Petition for Writ of Certiorari — Naccarato v. United States

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Supreme Court, U.S,

90°147 FILED

MAR 12 199]

No.

Oeeice GF THE CLERK

In The

Supreme Court of the United States

October Term, 1990

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vy

FRANK L. NACCARATO,

Petitioner/Appellant,

VS.

UNITED STATES OF AMERICA,

Respondent/Appellee.

7X

a4

Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

7X

v

PETITION FOR WRIT OF CERTIORARI

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vy

Monte E. Hester, Inc., P.S.

1008 S. Yakima Avenue

Tacoma, WA 98405

(206) 272-2157

By: Monte E. Hester

Counsel of Record

and

Wayne C. FRICKE

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

-—

QUESTIONS PRESENTED

1. Whether an individual working for a local organiza-

tion which has an existence separate and apart from

federal funding and the individual has no authority to

enter into contracts on the part of the federal government

or the local organization may be classified as a “public

official” pursuant to 18 U.S.C. 201?

LIST OF ALL PARTIES TO THE PROCEEDINGS

Petitioner: Frank L. Naccarato

Respondent: United States of America

VI.

ili

TABLE OF CONTENTS

Page

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REASONS FOR GRANTING PETITION ...... 6

A. THIS COURT SHOULD GRANT THE

PETITION FOR REVIEW BECAUSE THE

NINTH CIRCUIT HAS SO GREATLY

EXPANDED THE HOLDING OF DIXSON

V. UNITED STATES THAT THE DEFINI-

TION OF PUBLIC OFFICIAL UNDER 18

U.S.C. 201(a)1) HAS BECOME MEAN-

INGLESS AND THE DECISION IS IN

CONFLICT WITH DECISIONS FROM

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TABLE OF AUTHORITIES

Page

CASES

Dixson v. United States, 465 U.S. 482, 104 S.Ct.

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United States v. Del Toro, 513 F.2d 656 (1974) ......... 8

United States v. Loshiavo, 531 F.2d 659 (1976) ......... 8

OrneR AUTHORITIES

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I. OPINIONS BELOW

The unreported opinion of the United States Court of

Appeals for the Ninth Circuit in United States v. Naccarato

is attached as Appendix “A.”

a

-

Il. JURISDICTION

The Honorable Andrew J. Kleinfeld, Judge for the

United States District Court for the District of Alaska,

denied petitioner’s mction to dismiss the criminal

charges because the alleged receiver of a bribe was not a

public official under 18 U.S.C. 201(a)(1). The opinion of

the United States Court of Appeals for the Ninth Circuit

affirming the District Court’s ruling was entered on

December 18, 1990.

Jurisdiction is conferred on the United States

Supreme Court to review this case by writ of certiorari

pursuant to 28 U.S.C. § 1254(1).

»

bf

Ill. STATUTES INVOLVED

A. 18 USC. § 201

B. AS 18.55.995 et seq.

C. AS 18.55.996 et seq.

°

IV. STATEMENT OF THE CASE

Petitioner herein, FRANK NACCARATO, was

charged with conspiracy to bribe to which he pleaded not

guilty. The allegations involved a lease that was entered

into between the Tlingit-Haida Regional Housing Author-

ity in Alaska and a group of individuals, including Frank

Naccarato. The Housing Authority was represented by an

individual named Felipe Tagaban during the time of the

relationship described herein. After a jury trial, Mr. Nac-

carato was convicted of a single count of conspiracy to

bribe a public official.

The first payment to Mr. Tagaban was made in March

of 1984 after the lease had been signed in October of the

preceding year. RP 3, p.188: 2-19. Prior to this there was

no discussion about paying Tagaban any money. RP 3,

p.126: 10-12. See also, RP 3, p.133: 3-8; RP 3, p.144: 4-11.

Indeed, there was never any discussion that money was

to be given to Tagaban for the purpose of influencing

him. RP 3, p.182: 5-7.

