Case: 12-15727   Date Filed: 07/25/2013   Page: 1 of 12


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15727
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:10-cr-00134-WSD-LTW-3



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus


WILLIE DAREN DURRETT,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (July 25, 2013)

Before HULL, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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       Willie Daren Durrett appeals his convictions and sentences for bribery and

conspiracy to commit bribery, in violation of 18 U.S.C. §§ 666(a)(1)(B) and 371.

On appeal, Durrett argues that the district court committed five errors. First,

Durrett argues that the district court erred by refusing to dismiss the fourth

superseding indictment against him because the allegations of conspiracy and

bribery in the indictment were legally insufficient. Second, Durrett argues that the

court abused its discretion by admitting certain exhibits under the business records

exception to the hearsay rule. Third, he argues that the court erred in failing to

apply the base offense level found in U.S.S.G. § 2C1.2 instead of § 2C1.1. Fourth,

he argues that the district court erred in applying an eight-level sentence

enhancement under § 2C1.1(b)(2). Finally, he argues that the court improperly

applied a two-level enhancement, under U.S.S.G. § 3C1.1, for obstruction of

justice.

       For the reasons set forth below, we affirm Durrett’s convictions and

sentences.

                          I. Sufficiency of the Indictment

       We review the district court’s denial of a motion to dismiss the indictment

for abuse of discretion, but the sufficiency of an indictment is a legal question that

is reviewed de novo. United States v. Schmitz, 

, 1259 (11th Cir.

2011). “An indictment is considered legally sufficient if it: (1) presents the


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essential elements of the charged offense, (2) notifies the accused of the charges to

be defended against, and (3) enables the accused to rely upon a judgment under the

indictment as a bar against double jeopardy for any subsequent prosecution for the

same offense.” 

an indictment specifically refers to the

statute on which the charge was based, the reference to the statutory language

adequately informs the defendant of the charge.” United States v. Ndiaye, 

, 1299 (11th Cir. 2006) (quotation omitted). Nevertheless, even when an

indictment “tracks the language of the statute, it must be accompanied with such a

statement of the facts and circumstances as will inform the accused of the specific

offense . . . with which he is charged.” United States v. Bobo, 

, 1083

(11th Cir. 2003) (quotation omitted). “[T]he appropriate test . . . is not whether the

indictment might have been drafted with more clarity, but whether it conforms to

minimal constitutional standards.” United States v. McGarity, 

,

1235-36 (11th Cir.), cert. denied, 

(2012).

      The district court did not err by refusing to dismiss the fourth superseding

indictment against Durrett because the indictment was legally sufficient as to each

count. With respect to Count 1, the indictment identified and tracked the language

of the conspiracy and bribery statutes. In addition, Count 1 set forth the dates of

the conspiracy, identified a co-conspirator, identified the location of the

conspiracy, and identified Amin Budhwani as the person paying the bribes. See


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United States v. Yonn, 

, 1348 (11th Cir. 1983) (upholding

sufficiency of drug conspiracy indictment that recited the essential elements of the

offense and provided the names of co-conspirators, the type of controlled

substance, and the time frame and location of the conspiracy). The indictment

further specified that Durrett had previously taken bribes from Budhwani, that

Budhwani approached Durrett for assistance with a personal matter that had no

connection to official police business, and that Durrett improperly used his official

position to assist Budhwani. Finally, it alleged that Durrett committed the overt

acts of introducing the co-conspirator to Budhwani and accepting money from

Budhwani in return for taking official actions as a police officer. Cf. 

(holding that the allegations of conspiracy were insufficient because,

inter alia, “[t]he indictment contains no indication of what the government

contended was unlawful about [defendant’s] conduct”). Count 1 conforms to

minimal constitutional standards. See 

.

      The bribery charges in Counts 2 and 4 of the indictment are also sufficient.

As with Count 1, both charges track the language of the bribery statutes, identify

Budhwani as the person making the bribes, and allege locations and dates of the

bribes alleged in each count. Cf. 

(holding that the

allegations of fraud in the indictment were insufficient “because they provide

absolutely no factual detail regarding the scheme to defraud”). Like the allegations


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of conspiracy, the allegations of bribery “conform[] to minimal constitutional

standards.” See 

.

                                II. Hearsay Objection

      We review a district court’s evidentiary rulings for abuse of discretion and

the factual findings underlying those rulings for clear error. United States v.

