting enterprise because

they show planning, organization, and his position as the dominant member.

There was also other evidence to support the district court’s finding

about Ngo’s role in the offense. The checks and proceeds were tied directly

to him, as was the information on the targeted banks. His fingerprints were

found on several checks and on the brochure showing the location and hours

of the banks where checks were passed. He took charge of the proceeds and

hid some in his shirt cuff. He did not personally enter the bank, but kept

a lookout while Tu and Le attempted to negotiate the checks. The record

supports the court’s finding that he directed the other participants at the

time of the offense and continued in that role after the men were arrested

and charged. 

Since Ngo has not shown that the district court’s sentencing

determinations were clearly erroneous, the judgment is affirmed.

A true copy.

Attest:

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