U.S. v. Beaumont ( 1992 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 91-4703
(Summary Calendar)
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY BEAUMONT,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
(August 27, 1992)
Before KING, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Jimmy Beaumont and three other defendants were convicted of
"structuring"1 a financial transaction with intent to evade the
reporting requirements of 31 U.S.C. § 5313(a)--a violation of 31
U.S.C. § 5324(3). Beaumont appeals this conviction for
structuring and, finding that the district court committed
neither plain error in its jury instruction on structuring nor
reversible error in refusing to sever Beaumont's case from that
of his co-defendants, we affirm.
1
See infra note 9.
1
I
A
On March 26, 1990, Beaumont and Hersman entered the Orange
Bank in Orange, Texas to purchase cashier's checks. Beaumont
purchased a cashier's check in the amount of $9,500, and Hersman
purchased one in the amount of $9,000. Both Beaumont and Hersman
made their purchases in cash and used bills of small
denominations, wrapped in rubber bands and contained in a plastic
"ziplock" sandwich bag. When Hersman found that he was
approximately $500 short of funds to purchase this $9,000
cashier's check, Beaumont paid the difference for him.
The following day, Beaumont returned to the Orange Bank to
purchase more cashier's checks, this time accompanied by Gerald
Bishop and Jerald Peacock. These March 27 transactions all took
place at the same teller window used to make the March 26
cashier's check purchases and were again made with currency
consisting of small denominations wrapped with rubber bands and
in plastic ziplock sandwich bags. Beaumont purchased a cashier's
check in the amount of $6,500; Bishop and Peacock both purchased
checks in the amount of $9,000.2 All of these cashier's checks
were made payable to the Sabine Title Company.
2
When Bishop attempted to make his purchase, the teller
requested identification. Beaumont interrupted, commenting that
it was his understanding that reports only needed to be made for
transactions of $10,000 or more. See Supplemental Record on
Appeal, vol. 1, at 60, United States v. Beaumont, No. 91-4703
(5th Cir. filed Mar. 11, 1992) ["Supplemental Record on Appeal"].
2
In April 1990, a federal search warrant was executed on
Beaumont's home. Among other physical and documentary evidence,
officers found a safe containing approximately $14,300 in
currency consisting of small denominations in $1,000 bundles,
wrapped with rubbers bands and stored inside plastic ziplock
sandwich bags. Beaumont's safe also contained the carbon copy
portion of the five cashier's checks purchased by him, Hersman,
Bishop, and Peacock.
B
Beaumont, Hersman, Bishop, and Peacock were indicted for
structuring financial transactions for the purpose of evading the
reporting requirements of 31 U.S.C. § 5313(a) in violation of 31
U.S.C. § 5324(3).3 After his arrest, Hersman made oral
inculpatory statements to state and federal officers--that is,
recanting a statement he originally gave to a special agent for
the Internal Revenue Service (I.R.S.),4 Hersman told law
enforcement agents that Beaumont had given him the cash necessary
for the purchase of his cashier's check and that there was no
3
Beaumont, along with three other defendants, was
originally indicted in a multi-count indictment charging
conspiracy to manufacture methamphetamine and other drug
offenses. The structuring charge at issue before us was added by
a superseding indictment and, upon motion by the defense, was
eventually severed from the drug charges.
4
Following execution of the federal search warrant on
Beaumont's home in April 1990, a special agent for the I.R.S.,
Criminal Investigation Division, conducted separate interviews
with Bishop, Hersman, and Peacock. At that time, all three told
this agent essentially the same story: They had entered into an
investment agreement with Beaumont for the purchase of real
property in Newton County, Texas and the currency they used to
purchase the cashier's checks was cash they had saved.
3
agreement to invest in the purchase of real property in Newton
County.
