United States v. Beckner

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30285

UNITED STATES OF AMERICA,
Plaintiff-Appellee-Cross-
Appellant,

versus
DONALD L BECKNER,
Defendant-Appellant-
Cross-Appellee.

Appeals from the United States District Court
for the Middle District of Louisiana

February 2, 1998

Before WISDOM, HIGGINBOTHAM, and STEWART, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

The government here urges that a former United States

Attorney, engaged to defend an SEC proceeding, joined his client’s

criminal enterprise. A jury convicted the attorney, Donald L.

Beckner, for aiding and abetting his client’s fraud. Beckner

contends to us that the evidence was insufficient to demonstrate

that he knowingly participated in any crime. We agree and reverse.

I.

In 1990, Sam Recile and his companion, V. Rae Phillips, began

raising capital for Place Vendome, a shopping mall project in Baton

Rouge, Louisiana. In 1991, Recile retained Donald Beckner to

assist him in the Place Vendome project. At the time Beckner, a
former United States Attorney for the Middle District of Louisiana,

was a prominent and well-regarded lawyer in private practice in

Baton Rouge. The initial engagement was narrow: Beckner was to

handle some problems Recile was having with the press.

However, in April 1991, the SEC initiated an enforcement

proceeding against Recile, Phillips, and various related corporate

entities. The SEC alleged that Recile was guilty of securities

fraud in issuing mortgage notes from the Hannover Corporation of

America, the “Hannover notes,” to acquire capital for Place

Vendome. According to the SEC, in distributing the notes, Recile

lied to investors and provided them with worthless security.

Recile engaged Beckner as his trial counsel in the SEC enforcement

action. On April 12, 1991, a temporary restraining order was

issued, enjoining Recile from soliciting funds for Place Vendome.

Judge Livaudais of the Eastern District of Louisiana later modified

the order to permit Recile to continue to develop the project, so

long as he used only his own assets as security. On April 30,

1991, by consent, this court directive was continued as a

Preliminary Injunction, and the district court appointed a Special

Master to perform an accounting of the funds that Recile had raised

to date.

The fact is that Recile was in trouble with the SEC when

Beckner arrived on the scene. Nor was he the first lawyer there.

Recile employed a variety of “in-house” attorneys who provided him

with day-to-day assistance in commercial transactions. Recile was

2
also represented by lawyers in major law firms in Atlanta and

Washington, D.C., specializing in securities law.

Beckner was trial counsel. He was not a confidant or everyday

advisor to Recile. Specifically, Beckner disclaimed sophistication

in matters of corporate finance and the intricacies of securities

regulation, asking Recile to obtain that assistance from others.

Aware of his own limitations, Beckner routinely sought guidance

from the Atlanta and Washington lawyers on technical securities

matters. It is also important to keep in mind that the gaps in

Beckner’s experience, that he disclosed, were not bridged by his

two young associates, Glenn Constantino and Henry Olinde. They

were newly minted lawyers with virtually no legal experience. As

we will see, the two associates proved to be a major source of

Beckner’s difficulty as it was these two lawyers who cast suspicion

upon their boss.

In July 1991, Constantino and Olinde became concerned about

certain of Recile’s financing practices. Recile had an interest in

an office building and residence “compound” called Redwood Raevine.

He employed “collateral mortgages” on Redwood Raevine as security

for Place Vendome investors, pledging his interest in the property

to back the Place Vendome notes. Constantino and Olinde, however,

learned from an outside lawyer, Michael Uter, that there were

problems with the collateral mortgages. According to Uter, the

mortgages were not recorded, they had been pledged to multiple

investors simultaneously, and they lacked sufficient equity to

secure their obligations. In early July 1991, Constantino and

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Olinde told Beckner about these complications. Following this

meeting, Beckner’s firm recorded the mortgages. It also drafted a

Joint Collateral Pledge Agreement to rectify the multiple-pledgee

problem. When Beckner turned to the sufficiency of the equity, he

learned of an MAI appraisal, valuing Redwood Raevine at $2.5

million. By August 1991, Beckner had obtained a list of investors

from Recile, indicating that Recile had only pledged $1.8 million

against the property, well below the $2.5 million appraisal. This

information eased Beckner’s concerns about the property’s equity.

