United States v. 2005-02-03 | 03-30089 | USA VWILSON | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 03-30089
Plaintiff-Appellee, D.C. No.
v. CR-01-00263-HJF
JAY W. WILSON, ORDER
Defendant-Appellant. AMENDING
OPINION AND
DENYING THE  PETITION FOR
REHEARING AND
PETITION FOR
REHEARING EN
BANC AND
AMENDED
OPINION

Appeal from the United States District Court
for the District of Oregon
Helen J. Frye, District Judge, Presiding
Argued and Submitted
November 1, 2004—Portland, Oregon
Filed December 23, 2004
Amended February 4, 2005
Before: Warren J. Ferguson, Stephen S. Trott, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Trott
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COUNSEL
Jane E. Ellis, Portland, Oregon, for the defendant-appellant.
Charles W. Stuckey, Assistant U.S. Attorney, Portland, Ore-
gon, for the plaintiff-appellee.
ORDER
The Opinion filed December 23, 2004, slip op. 17189, and
appearing at 392 F.3d 1055 (9th Cir. 2004), is amended by
removing the last three sentences in footnote #1 as follows:
Wilson claims in this appeal that the district court
erred when it determined that Wilson was not enti-
tled to a downward adjustment for a minor role in
the offense under U.S.S.G. § 3B1.2. This contention
does not merit lengthy discussion, and reviewing for
clear error, we affirm the district court’s determina-
tion that Wilson was not entitled to a minor role
adjustment. We have “consistently stated that a
downward adjustment under section 3B1.2 is to be
used infrequently and only in exceptional circum-
stances.” United States v. Davis, 36 F.3d 1424, 1436
(9th Cir. 1994) (citing United States v. Hoac, 990
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F.2d 1099, 1106 (9th Cir. 1993)). Given that Wilson was
involved in every aspect and at every level of the conspiracy,
this is not one of those exceptional circumstances.
So it reads:
Wilson claims in this appeal that the district court
erred when it determined that Wilson was not enti-
tled to a downward adjustment for a minor role in
the offense under U.S.S.G. § 3B1.2. This contention
does not merit lengthy discussion, and reviewing for
clear error, we affirm the district court’s determina-
tion that Wilson was not entitled to a minor role
adjustment.
With this amendment, the panel as constituted above has
voted to deny the petition for rehearing. Judges Trott and
Kleinfeld have voted to deny the petition for rehearing en
banc, and Judge Ferguson so recommends.
The full court has been advised of the suggestion for
rehearing en banc and no judge of the court has requested a
vote on it. Fed. R. App. P. 35(b).
The petition for rehearing and the petition for rehearing en
banc are DENIED.
No further requests for petition for rehearing or petition for
rehearing en banc shall be entertained.
OPINION
TROTT, Circuit Judge:
Jay Wilson appeals his conviction and sentence in the fed-
eral district court for drug charges related to a conspiracy to
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import, distribute, and possess MDMA (ecstasy). The district
court rejected, prior to trial, Wilson’s claim that the govern-
ment had promised him complete immunity in return for his
cooperation in dismantling the international conspiracy in
which he was involved; and at his sentencing, the court
denied him credit for acceptance of responsibility. Because
the district court’s rulings were free of error, we affirm both
Wilson’s conviction and his sentence.1
BACKGROUND
The drug conspiracy for which Wilson was convicted came
to the attention of the government in May of 2001, when
United States Customs agents in Florida discovered that a box
of shampoo bottles arriving from Belgium actually contained
hundreds of pills. Investigation revealed that the pills were
ecstasy and had been shipped by a main player in the conspir-
acy, Terrance Fischer.
A task force comprised of agents from various law enforce-
ment agencies delivered the intercepted package to its original
addressee, the Tan Machine, a tanning salon in Portland, Ore-
gon, a frequent shipping destination in this conspiracy. The
business owner agreed to cooperate with investigators, and he
told them that a man named Andre Wegner was scheduled to
pick up the package at a storage locker in Portland. Wegner,
however, sent Chad Bring to pick up the package. Bring was
arrested, and he told investigators about several associates in
the drug conspiracy, including Wilson.
