United States v. PursleyUnited States v. Pursley
Appeal from the United States District Court for the Southern District of Texas
USDC No. 4:18-CR-00575-1
Before DAVIS, HIGGINSON, and ENGELHARDT, Circuit Judges.
This criminal case concerns an intricate tax-fraud scheme, involving various offshore accounts, a myriad of transactions, and millions in untaxed funds. The focus of this appeal concerns a complex question of fact and law, involving various foreign governments, a host of ambiguous letters, and a thicket of precedent. Jack Pursley raised this complex question as part of his statute of limitations defense several times in motions to dismiss and in proposed jury charges. The law and facts are difficult, but we conclude that Pursley was deprived of his statute of limitations defense. Because Pursley timely raised this defеnse, he was entitled to have it considered and to have the jury instructed on it.
I.
At some point in the past decade, a grand jury began investigating Pursley for his part in a significant tax fraud scheme. The extensive details of the conspiracy are laid out in the indictment and are mostly irrelevant to the precise issue before us. Relevant here is that the scheme involved thе use of several offshore accounts, including certain accounts in the Isle of Man. On February 18, 2016, the U.S. Government sent a first “Request for Assistance in the Investigation of Jack Stephen Pursley and Charles Gillis” to the Isle of
On March 15, 2016, the U.S. Government sent the Isle of Man a “First Supplemental Request for Assistance in the Investigation of Jack Stephen Pursley and Charles Gillis” (the “Second Request“). According to the U.S. Government, the Second Request sought “business records from Boston Limited relating to the firm‘s representation of Southeastern Shipping Company Limited, Pelhambridge Limited, and Shaun Mooney and any of his affiliates.” Neither Request was made part of the record, which reflects only the U.S. Government‘s representations on what was in the Requests.
The Isle of Man cooperated with the Government and began sending over the requested documentation as early as May 26, 2016. An August 21, 2017 letter states that the Isle of Man also sent over documentation on July 8, 2016, Septеmber 30, 2016, October 31, 2016, May 24, 2017, June 19, 2017, and July 17, 2017. On May 18, 2017, the Isle of Man sent a response which referenced the “Supplementary Letter of Request” (i.e., the Second Request). At the end of the letter, it stated “I believe that this letter of request is now executed in full but if I can be of any further assistance to you in relation to this or any other matter please do not hesitate to contact me.” Although the May 18 letter referenced the Second Request, it discussed documents which were requested in the First Request.
The Government followed up with the Isle of Man with a series of emails stretching from August 2017 through October 2018. These emails demonstrate that the U.S. Government continued to seek certain documents that were not provided as of May 18, 2017, and that it was frustrated in its attemрts to get these documents and (in particular) witness interviews.
On August 23, 2016, with both Requests pending, the Government moved for a suspension of the statute of limitations under
The grand jury returned a four-count indictment against Pursley on September 20, 2018. Count One charged Pursley with conspiracy to defraud the United States. Counts Two and Three charged Pursley with tax evasion for his 2009 and 2010 tax returns, respectively. Count Four charged Pursley with tаx evasion in violation of
Pursley moved to dismiss all counts as barred by the statute of limitations. Relying on the suspension ordered by the district court, the Government opposed the motion. The district court denied the motion to dismiss without written reasons in a
Pursley was tried in September 2019. Pursley proposed a jury instruction that read: “For you to find the defendant guilty, the government must prove beyond a reasonable doubt that the offense charged was committed within 6 years of the indictment.” Defense counsel raised this jury instruction at the charge conference. The Government objected to the instruction for a variеty of reasons, including because it failed to account for tolling under
Pursley appeals both the denial of the motions to dismiss and the denial of his requested jury instruction.
II.
We first address the district court‘s denial of the motions to dismiss. “This court reviews de novo the district court‘s denial of a motion to dismiss an indictment.” United States v. Kay, 513 F.3d 432, 440 (5th Cir. 2007). Similarly, “[t]he district court‘s ultimatе decision that the statute of limitations was properly tolled is a legal conclusion reviewed de novo.” United States v. Wilson, 322 F.3d 353, 359 (5th Cir. 2003). But factual findings underpinning that ultimate finding are reviewed for clear error. Id.
