Admissibility
2 Page3
[87-1 USTC
¶9141]
United States of America
, Plaintiff-Appellee v. Everette A. Bohrer, Defendant-Appellant
(CA-10), U.S. Court of Appeals,
10th Circuit, 86-1445,
12/16/86
, 807 F2d 159, Affirming an unreported District Court decision
[Code Sec.
7203 ]
Constitutionality: Taxation: Evidence: Admissibility: Probable cause
hearing: Suits by United States: Juries: Instructions to.--The
taxpayer's conviction for willful failure to file income tax returns
could not be reversed for lack of a probable cause hearing. When the
summons was issued he was not subject to an extended pretrial restraint
of liberty following arrest and he had not asked for a probable cause
hearing. In addition, the taxpayer was not entitled to discovery of a
government tax protester list which he had requested to support a
defense of selective prosecution because he failed to produce any
evidence which would establish a prima facie showing of selective
prosecution. Further, the district court did not err in denying the
taxpayer's motion for acquittal, and later for a new trial, because the
government had proven the element of willfulness essential to the four
income tax violations for which the taxpayer was convicted by
introducing the tax returns he had filed for four years before the years
in issue. Admission of an IRS contact card also was permissible, even
though it had been prepared for litigation. The taxpayer had access to
it before the trial and could have cross-examined the IRS agent about
it. The court was satisfied that its introduction had no impact on the
jury's deliberations adverse to the taxpayer. Finally, the three jury
instructions were proper and not prejudicial. They stated respectively
that wages are income; that the amount of taxes actually due on income
need not be proved; and that disagreement with the tax law or a belief
that the tax law is unconstitutional is not a good-faith defense to
willful failure to file tax returns.
Robert
N. Miller, United States Attorney, James K. Bredar, Assistant United
States Attorney, Denver, Colo. 80294, for plaintiff-appellee. Cecil A.
Hartman,
Denver
,
Colo.
, for defendant-appellant.
Before
LOGAN, ANDERSON, and TACHA, Circuit Judges.
LOGAN,
Circuit Judge:
Everette
A. Bohrer appeals from his conviction, following a jury trial in the
United States District Court for the District of Colorado, on four
counts of willful failure to file income tax returns, violations of 26
U.S.C. §7203 . On appeal, Bohrer
contends (1) the summons issued in this case was not supported by a
showing of probable cause; (2) he was improperly denied discovery of a
government tax protester list, which he requested to support a defense
of selective prosecution; (3) there was insufficient evidence of the
required element of willfulness, especially in view of the court's
improper admission of an IRS internal memorandum; and (4) three jury
instructions prejudicially placed points before the jury that were not
raised by evidence or argument. We affirm the conviction on all counts.
Bohrer
first contends that the action against him should have been dismissed
because the information on which he was charged and a summons issued for
him to appear for trial were not supported by probable cause. Although
Bohrer argues that a showing of probable cause is required under Fed. R.
Crim. P. 9 and 4(a) for issuance of a summons, it is explicit in those
rules only that a warrant shall not issue unless the information shows
probable cause. No such requirement attaches to the issuance of a
summons, which issues instead of a warrant if requested by the attorney
for the government. Under the Fourth Amendment, a showing of probable
cause is required only when a defendant is to be subject to an extended
pretrial restraint of liberty following arrest. Gerstein v. Pugh,
420
U.S.
103, 114, 125 n.26 (1975). The summons subjected Bohrer to no such
restraint on his liberty and, accordingly, was proper.
Bohrer
cites United States v. Millican [79-2 USTC ¶9543 ],
600 F.2d 273 (5th Cir. 1979), cert. denied, 445 U.S. 915 (1980),
for the proposition that even absent pretrial arrest or detention, a
probable cause hearing should be granted at a defendant's request.
Id.
at 275. In the present case, however, Bohrer did not ask for a probable
cause hearing. Moreover, Millican makes clear that denial of a
probable cause hearing is not grounds for reversal of a subsequent
conviction. Id.; Gerstein, 420
U.S.
at 119 (a conviction will not be vacated on the ground that a defendant
was detained pending trial without a determination of probable cause).
Bohrer's argument is entirely without merit.