During the investigation that followed, agents discovered
1Wilson claims in this appeal that the district court erred when it deter-
mined that Wilson was not entitled to a downward adjustment for a minor
role in the offense under U.S.S.G. § 3B1.2. This contention does not merit
lengthy discussion, and reviewing for clear error, we affirm the district
court’s determination that Wilson was not entitled to a minor role adjust-
ment.
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detailed evidence that placed Wilson in the middle of the con-
spiracy. Agents discovered that Fischer and Wilson had been
close associates for some time prior to the intercepted ship-
ment. When Fischer moved to Amsterdam in January of 2001,
Wilson personally helped him rent an apartment and set up a
bank account and operations. Fischer shipped load after load
of ecstasy pills to the United States, and Wilson bought, sold,
and distributed them.
Investigation revealed also that the conspiracy stretched
across the country. Wilson distributed ecstasy to others
nationwide, selling it at a retail level as well. At one point,
Wilson spent more than $20,000 to charter a Lear jet to fly
drugs and money across the country. At trial, however, Wil-
son testified that Fischer and Wegner gave him the money to
charter the jet, but did not know that drugs were in the air-
plane.
Wilson rented a storage locker for the purpose of storing
the drugs. When the conspiracy began to unravel and some
co-conspirators were arrested, Wilson, in a last ditch effort to
shift the operations and avoid detection, cleaned out the stor-
age locker and opened a mailbox in Salem, Oregon. At trial,
Wilson conceded that using the mailbox to assist the drug
operation was wrong, but he claimed that he had a friend rent
it for him — not so that Wilson could do “anything illegal,”
— but to communicate with Fischer about the situation in the
United States. According to Wilson, Fischer would send to
him $1,000 for each container of ecstasy shipped in return for
information. The mailbox, however, was used to receive drug
shipments from Europe, which Wilson admitted.
Wilson’s attempts to avoid detection failed. On August 13,
2001, agents armed with a search warrant stopped Wilson
about a mile from his house, read him Miranda2 warnings,
explained that they had a warrant to search his house, and
2Miranda v. Arizona, 384 U.S. 436 (1966).
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took Wilson to his abode. There, after obtaining Wilson’s
consent to search, they searched Wilson’s person, his house,
and his car.
During the search, agents questioned Wilson about the con-
spiracy, telling him that they wanted his cooperation to
expand the investigation, that they did not think he was the
“biggest player,” and that they “didn’t want him.” Agents
asked Wilson about his relationship with Fischer, as well as
his connection to Wegner and the storage locker. Wilson
freely admitted to some of his involvement, explaining how
he knew Fischer and Wegner, admitting he had been involved
in some drug transactions, and admitting he had rented the
storage unit. Wilson, however, refused to answer certain ques-
tions about past sales and possession of drugs, saying that he
did not want to incriminate himself. During the search and
questioning, agents told Wilson that 100 ecstasy pills had
been found in his briefcase that was in his car. Wilson denied
that he had any pills, saying “I haven’t had a large quantity
of pills in months,” and he then asserted his right to counsel.
About twenty minutes after Wilson had asserted his right to
counsel, Wilson approached Agent Alexander, an agent from
the Drug Enforcement Administration, and asked if he could
speak with Alexander in private.3 Wilson told Alexander and
Detective Williams, who was also working on the case, that
there was a two-day window of opportunity to receive a ship-
ment of ecstasy from Europe and that if Wilson did not make
or receive a phone call, the window would close forever. Wil-
son then gave agents more detailed information about Fischer
and Wegner and agreed to cooperate with the agents. In
response to Wilson’s willingness to cooperate, agents told
Wilson that his help would be brought to the attention of the
prosecutor. However, they informed him that the prosecutor
who had authority to negotiate a deal with him was out of
3In this appeal, Wilson does not claim that his rights under Miranda
were violated.
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town. Furthermore, they explained that it would be up to that
prosecutor, not the agents, to negotiate any deal with him.