At trial, Hersman's post-arrest oral statements were
modified to remove references to Beaumont. Moreover, prior to
admitting any testimony concerning Hersman's statements, the
court held a hearing outside the presence of the jury to
determine whether a Bruton-type5 violation was likely. Beaumont
moved for a severance, arguing that, because of facts and
circumstances already presented to the jury, the modified--all
references to Beaumont were removed--Hersman statements had the
effect of telling the jury that either Beaumont or his co-
defendants gave the money to Hersman. The district court denied
Beaumont's request for a severance and declined to exclude the
modified Hersman post-arrest statements. Hersman's statements
were introduced at trial through the testimony of two prosecution
witnesses, Commander Wayne Hoffman and Texas Public Safety
Investigator Howard Jake Smith, and all defendants were convicted
of the structuring charge. Beaumont was sentenced to a prison
term of twenty-four months, to be served concurrently with a life
sentence for his conviction on related drug charges.6
5
In Bruton v. United States, 391 U.S. 123, 127-28, 88 S.
Ct. 1620, 1623 (1968), cert. denied, 397 U.S. 1014, 90 S. Ct.
1248 (1970), discussed infra at Part II.B, the Supreme Court set
forth the standard for determining when a Sixth Amendment right
to confrontation is violated through the extrajudicial statements
of a co-defendant.
6
See supra note 3.
4
II
Beaumont raises two issues on appeal:
A. Whether the district court erred in its
instruction on structuring; and
B. Whether the district court erred in refusing
Beaumont's motion for severance.
A
Beaumont contends that the district court erred in the jury
instruction it gave on structuring pursuant to 31 U.S.C. §§
5313(a), 5324(3). We disagree.
The court instructed the jury as follows:
Title 31, Section 5324(3) of the United States
Code states in part that no person shall for the
purpose of evading the reporting requirements of
Section 5313(a), structure or assist in structuring, or
attempt to structure or assist in structuring, any
transaction with one or more domestic financial
institutions.
* * *
It is not necessary for the Government to prove
that a defendant knew that structuring or assisting in
structuring a transaction to avoid triggering the
filing requirements was itself illegal. The Government
need only prove beyond a reasonable doubt that a
defendant structured or assisted in structuring
currency transactions with knowledge of the reporting
requirements and with the specific intent to avoid said
reporting requirements. In other words, a defendant's
ignorance of the law prohibiting structuring is no
defense if he knew about filing requirements and
intentionally acted to evade or assisted in evading
them.7
7
Supplemental Record on Appeal, vol. 4, at 70-72,
(emphasis added). Moreover, at the close of evidence, the
district court instructed the jury that they should consider the
evidence concerning a statement "with caution and great care."
Id. at 68. The court also charged that "the case of each
defendant and the evidence pertaining to that defendant should be
considered separately and individually." Id. Neither Beaumont
nor his co-defendants requested any other instruction regarding
this issue.
5
Relying upon Cheek v. United States, ___ U.S. ___, ___, 111 S.
Ct. 604, 609-610 (1991), Beaumont argues that the government was
required to prove that (1) he knew that structuring was against
the law and (2) specifically intended to violate the law against
structuring.8
Beaumont did not object to this structuring instruction at
trial, and "we have held in the past that where no timely
objection is made to a jury instruction, the claimed error cannot
be reviewed on appeal unless giving the instruction was `plain
error' so fundamental as to result in a miscarriage of justice."
Branch-Hines v. Hebert, 939 F.2d 1311, 1319 (5th Cir. 1991)
(citations omitted) (where district court erroneously instructed
jury, reversing and remanding for new trial on issue of general
damages); see United States v. Thevis, 665 F.2d 616, 645 (5th
Cir.) ("[O]bjections to jury instructions not timely made are
waived unless the instruction constitutes `plain error.'"), cert.
denied, 456 U.S. 1008, 102 S. Ct. 2300 (1982). Plain error, in
the context of jury instructions, is found only if "the charge,
considered as a whole, is so clearly erroneous as to result in a
likelihood of a grave miscarriage of justice . . . or seriously
8
In Cheek, the Court held that a defendant charged with
willful failure to file a tax return is entitled to instructions
that inform the jury that a good faith belief that one need not
file a tax return need not be objectively reasonable to be a
valid defense. Id. This court and others have held that Cheek's
"statutory interpretation of `willfulness' is `an exception to
the traditional rule and is a statutory element of special
treatment of criminal tax offenses.'" United States v. Chaney,
No. 91-8206 (5th Cir. June 19, 1992) (slip. op. at 5591 n.25),
quoting United States v. Arditti, 955 F.2d 331, 340 (5th Cir.