Bohrer
next contends that he was improperly denied discovery of a government
tax protester list, which he requested to support a defense of selective
prosecution. To demonstrate unconstitutionally selective prosecution, a
defendant must show (1) he was singled out for prosecution while others
similarly situated were not generally prosecuted; and (2) the
prosecution was invidiously based on racial, religious, or other
impermissible considerations. United States v. Amon [81-2 USTC ¶9495 ],
669 F.2d 1351, 1356-57 (10th Cir. 1981), cert. denied, 459 U.S.
825 (1982). Some initial showing of entitlement to the claim of
selective prosecution is required for discovery to be ordered by the
court. United States v. Ness [81-2
USTC ¶9621 ], 652 F.2d 890, 892 (9th Cir.), cert. denied,
454
U.S.
1126 (1981).
In
this case, in denying Bohrer's motion the district court found that
Bohrer had failed to produce any evidence which would establish a prima
facie showing of selective prosecution. On the basis of our review of
the record, we agree. In any event, we would not overturn the district
court's finding unless it was clearly erroneous. Cf. Amon, 669
F.2d at 1356. It is not.
Bohrer
also contends that the district court erred in refusing to grant his
motions for acquittal and, later, for a new trial, because the
government failed to prove the element of willfulness essential to the
four violations of 26 U.S.C. §7203 . Specifically, he
first contends that the government's introduction of evidence that he
filed tax returns for the four years before 1980 is not evidence of his
state of mind in 1980 and after. But it is well established that filing
tax returns in prior years is evidence of willfulness. See United
States v. Weninger [80-2 USTC ¶9560 ],
624 F.2d 163, 167 (10th Cir.), cert. denied, 449
U.S.
1012 (1980). Bohrer's argument to the contrary is meritless. The
government also introduced evidence of Bohrer's substantial gross income
during the years in which he failed to file tax returns. This too is
evidence of willfulness. United States v. Johnson [78-2 USTC ¶9786 ],
585 F.2d 374, 377 (8th Cir. 1978), cert. denied, 440 U.S. 921
(1979).
The
chief focus of Bohrer's contention of error with respect to the element
of willfulness and his motions for acquittal and new trial is a
conversation the government alleges took place between Bohrer and IRS
agent Jean Van De Sande. Agent Van De Sande testified that he telephoned
Bohrer at a number obtained from directory assistance, to request that
Bohrer file tax returns, and that Bohrer told him that he had not filed
because "the Internal Revenue Department was not a legal entity of
the United States Government according to some amendment of the
Constitution, and that he did not have to file." R. II, 74-75.
Bohrer testified, as the only defense witness, that he had no
recollection of any telephone conversation with Agent Van De Sande.
On
rebuttal, the government offered into evidence the IRS contact card,
containing Van De Sande's version of the alleged telephone conversation.
Over defense counsel's objection that it was improper rebuttal, and
could not be authenticated except by Van De Sande, the court admitted
the record under Fed. R. Evid. 803(6), as a business record of the IRS,
authenticated by the testimony of its custodian, Agent John Ottinger.
Bohrer then resumed the stand and testified that his telephone number
was unlisted, a different number than the one listed on the contact
card, and that he had not talked with Van De Sande. On appeal, Bohrer
contends specifically that Van De Sande's testimony was false, and that
the district court erred in admitting the contact card.
We
have serious problems with the admission of the IRS contact card under
the business records hearsay exception. Records kept in the regular
course of business of public agencies may be admissible under the
business records exception, Fed. R. Evid. 803(6), as well as under the
public records exception, Fed. R. Evid. 803(8). See, e.g., United
States v. Bowers, 593 F.2d 376, 380 (10th Cir.), cert. denied,
444 U.S. 852 (1979); United States v. Oates, 560 F.2d 45, 63-84
(2d Cir. 1977); United States v. Smith, 521 F.2d 957, 962-71
(D.C. Cir. 1975). Records of observations of law enforcement personnel,
however, are not admissible in criminal cases under the public records
exception. Fed. R. Evid. 803(8)(B). The Second Circuit in Oates
construes law enforcement personnel to include, "at the least, any
officer or employee of a governmental agency which has law enforcement
responsibilities," and concludes that the reports of such employees
are not admissible against criminal defendants under any hearsay
exception. 560 F.2d at 68, 77. But see 4 J. Weinstein and M.
Berger, Weinstein's Evidence ¶¶803(6)[07] at 803-207 (1984); id.
§803(8)
[04] at 803-262 (criticizing Oates conclusion as
unduly broad).
