U.S. v. Takai

• Citation: 941 F.2d 738
• Decision Date: 29 July 1991
• Docket Number: No. 90-10157,90-10157
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Hiroyasu TAKAI; Akiko Magneson, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 738

941 F.2d 738

UNITED STATES of America, Plaintiff-Appellant, v. Hiroyasu TAKAI; Akiko Magneson, Defendants-Appellees.

No. 90-10157.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 14, 1991.

Decided April 19, 1991.

As Amended July 29, 1991.

Rory K. Little, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellant.

Garrick S. Lew, Minami, Lew, Tamaki & Lee, San Francisco, Cal., for defendant-appellee Magneson.

Arlene West, West, Molesky & Brown, Oakland, Cal., for defendant-appellee Takai.

Appeal from the United States District Court for the Northern District of California.

Before TANG, BOOCHEVER and NOONAN, Circuit Judges.

NOONAN, Circuit Judge:

Hiroyasu Takai and Akiko Magneson pled guilty to the crimes of bribing an official of the Immigration and Naturalization Service in violation of 18 U.S.C. § 201(b)(1)(C) and of conspiring to bribe that official in violation of 18 U.S.C. § 371. They were sentenced to four months in home detention under an electronic program, to probation, and to fines of $15,000 apiece. The United States appeals the sentence. We affirm.

FACTS

Akiko Magneson was born in 1947 in Yokohama, Japan. In 1971 she married Ronald Magneson. The Magnesons lived in Australia for 5 years and for 3 years in Venezuela. In 1979 they settled in Los Gatos, California. They have a daughter aged 14. In 1985 Magneson started her own business, Akai's Gems. She operates the business from her home and makes approximately $5,000 a year. She has also done research into the importation of clothes from Bangkok. Her husband works as a broker for a computer chip brokerage company.

Hiroyasu Takai was born in 1956 in Kashiwara-Cho, Japan. He is a graduate of Saint Andrew's University, Osaka. In 1978 he settled in San Jose, California where he developed a private language school in 1981 and an aviation school in 1988. He married Matsumi Matsumura on February 24, 1989.

In late February 1989 Magneson met James Goldman, an investigative agent of the Immigration and Naturalization Service, on a plane from Tokyo to San Francisco. They struck up a friendly relationship. Three weeks later Magneson called Goldman at his INS office in Washington and engaged in general conversation. A few days later, on April 5, 1989, Magneson again called Goldman at his office. Magneson brought up the need of a friend of hers, Hiroyasu Takai, to obtain a green card for his new wife who was a Japanese national. Goldman recorded the conversation.

In the course of this conversation and several other conversations recorded between April 5 and April 12, 1989, Magneson agreed to pay Goldman $15,000 to obtain green cards for three or four persons. These persons included Takai's wife; another friend of Magneson who was about to divorce her husband and on doing so would need a green card; and two students who were employees of Takai's pilot training school.

In the course of these negotiations Goldman also spoke by telephone with Takai, who at first agreed to the plan as far as his wife was concerned, but on April 12 told Goldman that he was "going to back out." Takai did so after consulting his lawyer who told him that the plan was illegal. Despite this advice Takai loaned $1,500 to one of his students for his part of the bribe and passed on the bribe money from both students to Magneson. She delivered half of the bribe, $7,500 in cash, to Goldman at the Red Lion Hotel in San Jose and was immediately arrested.

PROCEEDINGS

Takai and Magneson pleaded guilty to the charges of bribery and conspiracy to bribe. They accepted responsibility for their actions and expressed sorrow and shame. The base offense level for offering a bribe is ten, Sentencing Guidelines (U.S.S.G.) § 2C1.1(a). As the bribe was determined by the court to be $15,000, there was an increase of three to thirteen. Id. at § 2C1.1(b)(2)(A). The offense level was then adjusted down two levels because of their acceptance of responsibility. Id. at § 3E1.1(a). The defendants had no prior criminal conviction, so their criminal history score was zero. With an offense level of eleven the Sentencing Guidelines range was eight to fourteen months imprisonment. Id. at Ch. 5, Pt. A (sentencing table). As the range was above six months the Guidelines provided that half the minimum term should be imprisonment. Id. § 5C1.1(d). Each defendant had a different probation officer, neither of whom recommended departure in a way that would avoid imprisonment.