Prior to entering into the lease, Tagaban had called

Michael Orsborn in May 1983 and told him that Tlingit-

Haida needed a warehouse because the Authority was

expanding and asked if Orsborn could find them a ware

house. RP 4, p.165: 15-24. Tagaban told Orsborn that this

would be needed for a five year program. RP 4, p.166:

19-25.

After meeting Tagaban, Orsborn ran into Frank Nac-

carato and discussed the situation about arranging a

warehouse and when he was told there could be a

finder’s fee involved, Orsborn requested $25,000, which

was agreed to. RP 4, p.171: 3-15. Subsequently, Orsborn

went back to Tagaban and discussed with him Nac-

carato’s plans for hopefully getting a space for this partic-

ular project. Id., at 18-24. He then acted as a go-between

between Tagaban and Naccarato, conveying the details

that were needed by both. RP 4, p.172: 3-10. Some time

during this time period Orsborn told Tagaban about his

finder’s fees and Tagaban expressed some shock and

asked, what am I going to get out of this. Id., at 11-24.

Orsborn did not mention anything to Naccarato or Brink-

man about Tagaban’s statement wanting money. RP 4,

p.173: 19-24. Orsborn never reached any agreement with

Naccarato about any money Tagaban would get. RP 4,

p.175: 20-25. Nor was there any discussion between Tag-

aban and Naccarato at the meeting that Orsborn was

present where money was discussed. RP 4, p.176: 3-11.

The money that was made available to the Housing

Authority for the purpose of this lease came from what is

known as the Comprehensive Improvement Assistance

Program (CIAP). This program authorized HUD to pro-

vide financial assistance to public housing authorities to

improve housing quality and make it available to low

income families. RP 2, p.43: 9-18.

Felipe Tagaban was employed with the Regional

Housing Authority between May of 1983 and March of

1985 as an administrative officer. During that time he

acknowledged that he was paid on two occasions; in

March of 1984 and September of 1984. RP 4, p.56: 19 -

p.57: 6.

Tagaban was originally introduced to Mr. Naccarato

through Michael Orsborn. RP 4, p.56: 17. Orsborn was a

person that Tagaban knew since September of 1982 and

had met through the Juneau Parks Recreational Program.

RP 4, p.57: 22-23. During his negotiations with Orsborn,

Tagaban was told that Orsborn was to receive a $25,000

finder’s fee and that he would share it with Tagaban. RP

4, p.60: 22 — p.61: 6. Even though Orsborn had told him he

would give him $10,000, Tagaban never thought he would

receive $10,000, but signed the lease because it was

needed anyway. RP 4, p.131: 5-23. He had not met Nac-

carato during this time period; nor did he have any

discussions with him. RP 4, p.61: 10.

Later, Tagaban received a call from Frank Naccarato

regarding signing the lease on approximately October 18,

1983. RP 4, p.63: 5-14. Despite telling Naccarato and

Orsborn that he had the authority to sign the lease, he

actually had none. RP 4, p.98: 17. After Tagaban received

a cali, he went to Ken Eldridge’s attorneys’ office and

signed a lease in the presence of the attorneys, Frank

Naccarato and Eldridge. RP 4, p.63: 15-25.

After entering into the lease, Tagaban again had sev-

eral discussions with Mr. Orsborn. RP 4, p.79: 25 — p.80: 4.

During one of these conversations, Orsborn told Tagaban

that he had received his finder’s fee in the amount of

$10,000 from Frank Naccarato. Orsborn told Tagaban that

if he wanted anything he would have to contact Mr.

Naccarato. RP 4, p.80: 5-12.

Tagaban then contacted Naccarato after the lease was

signed. RP 4, p.132: 2-10. Tagaban had no knowledge of

any arrangements between Naccarato and Orsborn. /d.,

lines 20-25. Orsborn also acknowledged that it wasn’t

until after the lease was signed that he went to Naccarato

saying that Tagaban wanted money. RP 4, p.199: 8-25.

