UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

WILLIAMS, ELLIS


99-3050a

D.C. Cir. 2000


*	*	*


Randolph, Circuit Judge: In the District of Columbia,  taxicabs must be
inspected every six months. A sticker  affixed to the windshield
signifies that the vehicle has passed  inspection. The three
defendants in this appeal had worked  as motor vehicle inspectors at
one of the District's inspection  stations. While so employed they
engaged in a conspiracy to  sell inspection stickers to taxicab
drivers and others. A jury  found one of the defendants guilty of
receiving a bribe in  violation of federal law, and another guilty of
conspiring to  receive a bribe. The third defendant entered a guilty
plea to  receiving a bribe, while reserving the right to challenge the
 district court's jurisdiction on appeal. The so-called jurisdic-
tional question raised by all three defendants is the first  question


I


The statute cited in the indictments sanctions any "public  official"
who--


directly or indirectly, corruptly demands, seeks, receives,  accepts,
or agrees to receive or accept anything of value  personally or for
any other person or entity, in return for  (A) being influenced in the
performance of any official  act; ... or (C) being induced to do or
omit to do any  act in violation of the official duty of such official
or  person.


18 U.S.C. s 201(b)(2)(A), (C). Enacted in 1962, the statute  applied to
District officials through the following language:  "the term 'public
official' means ... an officer or employee or  person acting for or on
behalf of the United States, or any  department, agency or branch of
Government thereof, includ- ing the District of Columbia...." 18
U.S.C. s 201(a)(1).


The defendants maintain that Congress's acquiescence in a  bribery
statute, enacted by the D.C. Council in 1982, effec- tively repealed s
201's applicability to District officials. The  local bribery statute,
introduced as part of the District of  Columbia Theft and White Collar
Crimes Act, D.C. Law  4-164, uses language similar to s 201(b) and
applies only to  public servants of the District of Columbia. See D.C.
Code  ss 22-711(6), 22-712. Pursuant to the District of Columbia 
Self-Government and Governmental Reorganization Act, Pub.  L. No.
93-198, 87 Stat. 774 (1973) (the "Home Rule Act"), the  mayor signed
the bill including the new bribery provision, and  the Council
forwarded the statute for review by Congress.  See D.C. Code s
1-233(c)(1) (procedures for review by Con- gress). The bill became law
when Congress allowed the  requisite time period to elapse without


Though retaining ultimate legislative authority over the  District,
Congress delegated certain specific legislative pow- ers to the D.C.
Council in the Home Rule Act. Among the  explicit limitations on the
Council is that the Council may not  "enact any act, or enact any act
to amend or repeal any Act of  Congress, ... which is not restricted
in its application exclu- sively in or to the District." D.C. Code s
1-233(a)(3). The  district court held that this limitation barred the
Council from  putting before Congress a provision that would repeal
the  local portion of a nationally-applicable statute such as s 201. 
We too agree that s 201 continues to apply to District  officials, but
for a different reason.


Unless there is "clear and manifest" evidence that the 1982  local
bribery provision repealed the relevant portion of s 201,  the federal
bribery statute stands as enacted. Posadas v.  National City Bank of
N.Y., 296 U.S. 497, 504 (1936); see  Navegar, Inc. v. United States,
192 F.3d 1050, 1063 n.8 (D.C. 


Cir. 1999); United States v. Hansen, 772 F.2d 940, 944 (D.C.  Cir.
1985). The fact that the D.C. law covers " 'some or even  all of the
cases provided for by [the prior act]' " is not a basis  for finding a
repeal. Posadas, 296 U.S. at 504 (quoting Wood  v. United States, 41
U.S. (16 Pet.) 342, 362-63 (1842)). It is  not uncommon for laws to be
cumulative. Local criminal laws  may cover the same offenses as
federal criminal laws. "In  the absence of some affirmative showing of
an intention to  repeal, the only permissible justification for a
repeal by  implication is when the earlier and later statutes are
irrecon- cilable." Morton v. Mancari, 417 U.S. 535, 550 (1974).


