1 See infra note 9.

1

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 91-4703

(Summary Calendar)

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JIMMY BEAUMONT,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

_________________________________________________________________

(August 27, 1992)

Before KING, EMILIO M. GARZA, and DeMOSS, Circuit Judges. 

EMILIO M. GARZA, Circuit Judge:

Jimmy Beaumont and three other defendants were convicted of

"structuring"1 a financial transaction with intent to evade the

reporting requirements of 31 U.S.C. § 5313(a)--a violation of 31

U.S.C. § 5324(3). Beaumont appeals this conviction for

structuring and, finding that the district court committed

neither plain error in its jury instruction on structuring nor

reversible error in refusing to sever Beaumont's case from that

of his co-defendants, we affirm.
 

2 When Bishop attempted to make his purchase, the teller

requested identification. Beaumont interrupted, commenting that

it was his understanding that reports only needed to be made for

transactions of $10,000 or more. See Supplemental Record on

Appeal, vol. 1, at 60, United States v. Beaumont, No. 91-4703

(5th Cir. filed Mar. 11, 1992) ["Supplemental Record on Appeal"].

2

I

A

On March 26, 1990, Beaumont and Hersman entered the Orange

Bank in Orange, Texas to purchase cashier's checks. Beaumont

purchased a cashier's check in the amount of $9,500, and Hersman

purchased one in the amount of $9,000. Both Beaumont and Hersman

made their purchases in cash and used bills of small

denominations, wrapped in rubber bands and contained in a plastic

"ziplock" sandwich bag. When Hersman found that he was

approximately $500 short of funds to purchase this $9,000

cashier's check, Beaumont paid the difference for him.

The following day, Beaumont returned to the Orange Bank to

purchase more cashier's checks, this time accompanied by Gerald

Bishop and Jerald Peacock. These March 27 transactions all took

place at the same teller window used to make the March 26

cashier's check purchases and were again made with currency

consisting of small denominations wrapped with rubber bands and

in plastic ziplock sandwich bags. Beaumont purchased a cashier's

check in the amount of $6,500; Bishop and Peacock both purchased

checks in the amount of $9,000.2 All of these cashier's checks

were made payable to the Sabine Title Company.
 

3 Beaumont, along with three other defendants, was

originally indicted in a multi-count indictment charging

conspiracy to manufacture methamphetamine and other drug

offenses. The structuring charge at issue before us was added by

a superseding indictment and, upon motion by the defense, was

eventually severed from the drug charges. 

 

4 Following execution of the federal search warrant on

Beaumont's home in April 1990, a special agent for the I.R.S.,

Criminal Investigation Division, conducted separate interviews

with Bishop, Hersman, and Peacock. At that time, all three told

this agent essentially the same story: They had entered into an

investment agreement with Beaumont for the purchase of real

property in Newton County, Texas and the currency they used to

purchase the cashier's checks was cash they had saved.

3

In April 1990, a federal search warrant was executed on

Beaumont's home. Among other physical and documentary evidence,

officers found a safe containing approximately $14,300 in

currency consisting of small denominations in $1,000 bundles,

wrapped with rubbers bands and stored inside plastic ziplock

sandwich bags. Beaumont's safe also contained the carbon copy

portion of the five cashier's checks purchased by him, Hersman,

Bishop, and Peacock. 

B

Beaumont, Hersman, Bishop, and Peacock were indicted for

structuring financial transactions for the purpose of evading the

reporting requirements of 31 U.S.C. § 5313(a) in violation of 31

U.S.C. § 5324(3).3 After his arrest, Hersman made oral

inculpatory statements to state and federal officers--that is,

recanting a statement he originally gave to a special agent for

the Internal Revenue Service (I.R.S.),4 Hersman told law

enforcement agents that Beaumont had given him the cash necessary

for the purchase of his cashier's check and that there was no
 

5 In Bruton v. United States, 391 U.S. 123, 127-28, 88 S.

Ct. 1620, 1623 (1968), cert. denied, 397 U.S. 1014, 90 S. Ct.

1248 (1970), discussed infra at Part II.B, the Supreme Court set

forth the standard for determining when a Sixth Amendment right

to confrontation is violated through the extrajudicial statements

of a co-defendant. 

