United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 23, 2005
Charles R. Fulbruge III
Clerk
No. 04-50647
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIM RICH, also known as Jimmie W. Rich, also known as Jimmie
Wilson Rich, also known as J. Rich,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:03-CR-129-1-LY
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Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Jim Rich was convicted by a jury of conspiracy to commit bank
fraud, bank fraud, conspiracy to commit money laundering, and money
laundering and was sentenced to concurrent 60-month terms of
imprisonment and to concurrent three-year periods of supervised
release. Rich was ordered to pay $5,015,500 in restitution. Rich
gave timely notice of his appeal.
Rich contends that the district court erred in failing to
prevent an Internal Revenue Service (“IRS”) agent from giving his
*
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opinion should not be published and is not precedent except under the limited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.
No. 04-50647
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opinion on ultimate issues and in stating his legal conclusions in
his testimony. Rich concedes that this court’s review is for plain
error. See United States v. Olano, 507 U.S. 725, 732 (1993).
Rich contends that the IRS agent’s use of the words “fraud,”
“fraudulent,” and “money laundering,” in describing the definition
of “money laundering” and in stating why Rich’s conduct constituted
money laundering, violated FED. R. EVID. 704(b). Plain error has
not been shown. See United States v. Pettigrew, 77 F.3d 1500, 1516
& n.14 (5th Cir. 1996); United States v. Aggarwal, 17 F.3d 737, 743
(5th Cir. 1994).
Rich complains that, in defining the money-laundering offense,
the IRS agent failed to explain the intent element of the money-
laundering statute. Assuming error, Rich’s substantial rights were
not affected because counsel cross-examined the IRS agent on this
issue and because the jury was instructed by the district court
about the elements of the crime.
Rich contends that the IRS agent should not have been
permitted to state his legal conclusions as to ultimate issues—that
the conduct underlying the money-laundering counts was bank fraud
and money laundering. Rule 704(a) “does not allow a witness to
give legal conclusions . . . [and] determinations of guilt or
innocence are solely within the province of the trier of fact.”
United States v. Izydore, 167 F.3d 213, 218 (5th Cir. 1999)
(citation omitted). The IRS agent answered affirmatively when he
was asked whether the transactions constituted money-laundering
No. 04-50647
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under the federal statute. Because these responses involved legal
conclusions, the district court plainly erred in permitting this
testimony. See United States v. Williams, 343 F.3d 423, 435 (5th
Cir. 2003). This court does not have discretion to reverse the
conviction, however, because in light of the testimony provided by
Connie Rocha regarding the money laundering counts and the court’s
instruction regarding the law, Rich has not shown that his
substantial rights were affected. See id. at 435–36; see
also Olano, 507 U.S. at 732.
Rich contends that his sentence was imposed in violation of
the rule in Booker v. United States, 125 S. Ct. 738 (2005). Rich
concedes that this court’s review is for plain error only. See
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition
for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517). Although Rich
can show that there were Booker errors and that the errors were
plain, he cannot show that the errors affected his substantial
rights. See id. at 520–21. There is no support in the record for
concluding that the district court felt constrained by the then
mandatory guideline-imprisonment range. See id. at 521.
Accordingly, Rich’s substantial rights were not affected. See id.
AFFIRMED.