The local bribery statute and the federal statute are not 
irreconcilable. They are instead quite consistent. They both  prohibit
the same conduct by District employees; the only  significant
difference between them is that the maximum  penalty for the federal
offense is up to 15 years of imprison- ment while the District offense
carries a maximum of 10  years' imprisonment. The defendants therefore
do not spend  much time trying to convince us that the two statutes
cannot  stand together. They rely instead on a 1981 Senate commit- tee
report on a criminal code reform bill that was never  enacted. See S.
Rep. No. 97-307, at 432 (1982). Among  other things, the bill would
have replaced 18 U.S.C. s 201(b)  with a new provision that excluded
District of Columbia  public servants. The bill responded to the D.C.
Council's  concurrent efforts to revise the D.C. criminal code,
including  the enactment of the bribery provision now found in section
 22-712. The defendants tell us that one of the D.C. Council's 
objectives in enacting its own bribery provision was "to  consolidate
and clarify" the District of Columbia criminal  laws. Brief for
Appellants at 26, quoting Report by D.C.  Council's Committee on the
Judiciary, June 1, 1982, Bill No.  4-133. This, the defendants say,
amounts to "clear and  manifest" evidence of an implied repeal.


We are unpersuaded. As far as the D.C. Council is con- cerned, we
cannot find any intent to repeal: at the same time  it sent the local
bribery provision up to Congress, the Council  sent up legislation
expressly repealing fifty-eight other stat- utes--three of which
appeared in the same chapter as the 


new bribery provisions. See Theft and White Collar Crimes  Act of 1982,
D.C. Law No. 4-164, s 602(a)-(fff), Act No.  4-238. As far as Congress
is concerned, a report by one  Congressional committee on a bill that
was never enacted  counts for very little. If the question of
repealing s 201 as it  applied to District officials ever explicitly
came before Con- gress there is no compelling reason why Congress
would have  chosen repeal. When Congress enacted another bribery pro-
vision in 1984, it explicitly covered District officials. See 18 
U.S.C. s 666(d). Retaining s 201 as enacted might seem  desirable to
Congress, if only because this gives the United  States Attorney the
option of filing in either the local courts  or the federal courts.
That is an option the United States  Attorney enjoys with respect to
many offenses, particularly  those dealing with drugs. See United
States v. Mills, 964  F.2d 1186, 1188 (D.C. Cir. 1992) (en banc).
Federal court has  sometimes been the venue of choice because federal
sentences  are higher. See id. Furthermore, the District's bribery 
provision became law not because Congress acted, but be- cause
Congress failed to act. Whether any member of the  Senate or House
paid attention to the question of repealing  s 201 is impossible to
know. Still less is there clear and  manifest evidence that a majority
of the members of both  houses considered their inaction a vote for


Because the statutes are not irreconcilable and there is no  convincing
evidence that the later act was intended as a  substitute, we hold
that a repeal by implication did not occur.  See Posadas, 296 U.S. at
503.


II


The jury found one of the defendants--Daryl Johnson-- guilty of selling
a motor vehicle inspection sticker, in violation 




__________

n 1 Congress has amended s 201 twice since 1982, when the Dis- trict's
bribery statute took effect, but it never took the opportunity  to
exclude District officials from the statute's coverage. See Pub.  L.
No. 99-646, s 46(a)-(1), 100 Stat. 3592, 3601-04 (1986); Pub. L.  No.
103-322, tit. XXXIII, ss 330011(b), 330016(2)(D), 108 Stat.  1796,
2144, 2148 (1994).


of 18 U.S.C. s 201(b)(2). Johnson filed motions for a judg- ment of
acquittal and a new trial, contending that there was  insufficient
evidence to convict him on the bribery charge  either as a principal
or as an aider and abettor, a contention  he renews on appeal. The
district court denied the motions.


