United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 22, 2003
Charles R. Fulbruge III
Clerk
No. 02-41754
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MATTHEW THOMPSON
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
No. C-02-CR-137-1
Before KING, Chief Judge, DENNIS, Circuit Judge, and LYNN,*
District Judge.
PER CURIAM:**
After a jury trial, Defendant Matthew Thompson was convicted
of bribery under 18 U.S.C. § 201(b)(2) (2000) and unlawful
receipt of compensation by an IRS agent under 26 U.S.C. §
7214(a)(2) (2002). Thompson raises four issues on appeal.
Thompson first argues that the district court erred by
*
District Judge for the Northern District of Texas,
sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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admitting into evidence the recorded conversation between himself
and attorney Bill May because it was obtained (1) in violation of
the attorney-client privilege and (2) by outrageous government
conduct. The district court found that Thompson did not meet his
burden of establishing that the conversation between Thompson and
May was privileged, since Thompson did not prove that he
communicated with May in confidence or that his primary purpose
was to obtain legal advice. See Robinson v. United States, 121
F.3d 971, 974 (5th Cir. 1997). This conclusion was not clearly
erroneous. We also find that the government’s conduct did not
approach a level sufficiently “outrageous” so as to violate
Thompson’s rights, especially in light of Thompson’s active
participation in the crime. See United States v. Arteaga, 807
F.2d 424, 426-27 (5th Cir. 1986). Thus, we hold that the
recorded conversation between Thompson and May was properly
admitted into evidence.
Second, Thompson contends that there was insufficient
evidence to permit a rational jury to find that he was
predisposed to commit the crimes of which he was accused, and
that, consequently, the district court should have granted his
motion for judgment of acquittal. Viewing the evidence in the
light most favorable to the verdict, see United States v. DeLeon,
247 F.3d 593, 596 (5th Cir. 2001), we find that there was
sufficient evidence for a rational jury to conclude that Thompson
was predisposed to commit the crimes of which he was convicted.
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Therefore, the district court did not err in denying Thompson’s
motion.
Third, Thompson argues that the district court should have
given the jury an instruction on positional predisposition, as
laid out in United States v. Hollingsworth, 27 F.3d 1196 (7th
Cir. 1994). We need not decide whether we are persuaded by
Hollingsworth, because assuming arguendo that we are, Thompson,
an IRS agent, was clearly in a position to accept a bribe. See
Hollingsworth, 27 F.3d at 1200. Thus, the district court did not
abuse its discretion in refusing to instruct the jury on
positional predisposition. See United States v. Reyes, 239 F.3d
722, 742 (5th Cir. 2001).
Finally, Thompson claims that 18 U.S.C. § 201(b)(2) and 26
U.S.C. § 7214(a)(2) set out mutually exclusive offenses so that
Thompson could not logically be convicted under both statutes.
We join the Second Circuit in holding, however, that these
statutes are not mutually exclusive. See United States v. Umans,
368 F.2d 725, 728-29 (2d Cir. 1966). Therefore, Thompson was
properly convicted under both 18 U.S.C. § 201(b)(2) and 26 U.S.C.
§ 7214(a)(2).
For the foregoing reasons, the defendant’s convictions are
AFFIRMED.
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