In the meanwhile, Beckner moved on another front. He began to

push his client. On June 23, 1991, Beckner expressed concern in a

letter to Recile that a court might construe the notes Recile

issued to borrow money to be a sale of a security, prohibited by

the Preliminary Injunction. On July 10, 1991, Beckner wrote Recile

a second letter. In this letter, Beckner specially instructed

Recile to stop issuing “double-your-money-back” notes, notes that

would almost certainly be considered securities, even if secured by

mortgages on real property. This time, Beckner backed his

instruction by threatening to withdraw from his representation of

Recile if Recile did not cease this fundraising tactic. During

this time when Beckner was increasing his demands upon Recile for

lawful conduct, the SEC requested appointment of a receiver.

On July 16, 1991, Beckner filed a memorandum in the SEC

litigation in opposition to the appointment of a receiver over

Place Vendome. In the memorandum, Beckner argued that the

securities laws did not apply to Recile’s practice of issuing notes

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secured by mortgages, thus depriving the SEC of jurisdiction.

Beckner cited the fourth prong of a test for “securities” laid out

by the Supreme Court in Reves v. Ernst & Young, 494 U.S. 56 (1990).

In Reves, the Court stated that one criterion for determining

whether an instrument is a security is whether there exists

“another regulatory scheme significantly reduc[ing] the risk of the

instrument, thereby rendering application of the Securities Acts

unnecessary.” Id. at 67. Beckner argued in the opposition

memorandum that “Louisiana law provides protection to parties

involved in similar transactions (notes secured by mortgages).

There is, thus, a body of law that significantly reduces the notes’

attendant risks.”

By August 1991 when Beckner acquired a list of the investors

in the Place Vendome project, concerns raised by Constantino and

Olinde had been met. Nonetheless, Constantino asked Beckner if he

could approach the investors on the list and ask them what

representations had been made to them by Recile. Beckner

instructed Constantino not to do so.

In April 1992, Beckner responded to discovery requests made by

the Special Master in the SEC litigation. Although he produced a

variety of documents, Beckner filed objections to many of the

requests, claiming that they exceeded the scope of the Special

Master’s authority. Beckner declined to produce other documents on

the basis of his clients’ Fifth Amendment privilege against self-

incrimination. The Special Master never responded with motions to

compel.

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 After the document production, events moved rapidly toward

Beckner’s withdrawal. The SEC complained that several important

investors’ files were missing. Beckner communicated this fact to

Recile, who reacted by removing Beckner from supervision of the SEC

litigation. Following a subsequent document production on June 4,

1992, the Special Master wrote to Beckner to confirm his

understanding that all investor files had then been produced. At

the same time, another event was unfolding that accelerated

Beckner’s eroding confidence in his client — the news reports

regarding the Assignment of Proceeds.

The collateral mortgages on Redwood Raevine were not the only

devices used by Recile to attract investors to Place Vendome.

Later, Recile also began using an “Assignment of Proceeds” as a

form of security for Place Vendome investors. The Assignment

represented that the Place Vendome Corporation had obtained a $300

million loan, and it granted its holders a portion of the proceeds

of that loan as security for their investment. In mid-1992, Recile

gave Beckner a variety of documents, including sample notes backed

by various incarnations of the Assignments of Proceeds. In early

June 1992, a reporter contacted Recile to obtain information for a

story he was writing about the Place Vendome financing. Recile

asked Beckner to help him frame a statement on his behalf for the

reporter. Recile’s secretary transcribed Beckner’s response.

According to her written transcription, Beckner stated to Recile

that the Hannover notes were not securities and Recile had not

violated the Securities Act of 1933 in issuing them. On June 5,

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1992, the reporter’s story appeared in the newspaper and quoted

Beckner as saying that notes secured by the Assignment of Proceeds

were not securities and were legally proper. According to every

witness of the conversation and the secretary’s transcription of

Beckner’s statement, Beckner had said no such thing. Following the

publication of the newspaper article, Beckner promptly wrote a

letter to Recile, complaining that he had been misquoted. Beckner

stated in the letter that he had meant to defend only the Hannover

notes, not any notes backed by an Assignment of Proceeds.

On June 16, 1992, the SEC filed a motion for summary judgment

in its enforcement action, including allegations that documents had

not been produced. Beckner apparently had enough and on June 22,

1992, he wrote to Recile to withdraw from his representation. This

letter was the culmination of a series of written exchanges between

Beckner and Recile, in which Beckner threatened to terminate his

representation unless Recile reformed his business practices.