IRS
agents appear to be law enforcement personnel under the test proposed in
Oates. We need not go so far as the court did in Oates,
however, to find the admission of the contact card improper in this
case. Admission under the business records exception is not available to
documents prepared for ultimate purposes of litigation, when offered by
the party maintaining the documents. Palmer v. Hoffman, 318
U.S.
109, 113-15 (1943); Smith, 521 F.2d at 965-67. The contact card
was maintained as part of Bohrer's IRS case file. The IRS contact card
thus appears to have been maintained, at least in part, for the purpose
of prosecuting Bohrer for willfully refusing to file federal income tax
returns. Introduction of such a record via a hearsay exception to
establish willfulness raises the possibility of the "collision with
confrontation rights" of a criminal accused that Congress intended
to avoid by the specific language of Rule 803(8). Advisory Committee's
Note, 56 F.R.D. 183, 313 (1973); Oates, 560 F.2d at 68-69, 78-80.
Circumstantially, the admission of the IRS contact card poses a
situation "dripping with motivations to misrepresent." Smith,
521 F.2d at 966 (quoting Hoffman v. Palmer, 129 F.2d 976, 991 (2d
Cir. 1942), aff'd, 318 U.S. 109 (1943)).
Even
if admission of the IRS contact card was error, that error was harmless.
Bohrer had access to the contact card before trial, and could have
cross-examined Van De Sande about it. If the contact card added anything
to the controversy over the alleged conversation it helped Bohrer by
showing the discrepancy between his telephone number and that called by
Van De Sande. Defendant's cross-examination of Van De Sande is a more
lengthy portion of the record than Van De Sande's very brief direct
testimony; and, following introduction of the IRS contact card over
defendant's objection, Bohrer once more took the stand to deny that the
telephone conversation had taken place. There was other evidence of
willfulness in Bohrer's filing of tax returns in prior years and his
substantial income during the years he did not file returns. That
evidence, if believed, would clearly establish the element of
willfulness. On this record, we are satisfied that introduction of the
contact card had no impact on the jury's deliberations adverse to
Bohrer.
Finally,
Bohrer contends that three jury instructions prejudicially placed
matters before the jury that were not raised by evidence or argument.
The instructions stated respectively that wages are income; that the
amount of taxes actually due on income need not be proved; and that
disagreement with the tax law or a belief that the tax law is
unconstitutional is not a good-faith defense to willful failure to file
tax returns. The record reveals that each of these instructions was
relevant to the evidence raised at trial and discussed above. Bohrer's
contentions with respect to the instructions are meritless.
AFFIRMED.
[89-1 USTC
¶9381]
United States of America
, Appellee v. Antonios Koskerides, Defendant-Appellant
(CA-2), U.S. Court of Appeals, 2nd
Circuit, 88-1417,
6/14/89
, 877 F2d 1129, Affirming an unreported District Court decision
[Code Sec.
7201 ]
Crimes: Income tax evasion: Violation of IRS procedures: Denial of
access to information: Admissibility of evidence: Limitation of
cross-examination of witnesses: Burden of proof.--Convictions for
three counts of income tax evasion were upheld against a restaurant
owner. His claims that the district court erred in admitting evidence of
oral and written statements he believed had been obtained in violation
of IRS procedures, in denying him access to handwritten notes of
interviews IRS agents had with him, in admitting summary charts prepared
by the government that had not been disclosed before trial, in admitting
alleged hearsay testimony of an IRS agent and in limiting his
cross-examination of witnesses were all rejected by the court. His last
argument that the evidence presented by the government as to the likely
source of his taxable income was insufficient was also unpersuasive.
Barbara
A. Bailey,
New Haven
,
Conn.
, for appellee. Robert M. Davidson, Kurt F. Zimmerman, Davidson,
Driscoll & Naylor,
535 Connecticut Ave.
,
Norwalk
,
Conn.
06854
, for defendant-appellant.
Before
PIERCE and ALTIMARI, Circuit Judges, and KELLEHER, District Judge. *
KELLEHER,
District Judge:
INTRODUCTION
Defendant-appellant
Antonios Koskerides appeals from the judgment of conviction on three
counts of federal income tax evasion in violation of 26 U.S.C. §7201 .