Tagaban’s lack of authority to originally enter into

the lease was corroborated by others. Frank Koulick, who

was the manager of the HUD office in Anchorage, Alaska

between August, 1984 and February of 1989, testified that

although Felipe Tagaban signed the lease and numerous

contracts between the Housing Authority and Frank Nac-

carato and the other individuals, he really couldn’t attest

to whether Mr. Tagaban did it under the color of any

authority that he may have had. RP 2-76: 8-22. However,

Tagaban’s supervisor, Josepn Wilson, testified that any

lease was invalid because “Mr. Tagaban did not have the

authority to enter into such a document...” RP 2, p.148:

14-17. Moreover, from January though March of 1985 Mr.

Tagaban was not entitled to contract a crew to go out to

the specific villages involved in the program. RP 2, p.177:

7-16.

Joseph Wilson, was the executive director of the

Housing Authority between March, 1983 and January 20,

1989, and was responsible for the supervision of Felipe

Tagaban. Mr. Tagaban’s responsibilities included assisting

in putting together a management improvement plan

regarding the relationship between the Housing Author-

ity and HUD. RP 2, p.126-127. Mr. Tagaban’s title was

Administrative Manager. RP 2, p.127: 12-14. After convic-

tion, Naccarato was sentenced to eighteen months in

prison and ordered by pay $50,000 in restitution. The

Ninth Circuit affirmed his conviction and he now seeks a

Writ of Certiorari.

>

V. REASONS FOR GRANTING PETITION

A. THIS COURT SHOULD GRANT THE PETITION

FOR REVIEW BECAUSE THE NINTH CIRCUIT

HAS SO GREATLY EXPANDED THE HOLDING

OF DIXSON V. UNITED STATES THAT THE DEFI-

NITION OF PUBLIC OFFICIAL UNDER 18 U.S.C.

201(a)(1) HAS BECOME MEANINGLESS AND THE

DECISION IS IN CONFLICT WITH DECISIONS

FROM OTHER JURISDICTIONS.

18 U.S.C. 201 defines public official as:

[M]Jember of Congress, Delegate, or Resident

Coinmissioner, either before or after such offi-

cial has qualified, or an officer or employee or

person acting for or on behalf of the United

States, or any department, agency, or branch of

Government thereof, including the District of

Columbia, in any official function, under or by

authority of any such department, agency or

branch of Government or a juror...

In the instant case, whether a person may be identified as

a public official under the above definition depends on

the relationship between Felipe Tagaban and the agency

for whom he worked and the Federal Government. Dix-

son v. United States, 465 U.S. 482, 486, 104 S.Ct. 1172, 1175,

79 L.Ed.2d 458 (1984).

Importantly, the mere presence of federal assistance

does not in or of itself bring a local organization and its

employees within the jurisdiction of the federal bribery

statute. 465 U.S. 482, 499, 104 S.Ct. 1172, 1181. Nor are all

local employees who are responsible for administering a

federal grant program pulic officials within the meaning

of § 201(a). Id. In holding that petitioners were federal

officials in Dixson, this Court recognized the following

_ attributes which established the required nexus: (1) the

Federal Government allocated two federal block grants

from HUD to Peoria, Illinois; (2) the local organization for

which petitioners worked, United Neighborhoods, Inc.

(UND), was subsequently organized with the sole purpose

of administering federal block grants; (3) petitioners were

hired to head UNI; (4) petitioners’ salaries were com-

pletely funded by the federal grant; and (5) petitioners

personally bestowed the benefits of HCDA program to

the residents of Peoria, Illinois. 465 U.S. at 485-492, 104

S.Ct. at 1173-80.

In contrast, the Tlingit-Haida Central Council, the

local organization at issue here, maintains an existence

apart from that of federal funds. Initially, the purpose of

the legislation which allowed the formation of the council

is to “provide a means for certain native associations to

form public corporations with the powers and duties

comparable to the Alaska State Housing Authority.” AS

18.55.995. See, Appendix “B.” Additionally, in contrast to

the organization in Dixson, the authority was granted the

power to enter into agreements with numerous political

subdivisions.! AS 18.55.996(b). Tlingit-Haida’s existence

did not depend on federal funding.