1992) (other citations omitted).
6
affects the fairness, integrity, or public reputation of judicial
proceedings." Thevis, 665 F.2d at 645 (citation and internal
quotations omitted).
Section 5324 provides, in pertinent part, that "[n]o person
shall for the purpose of evading the reporting requirements of
section 5313(a) with respect to such transaction . . . (3)
structure or assist in structuring, or attempt to structure or
assist in structuring, any transaction with one or more domestic
financial institutions." 31 U.S.C. § 5324.9 This Court has held
that "the intent requirements of section 5324(c) are met if the
defendant (1) knew of the bank's legal obligation to report
transactions in excess of $10,000; and (2) acted with the purpose
of defeating that law, rather than with some innocent purpose."
United States v. Peacock, No. 91-4346 (5th Cir., Feb. 6, 1992)
(unpublished slip op. at 6), citing United States v. Camarena,
No. 88-1314 , 1988 WL 216293, at *3 (5th Cir. Dec. 6, 1988) ("It
follows from this account of the legislative history that the
government is correct in its contention that the required
specific intent is proved by evidence that [the defendant] knew
of the bank's legal obligation to report transactions in excess
of $10,000 and acted with the bad purpose of defeating that law
rather than for some innocent purpose."). We find that this
9
Among its general accountability objectives, the
purpose of this provision it to prohibit structuring, also known
as "smurfing"--that is, laundering large amounts of ill-gotten
currency by engaging in multiple currency transactions, each
under $10,000, within a brief period of time. See United States
v. Scanio, 900 F.2d 485, 491 (2nd Cir. 1990).
7
intent requirement of section 5324(3) is clearly captured within
the district court's instruction.
As for Beaumont's contention that Cheek, ___ U.S. at ___,
111 S. Ct. at 609-610, requires that the government prove that he
(1) knew structuring was against the law and (2) acted with
specific intent to violate that law, other circuits have
addressed this issue and have declined to extend Cheek to section
5324. See United States v. Rogers, 962 F.2d 342, 344 (4th Cir.
1992) (following the Tenth and Eleventh Circuits). Specifically,
the Rogers court reasoned:
In Cheek, the rationale for the Court's exception to
the traditional interpretation of "willful" was the
complexity of the tax code, which often makes it
difficult for the average citizen to know what the law
requires. Cheek, 111 S. Ct. at 609-10. That sort of
complexity simply is not present in cases involving the
"straightforward currency reporting requirements."
Dashney, 937 F.2d at 540. Like the court in Dashney,
we believe that the circumstances justifying an
adoption of the Cheek definition of "willfulness" are
limited, and this case does not present them.
Id. at 344. We agree with this reasoning and, therefore, we find
that the district court did not commit plain error in instructing
the jury to find Beaumont guilty if he (1) knew of the reporting
laws and (2) willfully attempted to evade them.
B
Beaumont also contends that the district court committed
reversible error by admitting Hersman's statements without
severing Beaumont from the case.10 We disagree.
10
According to Beaumont, Hersman's statements, extracted
through the testimony of others, implicated him--especially when
combined with testimony that he and Hersman entered the bank
8
In Bruton v. United States, 391 U.S. 123, 127, 88 S. Ct.
1620, 1623 (1968), cert. denied, 397 U.S. 1014, 90 S. Ct. 1248(1970), the Supreme Court held that a defendant's Sixth Amendment
right to confrontation is violated when (1) several co-defendants
are tried jointly, (2) one defendant's extrajudicial statement is
used to implicate another defendant in the crime, and (3) the
confessor does not take the stand and is thus not subject to
cross-examination. Severance of the trials is proper, but only
in cases where a defendant's statement directly incriminates his
or her co-defendants without reference to other, admissible
evidence. See United States v. Espinoza-Seanez, 862 F.2d 526,
534 (5th Cir. 1988). "This Court has held consistently that the
Bruton rule is not violated unless a co-defendant's statement
directly alludes to the complaining defendant . . . . This is
true, even if the evidence makes it apparent that the defendant
was implicated by some indirect references." Id., quoting United
States v. Webster, 734 F.2d 1048, 1054 n.6 (5th Cir.), cert.
together and that Hersman took direction from him. Specifically,
Beaumont asserts that Hersman's statement that "he [meaning
Hersman] thought that Mr. Beaumont was trying to get around the
[currency transaction reporting] requirement . . . ."