 

6 See supra note 3.

4

agreement to invest in the purchase of real property in Newton

County.

At trial, Hersman's post-arrest oral statements were

modified to remove references to Beaumont. Moreover, prior to

admitting any testimony concerning Hersman's statements, the

court held a hearing outside the presence of the jury to

determine whether a Bruton-type5 violation was likely. Beaumont

moved for a severance, arguing that, because of facts and

circumstances already presented to the jury, the modified--all

references to Beaumont were removed--Hersman statements had the

effect of telling the jury that either Beaumont or his codefendants gave the money to Hersman. The district court denied

Beaumont's request for a severance and declined to exclude the

modified Hersman post-arrest statements. Hersman's statements

were introduced at trial through the testimony of two prosecution

witnesses, Commander Wayne Hoffman and Texas Public Safety

Investigator Howard Jake Smith, and all defendants were convicted

of the structuring charge. Beaumont was sentenced to a prison

term of twenty-four months, to be served concurrently with a life

sentence for his conviction on related drug charges.6
 

7 Supplemental Record on Appeal, vol. 4, at 70-72,

(emphasis added). Moreover, at the close of evidence, the

district court instructed the jury that they should consider the

evidence concerning a statement "with caution and great care." 

Id. at 68. The court also charged that "the case of each

defendant and the evidence pertaining to that defendant should be

considered separately and individually." Id. Neither Beaumont

nor his co-defendants requested any other instruction regarding

this issue.

5

II

Beaumont raises two issues on appeal:

A. Whether the district court erred in its

instruction on structuring; and 

B. Whether the district court erred in refusing 

Beaumont's motion for severance.

A

Beaumont contends that the district court erred in the jury

instruction it gave on structuring pursuant to 31 U.S.C. §§

5313(a), 5324(3). We disagree.

The court instructed the jury as follows:

Title 31, Section 5324(3) of the United States

Code states in part that no person shall for the

purpose of evading the reporting requirements of

Section 5313(a), structure or assist in structuring, or

attempt to structure or assist in structuring, any

transaction with one or more domestic financial

institutions.

* * *

It is not necessary for the Government to prove

that a defendant knew that structuring or assisting in

structuring a transaction to avoid triggering the

filing requirements was itself illegal. The Government

need only prove beyond a reasonable doubt that a

defendant structured or assisted in structuring

currency transactions with knowledge of the reporting

requirements and with the specific intent to avoid said

reporting requirements. In other words, a defendant's

ignorance of the law prohibiting structuring is no

defense if he knew about filing requirements and

intentionally acted to evade or assisted in evading

them.7 
 

8 In Cheek, the Court held that a defendant charged with

willful failure to file a tax return is entitled to instructions

that inform the jury that a good faith belief that one need not

file a tax return need not be objectively reasonable to be a

valid defense. Id. This court and others have held that Cheek's

"statutory interpretation of `willfulness' is `an exception to

the traditional rule and is a statutory element of special

treatment of criminal tax offenses.'" United States v. Chaney,

No. 91-8206 (5th Cir. June 19, 1992) (slip. op. at 5591 n.25),

quoting United States v. Arditti, 955 F.2d 331, 340 (5th Cir.

1992) (other citations omitted). 

6

Relying upon Cheek v. United States, ___ U.S. ___, ___, 111 S.

Ct. 604, 609-610 (1991), Beaumont argues that the government was

required to prove that (1) he knew that structuring was against

the law and (2) specifically intended to violate the law against

structuring.8

Beaumont did not object to this structuring instruction at

trial, and "we have held in the past that where no timely

objection is made to a jury instruction, the claimed error cannot

be reviewed on appeal unless giving the instruction was `plain

error' so fundamental as to result in a miscarriage of justice." 

