U.S.A v. Guidry, 98-3287

• Decision Date: 21 December 1999
• Docket Number: No. 98-3287,98-3287
• Citation: 199 F.3d 1150
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANITA L. GUIDRY, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1150

199 F.3d 1150 (10th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANITA L. GUIDRY, Defendant-Appellant.

No. 98-3287

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 21, 1999

Appeal from the United States District Court for the District of Kansas. D.C. No. 97-CR-10162-MLB

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Debra L. Barnett (Jackie N. Williams, United States Attorney, with her on the brief), Assistant United States Attorney, Wichita, Kansas, for Plaintiff-Appellee.

Daniel E. Monnat of Monnat & Spurrier, Chartered, Wichita, Kansas, for Defendant-Appellant.

Before BRORBY, HENRY and LUCERO, Circuit Judges.

BRORBY, Circuit Judge.

A jury found Appellant Anita L. Guidry guilty of three counts of knowingly and willfully filing a false tax return in violation of 26 U.S.C. 7206(1). The district court denied Mrs. Guidry's Motion for Judgment of Acquittal as to the three counts and sentenced her to sixty months imprisonment. Mrs. Guidry now appeals her conviction and sentence, challenging a search warrant as overbroad, jury instructions, the sufficiency of the evidence, and various applications of the sentencing guidelines. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742. We affirm in part, reverse in part, and remand for resentencing.

BACKGROUND

Anita L. Guidry was the architect of an embezzlement scheme that allowed her to line her pockets with approximately $3 million belonging to her employer, Wichita Sheet Metal.¹ While the embezzlement scheme itself is not directly in issue here, understanding the facts surrounding the scheme is a necessary predicate to resolving the issues before us. Accordingly, we begin with a cursory examination of Mrs. Guidry's background and her embezzlement.

Mrs. Guidry graduated from Wichita State University with a Bachelor's Degree in Business Administration. Her resume lists her major area of study as accounting, and she listed her occupation as accountant on several tax returns filed with the Internal Revenue Service. Wichita Sheet Metal hired Mrs. Guidry as an assistant to the controller of the company in 1986, and she subsequently became the controller in 1987, a position she held until she resigned in 1997. As controller, Mrs. Guidry not only supervised nearly every employee in the office, but she was an authorized signatory on the company checking account.

Mrs. Guidry's embezzlement scheme consisted of submitting checks, already signed by her and made payable to the company's bank, to Freda Moore or John Griffit, owners of Wichita Sheet Metal, for their signature. Mrs. Guidry wrote the checks in $10,000 or $9,000 increments, and she told Mrs. Moore and Mr. Griffit the checks were for federal tax payments. After collecting the proper signature, Mrs. Guidry cashed the checks at the company bank and pocketed the cash. Finally, to prevent discovery of her scheme, Mrs. Guidry altered the company's books to make it appear the money she had taken for personal pleasures was actually used to purchase inventory for the company. This created a discrepancy between the actual inventory and the inventory reflected on the company's books. The company's owners eventually asked for a detailed audit of the discrepancy, which ultimately led to the discovery of Mrs. Guidry's embezzlement.

Mrs. Guidry had financial responsibilities at home in addition to those at work. As the accountant in the family, Mrs. Guidry prepared the joint federal tax returns she filed on behalf of herself and her husband for 1993, 1994, and 1995. According to Mrs. Guidry's husband, these returns were prepared elaborately, which fact is buttressed by the returns themselves. The Guidrys painstakingly itemized their deductions, taking charitable deductions of $7,513 in 1993, $11,692 in 1994, and $13,102 in 1995. Not surprisingly, however, none of the returns reported the embezzled income. In 1993, Mrs. Guidry cashed forty checks through her embezzlement scheme for a total amount of $400,000. The Guidrys declared a total income, combined husband and wife, of $82,817 on their federal income tax return in 1993. In 1994, fifty-nine checks were cashed for a total of $563,000, and the Guidrys declared a total income of $88,547. In 1995, it was sixty-four checks cashed for $576,000, compared to a total declared income of $90,883.