To determine the merit of Pursley‘s statute of limitations defense, it is necessary to determine exactly when the statute of limitations commenced and ran. Without a suspension, the statute of limitations fоr each count of the indictment ran for six years. See
The length of any suspension is determined by
We have expounded on the meaning of “final action” in
We held that the German Ministry‘s October 27, 1995 letter constituted a “final action” notwithstanding the additional documents it sent or the prosecutors’ follow-up requests. Meador, 138 F.3d at 991-92. In coming to this conclusion, we held that a determination of when a “final action” has beеn taken by a foreign government “must turn on whether a dispositive response to an official request for evidence from our government has been obtained.” Id. at 992. We explained that “when the foreign government believes it has completed its engagement and communicates that belief to our government, that foreign government has taken a ‘final action’ for the рurposes of
The Meador court relied in part on United States v. Bischel, 61 F.3d 1429 (9th Cir. 1995). In that case, the Ninth Circuit was faced with the meaning of “final action” within the statute. The court adopted the test ostensibly approved by the Fifth Circuit, i.e., that a “final action” must include “a dispositive response to each item set оut in the official request, including a request for certification.” Id. at 1433. It further held that “pegging ‘final action’ to
On appeal, Pursley asks us to hold that the Isle of Man‘s May 18, 2017 letter demonstrated that “the foreign government believe[ed] it ha[d] completed its engagement and communicate[d] that belief to our government” and was therefore a final action within the meaning of
Thus, the parties seek this court‘s determination of the import оf the Isle of Man‘s May 18, 2017 letter, which is an inextricably fact-bound question. For example, the fact-finder must weigh whether the Isle of Man‘s May 18, 2017 letter was referring to both of the U.S. Government‘s Requests and whether, in context, that letter was an indication that the Isle of Man believed it had completed its engagement. Making such a factual finding is in the clear province of the district cоurt and is beyond our role as an appellate court. See Norelus v. Denny‘s Inc., 628 F.3d 1270, 1293 (11th Cir. 2010) (“[A]s everyone knows, appellate courts may not make fact findings.“). Indeed, at oral argument, both parties conceded that the district court should determine the length of any suspension under
The district court denied Pursley‘s motions to dismiss summarily, referring to Judge Lake‘s order pursuant to
III.
We next turn to Pursley‘s related claim that the district court erred in failing to instruct the jury on his statute of limitations defense. The parties dispute our standard of review here. Pursley argues that our review is de novo; the Government presses that it should be for clear error. Because the district court erred under either standard of review, we pretermit this question. See United States v. Holguin-Hernandez, 955 F.3d 519, 520 n.1 (5th Cir. 2020).
A propоsed instruction must (1) be substantially correct as a statement of the law, (2) not be substantially covered in the
The proposed jury instruction in question stated: “For you to find the
defendant guilty, the government must prove beyond a reasonable doubt that the offense charged was committed within 6 years of the indictment.” The Government argues that the district court was correct to reject the instruction because, as initially propоsed by Pursley, the instruction failed to account for any suspension of the statute of limitations and was therefore not “substantially correct.” But at the charge conference, Pursley‘s counsel offered to modify the instruction with a suspension and reasonably pointed out that there had been no exact judicial determination of how long any suspension was. Without such a determination, it was difficult to draft a jury instruction taking into account that suspension.2 The Government conceded at the charge conference, in its brief, and at oral argument, that a proper instruction could be formulated. But the Government‘s position at the charge conference was not that the instruction as proposed was improper, but rаther that because prosecutors felt the issue was “highly complex” and “was opening a can of worms awfully, awfully late”3 that it was “an unnecessary request” that was “preserved for appeal.” These arguments are unpersuasive. Pursley‘s request for the jury instruction was timely, and the complexity of the issues involved does not justify denying a defendant a requested instruction.
We have held that a proposed jury instruction is “substantially incorrect” when, for example, the instruction relied on inapplicable law or had no foundation in the text of the relevant statute. See HTC Corp., 12 F.4th
at 484 (holding that a jury instruction based in United States patent law was not substantially correct when French law, not United States law, applied); United States v. Perez-Valdez, 182 F.3d 331, 332-33 (5th Cir. 1999) (holding a district court did not abuse its disсretion when it rejected a jury instruction which “has no foundation in the text of the statute and is contrary to its plain language“). But there was no such fundamental error here. On these facts, we reject the Government‘s contention that the district court properly denied the proposed jury instruction because it was “substantially incorrect.” It is difficult to fault Pursley‘s counsel for not incorporating any suspension period when the district court provided no guidance on how long the statute of limitations was suspended. As described above, this is necessarily a factual issue the district court must resolve. Moreover, even if the jury instruction had incorporated the Government‘s preferred length of tolling, there were acts incorporated as to each count outside of this period.
IV.
Pursley was entitled to have the district court fully consider his statute of limitations defensе, to have the district court calculate the exact time the statute of limitations ran under existing precedent, to dismissal of any charge that was untimely under that calculation, and to a jury instruction on the statute of limitations defense. Accordingly, we VACATE Pursley‘s conviction, and REMAND for proceedings consistent with this opinion.
12