Unfortunately for his investors, Recile’s fundraising tactics,

although facially in compliance with the Preliminary Injunction,

were in fact fraudulent. Recile had little equity in the Redwood

Raevine property that he was employing as security, and what equity

he did possess was pledged to multiple investors simultaneously.

Moreover, Recile never obtained the $300 million loan that

supposedly backed the Assignment of Proceeds. Recile’s investors

lost approximately $6 million to his scheme. Both Recile and

Phillips eventually pleaded guilty to separate indictments stemming

from their involvement in the Place Vendome project.

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 During a resulting grand jury investigation and a few months

after Beckner withdrew from Recile’s representation, Constantino

and Olinde became apprehensive over their possible implication in

wrongdoing and consulted a local criminal lawyer. They then

contacted the FBI and the local U.S. Attorney’s office. The young

lawyers claimed that Beckner had been intentionally withholding

critical documents from the grand jury investigating Recile.

Constantino and Olinde’s allegations regarding these documents at

trial were shown to be based on highly dubious circumstances.

Olinde alleged that he spotted timesheets relevant to the grand

jury investigation in Beckner’s trash can while working in

Beckner’s office one Sunday morning. Yet Olinde had no reason to

be in the office that day; Beckner’s trash can was typically

positioned in a place outside of Olinde’s view; Olinde changed his

story about the exact day he stumbled across the timesheets; and

Olinde’s and Constantino’s, but not Beckner’s, fingerprints

appeared on the timesheets, in a way suggesting that the two had

crumpled the papers themselves. The jury ultimately acquitted

Beckner of obstructing justice and perjury before the grand jury,

but the damage at the grand jury stage was done. In July 1993, a

grand jury returned an indictment against Beckner, accusing him

both of withholding documents from the government and directly

aiding and abetting Recile’s fraud. Despite the number of

attorneys representing Recile, Beckner was the only lawyer indicted

for participating in the Place Vendome project.

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 II.

The indictment charged Beckner with four counts of aiding and

abetting wire fraud, one count of obstruction of justice, and one

court of perjury. The aiding and abetting counts were based on

four factual predicates: 1) That, to conceal Recile’s fraud,

Beckner made a misrepresentation about the Place Vendome notes in

his memorandum opposing the appointment of a receiver; 2) that

Beckner prevented his associates from informing investors about

Recile’s fraud; 3) that Beckner hindered the production of

documents to the SEC to prevent the appointment of a receiver and

perpetuate the fraud; and 4) that Beckner misrepresented in the

newspaper article that the Assignment of Proceeds was legally

proper, again to prolong the fraud.1 The obstruction of justice

1
Specifically, the indictment alleged:
Beckner’s aiding and abetting of the scheme and artifice included
the following acts:
a) BECKNER falsely represented to others that Louisiana law
provided protection to lenders holding notes and
mortgages which had been provided to them by promoters of
Place Vendome. In fact, Beckner knew of deficiencies in
the mortgage documents and material omissions of fact in
representations to lenders to whom these mortgages were
being given to secure the loans. Because of the
knowledge BECKNER had, his representations were knowingly
deceptive.
b) BECKNER instructed an attorney in his employ not to
contact persons who were lending money to Place Vendome’s
promoters. By Beckner’s doing so, such persons were not
informed of the true nature of their loan transactions.
This conduct on Beckner’s part caused victims of the
ongoing scheme and artifice not to receive disclosures
that could have prevented the deception.
c) BECKNER hindered the production of documents in a federal
civil proceedings to determine whether the Place Vendome
project should be placed under the control of a court-
appointed Receiver. BECKNER knew that production of
these records would have revealed a pattern of deception
in the offering of collateral by Place Vendome’s

9
and perjury charges were premised on Beckner’s alleged withholding

of information from the grand jury.

The case first went to trial in February 1994, but the jury

deadlocked, and the court declared a mistrial. At his second trial

in July 1994, Beckner was convicted on the wire fraud and perjury

counts, but acquitted on the obstruction of justice charge.

However, after finding that the trial judge mishandled the issue of

pretrial publicity during voir dire, we overturned Beckner's

convictions. See United States v. Beckner, 69 F.3d 1290 (5th Cir.