The next day, the agents delivered telephone recording
equipment to Wilson’s house. Fischer called Wilson to con-
firm the drug shipment, and thereafter, Wilson helped law
enforcement intercept several shipments of ecstasy from
Europe. While Wilson was assisting the agents, he secretly
recorded his conversations with them.
Wilson’s tape-recorded conversations and the testimony of
both Wilson and the agents established that Wilson broached
the topic of immunity several times during the course of the
investigation, expressing concern that he was taking risks by
cooperating. The recordings and testimony revealed also that
agents repeatedly told Wilson that they were powerless to
grant him immunity. Agent Blanchard testified, for example,
that he explained the prosecutor’s options — the prosecutor
could decide not to charge Wilson with some crimes, or could
“throw the book at him.” Blanchard testified also that agents
repeatedly informed Wilson it was not up to them whether he
was granted any immunity. Moreover, in one recorded con-
versation, after Wilson told agents that he would go no further
without immunity, Agent Blanchard said, “I sure in hell can’t
grant you immunity and you know that. We explained all of
this. A criminal act took place before you started working
with us.”
In yet another recorded conversation, Agent Blanchard told
Wilson, “If you are charged with anything it’s all going to be
stuff that went on before you know[,] this part of the thing.”
Wilson responded, “I understand that and that I’m not being
charged with anything I’m doing in order to help you guys.”
Wilson expressed hope that his earlier conduct would be for-
given as well, to which Agent Blanchard responded, “That is
obviously something that you can negotiate with the prosecu-
tors. I’d go ahead and mention it.”
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About two weeks after Wilson began assisting the agents,
the prosecutor in charge of Wilson’s case returned from vaca-
tion, and he met with Wilson and his attorney. At that meet-
ing, the prosecutor acknowledged Wilson’s cooperation and
offered him a plea agreement that would include a six-year
sentence — a generous offer that would have greatly reduced
the duration of Wilson’s possible sentence. Wilson demanded
complete immunity and refused to accept the deal. As a result,
Wilson was tried, convicted of all but one count, and sen-
tenced to twenty years imprisonment.
DISCUSSION
A. Immunity
1. Standard of Review
Because this is a claimed immunity agreement, ordinary
contract principles apply. United States v. Plummer, 941 F.2d
799, 802-03 (9th Cir. 1991). Therefore, we review the trial
court’s factual determinations for clear error. Id. at 803. We
review determinations relating to formation of an enforceable
agreement also for clear error. See Collins v. Thompson, 679
F.2d 168, 170 (9th Cir. 1982) (“[d]eterminations of contract
matters regarding offer, rejection, and revocation utilizing the
objective standard are factual” and are upheld unless clearly
erroneous).
2. Existence of an Agreement
Wilson claims that he is entitled to full immunity because
the agents’ conduct and statements created an informal immu-
nity agreement. The government responds that no agreement
was ever formed because no one ever offered Wilson immu-
nity.
To support his claim that an offer was made, Wilson points
to various statements agents made to him regarding his role
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in the conspiracy. He was told “we don’t think you’re the big-
gest player in this”; “you are just a flyspeck in all of this”;
“we don’t want you, we just want to take this to the next
level”; and “you did a good job.” Wilson claims that these
statements led him to believe he would be granted immunity.
This argument fails for two reasons.
[1] First, whether Wilson honestly thought he would be
granted immunity does not change the character of the agents’
statements. In other words, whatever Wilson may have
believed he would be granted, the statements to which Wilson
points do not objectively reflect words of offer. See United
States v. Sophie, 900 F.2d 1064, 1071 (7th Cir. 1990) (con-
cluding that the defendant could not reasonably believe that
promises of immunity had been made when the prosecutor
said he would “see what we can do.”); Restatement (second)
of Contracts § 24 (1981) (“An offer is the manifestation of
willingness to enter into a bargain, so made as to justify
another person in understanding that his assent to that bargain
is invited and will conclude it.”).