Appellant
was sentenced on count one to a term of imprisonment of eighteen months
and a fine of $10,000. On count two appellant received a term of
imprisonment of eighteen months and a fine of $10,000, sentence to run
concurrently with count one. On count three he was sentenced to a term
of five years, execution suspended, and five years' probation, to run
consecutively with the sentences imposed on counts one and two. The
court also imposed on appellant costs of prosecution and special
conditions of probation requiring appellant to pay back taxes for the
years 1981-83 and to file lawful federal tax returns during the period
of probation.
Appellant
seeks reversal on the following grounds: (1) the IRS violated its own
procedures in its interviews with appellant, and therefore any
statements or documents resulting from such interviews should have been
suppressed; (2) the district court erred in denying appellant access to
handwritten notes of the agent's interviews with him and the unredacted
special agent's report; (3) the district court erred in admitting three
of the government's summary charts into evidence; (4) admission of the
testimony of agent Gambino violated hearsay rules; (5) the district
court improperly limited appellant's cross-examination of three
government witnesses; and (6) the government's net worth computation and
proof of willfulness were insufficient. We affirm.
Appellant
came to the
United States
from
Greece
in 1966 and was naturalized as a
United States
citizen in 1977. Appellant's native tongue is Greek. Although appellant
speaks English, appellant has some difficulty with the language and made
some use of the interpreter provided for him at the suppression hearing
and at trial.
In
1968, appellant purchased a restaurant in Norwalk, Connecticut which
became known as Penny's I. Between the years 1977 and 1980, he purchased
several investment real estate properties, including the cluster of
shops where Penny's I is located and four residential rental properties
in Norwalk. In 1982, appellant purchased a diner in
Fairfield
, which he remodeled and renamed Penny's II. Appellant then purchased a
third diner located in
Norwalk
in 1983, which became known as Penny's III. The business of these diners
was conducted on a strictly cash basis. Based on the net worth plus
expenditures method of proof, the evidence established that appellant
had unreported taxable income of $141,831.44 for 1981, $220,436.45 for
1982, and $300,219.47 for 1983. This understatement of income resulted
in the payment of only $2,285 in income tax in 1981, payment of no tax
in 1982, and none in 1983. The additional tax calculated by the
government to be due and owing was $71,561.00 for 1981, $89,879.00 for
1982, and $121,909.68 for 1983.
Appellant's
defense at trial was that he received nontaxable funds from relatives
and other individuals in
Greece
. Because
Greece
has laws strictly limiting the amounts of money that can be taken out of
the country, appellant contended that he employed a scheme with various
friends and relatives whereby individuals planning to travel to
Greece
would give
U.S.
currency to appellant prior to their trips to
Greece
. Once in
Greece
, the travelers would receive a like amount in Greek drachmas from
appellant's relatives.
The
government presented evidence that IRS agents interviewed various
individuals in
Greece
named by appellant as persons from whom he had received funds. In its
calculations, the government credited appellant for having received
funds from
Greece
. The government also presented evidence regarding the informal loans
within the Greek community and how they would be treated in the net
worth calculation. The government also presented evidence that many of
the funds received by appellant from
Greece
were repaid by appellant in a short period of time.
DISCUSSION
I.
MOTION TO SUPPRESS
Appellant
contends that the district court erred in denying his motion to suppress
his written or oral statements, admissions, confessions or documents
obtained in the course of the IRS investigation, along with any other
evidence derived therefrom. Appellant argues that the IRS violated its
own regulations by its conduct of the initial interrogation of defendant
and its failure to inform appellant's accountant, George Aretakis, that
it was engaged in a criminal investigation. The district court's
findings of fact in ruling on a motion to suppress may not be disturbed
unless the findings are clearly erroneous.
United States
v. Mast, 735 F.2d 745, 749 (2d Cir. 1984).
The
Criminal Investigation Division of the IRS targeted appellant for
investigation in 1984. Thereafter, on several occasions in 1984 and
1985, special agents Donald Kramer and Anthony Pavlich interviewed and
had other contacts with appellant. The first interview took place on
October 24, 1984. On that day, Kramer and Pavlich went to Penny's II,
one of the diners operated by appellant. Upon meeting appellant, Kramer
introduced himself as a special agent of the IRS Criminal Investigation
Division and presented his credentials to appellant, which appellant
viewed. After appellant led Kramer and Pavlich to a booth in the
restaurant, Kramer again introduced himself and Pavlich as special
agents of the Criminal Investigation Division. Kramer read to appellant
the statement of rights from a card known as Document 5661. 1 Appellant
responded that he understood and wished to cooperate with the agents.