' AS 18.55.996(b) provides as follows:

(b) There is created with respect to each of the

associations named in (a) of this section a public

body corporate and politic to function in the operat-

ing area of the individual associations to be known

as the regional housing authority of the associations

possessing all powers, rights and functions now or

(Continued on following page)

Moreover, Felipe Tagaban, the alleged public official

in this case, did not even have the authority to enter into

contracts on behalf of Tlingit-Haida Authority — a fact

noted by the Ninth Circuit in its opinion. Moreover,

unlike in Dixson, there is nothing to suggest that Mr.

Tagaban received his salary in whole or in part from

federal funds.

In these respects, Tagaban’s position was similar to

those individuals in United States v. Del Toro, 513 F.2d 656

(1974) and United States v. Loshiavo, 531 F.2d 659 (1976). In

Del Toro, the court in holding that the individuals were

(Continued from previous page)

subsequently specified for the Alaska State Housing

Authority, under the Alaska State Housing Authority

Act (AS 18.55.010 - 18.55.290) except those specified

with respect to the construction and acquisition of pub-

lic buildings for lease to the state or any subsequently

specified authority that is inconsistent with AS

18.55.995. The authority may enter into agreements with

local government, other political subdivisions of the

state, the state or the federal government for the exercise

of a function or power relating to construction, opera-

tion and maintenance of public facilities or public util-

ities. Upon execution of an agreement and for the period

of the agreement the authority shall have the same

powers and functions relating to the subject matter of

the agreement as those that may legally be exercised by

the governmental unit with whom the agreement is

made including the authority to separately or together

with the other unit borrow money and issue notes,

bonds or other evidence of indebtedness to finance a

project within the scope of the agreement subject to the

express limitations, if any, contained in the agreement.

All obligations or liabilities of the regional housing

authority shall remain their own and are not obligations

or liabilities of the state.

not public officials noted that the “public official” was “a

city employee, carrying out a task delegated to him by his

superior, another city employee.” 513 F.2d at 662. This is

precisely the case here. Under these circumstances the

Second Circuit held that it was reversible error to permit

the jury to determine that the employer was a federal

public official under the phrase, “acting for or on behalf

of the United States in any official function.” Id. at 662-63.

Likewise, it was error to allow a jury to determine if

Felipe Tagaban was a public official in this case. The

existence of Tlinget-Haida was not dependent on federal

funding as was the case in Dixson. Tagaban’s salary was

not dependent on these funds. Tagaban had no authority

to enter into contracts on the part of the Federal Govern-

ment. Moreover, Tlingit-Haida was established with

powers granted by the State.

In sum, the decision by the Ninth Circuit, which

ignores the lack of connections between Felipe Tagaban

and Tlingit-Haida to the Federal Government, extends

the definition of “public official” beyond any reasonable

interpretation. Apparently, any time the Federal Govern-

ment contributes as little as a dollar to a state or local

agency, any employee of that agency is to be considered a

public official. This strained interpretation is unwar-

ranted and extends the definition of “public official”

beyond all reason. Moreover, the decision is in conflict

with decisions from other jurisdictions. Thus, this Court

should accept review.

>

10

VI. CONCLUSION

Based on the foregoing points and authorities, as well

as the files and records herein, the United States Supreme

Court should issue a writ of certiorari to the Ninth Cir-

cuit Court of Appeals and accept review of this case.

Respectfully submitted,

Monte E. Hester, Inc., P.S.

