*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 19 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

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

____________________________ ORDER AND JUDGMENT *

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

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist 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.-2-

Appellant Edward A. Tagoe, a federal prisoner repre sented 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 courterred by: 1) enhancing his sentence for obstruction of justice under United St ates Sentencing Guideline (U.S.S.G.) §3C1.1, and 2) declining to reduce his s entence 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 t he district court’s sentence.

I. Background During an investigation into a series of insurance claims Mr. Tagoe submitted to the United States Postal Service, post al inspectors determined Mr. Tagoe used altered sales receipts and invoices to s upport his claims. Specifically, Mr. Tagoe filed three separate insurance claims forpackages he allegedly shipped separately to Ghana, contending each package contai ned a currency counter machine and a camcorder, as well as other merchandi se. The investigation revealed Mr. Tagoe submitted the same receipts for the currency counter and camcorder on each of the claims, and that someone a ltered the receipts and updated them to make them appear different and more recent. Similarly, Mr. Tagoe submitted an insurance claim on four allegedl y lost boxes of clothing he sent to Italy, using a receipt altered to increase the total value of the contents of-3-

those four boxes to ten times their value, from $31 7.37 to $3,171.87. During the course of these submissions, postal inspectors also discovered Mr. Tagoe repeatedly used false names. Based on these submis sions and Mr. Tagoe’s admission at trial that he altered the supporting r eceipts or invoices to support his insurance claims, a grand jury indicted Mr. Tagoe o n six counts of devising a scheme to defraud the United States Postal Service by submitting false insurance claim forms supported by altered sales receipts, inviolation of 18 U.S.C. § 1001(a)(3). The indictment also charged him withnine 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 th e United States Postal Service in violation of 18 U.S.C. § 1001(a)(3), but found h im not guilty of the nine counts of mail fraud.

II. Presentence Report, Objections Thereto, and Sentencin g 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 fo r acceptance of responsibility under §3E1.1, basing both determinations, in part, on Mr. Tagoe’s perjured testimony at trial. Applying various other sentenc ing factors, the probation officer calculated Mr. Tagoe’s total offense level at 12 and his criminal history-4-

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

Through counsel, Mr. Tagoe objected to both recomme ndations concerning U.S.S.G. §§3C1.1 and 3E1.1, which the district court addressed at the sentencing hearing. The district court determined an enhancem ent for obstruction of justice applied, but that no downward adjustment for accept ance of responsibility was warranted. In so doing, the district court made explicit factual findings with respect to both sentencing determinations, and late r summarized its findings in writing. In applying the recommended guidelines an d determining Mr. Tagoe’s final sentence, the district court applied the bott om of the sentencing range of ten to sixteen months and sentenced him to ten months i mprisonment 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 ap plication of the Sentencing Guidelines, we review the district court’s factual findings for clear error and-5-

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 unl ess 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 m istake has been made.” United States v. Easterling , 921 F.2d 1073, 1077 (10th Cir. 1990) (quotation m arks 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 impede d, or attempted to obstruct or impede, the administration of justice d uring 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 ap plies.” U.S.S.G. §3C1.1, cmt. n.4. This includes “committing, suborning, orattempting to suborn perjury” or “producing or attempting to produce a false, alt ered, or counterfeit document-6-

or record during an official investigation or judic ial 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 testimo ny, 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 finding s regarding the obstruction of justice adjustment must encompas s all of the factual predicates of perjury, but generalized findings will suffice. See Hawthorne , 316 F.3d at
1146 (relying onDunnigan , 507 U.S. at 95). Under the law of this circuit, the district court must identify the perjurious testimo ny before making an adjustment under §3C1.1. See Hawthorne , 316 F.3d at 1146 (relying onUnited 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 er red in applying the twolevel enhancement because it “failed to make the ne cessary findings establishing perjury.” In an apparent attempt to explain what f indings 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.-7-

Specifically, Mr. Tagoe points to testimony where h e 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 deliv er the packages. Because a postal worker lost the applicable original receipts , without which Mr. Tagoe could not prove his insurance claim, he claimed he altere d 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 pos tal worker is not material in terms of a finding of perjury. The government cont ends 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 pretr ial actions, providing false statements and altered receipts to postal ins pectors during their official investigation of his claims, may justify an obstruc tion 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 t o administrative audit-8-

investigation conducted by Medicare and Medicaid wh ere the defendants submitted false statements to investigators). Neve rtheless, because it appears the district court based the obstruction of justice enh ancement 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 testi mony directly contradicted Mr. Tagoe’s statement he gave her the original receipts , rather than only the altered, falsified receipts. In applying the three-prong pe rjury analysis required, the district court found Mr. Tagoe made: “(1) a false statement under oath, (2) concerning a material matter, (3) with the wilful i ntent to provide false testimony.” In support of this finding, the distri ct court noted Mr. Tagoe’s “perjury about the original receipts was not only f alse, but ... material ,” given he was charged with knowingly and willfully making or using “a false document knowing the same to contain a materially false, fic titious and fraudulent statement.” (Emphasis added.) The district court noted that when Mr. Tagoe-9-

“was faced with overwhelming evidence that he submi tted false invoices to support his postal insurance claims,” he committed perjury “designed to defeat the charges that he ‘knowingly and willfully made’ [tho se] 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. Tago e’s perjurious testimony before making an enhancement adjustment under §3C1.1 and f ound the specific necessary elements for perjury. Mr. Tagoe’s genera l admissions at trial and contention he only used altered receipts to claim w hat was rightfully his are insufficient to overcome the district court’s findi ng he intentionally committed perjury when he lied about giving the postal clerk the original receipts, or to otherwise show the district court’s factual finding s of perjury are in clear error.

B. Acceptance of Responsiblity We next consider whether the district court erred i n not reducing Mr. Tagoe’s sentence for acceptance of responsibility u nder U.S.S.G. §3E1.1. Section 3E1.1(a) directs the sentencing court to “decrease the offense level by 2 levels” if-10-

“the defendant clearly demonstrates acceptance of r esponsibility 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 b urden of proving by a preponderance of the evidence that he accepted resp onsibility. Id. “The sentencing judge is in a unique position to evaluat e a defendant’s acceptance of responsibility. For this reason, the determinationof 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 c ourt 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 de fendant puts the government to its burden of proof, does not automat ically preclude consideration of a reduction where the defendant clearly demonstr ates 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 deter mination that a defendant has accepted responsibility will be based primarily upo n pre-trial statements and conduct.” Id.-11-

On appeal, Mr. Tagoe contends he expressly admittedat trial he altered or made false statements regarding his receipts in sup port of his postal insurance claims, thereby showing his acceptance of responsib ility 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, t he Postal Service. The district court determined otherwise, stating: The Court found that defendant never accepted respo nsibility for anything other than the inescapable fact that he bl atantly altered documents when the evidence of alteration was so cl ear that he could not deny the acts. Beyond that, he did not come cl ose to accepting responsibility for criminal conduct and indeed, alm ost consistently tried to shift the blame to the United States Posta l Service.
Under the circumstances of this case, we conclude t he district court did not commit clear error in refusing to adjust Mr. Tagoe’ s offense level downward for acceptance of responsibility. As previously discus sed, 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 re sponsibility or expressing remorse for his conduct. This lack of acceptance o f responsibility is further evidenced in his brief on appeal, where he continue s 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 post al worker lost the applicable-12-

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 con duct to help carry his burden of showing he accepted responsibility for his crimi nal 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