79 F.3d 1396 (5th Cir. 1996), 94-60648, United States v. McGuire

Docket Nº:94-60648.
Citation:79 F.3d 1396
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jimmy D. McGUIRE, Defendant-Appellant.
Case Date:March 26, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1396

79 F.3d 1396 (5th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jimmy D. McGUIRE, Defendant-Appellant.

No. 94-60648.

United States Court of Appeals, Fifth Circuit

March 26, 1996

Page 1397

Jennifer Parkinson, Burkes, Jackson, MS, William Liston, William Liston, III, Winona, MS for appellant.

Ruth Morgan, Victoria May, Asst. U.S. Attys., George Phillips, U.S. Atty., Biloxi, MS, James B. Tucker, Asst. U.S. Atty., Jackson, MS, for appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before SMITH, WIENER and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Jimmy D. McGuire, a Mississippi attorney, was convicted by jury in the Southern District of Mississippi of filing a false IRS form 8300 in violation of 26 U.S.C. § 6050I(f)(1)(B) and 26 U.S.C. § 7206(1). 1 McGuire was sentenced to 36 months incarceration to be followed by one-year supervised release. McGuire was also fined $50,000, ordered to pay $20,000 for cost of confinement and ordered to pay a $50 special assessment.

McGuire appeals his conviction, the district court's order denying his post-trial motions for acquittal or new trial and the sentencing order. On appeal McGuire claims that the jury instructions were deficient, the evidence was insufficient and that he was unduly prejudiced by the prosecutors' improper remarks in closing argument. During the pendency

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of this appeal, the Supreme Court decided United States v. Gaudin, --- U.S. ----, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). We are persuaded that Gaudin renders the jury instructions given in this case reversible error. McGuire's conviction will be reversed and the case remanded for possible retrial.

BACKGROUND

Jimmy D. McGuire is an attorney licensed in the state of Mississippi. In February 1982, McGuire had a substantial criminal defense practice representing individuals charged with drug offenses, as well as other matters. Around that time, the IRS received information from a number of sources suggesting that McGuire routinely received and failed to report large amounts of cash in his practice, which he then laundered in various transactions for the purchase of expensive automobiles and real estate. 2 As a result, McGuire became the target of an undercover "sting" operation. Three government agents were involved in the sting that resulted in McGuire's conviction: (1) agent Narciso Hernandez, posing as Hector Flores (Flores); (2) agent Henry Montes, posing as Hector Martinez (Martinez); and (3) agent David Barrientos, posing as David Bolivar (Bolivar). 3

Flores contacted McGuire by telephone on February 5, 1992, with the story that $280,000 had been seized from Flores' car during a traffic stop by the Mississippi Highway Patrol. Flores requested McGuire's assistance in recovering the money and avoiding forfeiture. Later that day Flores and another agent, Martinez, met with McGuire in his Gulfport office. During the meeting, Flores explained that it would be hard to come up with a legitimate source for the $280,000, to which McGuire responded: "You don't have to be a genius. Ah, did you win the lottery in Florida? Did you, ah--did it belong to someone else?" Flores informed McGuire that he was a cocaine dealer, stating "I've just been selling a little bit of cocaine, that's about it." McGuire suggested that Flores could more successfully evade law enforcement by flying or by driving Highway 90 and Highway 26 as an alternative to Interstate 10, because "[t]hey don't patrol that area at all."

Flores said that he had told police that the money was from a sale of floor tile, but confessed to McGuire that this was not true. Nonetheless, when Martinez asked whether it would be a good idea to have a contractor claim to have received tile, McGuire replied that it would. McGuire advised Flores and Martinez that it would back up their claim if they filed a form with the IRS reporting that they had received the $280,000 from the sale of tile, but that it would be inadvisable to file the form if the money was illegal, because filing a false form is also a crime.

Martinez explained that he had not been present at the stop and seizure, but that he had a partial interest in the $280,000. McGuire agreed to represent both Flores and Martinez in their effort to recover the money and proposed a $20,000 retainer, plus an agreement for 30% of whatever was recovered. Martinez asked whether McGuire would have to file a form with the IRS if Martinez paid McGuire the $20,000 retainer in cash. Both Flores and Martinez expressed concern about having their name appear on any forms. The three men then discussed at length different methods for evading the filing requirement established by 26 U.S.C. § 6050I.