1008 S. Yakima Avenue

Tacoma, WA 98405

(206) 272-2157

Attorneys for Petitioner

By: Monte E. Hester

Counsel of Record

By: Wayne C. Fricke

APPENDIX “A”

App. 1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, ) No. 89-30377

Plaintiff - Appellee, } DC# A89-015

Criminal

v. )

FRANK NACCARATO, MEMORANDUM*

Defendant — Appellant. ) (Filed Dec 18

) 1990)

Appeal from the United States District Court

for the District of Alaska

Andrew J. Kleinfeld, District Judge Presiding

Argued and Submitted October 3, 1990

Seattle, Washington

Before: Hug, D.W. Nelson, Circuit Judges, and Carroll**

District Judge.

A jury found Frank Naccarato guilty of conspiracy to

bribe a public official in violation of 18 U.S.C. §§ 201(b),

371-372 as charged in Count III of the indictment. Nac-

carato was sentenced to a term of 18 months imprison-

ment and ordered to pay restitution in the amount of

* This disposition is not appropriate for publication and may

not be cited to or by the courts of this circuit except as

provided by Ninth Circuit Rule 36-3.

** Hon. Earl H. Carroll, United States District Judge for the

District of Arizona, sitting by designation.

App. 2

$50,000 to Tlingit-Haida Regional Housing Authority

(Tlingit).

Standard of Review

A district court’s decision involving mixed questions

of law and fact is reviewed de novo. United States v.

McConney, 728 F.2d 1195, 1204 (9th Cir.) cert. denied 469

U.S. 824 (1984).

The standard for reviewing a challenge to the suffi-

ciency of the evidence supporting a jury verdict is

whether there is substantial evidence to support the con-

viction. United States v. Douglas, 780 F.2d 1472, 1476 (9th

Cir. 1986).

Sentences imposed within statutory limits are

reviewed for abuse of discretion. United States v. Angelica,

859 F.2d 1390, 1392 (9th Cir. 1988); United States v.

Endicott, 803 F.2d 506, 510 (9th Cir. 1986).

Facts

The United States Department of Housing and Urban

Development (HUD) pursuant to the Comprehensive

Improvement Assistance Program (CIAP), 42 U.S.C.

§ 14371, disbursed approximately $3,500,000 to Tlingit, in

order to promote renovation of low income housing in

Juneau, Alaska.

Felipe Tagaban was the administrative officer of

Tlingit and coordinator of the housing authorities’ partic-

ipation in CIAP. Tagaban had authority to hire and fire

employees, negotiate contracts and commit certain funds

App. 3

of Tlingit, subject to approval of Joe Wilson, the executive

director of Tlingit.

HUD approval was required prior to any expenditure

of funds pursuant to CIAF.

It was determined by Tagaban that Tlingit would

need a warehouse for supplies, equipment and fixtures of

the rehabilitation project. Michael Orsborn, an acquain-

tance of Tagaban, agreed to help find a warehouse for

Tlingit.

In the summer of 1983, Orsborn met with appellant,

Frank Naccarato, a contractor. Orsborn and Naccarato

discussed the needs of Tlingit and the possibility of

Orsborn receiving a finder’s fee if he found a tenant for

the warehouse to be built for Tlingit by Naccarato.

In preparation for construction of the warehouse

Naccarato solicited Myron Brinkman to provide initial

financing. Property owned by Ken Eldridge was selected

as the site for construction.

Naccarato, Brinkman and Eldridge formed the

Lemon Glacier Development Company (Lemon Glacier),

a partnership. The partnership agreed to pay Orsborn

$25,000 if he obtained a reliable tenant for the warehouse.

Tagaban was told by Orsborn that he would receive

$10,000 dollars if he signed a lease, on behalf of Tlingit, to

occupy the Lemon Glacier warehouse.' Tagaban signed a

warehouse lease, purportedly on behalf of Tlingit, with

the Lemon Glacier partnership on October 18, 1983. The

1 Tagaban did not have authority to sign a lease on behalf

of Tlingit.

App. 4

lease was for a five year term at a rate of $1.25 per square

foot.2 Tagaban also signed other contracts for repair work

with Naccarato on behalf of Tlingit.?