Lebowitz, 

, 1009 (11th Cir. 2012), cert. denied, 

(2013). Under Federal Rule of Evidence Rule 803(6), business records are not

excluded as hearsay if they are kept in the course of a regularly conducted business

activity, and if it was the regular practice of the business activity to make the

records, all as “shown by the testimony of the custodian or another qualified

witness, or by a certification that complies with Rule 902(11) or (12) or with a

statute permitting certification.” We have held that Rule 803(6) requires “the

testimony of a custodian or other qualified witness who can explain the record-

keeping procedure utilized.” United States v. Garnett, 

, 1018-19

(11th Cir. 1997). “The touchstone of admissibility under the business records

exception to the hearsay rule is reliability, and a trial judge has broad discretion to

determine the admissibility of such evidence.” United States v. Bueno-Sierra, 

, 378 (11th Cir. 1996).

      The district court did not abuse its discretion in admitting the business

ledgers prepared by Samir Somani and Amin Budhwani because they fall within


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the business records exception to the hearsay rule. First, with regard to the ledgers

prepared by Somani, Somani testified that he maintained the ledgers in the normal

course of business and that the entries in the ledgers were made at or near the time

of the transactions reflected in them. Somani testified about where the ledgers

were kept in the store and confirmed that the records were not altered or changed

other than the addition of several red arrows. Although Somani no longer worked

at Conoco at the time of the testimony, he was a qualified witness who

“explain[ed] the record-keeping procedure utilized” at the time he created and

maintained the records. See 

. The district court did

not err in admitting these ledgers.

      Second, with regard to the ledgers prepared by Budhwani, Budhwani

testified that he maintained in the regular course of his businesses his own set of

ledgers. Although Budhwani obtained the information that he recorded in his

ledgers from the ledgers prepared by his clerk, “the proponent of a document

ordinarily need not be the entity whose first-hand knowledge was the basis of the

facts sought to be proved.” See 

. Budhwani made his

ledgers within a day or two of when the cashier completed the daily ledgers, and it

was well within the district court’s “broad discretion” to conclude that this was

within a reasonable time of the transaction for the purpose of establishing

reliability. See 

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      The district court did not abuse its discretion by admitting the ledgers

prepared by Somani and Budhwani into evidence.

                                III. Base Offense Level

      The district court’s legal interpretations of the sentencing statutes and

Guidelines are reviewed de novo. United States v. Burge, 

, 1186

(11th Cir. 2005). Appendix A to the Guidelines states that one of two sections can

apply to a conviction pursuant to 18 U.S.C. § 666(a)(1)(B)— either § 2C1.1 or §

2C1.2. Section 2C1.1 applies to “a person who offers or gives a bribe for a corrupt

purpose, such as inducing a public official to participate in a fraud or to influence

such individual’s official actions, or to a public official who solicits or accepts

such a bribe.” U.S.S.G. § 2C1.1, cmt. background. Section 2C1.2 “applies to the

offering, giving, soliciting, or receiving of a gratuity to a public official in respect

to an official act.” 

background. “Commentary in the Guidelines

Manuel that interprets or explains a guideline is authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with, or a plainly erroneous

reading of, that guideline.” United States v. Wright, 

, 712 (11th Cir.

2010) (quotation omitted).

      The rule of lenity holds that where there is an ambiguity in a criminal

statute, doubts are resolved in favor of the defendant. See United States v. Cruz,

, 1473 (11th Cir. 1986). We apply the rule of lenity only if the


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provision being construed is still ambiguous after application of normal rules of

construction. See United States v. Camacho-Ibarquen, 

, 1315 (11th

Cir. 2005).

      Here, the district court did not err in applying the base offense level found in

§ 2C1.1 instead of § 2C1.2. Durrett was charged and convicted of receiving

bribes, and the rule of lenity does not apply because § 2C1.1 is not ambiguous. See

id.; see also United States v. Anderson, 

, 962 (7th Cir. 2008) (“There

is nothing ambiguous about § 2C1.1.”). The district court did not err in applying

the base offense level in § 2C1.1—applying to bribes—as opposed to the base

offense level in § 2C1.2—applying to gratuities.