While investigating Mrs. Guidry's embezzlement, Special Agent Martin McCormick of the Internal Revenue Service participated in the execution of a search warrant at the Guidry home. While searching for bank records, Special Agent McCormick opened a drawer in a file cabinet marked "taxes" and observed "tax booklets identical to those that are mailed to everyone by the Internal Revenue Service every year at the first of the year." The 1993 tax booklet the Internal Revenue Service provided with the Individual Income Tax Return listed embezzled income as taxable income that must be reported. The 1994 and 1995 tax booklets did not specifically contain this language, but instead referenced a publication the taxpayer could request which did specifically state embezzled income must be reported as taxable income.

DISCUSSION

I. The Warrant

The search warrant executed at Mrs. Guidry's home authorized officers to seize "[a]ny and all bank records, including but not limited to checks, statements, deposits, or investment records, or records of bank or money transfers." Mrs. Guidry contends the warrant suffered from three deficiencies: (1) the warrant failed to provide any meaningful limitations on items to be seized; (2) the warrant simply authorized the seizure of all files, regardless of their relevance to a specified crime; and (3) the warrant authorized the search and seizure of evidence not supported by probable cause, meaning the scope of the warrant exceeded the probable cause supporting it.

"When reviewing a district court's denial of a motion to suppress, we consider the evidence in the light most favorable to the government, and accept the court's findings of fact unless they are 'clearly erroneous.'" United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir.), cert. denied, 119 S. Ct. 437 (1998). However, "[w]e review de novo whether the warrant was overbroad or insufficiently particular under the Fourth Amendment." United States v. Hargus, 128 F.3d 1358, 1362 (10th Cir. 1997), cert. denied, 118 S. Ct. 1526 (1998). The Fourth Amendment requires warrants "particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. A sufficiently particular warrant "allows the searcher to reasonably ascertain and identify the things authorized to be seized," leaving "nothing to the officer's discretion as to what is to be seized, so that the officer is prevented from generally rummaging through a person's belongings." Hargus, 128 F.3d at 1362. A warrant describing "items to be seized in broad and generic terms may be valid 'when the description is as specific as the circumstances and the nature of the activity under investigation permit.'" United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988) (quoting United States v. Santarelli, 778 F.2d 609, 614 (11th Cir. 1985)); see also Hargus, 128 F.3d at 1363.

The district court focused on the affidavit in support of the warrant to examine the context in which the warrant was requested. The court pointed out the affidavit detailed what was known about the embezzlement scheme at the time, including information about the closing of several bank accounts in Kansas proximate to the time the scheme was discovered and the subsequent opening of other accounts in Oklahoma, and the inability of agents to find either the vast majority of the money Mrs. Guidry had embezzled, or all the money she withdrew from her Kansas banks. Considering the type and extent of Mrs. Guidry's criminal activity, the district court reasoned the warrant was as specific as circumstances allowed: "Absent omniscience, the government could provide no greater specificity." We find this a much closer call, but need not address the Fourth Amendment issue because we exercise our discretion to turn "immediately to a consideration of the officers' good faith" as allowed under United States v. Leon, 468 U.S. 897, 925 (1984).

"Even if the warrant was not specific enough, [a] court should not suppress the evidence [if] the agents seized it in objectively reasonable reliance on the warrant." United States v. Robertson, 21 F.3d 1030, 1034 (10th Cir. 1994) (citing Leon, 468 U.S. at 920-22). "Our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization. In making this determination, all of the circumstances ... may be considered." Leon, 468 U.S. at 922 n.23. Given the circumstances surrounding the warrant at issue here, we hold the officers acted on a good-faith belief the warrant was sufficiently particular in regard to the items to be seized.

The government executed this warrant nearly two months after the initial indictment was filed against Mrs. Guidry. The initial indictment charged Mrs. Guidry with violations of 18 U.S.C. 1956 (money laundering) and 1344 (bank fraud). Special Agent McCormack was intimately involved in the investigation of Mrs. Guidry's embezzlement prior to the execution of the warrant at Mrs. Guidry's home. By the time he executed the warrant, Special Agent McCormack had analyzed numerous bank records connected to the case, served federal grand jury subpoenas on two banks, and served seizure warrants at three banks. The affidavit in support of the warrant limited the search to bank records related to violations of 18 U.S.C. 982 (criminal forfeiture) and 1957 (engaging in monetary transactions in property derived from specified unlawful activity), in addition to the code sections listed in the initial indictment.²...