Naccarato, Brinkman and Eldridge also controlled a

company called “Heavier Than Air” which was paid over

$700,000 dollars for repair and renovation work, on low

income housing, performed for Tlingit.

Tagaban was paid $10,000 dollars in March 1984 by

Naccarato and Brinkman. Tagaban received another

$10,000 from Brinkman on behalf of Naccarato, Brinkman

and Eldridge in September 1984.

In March 1989 an indictment was returned charging

Tagaban with bribery, tax violations and converting fed-

eral property to his own use. The indictment also charged

Naccarato and other codefendants with conspiracy to

bribe a public official (Tagaban).

Tagaban, Brinkman and Orsborn pled guilty and

agreed to testify against Naccarato as a part of their plea

agreements.

Discussion

Tagaban was a “Public Official”

Appellant asserts that the trial court erred in deter-

mining that Tagaban was a public official within the

2 An appraisal of the warehouse determined that the fair

market rental value of the warehouse was $.65 per square foot.

3 Tagaban executed nine back dated emergency repair con-

tracts, for approximately $500,000 in repair work, with Nac-

carato, on behalf of Tlingit, after he had been relieved of his

authority by Tlingit.

App. 5

meaning of 18 U.S.C. § 201(a)(1) relying principally on

United States v. Del Toro, 513 F.2d 656, 662 (2d Cir.) cert

denied 423 U.S. 826 (1975) and United States v. Loschiavo,

531 F.2d 659, 661 (2d Cir. 1976).

The term “public official” as defined by § 201, means:

[A]n officer or employee or person acting for or

on behalf of the United States, or any depart-

ment, agency or branch of Government thereof,

including the District of Columbia, in any offi-

cial function, under or by authority of any such

department, agency, or branch of Govern-

ment,. ...

28 U.S.C. § 201(a).

The determination of whether Tagaban was a “public

official” turns on the relationship between him and the

Federal Government. Dixson v. United States, 465 U.S. 482,

486 (1984).

Funds were provided to Tlingit pursuant to the

United States Housing Act of 1937, (as amended) 42

U.S.C. § 1437 et seq. The policy behind the Housing Act is

to:

promote the general welfare of the Nation by

employing its funds and credit, as provided in

this chapter, to assist the several States and their

political subdivisions to remedy the unsafe and

unsanitary housing conditions and the acute

shortage of . . . dwellings for families of low

income and . . . vest in local public housing

agencies the maximum amount of responsibility

in the administration of their housing programs.

42 U.S.C. § 1437.

App. 6

Tlingit received funds fram HUD pursuant to CIAP

which is a special program under the amended United

States Housing Act of 1937. CIAP, as is the entire Housing

Act, is regulated by numerous federal implementing reg-

ulations. By administering HUD funds, Tlingit subjected

itself to federal constraints and restrictions. Tlingit was in

a situation very similar to that of United Neighborhoods,

Inc. in Dixson.

The bribery statute is a comprehensive statute appli-

cable to all persons performing activities for or on behalf

of the United States. Dixson, 465 U.S. at 496 (1984). The

issue here is whether Tagaban occupied a position of

public trust with official federal responsibilities. Id. Tag-

aban must have had some degree of official responsibility

for carrying out a federal program or policy. Id.

Tagaban was the coordinator of the Tlingit’s partici-

pation in the CIAP. As the coordinator of Tlingit’s

involvement with CIAP he had authority to negotiate

contracts, and expend Federal Government funds.

Although Tagaban was not the ultimate authority in

Tlingit, he had a substantial role in the housing author-

ity’s implementation of CJAP. The issue here is whether

Tagaban was required to abide by regulations governing

the implementation of the Housing Act and CIAP. Tag-

aban’s role in Tlingit is not distinguishable from the role

of petitioners in Dixson. He was in a position of respon-

sibility, acting on behalf of the Federal Government in

administering expenditures of federal funds and imple-

menting federal policy. Tagaban had the apparent author-

ity to sign the lease, and he also had the authorization to

use his superior’s signature plate on the checks. It is clear

App. 7

that he did not have the authority to disburse the funds

and sign the documents.