1995). In August 1996, Beckner went on trial for a third time and

was convicted on the aiding and abetting counts alone.

Beckner timely appealed from the judgment entered following

the third trial, arguing that the evidence was insufficient to

support his conviction and that the district court ordered an

excessive amount of restitution. The government, on the other

hand, cross-appealed, challenging the downward departure from the

Guidelines taken by the district court in calculating Beckner’s

sentence.

III.

In attacking his conviction on sufficiency of the evidence

grounds, Beckner faces a heavy burden. Our review of the

sufficiency of the evidence supporting a conviction requires us to

promoters.
d) BECKNER represented to others that notes secured by an
“Assignment Of Proceeds” were legally proper. In fact,
Beckner knew that the “$300,000,000.00 Collateral
Mortgage Loan” referenced in the Assignment Of Proceeds
had not been obtained. Because of the knowledge BECKNER
had, his representations were knowingly deceptive.

10
determine whether a reasonable jury could find that the evidence

establishes the guilt of the defendant beyond a reasonable doubt.

See United States v. Pennington, 20 F.3d 593, 597 (5th Cir. 1994).

In doing so, we review the evidence in the light most favorable to

the government, drawing all reasonable inferences in favor of the

prosecution. See id. Moreover, when an indictment charges several

acts in the conjunctive, the verdict must stand if the evidence is

sufficient with respect to any one of the acts charged. See Turner

v. United States, 396 U.S. 398, 420 (1970). Thus, if we find that

the evidence is adequate on any one of the four predicate acts

underlying Beckner’s aiding and abetting counts, his appeal must

fail.

Although Beckner must defeat each of the four separate

allegations in the indictment, one factual issue dominates this

appeal: whether Beckner had knowledge of Recile’s fraud. In

charging Beckner with aiding and abetting Recile’s crimes, the

prosecution had to show that Beckner acted with criminal intent.

See United States v. Murray, 988 F.2d 518, 522 (5th Cir. 1993)

(“The essence of aiding and abetting is a ‘community of unlawful

intent’ between the aided and abettor and the principal. Although

the aider and abettor need not know the means by which the crime

will be carried out, he must share in the requisite intent.”)

(citations omitted). Whether Beckner possessed such intent

depends upon whether he had knowledge of ongoing criminal activity

engaged in by Recile while Beckner represented him. If he

possessed such knowledge, then Beckner’s legal efforts on behalf of

11
his client can reasonably be interpreted as an attempt to aid and

abet Recile’s fraud. On the other hand, if Beckner lacked

knowledge of Recile’s criminal activities, then Beckner did nothing

more than discharge properly his duties as an attorney, even if his

legal services may have unwittingly assisted Recile in his

misconduct.2

We find that the government offered insufficient evidence to

demonstrate Beckner’s knowledge of Recile’s fraud. The government

presented no direct proof of Beckner’s knowledge. Instead, it

relied on circumstantial evidence. Of course, the government may

prove a guilty mind circumstantially; oftentimes it is impossible

to demonstrate knowledge in any other way. “But the use of

circumstantial evidence does not relieve the government of its

burden of establishing [elements of an offense] ‘beyond a mere

likelihood or probability,’ or by more than mere speculation.”

United States v. Massey, 827 F.2d 995, 999 (5th Cir. 1987))

(citations omitted). We conclude that the circumstantial evidence

here did not permit the jury to draw a reasonable inference of

guilty knowledge; rather, the government’s evidence invited only

speculation and conjecture.

2
In representing Recile in the SEC enforcement action, Beckner
was of course aware that the SEC disapproved of some of Recile’s
fundraising activities. The Preliminary Injunction, however,
permitted Recile to continue to seek financing for Place Vendome,
so long as that financing was secured by Recile’s own assets.
Thus, Beckner’s awareness that Recile was continuing to issue notes
backed by his Redwood Raevine property does not in and of itself
support an inference that Beckner knew that Recile was engaging in
fraud.