Branch-Hines v. Hebert, 939 F.2d 1311, 1319 (5th Cir. 1991)

(citations omitted) (where district court erroneously instructed

jury, reversing and remanding for new trial on issue of general

damages); see United States v. Thevis, 665 F.2d 616, 645 (5th

Cir.) ("[O]bjections to jury instructions not timely made are

waived unless the instruction constitutes `plain error.'"), cert.

denied, 456 U.S. 1008, 102 S. Ct. 2300 (1982). Plain error, in

the context of jury instructions, is found only if "the charge,

considered as a whole, is so clearly erroneous as to result in a

likelihood of a grave miscarriage of justice . . . or seriously
 

9 Among its general accountability objectives, the

purpose of this provision it to prohibit structuring, also known

as "smurfing"--that is, laundering large amounts of ill-gotten

currency by engaging in multiple currency transactions, each

under $10,000, within a brief period of time. See United States

v. Scanio, 900 F.2d 485, 491 (2nd Cir. 1990).

7

affects the fairness, integrity, or public reputation of judicial

proceedings." Thevis, 665 F.2d at 645 (citation and internal

quotations omitted). 

Section 5324 provides, in pertinent part, that "[n]o person

shall for the purpose of evading the reporting requirements of

section 5313(a) with respect to such transaction . . . (3)

structure or assist in structuring, or attempt to structure or

assist in structuring, any transaction with one or more domestic

financial institutions." 31 U.S.C. § 5324.9 This Court has held

that "the intent requirements of section 5324(c) are met if the

defendant (1) knew of the bank's legal obligation to report

transactions in excess of $10,000; and (2) acted with the purpose

of defeating that law, rather than with some innocent purpose." 

United States v. Peacock, No. 91-4346 (5th Cir., Feb. 6, 1992)

(unpublished slip op. at 6), citing United States v. Camarena,

No. 88-1314 , 1988 WL 216293, at *3 (5th Cir. Dec. 6, 1988) ("It

follows from this account of the legislative history that the

government is correct in its contention that the required

specific intent is proved by evidence that [the defendant] knew

of the bank's legal obligation to report transactions in excess

of $10,000 and acted with the bad purpose of defeating that law

rather than for some innocent purpose."). We find that this
 

10 According to Beaumont, Hersman's statements, extracted

through the testimony of others, implicated him--especially when

combined with testimony that he and Hersman entered the bank

8

intent requirement of section 5324(3) is clearly captured within

the district court's instruction.

As for Beaumont's contention that Cheek, ___ U.S. at ___,

111 S. Ct. at 609-610, requires that the government prove that he

(1) knew structuring was against the law and (2) acted with

specific intent to violate that law, other circuits have

addressed this issue and have declined to extend Cheek to section

5324. See United States v. Rogers, 962 F.2d 342, 344 (4th Cir.

1992) (following the Tenth and Eleventh Circuits). Specifically,

the Rogers court reasoned: 

In Cheek, the rationale for the Court's exception to

the traditional interpretation of "willful" was the

complexity of the tax code, which often makes it

difficult for the average citizen to know what the law

requires. Cheek, 111 S. Ct. at 609-10. That sort of

complexity simply is not present in cases involving the

"straightforward currency reporting requirements." 

Dashney, 937 F.2d at 540. Like the court in Dashney,

we believe that the circumstances justifying an

adoption of the Cheek definition of "willfulness" are

limited, and this case does not present them.

Id. at 344. We agree with this reasoning and, therefore, we find

that the district court did not commit plain error in instructing

the jury to find Beaumont guilty if he (1) knew of the reporting

laws and (2) willfully attempted to evade them. 

B

Beaumont also contends that the district court committed

reversible error by admitting Hersman's statements without

severing Beaumont from the case.10 We disagree. 
together and that Hersman took direction from him. Specifically,

Beaumont asserts that Hersman's statement that "he [meaning

Hersman] thought that Mr. Beaumont was trying to get around the

[currency transaction reporting] requirement . . . ."

(Supplemental Record on Appeal, vol. 2, at 112), admitted through

the testimony of David Zuniga, special agent for criminal

division of the I.R.S, implicated him in that it served as

evidence of Beaumont's knowledge of the reporting requirements of

31 U.S.C. 31 U.S.C. § 5313. Beaumont also asserts that he was

implicated by Hersman's statements (elicited through the

testimony of Hoffman and Smith, a Texas public safety

investigator) that (1) Hersman had obtained the money for the

cashier's check from some one else and was getting the check for

that person, and (2) Hersman was doing a favor for a friend by

getting the cashier's check. See Supplemental Record on Appeal,

vol. 2, at 135-48. 

