                                                        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that this opinion should not be published and is not precedent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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