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 Beckner’s July 1991 confrontation with his associates Olinde

and Constantino regarding the collateral mortgages is central to

the prosecution’s efforts to pin knowledge on Beckner. The

government contends that Constantino and Olinde gave Beckner

information that would lead a reasonable person to believe that

fraud was occurring. We disagree. Constantino and Olinde repeated

to Beckner the opinion of Uter that Recile lacked sufficient equity

in Redwood Raevine to cover the multiple security obligations on

the property. According to the government’s view of the evidence,

Uter’s statement gave Beckner knowledge of Recile’s fraud. Yet

there was uncontradicted testimony at trial that shortly after his

confrontation with Olinde and Constantino, Beckner received an MAI

appraisal valuing Redwood Raevine at $2.5 million. Recile’s

lawyers told Beckner that Recile’s debt on the property amounted

only to about $300,000. Nothing suggests the unreasonableness of

Beckner’s belief that Recile had over $2 million in equity in

Redwood Raevine. Moreover, a few weeks after receiving the MAI

appraisal, Beckner obtained an investor’s list from Recile,

indicating that Recile had pledged Redwood Raevine to secure a

total of just $1.8 million in notes.

In the end, these rosy financial pictures proved to be

incorrect; Recile in fact had little equity in the Redwood Raevine

property. The only evidence the government offered to establish

Beckner’s knowledge of this fact, however, was Uter’s professed

concerns about Recile’s equity, relayed to Beckner by Constantino

and Olinde. Yet Beckner responded. He inquired and obtained hard

13
financial data contradicting Uter’s opinion. The government

produced no evidence demonstrating that Beckner should have

disbelieved this data; accordingly, a jury could not reasonably

infer Beckner’s criminal knowledge from this evidence alone.

The other evidence offered by the government to prove

Beckner’s knowledge of Recile’s crimes, however, was even flimsier.

The government contends that Beckner’s July 10 letter to Recile

evinces Beckner’s awareness of Recile’s crimes, as it instructs

Recile to stop his fundraising practices. Yet the letter only

advises Recile to cease issuing “double-your-money-back” notes, as

doing so would violate the terms of the Preliminary Injunction.

The letter in no way acknowledges that Recile’s other fundraising

activities were somehow fraudulent. The government also posits

that Beckner’s receipt of his legal fees directly from the funds of

investors reveals his knowledge of the fraud. While it may be

unconventional to receive fees in this manner, we fail to

understand how Beckner’s payment from the investors’ funds can in

any way establish knowledge of Recile fraud.

Lastly, the government argues that Beckner knew of the fraud

because he lied to an FBI agent assigned to the case, telling her

that he had nothing to do with the Redwood Raevine mortgages.

Beckner played no role in drafting and issuing the Redwood Raevine

mortgages; he only defended their propriety to the SEC post hoc.

Perhaps Beckner should have explained that he was defending an SEC

proceeding in which the Redwood Raevine mortgage notes were in

play, but the rub for the government is that Beckner could not have

14
been denying this connection to the mortgages. Long before the FBI

interview, the government was well aware that Beckner was defense

counsel in the Place Vendome SEC action.

In short, the government failed to produce evidence

establishing that Beckner was aware Recile was engaged in a

fraudulent activity and knowingly worked to further it. The jury

was left in considering Beckner’s criminal intent with little more

than his status as Recile’s lawyer. That Recile closely controlled

the flow of information to Beckner and routinely lied to him was

uncontradicted in the evidence. The jury was essentially asked to

assume that as Recile’s lawyer, Beckner must have had knowledge

that Recile was cheating. With the paucity of evidence of

knowledge, the deliberate blindness instruction that the trial

court gave to the jury only fuels speculation. For an attorney to

be convicted for aiding and abetting a client’s fraud, that

attorney must have had actual knowledge of the fraud and must have

taken an active role in advancing the wrongdoing. Cf. United

States v. Connery, 867 F.2d 929 (6th Cir. 1989) (holding an

attorney criminally liable when he intimately and knowingly

participated in his client’s filing of a false bankruptcy claim);

United States v. Vaughn, 797 F.2d 1485 (9th Cir. 1986) (upholding

conviction of an attorney who prepared documents to obtain an

airplane for his clients, knowing that they intended to use it to

import narcotics); United States v. Enstam, 622 F.2d 857 (5th Cir.