9

In Bruton v. United States, 391 U.S. 123, 127, 88 S. Ct.

1620, 1623 (1968), cert. denied, 397 U.S. 1014, 90 S. Ct. 1248

(1970), the Supreme Court held that a defendant's Sixth Amendment

right to confrontation is violated when (1) several co-defendants

are tried jointly, (2) one defendant's extrajudicial statement is

used to implicate another defendant in the crime, and (3) the

confessor does not take the stand and is thus not subject to

cross-examination. Severance of the trials is proper, but only

in cases where a defendant's statement directly incriminates his

or her co-defendants without reference to other, admissible

evidence. See United States v. Espinoza-Seanez, 862 F.2d 526,

534 (5th Cir. 1988). "This Court has held consistently that the

Bruton rule is not violated unless a co-defendant's statement

directly alludes to the complaining defendant . . . . This is

true, even if the evidence makes it apparent that the defendant

was implicated by some indirect references." Id., quoting United

States v. Webster, 734 F.2d 1048, 1054 n.6 (5th Cir.), cert.
10

denied, 469 U.S. 1073, 105 S. Ct. 565 (1984). We review

Bruton issues under the abuse of discretion standard. See United

States v. Basey, 816 F.2d 980, 1004 (5th Cir. 1987). 

Hersman's statements elicited through the testimony of

Hoffman and Smith--that is, statements that Hersman got the money

from "a friend" and that Hersman was just doing a favor for "a

friend"--do not directly implicate Beaumont and, therefore, do

not violate Bruton. See Espinoza-Seanez, 862 F.2d at 534 (where

defendants' confessions were used to implicate co-defendants but

those confessing did not take the stand, defendants were not

denied Sixth Amendment right to confront witnesses because

confessions did not directly implicate them without reference to

other, admissible evidence). As for Zuniga's testimony that

Hersman told him that he thought Beaumont was trying to get

around the reporting requirements of section 5313(a), Beaumont

did not object to this testimony at trial. Our review of such

testimony is only for plain error--that is, we look to see

whether it "undermine[d] the fairness of the trial and

contribute[d] to a miscarriage of justice." United States v.

Young, 470 U.S. 1, 15-16, 20, 105 S. Ct. 1038 (1985); see also

Basey, 816 F.2d at 1005 (the error may be harmless if the

statement's impact is insignificant compared with other evidence

against the defendant); United States v. Lewis, 786 F.2d 1278,

1286 (5th Cir. 1986). We find that, because Beaumont was
 

11 For example Becky Jo Nations, a teller at the Orange

Bank, testified that: 

(1) Hersman and Beaumont came into Orange Bank together

on March 26, 1990; 

(2) both purchased cashier's checks made out to "Sabine

Title Company"; 

(3) when Hersman discovered that he was about $500

short for his purchase and mentioned this, Beaumont

made up the difference;

(4) Beaumont came back the next day with Peacock and

Bishop to purchase more cashier's checks made out to

Sabine Title Company; and 

(5) all of these cashier's checks were purchased with

cash in folded-over bundles of $1000, which were

secured by rubber bands and stored in ziplock bags. 

Supplemental Record on Appeal, vol. 1, at 104-119. Jossie

Wilkinson, vice president of the Orange Bank, and Evelyn

Whitehead, a teller at Orange bank, offered similar testimony

about the defendants' cashier's checks. Id. at 24-102;

Supplemental Record on Appeal, vol. 3, at 29-45; see, e.g., supra

note 2 (testimony suggesting the Beaumont was well-aware of the

reporting requirement for transactions in excess of $10,000 and

that he did not want Bishop's transaction to be reported). 

Moreover, the carbon portion of the Beaumont, Hersman, Peacock,

and Bishop cashier's checks were all found in a safe at

Beaumont's residence.

11

overwhelmingly implicated by other evidence,11 the extraction of

Hersman's statements from Zuniga's testimony neither undermined

the fairness of Beaumont's trial nor contributed to any

miscarriage of justice. We conclude, therefore, that the

district court did not commit reversible error by refusing to

sever Beaumont from the case.

III

For the foregoing reasons, we AFFIRM.