                               IV. Loss Determination

      The district court’s factual findings generally are reviewed for clear error

and its application of the Guidelines to those facts is reviewed de novo. United

States v. Johnson, 

, 1066 (11th Cir. 2008). “[A] district court’s

determination of the amount of loss for sentencing purposes is reviewed for clear

error.” United States v. Bonilla, 

, 1239 (11th Cir. 2009). We review

objections to sentencing calculation issues raised for the first time on appeal for

plain error. United States v. Frazier, 

, 1282 (11th Cir. 2010). In

order to show plain error, a defendant must demonstrate that (1) error existed, (2)

the error was plain, (3) the error affected his substantial rights, and (4) the error


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seriously affected the fairness, integrity or public reputation of judicial

proceedings. United States v. Gandy, 

, 1240 (11th Cir. 2013).

      Section 2C1.1(b)(2) of the Sentencing Guidelines applies an enhancement

for the greater of “the value of the payment” or “the benefit received or to be

received in return for the payment” in connection with the bribe of a public

official. For purposes of section 2C1.1(b)(2), these amounts are determined in

accordance with application note three to the commentary for section 2B1.1, which

provides that a defendant is responsible for loss that he reasonably should have

known was a potential result of the offense. U.S.S.G. §§ 2C1.1 cmt. n.3; 2B1.1

cmt. n.3(A)(iv); see also United States v. Valarezo-Orobio, 

, 1264

(11th Cir. 2011) (“Relevant conduct includes not only the defendant’s own acts in

perpetration of the offense, but also all reasonably foreseeable acts and omissions

of others in furtherance of the jointly undertaken criminal activity.” (quotation

omitted)). For losses over $70,000, but less than $120,000, the offense level is

increased by 8 levels. U.S.S.G. § 2B1.1(b)(1).

      The district court did not clearly err in applying an eight-level enhancement,

under U.S.S.G. § 2C1.1(b)(2), based on the value of the benefits received in return

for the bribes. The district court calculated that the value of such benefits was

$86,000; Durrett challenges three items counted by the district court in calculating

the benefits: the $50,000 benefit to Budhwani related to the attempt to cause Imran


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Chaudhry to leave the country; the $16,000 received by Budhwani from Somani;

and the $10,000 received by Budhwani from Wedderburn. We reject each such

challenge for the following reasons.

      The district court did not err by accepting Budhwani’s testimony that the

value of the business was approximately $100,000 because business owners are

competent to give an opinion as to the value of their property. Fed. R. Evid. 701,

Advisory Committee Note, 2000 Amendments. The district court thus did not err

by stating that the value of the bribe was Chaudhry’s 50% share of the business at

the time, or $50,000. And the district court did not error in finding that it was

reasonably foreseeable to Durrett that Budhwani would have some financial

motivation for seeking Durrett’s assistance.

      With regard to the $16,000 that Budhwani received from Somani, and the

$10,000 Budhwani received from Wedderburn, the district court did not clearly err

in determining that these amounts arose from reasonably foreseeable acts in

furtherance of the conspiracy, and thus these amounts were properly attributed to

Durrett.

      The amounts contributing to the value of the benefits received were properly

established and/or admitted, and the district court did not err in its calculation of

the value received.

                              V. Obstruction of Justice


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      We review a district court’s factual findings regarding the imposition of an

enhancement for obstruction of justice for clear error, and the district court’s

application of the factual findings to the Guidelines de novo. United States v.

Uscinski, 

, 1246 (11th Cir. 2004). We “accord great deference to the

district court’s credibility determinations.” United States v. Singh, 

,

763 (11th Cir. 2002) (quotation omitted).

      The Sentencing Guidelines provide for a two-level enhancement for

obstruction of justice where the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice during the course of

the investigation, prosecution, or sentencing of the instant offense of conviction.

U.S.S.G. § 3C1.1. The commentary to § 3C1.1 provides that obstruction of justice

includes committing perjury. 

elements must be present for a

finding of perjury: (1) testimony under oath that is (2) false, (3) material, and

(4) given with the willful intent of falsehood. 

n.4. For the

purposes of § 3C1.1, ‘material’ means evidence, fact, statement, or information

that, if believed, would tend to influence the issue under determination. U.S.S.G.

§ 3C1.1, cmt. n.6.

      The district court did not clearly err by finding that Durrett lied at trial, nor

did it err by finding that those lies constituted perjury and warranted an

enhancement for obstruction of justice. The district court made detailed findings


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about Durrett’s willfully false testimony, and all of these findings were supported

by the record. Moreover, Durrett’s falsehoods were material because they were

directly relevant to the conspiracy and bribery charges. See 

thorough review of the record and the parties’ briefs, we affirm

Durrett’s convictions and sentences.

      AFFIRMED.




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