Accordingly, the district court did not commit error

in denying appellant’s motion to dismiss.

Evidence Sufficient for Jury to Convict Appellant

Appellant contenas that his conviction should be

reversed because insufficient evidence was presented

upon which to find guilt beyond a reasonable doubt.

Reviewing the sufficiency of the evidence requires

assessment of whether the evidence adduced at the trial

could support any rational determination of guilt beyond

a reasonable doubt. United States v. Powell, 469 U.S. 57

(1984).

Appellant was found guilty of violating 18 U.S.C.

§ 201(b) which, in pertinent part, is aimed at:

Whoever, directly or indirectly, corruptly

gives, offers or promises anything of value to

any public official . . . with the intent -

(1) to influence any official act; or

(2) to influence such public official. . to

commit ... any fraud... on the United

States; or

(3) to induce such public official .. . to do

or omit to do any act in violation of his

lawful duty... .

There was sufficient evidence presented at trial to

support the jury’s verdict of guilty.

Brinkman testified that Naccarato, Brinkman and

Eldridge paid Tagaban to obtain business, for doing busi-

ness and for favors. On direct examination Brinkman

App. 8

stated that Naccarato told him “You didn’t see me give

him no money?” after Naccarato had given Tagaban

$10,000 in cash.

Tagaban, substantiated Brinkman’s testimony by stat-

ing he was paid $20,000 for favors. Tagaban also testified

that Naccarato handed him an envelope containing

$10,000 cash.

The testimony also showed that Naccarato devised a

scheme to disguise a payment to Tagaban as a loan.

Naccarato drafted a letter to be signed by Brinkman

demanding repayment of a $10,000 “loan”. The letter was

delivered by appellant to Tagaban. Tagaban was told to

respond to the demand so as to “cover” the $10,000

payment to Tagaban.

There was also substantial circumstantial evidence

presented at trial which a rational jury could rely on in

determining Naccarato’s guilt, ie. cash payments to Tag-

aban, inflated warehouse rental rate, the issuance of 9

emergency repair contracts drafted by Naccarato, etc.

Viewed in light most favorable to the Government

the evidence adduced at trial supports the jury’s deter-

mination of guilt beyond a reasonable doubt.

Lawful Sentence Imposed by District Court

Naccarato argues that his eighteen month sentence

should be modified so as to be consistent with the sen-

tences received by the other defendants.

Sentences within statutory limits are generally not

subject to review. Endicott, 803 F.2d at 510. Disparate

sentences for codefendants will be upheld when the

App. 9

record shows differences in the defendant’s behavior.

Cocio v. Bramlett, 872 F.2d 889, 894 (9th Cir. 1989).

Brinkman and Orsborn were sentenced to 30 days

incarceration to be served on weekends and Tagaban was

given a 13 month sentence.

Despite, appellant’s assertion to the contrary, the

convicted codefendants were not found to be equally

culpable.

The district court stated at sentencing that Naccarato

was the dominant leader of the enterprise. The court

found that Orsborn was a mere go-between and Brink-

man was a “sucker”.

The sentence imposed upon appellant is within the

statutory limits of 18 U.S.C. § 371 and there is adequate

justification on the record to support the disparities in

sentences.

Lesser Included Instruction not Required

Appellant’s position is that his conviction should be

reversed because the District Court refused to give a

lesser included instruction of illegally giving a gratuity.

As appellees point out, the appellant failed to object

to the court’s failure to instruct the jury on 18 U.S.C.

§ 201(f). A party may not assign as error any portion of

the charge or omission therefrom unless that party objects

thereto before the jury retires to consider the verdict. Fed.

