* 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opinion should not be published and is not precedent except under the limited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.

United States Court of Appeals

Fifth Circuit

FILED

August 23, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

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.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:03-CR-129-1-LY

--------------------

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
No. 04-50647

- 2 -

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 moneylaundering 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

- 3 -

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.