1980) (upholding conviction of an attorney for helping his client

to establish a dummy corporation, knowing that it would be used to

15
conceal drug income from the I.R.S.), cert. denied, 450 U.S. 912

(1981). Of course, where an attorney has an intimate association

with his client’s activities, a jury may reasonably infer that the

attorney had knowledge of their illegal nature, even absent direct

evidence to that effect. See, e.g., United States v. Brown, 943

F.2d 1246, 1251-52 (10th Cir. 1991) (permitting inference of

criminal knowledge where an attorney was heavily involved in

client’s embezzlement scheme); United States v. Serrano, 870 F.2d

1, 11 (1st Cir. 1989) (inferring criminal knowledge where an

attorney “had his foot in all the elements of the transactions that

led to the fraud[]”); Wallace v. United States, 281 F.2d 656, 659-

60 (4th Cir. 1960) (inferring knowledge of client’s tax fraud where

an attorney could not possibly have performed his job without

having investigated his client’s books).

This situation is different. Beckner was Recile’s outside

trial counsel — his stand-up lawyer. Recile tightly restricted the

flow of information to Beckner, Beckner had nothing to do with

drafting and issuing the fraudulent notes, Beckner undertook his

representation of Recile only after the SEC began investigating

Recile’s activities with able securities lawyers at his elbow, and

Beckner took reasonable steps to correct the problems that he

discovered in Recile’s financing. The jury could conclude that

Recile was committing a crime, but it could not reasonably conclude

that Beckner knew about it. Beckner’s representation of Recile

only unwittingly, but not knowingly, promoted Recile’s fraud. To

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convict Beckner on this basis is to make him a criminal for being

a lawyer.

Without evidence of Beckner’s guilty knowledge, the indictment

crumbles. The predicate acts charged in the indictment amount to

nothing more than routine legal services. First, the indictment

alleged that Beckner was deceptive in arguing in the memorandum

opposing the appointment of a receiver that Louisiana law protected

investors who received the Hannover notes. Yet Beckner’s argument

in the SEC litigation was nothing more than a correct statement of

the law, asserted to defend what Beckner believed to be his

client’s legitimate interests.

Second, the indictment accused Beckner of failing to contact

investors once he learned of the problems with the collateral

mortgage instruments, thereby contributing to the deception of the

investors by Recile. Yet under the evidence, Beckner acted

promptly to correct all problems with the mortgages of which he had

knowledge. If Beckner had no knowledge of a crime, his ethical

obligations as an attorney required him not to inform third parties

about information relating to the representation of his client.

See Rule 1.6 of the Rules of Professional Conduct for Louisiana.

This cannot be turned over to a contention that not making the

contact is evidence that Beckner had the requisite knowledge.

Third, the government alleged that Beckner hindered the

production of documents to the SEC during discovery, thus

prolonging the fraud. Again, without knowledge of the fraud,

Beckner’s objections to discovery requests amounted only to zealous

17
advocacy, not criminal conduct. Although the SEC at one point

complained that Recile had not turned over all of the requested,

non-privileged information, the fault for that omission lies with

Recile himself, not with Beckner.

Finally, the government charged that Beckner represented to

others, through the newspaper article, that the notes backed by the

Assignment of Proceeds were legally proper. As we have detailed,

the evidence was overwhelming that Beckner was misquoted by

Recile’s office or by the newspaper. According to the evidence,

Beckner referred only to the Hannover notes, which he had no reason

to believe were fraudulent. And that misquote was part of the

cascading events leading to Beckner’s withdrawal.

Attorneys are not outside the normal reach of the criminal

law. See United States v. Cavin, 39 F.3d 1299, 1308 (5th Cir.

1994) (“At attorney is not above the law; like everyone else, he

may not assist in the perpetration of a criminal offense.”). That

said, lawyers at the least are due its protection. The government

did not prove that Beckner had knowledge of criminal wrongdoing.

Beckner was hired to be Recile’s trial lawyer, and in representing

Recile he did what trial counsel is supposed to do. Without more

substantial evidence of Beckner’s criminal intent, we cannot agree

that Beckner was a corrupt attorney, complicit in his client’s

crimes. A reasonable juror could not find the requisite intent on

this evidence without speculating. Beckner may have exercised poor

judgment and he may have been overly combative in fighting the SEC

18
proceedings. But it is a large step from there to joining a

criminal conspiracy.

IV.

Finding that the government offered insufficient evidence of

Beckner’s guilt, we REVERSE his conviction. We do not reach the

sentencing issues presented by the appeal and cross-appeal.

REVERSED.

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