Viewing the evidence most favorably to the government, as  we must, see
United States v. Clark, 184 F.3d 858, 863 (D.C.  Cir. 1999), leads to
the conclusion that on November 6, 1997,  while working as a vehicle
inspector for the District, Johnson  sold inspection sticker T217137
to Mohammed Dashtizadeh  for approximately $70.00. Prem Randhawa, a
taxicab driver,  asked Kamal, a body shop repairman, to fix the grille
on his  cab so that it would pass inspection. Kamal told Randhawa 
that the grille could not be fixed but that he could arrange for  a
person known as Mr. Mo to pass inspection in Randhawa's  cab. Randhawa
went to see Mr. Mo and paid him $150.00 to  take the car to be
inspected. Mr. Mo later returned the cab  to Randhawa with a sticker
on it. The parties stipulated that  government agents removed sticker
T217137 from Randha- wa's taxicab.


The middleman, Mohammed Dashtizadeh, testified about  his role in the
transaction. Dashtizadeh said that he knew of  Randhawa and was able
to identify him in court. When  asked how they knew each other,
Dashtizadeh recounted that  his friend Kamal had phoned him regarding
the grille on  Randhawa's taxicab. Kamal sent Randhawa to Dashtizadeh 
to obtain an inspection sticker. Dashtizadeh testified that he  sold a
sticker to Randhawa for $150.00. The sticker, Dashti- zadeh reported,
must have come from either Johnson or  Banks because those were the
only two inspectors from whom  he purchased stickers. (Dashtizadeh
began purchasing in- spection stickers in late 1997 and purchased a
total of four or  five stickers from Johnson.)


To establish the identity of the inspector who sold the  sticker to
Dashtizadeh, the government introduced the paper- work used during the
inspection process. Johnson's initials  on the sign-out log indicate
that sticker T217137 was in his  possession on the day the
corresponding inspection card was 


printed for inspection of a taxicab. Johnson's custody of  T217137 is
further confirmed by the lane report for that day  which lists him as
the stickerman--the person who affixes the  sticker to the
windshield--and by his signature on the sticker  inventory log. In
addition, the government produced the  inspection card for sticker
T217137 which lists Brooks as the  entrance booth inspector,
co-defendant Depp as the lane  inspector, and Johnson working the exit
booth as the sticker- man. While each of these records points to
Johnson as  having custody of sticker T217137, none of them even lists


Johnson views the evidence as insufficient to support the  verdict
because the government never established directly  that he sold the
sticker to Dashtizadeh. How, he asks, could  the jury decide that he,
rather than Banks, sold the sticker  without direct proof? The answer
is through circumstantial  evidence. The sort of direct evidence
Johnson thinks was  needed was not needed. As the Supreme Court has
said,  "direct evidence of a fact is not required. Circumstantial 
evidence is not only sufficient, but may also be more certain, 
satisfying and persuasive than direct evidence." Michalic v. 
Cleveland Tankers, Inc., 364 U.S. 325, 330 (1960); see also  United
States v. Fadayini, 28 F.3d 1236, 1239-40 (D.C. Cir.  1994). Those who
have tried criminal cases are familiar with  this example of the power
of circumstantial evidence: if you  go to bed on a winter's night and
the ground is clear and you  wake up the next morning and see snow on
the ground, you  have circumstantial evidence that it snowed last
night. The  circumstantial evidence here, while not that powerful,
leads us  to conclude that, with respect to Johnson, "any rational
trier  of fact could have found the essential elements of the crime 
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S.  307, 319
(1979). It is true that Dashtizadeh's testimony left  open the
possibility that Banks was the seller. But a rational  juror could see
this possibility as remote indeed in light of  evidence we have
discussed and, at all events, it is settled that  the government's
evidence need not "foreclose every conceiv- able premise inconsistent
with guilt." United States v. Car- ter, 522 F.2d 666, 682 (D.C. Cir.


III


Defendants Ellis Williams and Leon Depp challenge the  district court's
calculation of the relevant conduct attributable  to them for their
roles in the bribery scheme. They complain  that the court failed to
make specific findings concerning  when they joined the conspiracy and
attributed bribe amounts  to them that were not reasonably foreseeable
in furtherance  of jointly undertaken criminal activity. The district
court  held, and the government now argues, that Depp and  Williams
are responsible for all bribes taken after they began  working at the
inspection station, in 1991 and 1992 respective- ly.