McGuire proposed that Flores and Martinez bring in a third party, who could hand the money to McGuire. McGuire said he could then set up a dummy file for representation of that third party and, if anyone asked, McGuire could say that the arrangement for representation of Flores and Martinez was strictly on a contingent fee basis. McGuire explained, "you will be my client,

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but that money won't be connected to it." 4

The next morning, February 6, Flores telephoned McGuire, explaining that he was trying to secure money for McGuire's retainer. Later that day, Flores and Martinez went back to McGuire's office, this time with a third agent who posed as David Bolivar. McGuire again agreed to represent Flores and Martinez in the forfeiture action. Flores "agreed to pay McGuire $20,000 as partial payment of the fee." Then the following exchange occurred:

Flores: We thought about what you said yesterday. We'll just go ahead and give you the 20,000.

McGuire: Okay.

Flores: And, then, if you need to put somebody's name or something, you can put his name on it.

McGuire: Okay.

McGuire inquired whether Bolivar had the money, to which Flores replied, "I got it here." McGuire admonished Flores to "[p]ut that away. It should not come from you." Sounding exasperated, McGuire added "I'm gonna walk out of the room for just a second, okay?" As McGuire left, Flores directed McGuire's attention to Bolivar and said "[j]ust give it to him?" McGuire responded by throwing up his hands and leaving the room.

When McGuire returned, Bolivar gave McGuire $20,000 in cash. Both Bolivar and Flores requested a receipt. Bolivar told McGuire he would say that they had a percentage fee arrangement, if anyone asked. McGuire confirmed the arrangement and agreed that they did not have to tell anyone about the $20,000. Flores informed McGuire that the bills were all in hundreds, and that the money was packaged one thousand dollars to a bundle. Martinez again expressed concern about whether his name would appear on any documents, but instructed McGuire to "get what we want."

The following day, February 7, McGuire prepared IRS form 8300, reporting the receipt of $20,000 cash. Part I of the form identified David Bolivar as the "individual from whom cash was received." Part II, which required the identity of the "person ... on whose behalf this transaction was conducted," was left blank. Ten days later, on February 17, McGuire filed an amended form 8300. Part I of the amended form again listed Bolivar as the payor, but disclosed in Part II that Hector Flores was the person on whose behalf David Bolivar paid the $20,000. Neither form disclosed Martinez' identity.

McGuire was indicted in two separate indictments on charges of conspiracy, money laundering, filing a false income tax return and filing a false IRS form 8300. He was acquitted on all counts except count four, the count relating to the 8300 forms filed after the sting operation. With the regard to the first 8300 form, the indictment alleged McGuire "falsely stated the identity of the individual from whom the cash was actually received and failed to disclose the person on whose behalf the transaction was conducted." With regard to the second 8300 form, the indictment alleged McGuire "falsely stated the identity of the individual from whom the cash was actually received." McGuire appeals his conviction on count four, the district court's order denying his post-trial motion for acquittal or new trial and the district court's sentencing order.

JURY INSTRUCTIONS

McGuire was convicted of violating 26 U.S.C. § 6050I(f)(1)(B) in conjunction with 26 U.S.C. § 7206(1). Title 26 § 6050I(f)(1)(B) requires proof that a defendant (1) for the purpose of evading the § 6050I reporting requirement; (2) caused or attempted to cause a trade or business to file a § 6050I return; (3) containing a material omission or misstatement of fact. 26 U.S.C. § 6050I (Supp.1995) (emphasis added). Title 26 U.S.C. § 7206(1) requires proof that a defendant: (1) willfully; (2) made and subscribed a return, statement or other document; (3) containing or verified by a written declaration that it was made under penalties of

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perjury; and (4) that the defendant did not believe that document to be true and correct as to every material matter (emphasis added). United States v. McCord, 33 F.3d 1434, 1450 (5th Cir.1994), cert. denied sub nom., Haley v. United States, --- U.S. ----, 115 S.Ct. 2558, 132 L.Ed.2d 812 (1995).

McGuire's jury received 38 separate instructions. Many of those instructions applied generally to all counts, while others were specific to the counts charged. Instruction 36, the only instruction specific to the count of conviction, required that the jury find that: (1) McGuire knew that the law practice had a duty to report currency transactions in excess of $10,000; (2) McGuire knowingly and willfully caused or attempted to cause the filing of a form 8300 containing a material omission or...

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