R. Crim. P. 30. Where there are no objections or requests

by defense counsel, a trial court’s decision on jury

instructions will be reversed only if the omission of an

instruction constituted plain error. United States v. Kaplan,

App. 10

895 F.2d 618, 623 (9th Cir. 1990). If an appellant does not

raise an objection at trial, an omission of a requested

instruction must amount to a grave miscarriage of justice

so as to constitute plain error. Id. The district court did

not commit plain error in this instance.

Where the lesser offense requires an element not

required for the greater offense, no instruction is to be

given under Fed.R.Crim.P. 31(c). United States v. Lopez,

885 F.2d 1428, 1436 (9th Cir. 1989) “citing Schmuck v.

United States, ___ U.S. __, 109 S.Ct. 1443, 1450 (1989)”.

Naccarato was entitled to a lesser included offense

instruction only if he could establish (1) that the elements

of the alleged lesser offense constitute a subset of the

elements of the crime charged, and (2) that, given the

evidence adduced at trial, a rational jury could find him

guilty of the lesser offense and still acquit on the greater.

Lopez, 885 F.2d at 1436-1437 (1989).

-The district court ruled that § 201(f) is not a lesser

included offense of conspiracy to bribe a public official.

The district court’s rational was that the offense of giving

a gratuity to a public official requires proof that the

defendant actually gave something of value to a public

official which is not an element of conspiracy to bribe a

public official. The analysis of the lower court is correct.

Restitution

Appellant contends that the district court abused its

discretion by ordering restitution in the amount of

$50,000 because it was not linked to any specific loss

suffered by the government. Furthermore, Naccarato

asserts that there was insufficient proof of loss during the

App. 11

lower court proceedings to support the determined resti-

tution amount.

An order of restitution pursuant to 18 U.S.C.

§ 3663(b)(1)(B) may require the defendant, in a case of an

offense resulting in loss of property of a victim of the

offense, to pay an amount equal to the value of the

property on the date of loss. The amount must be defi-

nite, supported by the evidence and limited by the

amount actually lost by the victims. United States v.

Pomazi, 851 F.2d 244, 249-50 (9th Cir. 1988); United States

v. Mischler, 787 F.2d 240, 245 (7th Cir. 1986). The amount

of loss caused by the offense may be proved in one of

three ways: by proof at trial, by judicial determination, or

through the consent of defendant. United States v. Harris,

761 F.2d 394, 404 (7th Cir. 1985) “citing United States v.

Gering, 716 F.2d 615 (9th Cir. 1983)”. The burden is on the

Government to prove the amount of loss to the victim as

a result of the offense by a preponderance of the evi-

dence. 18 U.S.C. 3664(d).

As a part of his sentence, appellant is required to pay

$50,000 to Tlingit within 5 years after serving the term of

imprisonment imposed.

Contrary to appellant’s assertion the record ade-

quately supports the restitution amount: Tagaban

awarded over $400,000 in unauthorized contract work to

Naccarato’s company; due to the discrepancy between

the rental rate of the warehouse leased by Tlingit ($1.25

per square foot) and the fair market rental value of the

property ($.65 per square foot) Tlingit was damaged in

the amount of $78,500. There is also evidence showing

that despite the fact that the housing authority rented the

App. 12

entire warehouse others were occupying the building

without Tlingit authority or permission.

Although the district court did not determine an

actual amount of loss to Tlingit there is sufficient evi-

dence proving that the housing authority suffered losses

in amounts substantially exceeding $50,000.

The district court did not abuse its discretion by

ordering restitution in the amount of $50,000.

AFFIRMED in all respects.

APPENDIX “B”

5

in

Now

ari)

,

wr

Mo

App. 13

Sec. 18.55.995. Purpose and Intent. The legislature finds

that an acute shortage of housing and related facilities

exists in the villages of Alaska and that adequate housing

cannot be provided by the private sector due to the

economic depression that exists in most villages of

Alaska. It is the purpose and intent of the legislature to

provide a means for certain Native associations to form

public corporations with the powers and duties compara-

ble to the Alaska State Housing Authority. (§ 1 ch 123

SLA 1971; am § 2 ch 151 SLA 1975)