[2] Agents repeatedly told Wilson that the agents lacked
authority to grant immunity. We do not doubt that Wilson’s
active cooperation could have provided the necessary accep-
tance and consideration had an offer of immunity in exchange
for his cooperation ever been made. See Restatement (Second)
of Contracts § 50 (2) (1981) (“Acceptance by performance
requires that at least part of what the offer requests be per-
formed or tendered and includes acceptance by a performance
which operates as a return promise.”). But the fatal flaw in
Wilson’s claim is elementary — no contract exists without an
offer.
The Seventh Circuit faced a set of facts strikingly similar
to Wilson’s case in Sophie. 900 F.2d 1064. There, the defen-
dant claimed that the prosecutor agreed any information the
defendant gave would not be used against him and that the
prosecutor would recommend a reduced sentence. The defen-
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dant claimed that the prosecutor made statements such as, “In
exchange for your complete candor . . . I’ll see what we can
do. . . .” Id. at 1071 (alteration in original). Moreover, the
prosecutor told the defendant “I cannot promise anything to
you but I’ll see what can be done in light of your cooperation
and candor, but I cannot promise you, of course.” Id. Examin-
ing the circumstances under ordinary contract principles, the
Seventh Circuit concluded that the defendant could not have
reasonably thought that these statements amounted to an offer
or promise of immunity. Id. at 1071-72.
[3] As in Sophie, Wilson can point to no statement in which
anyone offered or promised him immunity. In fact, Sophie
was a much closer case. The language the prosecutor used in
Sophie at least resembled words of offer, though words ulti-
mately not concrete enough to constitute one. Telling Wilson
that he was a small player in a group of conspirators does not
even come close. Moreover, in Sophie, no one unequivocally
told the defendant that he had, in fact, not been granted immu-
nity. In sharp contrast, Wilson was repeatedly and indisputa-
bly told that the agents were powerless to grant it. Agent
Blanchard announced, “I sure in hell can’t grant you immu-
nity and you know that.”
[4] Second, to the extent Wilson claims that he subjectively
believed that he had been granted immunity, the district court
found Wilson’s testimony not credible, for good reason: Wil-
son’s claim that the agents led him to believe that he would
be granted immunity ignores his own statements that demon-
strate he knew no one had granted it. When told that he would
be charged, if at all, with the crimes he committed before he
began to assist the police, he told agents “I understand.” Dur-
ing the course of his cooperation, Wilson told agents that he
would not continue to help until he was granted immunity. He
expressed his concern to agents that he was “taking a risk” by
cooperating and should be granted immunity for all of his
conduct. Agents responded that Wilson should certainly bring
that point up with the prosecutor. Wilson’s repeated requests
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for immunity were a product of his knowledge that no one
had granted it. Whatever hopes Wilson had for complete
immunity simply never materialized.
B. Acceptance of Responsibility
1. Standard of Review
The district court’s determination of whether a defendant
has accepted responsibility is a factual determination we
review for clear error. United States v. Scrivener, 189 F.3d
944, 947 (9th Cir. 1999). “In reviewing a district court’s
determination as to a defendant’s acceptance of responsibility,
we must afford the district court ‘great deference’ because of
its ‘unique position to evaluate a defendant’s acceptance of
responsibility.’ ” United States v. Fellows, 157 F.3d 1197,
1202 (9th Cir. 1998) (quoting United States v. Casterline, 103
F.3d 76, 79 (9th Cir. 1996); U.S.S.G. § 3E1.1, Application
Note 5).
2. No Clear Acceptance of Responsibility
[5] Wilson’s sentencing was governed by the United States
Sentencing Guidelines. Under the guidelines, a defendant is
entitled to a downward adjustment if he clearly accepts
responsibility for all of his relevant conduct. United States v.
Ginn, 87 F.3d 367, 370 (1996) (“a defendant is not entitled to
an adjustment when he does not accept responsibility for all
of the counts of which he is convicted”). If a defendant’s
statements and conduct make it clear that his contrition is sin-
cere, he is entitled to a reduction. United States v. Cortes, 299
F.3d 1030, 1038 (9th Cir. 2002).