Under the Sentencing Guidelines, bribery of a public offi- cial carries
a base offense level of ten, which is increased  when the offense
involves multiple bribes or amounts more  than $2,000. See U.S.S.G. s
2C1.1. When calculating the  number and amount of bribes involved, the
sentencing court  may consider all relevant conduct attributable to
the defen- dant. In the case of a jointly undertaken criminal
activity,  this includes any acts and omissions of others in
furtherance  of the jointly undertaken criminal activity that were
reason- ably foreseeable to the defendant. See U.S.S.G. s 1B1.3. 
Applying this standard, the district court held that Depp and 
Williams were accountable for the bribes taken by the other 
inspectors because those actions were both in furtherance of  jointly
undertaken activity and reasonably foreseeable to  them. Accordingly,
the court held Williams responsible for  payments totaling between
$40,000 to $70,000 and Depp for  payments between $70,000 to


The court based its determination, which we review for  clear error,
see United States v. Pinnick, 47 F.3d 434, 437  (D.C. Cir. 1995), on
the assumption that Depp and Williams  began participating in the
bribery scheme as soon as they  began working at the inspection
station. Instead of identify- ing specific facts to establish that
their involvement began at  that time, the court relied on the fact
that the "conspiracy ...  started back in the '80s" and required the
cooperation of  other inspectors to make it work. With respect to


court found it significant that "there was never any indication  that
he was not involved from the beginning." From this, the  court
inferred--unreasonably, we think--that both must have  joined the
scheme quite soon after starting work at the  station. That inference
is without an evidentiary basis. For  one thing, the record shows that
not all of the inspectors at  the inspection station were involved in
the conspiracy. It is  possible that Williams and Depp waited some
time before  opting to join in. The district court's conclusion was
thus  improper in the absence of particularized findings demon-
strating that Williams and Depp joined the conspiracy soon  after
their employment began. See United States v. Chil- dress, 58 F.3d 693,
722 (D.C. Cir. 1995) (requiring that  sentencing court make
individualized findings on whether  actions were reasonably
foreseeable to defendant); United  States v. O'Campo, 973 F.2d 1015,
1022-26 (1st Cir. 1992)  (finding that cocaine sales by coconspirators
before defendant  joined conspiracy were not "relevant conduct" for


Nevertheless, as applied to Williams, the district court's  erroneous
determination is harmless. The court held  Williams responsible for
bribes taken as of 1992. Williams  maintains the evidence established
his involvement began no  earlier than 1994. Even if Williams is
correct, and we  subtract the bribe amounts from 1992 to 1994,
Williams is still  accountable for more than $40,000. The district
court relied  on figures submitted by the probation officer and the
govern- ment, both of whom put the total amount at more than  $49,000.
Eliminating bribes taken before 1994 only reduces  the total amount by
about $4,700. Had the district court  included only bribes taken after
Williams is known to have  joined the scheme, the total would still
have been more than  $44,000. Because the district court's error made
no differ- ence to its relevant conduct determination, resentencing of
 Williams is unwarranted.


As to Depp, the error is not inconsequential. The district  court used
a conspiracy period from 1991 through the indict- ment in 1998. At the
sentencing hearing, Depp disputed the  length of this period,
contending the evidence establishes his  involvement only as of
February 1996. Refusing to shorten 


the conspiracy period, the court held Depp responsible for  bribes
valued at the low end of the $70,000 to $120,000  range--calculating
the total as $70,065 but conceding that the  government's figure of
$86,325 was largely credible. If we  recalculate the amount without
bribes taken from 1991  through 1995 the total figure is significantly
reduced. The  reduction for bribes provided by just one individual
(Otoo) to  Johnson alone, even crediting Depp's objections, amounts to
 at least $24,500. Given the potential for such a substantial 
reduction, a remand for a new assessment of Depp's relative  conduct
is necessary. In making that reassessment, the  district court may
rely on either of the two methods the  government presented for
calculating relevant conduct--the  testimony of the inspectors'
customers or the extrapolation  from a sampling of illegal stickers.
It may not, however,  decide that Depp's participation in the scheme
began at the  same time as his employment without the support of


The case is remanded with respect to Leon Depp for  resentencing. In
all other respects, the judgment of the  district court is affirmed.


So ordered.