(Supplemental Record on Appeal, vol. 2, at 112), admitted through
the testimony of David Zuniga, special agent for criminal
division of the I.R.S, implicated him in that it served as
evidence of Beaumont's knowledge of the reporting requirements of
31 U.S.C. 31 U.S.C. § 5313. Beaumont also asserts that he was
implicated by Hersman's statements (elicited through the
testimony of Hoffman and Smith, a Texas public safety
investigator) that (1) Hersman had obtained the money for the
cashier's check from some one else and was getting the check for
that person, and (2) Hersman was doing a favor for a friend by
getting the cashier's check. See Supplemental Record on Appeal,
vol. 2, at 135-48.
9
denied, 469 U.S. 1073, 105 S. Ct. 565 (1984). We review
Bruton issues under the abuse of discretion standard. See United
States v. Basey, 816 F.2d 980, 1004 (5th Cir. 1987).
Hersman's statements elicited through the testimony of
Hoffman and Smith--that is, statements that Hersman got the money
from "a friend" and that Hersman was just doing a favor for "a
friend"--do not directly implicate Beaumont and, therefore, do
not violate Bruton. See Espinoza-Seanez, 862 F.2d at 534 (where
defendants' confessions were used to implicate co-defendants but
those confessing did not take the stand, defendants were not
denied Sixth Amendment right to confront witnesses because
confessions did not directly implicate them without reference to
other, admissible evidence). As for Zuniga's testimony that
Hersman told him that he thought Beaumont was trying to get
around the reporting requirements of section 5313(a), Beaumont
did not object to this testimony at trial. Our review of such
testimony is only for plain error--that is, we look to see
whether it "undermine[d] the fairness of the trial and
contribute[d] to a miscarriage of justice." United States v.
Young, 470 U.S. 1, 15-16, 20, 105 S. Ct. 1038 (1985); see also
Basey, 816 F.2d at 1005 (the error may be harmless if the
statement's impact is insignificant compared with other evidence
against the defendant); United States v. Lewis, 786 F.2d 1278,
1286 (5th Cir. 1986). We find that, because Beaumont was
10
overwhelmingly implicated by other evidence,11 the extraction of
Hersman's statements from Zuniga's testimony neither undermined
the fairness of Beaumont's trial nor contributed to any
miscarriage of justice. We conclude, therefore, that the
district court did not commit reversible error by refusing to
sever Beaumont from the case.
III
For the foregoing reasons, we AFFIRM.
11
For example Becky Jo Nations, a teller at the Orange
Bank, testified that:
(1) Hersman and Beaumont came into Orange Bank together
on March 26, 1990;
(2) both purchased cashier's checks made out to "Sabine
Title Company";
(3) when Hersman discovered that he was about $500
short for his purchase and mentioned this, Beaumont
made up the difference;
(4) Beaumont came back the next day with Peacock and
Bishop to purchase more cashier's checks made out to
Sabine Title Company; and
(5) all of these cashier's checks were purchased with
cash in folded-over bundles of $1000, which were
secured by rubber bands and stored in ziplock bags.
Supplemental Record on Appeal, vol. 1, at 104-119. Jossie
Wilkinson, vice president of the Orange Bank, and Evelyn
Whitehead, a teller at Orange bank, offered similar testimony
about the defendants' cashier's checks. Id. at 24-102;
Supplemental Record on Appeal, vol. 3, at 29-45; see, e.g., supra
note 2 (testimony suggesting the Beaumont was well-aware of the
reporting requirement for transactions in excess of $10,000 and
that he did not want Bishop's transaction to be reported).
Moreover, the carbon portion of the Beaumont, Hersman, Peacock,
and Bishop cashier's checks were all found in a safe at
Beaumont's residence.
11