In finding that Wilson had not clearly accepted responsibil-
ity, the district court stated that Wilson “consistently manipu-
lated facts specifically intended by the defendant to minimize
his own involvement. The defendant’s insincere attempts to
cooperate with the government did not ‘clearly demonstrate
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acceptance of responsibility.’ ” The district court’s findings
are fully supported by the record, and the court’s determina-
tion that Wilson did not clearly accept responsibility was far
from clear error; it was entirely appropriate.
Wilson first points out that his going to trial does not pre-
clude him from sincerely accepting responsibility after trial
and thus being entitled to the adjustment. Without a doubt, a
defendant may assert his right to trial and still be entitled to
an acceptance of responsibility adjustment in rare circum-
stances. Id. at 1038-39. But the defendant faces a hurdle when
he puts the government to its burden by contesting material
factual matters. See United States v. Bonanno, 146 F.3d 502,
513 (7th Cir. 1998) (where the defendant challenged his guilt
on some charges during trial, he “clearly failed to meet the
burden of demonstrating a ‘rare situation’ where a party
pleads not guilty and yet warrants reduction”). Wilson went
to trial on every single count charged in the indictment and
contested essential elements of his guilt. Consequently, his
burden to demonstrate a clear acceptance of responsibility
was high.
To be sure, some facts weighed in favor of a finding that
Wilson accepted responsibility. Wilson admitted some,
though not all, of his conduct to police when they searched his
house, and he cooperated with police after he was caught.
Wilson admitted to selling ecstasy. He conceded that he trav-
eled to Europe to help Fischer, and he admitted to renting the
storage locker and mailbox.
Nonetheless, four facts weighed heavily against a finding
that Wilson clearly accepted responsibility for all of the rele-
vant conduct: (1) his confessions were incomplete and vague;
(2) his testimony was “not credible”; (3) he maintained his
innocence during and after trial; and (4) his efforts to cooper-
ate were all in a desperate attempt to secure complete immu-
nity and to escape all of the consequences of his conduct.
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[6] First, as to Wilson’s confessions, Wilson was never
completely forthcoming. For example, when Wilson admitted
that he helped Fischer move to Europe, he maintained that he
did not know why Fischer was moving there. Indeed, he
claimed he had no intention of setting up drug operations with
Fischer there because, at that time, Wilson thought Fischer
was finished with the ecstasy business. Only later, Wilson tes-
tified, did he realize that he knew in his heart that Fischer
would never get out of the drug business. Days after the
move, however, Wilson was receiving shipments of drugs
from Fischer. The record belies Wilson’s claim of no knowl-
edge of Fischer’s activities.
Similarly, in describing his early actions in the conspiracy,
Wilson testified, “Well, I was involved in early January of
2001 but probably not to the extent that they believe.” In dis-
cussing one early transaction at a hotel, Wilson testified that
he and Wegner went to the hotel room to sell ecstasy to a man
named Scott Graber. According to Wilson, Wegner carried
the backpack containing the pills, and Graber rented the hotel
room. Wilson, while admitting that he knew a drug deal was
happening, tried to minimize his role by admitting to no more
than being the driver in that transaction. Graber’s testimony
was contrary — Wilson handed Graber the pills.
In connection with a different transaction involving Graber,
Graber testified that Wilson sold him 500 pills. Wilson con-
tested that fact at trial, claiming it had been 5, not 500 pills.
When he testified about the Lear jet charter, Wilson claimed
that he did not know he was transporting pills, only that he
knew he was transporting drug money.
These incomplete admissions support the district court’s
finding that Wilson consistently attempted to minimize his
involvement in the conspiracy. Such attempts to minimize and
disclaim responsibility more than support the district court’s
determination that Wilson did not accept responsibility. Scriv-
ener, 189 F.3d at 948 (where defendant attempted to falsely
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minimize his role in the offense, the district court did not
clearly err in denying an adjustment for acceptance of respon-
sibility).