The defendants presented evidence in mitigation to induce the district court to depart downwards. After hearing the evidence and argument the district court stated that it was departing downwards by one point, so that imprisonment was not required. The defendants were sentenced to four months in home detention under the electronic monitoring program, were each sentenced to fines of $15,000, and were placed on probation for five years under the usual conditions.

On March 8, 1990 the district court entered an order "to explain the factors influencing its decision to depart downward." The court stated: "The defendants in this case did not seek or receive any pecuniary gain. The government has offered no evidence of any other benefit received. They were primarily motivated by a misguided desire to help three members of their immigrant community obtain green cards." The court continued: "The seriousness of defendants' participation is mitigated by the conduct of the government agent. While there was no allegation of entrapment, there was evidence at the sentencing hearing that Agent Goldman's conduct influenced defendants' decisions to continue playing a pivotal role.... The pattern of government conduct, the defendants' attempt to play a more limited role, and the absence of pecuniary gain by defendants create mitigating circumstances in a highly unusual bribery case."

After determining that the amount of the bribe was $15,000 for purposes of computing the sentence, the court went on to say that it had "considered other mitigating factors," and added: "There are at least two well-publicized instances where Mr. Takai has gone to great personal expense to assist victims of crime or earthquake.... A downward departure is justified because defendants' conduct constitutes 'single acts of aberrant behavior.' " The government appealed, contending that the downward departure from the Guidelines was unjustified.

ANALYSIS

The Government's Case. The government argues broadly that the Sentencing Guidelines mandate a brief term of imprisonment for serious first offenses and notes that the Sentencing Commission had observed that, under the preceding sentencing practice, courts sentenced to probation "an inappropriately high percentage of offenders guilty of certain economic crimes ..." U.S.S.G. Ch. 1, Pt. A, 4(d). The Commission then said specifically as to bribery that "current sentencing practices do not adequately reflect the seriousness of public corruption offenses." Id. at Ch. 2, Pt. C, intro. comment.

The government goes on to argue that the district court's grounds did not constitute a "circumstance of a kind, or to degree, not adequately taken into consideration by the Sentencing Commission" as required by 18 U.S.C. § 3553(b). In particular, the government argues that the defendants gained "prestige within their immigrant community" and "operate[d] businesses in that community, which were also likely to benefit, directly or indirectly" from the bribes. The government further argues that if the undercover conduct in this case is endorsed as a ground for departure, "it will be a ground for departure in virtually every undercover case" (italics in original). The government treats Takai's charitable expenditures as simply reflecting "community ties" and "socioeconomic status" that cannot be considered in departure decisions. U.S.S.G. 5H1.6 and 1.10. Finally, the government characterizes "single acts of aberrant behavior" as "so vague that if endorsed by this court here, it will become the departure reason that swallows every white-collar first-offense case."

The Guidelines' Treatment of Departures. The Commission begins with the statutory basis for departure as "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. § 3553(b). The Commission goes on to say that it "intends the sentencing courts to treat each guideline as carving out a 'heartland,' a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted." U.S.S.G. Ch. 1, Pt. A, 4(b). Race, sex, national origin, creed, religion, socioeconomic status, and the defendant's physical condition are factors that a court cannot take into account. "With those specific exceptions, however, the Commission does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the Guidelines, that could constitute grounds for departure in an unusual case." Id. The reasons that the Commission has adopted this policy are two and are in tension with each other: "[I]t is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision," and the Commission believes that courts will not have reason to depart "very often." Id. As sponsors of the Guidelines, the Commissioners are reluctant to believe that they have not anticipated most patterns of behavior. As students of human nature, the Commissioners recognize that the range of human conduct is very large.

The Standard of Review. We determine de novo whether the district court identified the mitigating circumstance and review under a clearly erroneous standard whether this circumstance actually existed. We review de...