The district court’s finding, however, is further supported
by Wilson’s unconvincing denial of guilt. Not only did Wil-
son attempt to minimize his role, but Wilson outright denied
conduct for which he was convicted. He claimed at trial and
afterward that the police planted 100 ecstasy pills in his brief-
case. In fact, he “adamantly denied” that he had those 100
pills, and referred at trial to the pills as the ones “they had
planted in my briefcase.” The jury found otherwise, despite
his adamant denials, and Wilson was convicted of this con-
duct.
[7] Second, in addition to minimizing his conduct and
denying his guilt, Wilson offered trial testimony that the dis-
trict court found not credible. As a result, the district court
found, and we agree, that Wilson’s testimony was far from a
complete acceptance of responsibility. Rather, Wilson’s testi-
mony was a strained attempt to minimize his role in the con-
spiracy, put the government to its burden of proving factual
allegations, and escape prosecution altogether. A defendant,
such as Wilson, who takes the stand to claim his complete
innocence of some of the charges and offers testimony on his
behalf that is not credible does not accept responsibility for
his conduct.
[8] Third, Wilson continued to assert his innocence after
conviction for counts that involved shipments to the Tan
Machine. Wilson was found guilty of those counts, yet he
maintained his factual innocence during and after trial. At
trial, Wilson testified, “I never had nothing to do with it. I
have never been in The Tan Machine. . . . I have no knowl-
edge of that; had no idea it was going on whatsoever.” Even
at sentencing (indeed, even in this appeal), despite a convic-
tion on those counts, Wilson’s counsel continued to argue that
Wilson was not responsible for this conduct. Wilson certainly
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may decide to challenge those counts, but to claim that he
accepted responsibility for all of his conduct while simulta-
neously maintaining his innocence flies in the face of reason.
See United States v. Mohrbacher, 182 F.3d 1041, 1052-53
(9th Cir. 1999) (where defendant refuses to admit all essential
elements of guilt, a downward adjustment for acceptance of
responsibility was properly denied). He has never admitted to
this conduct for which he was convicted.
[9] Finally, the district court determined that Wilson’s
attempts to help law enforcement were not motivated by sin-
cere contrition. This finding is manifestly reasonable; indeed,
it seems Wilson’s efforts were an attempt to secure immunity
and to avoid taking responsibility for any of his conduct, not
to accept responsibility for his behavior. Moreover, we have
consistently held that where a defendant refuses to admit all
of his guilt, his cooperation notwithstanding, a district court
may properly deny a downward adjustment. Id.; United States
v. Dhingra, 371 F.3d 557, 568 (9th Cir. 2004).
[10] In both Mohrbacher and Dhingra, the defendants
cooperated extensively with authorities, and neither defendant
presented any witnesses at trial. Mohrbacher, 182 F.3d at
1052; Dhingra, 371 F.3d at 568. In Mohrbacher, the defen-
dant did not present any defense at trial. Mohrbacher, 182
F.3d at 1052. Nonetheless, because those defendants refused
to admit to essential elements of guilt, we held that the denial
of the downward adjustment was appropriate, despite their
extensive cooperation with the authorities. Mohrbacher, 182
F.3d at 1052-53; Dhingra, 371 F.3d at 568. Not only did Wil-
son demand total immunity, he went to trial, contested mate-
rial factual matters, and has continued to maintain his
innocence on several counts. He has never admitted to all of
his relevant conduct. Consequently, he failed to clearly accept
responsibility despite his cooperation with authorities.
We note also that Wilson’s cooperation did not go unno-
ticed, but he refused the fourteen-year reward that was handed
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to him. As a result of his cooperation, the government offered
Wilson a greatly reduced sentence of six years. Wilson
refused to accept the offer, demanded complete immunity that
the prosecutor would not give, went to trial, and bought him-
self a twenty-year sentence. His fate at the hands of the gov-
ernment was of his own choice.
CONCLUSION
Because the district court correctly concluded that Wilson
had no immunity agreement with the government, we affirm
his conviction. We likewise affirm the sentence because Wil-
son failed to clearly accept responsibility for all of the con-
duct for which he was convicted.
AFFIRMED.
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