Appellant appeared to comprehend the agent's questions and provided
responsive answers to their inquiries in English. Neither at the initial
interview nor during any later interview or contact did appellant ask
for clarification of his rights or for an interpreter to be present.
However, appellant testified that, because his English was "not too
good" and he did not understand Kramer's questions, he referred
Kramer to his accountant, Aretakis. That afternoon, the agents met a
second time with the appellant, who permitted Kramer and Pavlich to
inventory the contents of his safe deposit box.
On
the same day, Kramer and Pavlich went to the office of appellant's
accountant, George Aretakis. They testified that they displayed their
credentials and identified themselves as IRS special agents from the
Criminal Investigation Division. Pavlich also gave Aretakis a business
card which identified him as a special agent with the Criminal
Investigation Division. Appellant contends that the agents never
informed Aretakis of the true nature of the investigation which had
targeted appellant for potential criminal tax charges. Aretakis
testified that if he had known of the true nature of the proceedings, he
would have called an attorney. The district court found that any
misunderstanding on the part of Aretakis as to the nature of the
investigation was not a result of any misrepresentation or deception by
the agents.
The
IRS regulations relied upon by appellant are set forth in the IRS
Handbook for Special Agents §342.132. The regulations provide that
at the beginning of the first official interview with the subject of an
investigation, the special agent will identify himself as a special
agent of the IRS, produce his credentials, and inform the subject that
one of the functions of a special agent is to investigate the
possibility of criminal violations. The agent must then advise the
subject that he cannot be compelled to answer any question or submit any
information if the answer might tend to incriminate the subject. The
subject must also be advised that any statement he makes or any
information he turns over may be used against him in a criminal
proceeding and that he may seek the assistance of an attorney. If the
subject indicates that he wishes to withhold his testimony or records or
consult with an attorney, the agent must terminate the interview. If the
subject requests clarification of these rights or the purpose of the
investigation at any time, the agent must provide an explanation. The
regulations also require that the agent may not use trickery,
misrepresentation or deception in obtaining any evidence or information.
The
district court, in denying appellant's motion to suppress, found that
the IRS followed its regulations and that no due process violation
occurred. We agree. As noted above, appellant was advised of his rights
from the outset by the reading of Document 5661, and he appeared to
understand. The record discloses no misrepresentations or deception on
the part of the agents. The district court's denial of appellant's
motion to suppress was proper.
II.
ACCESS TO HANDWRITTEN NOTES OF INTERVIEWS AND SPECIAL AGENT'S REPORT
Appellant
contends that the district court erred in denying access to agent
Kramer's handwritten notes of interviews with him and in denying access
to the full Special Agent's Report ("SAR"). By pretrial
motion, pursuant to Fed.R.Crim.P. 16(a)(1)(A), appellant requested all
of his statements obtained by the government during the investigation.
After agent Kramer's testimony at the hearing on the motion to suppress
and after his testimony on direct examination at trial, the defense
requested agent Kramer's handwritten notes of the interviews with
appellant and the SAR pursuant to the Jencks Act, 18 U.S.C. §3500 et
seq.
The
defense was provided with typewritten IRS memoranda of the interviews
with appellant prepared after the interviews from handwritten notes. The
handwritten notes were preserved by the agent and submitted to the
district court for in camera inspection. The court compared the
handwritten notes with the memoranda of interview and denied disclosure
of the notes, finding that everything in the notes was contained in the
memoranda given to appellant. The court also found that the notes did
not pertain to anything discussed by the agent in his testimony on
direct examination.
Under
Fed.R.Crim.P. 16(a)(1)(A), the government must permit the defendant to
inspect and copy or photograph "the substance of any oral statement
which the government intends to offer in evidence at the trial made by
the defendant whether before or after arrest in response to
interrogation by any person then known to the defendant to be a
government agent." Here, the government fully complied with Rule
16(a)(1)(A) by providing appellant with the typewritten memoranda of
interviews prepared from the agent's handwritten notes. See, e.g.,
United States
v. Elusma, 849 F.2d 76, 79 (2d Cir. 1988), cert. denied, 109
S. Ct.
1570 (1989); United States v. Konefal, 566 F. Supp. 698, 708
(N.D.N.Y. 1989).
In
addition, the refusal of the court to order disclosure of the
handwritten notes did not violate the Jencks Act. The Jencks Act
provides that a defendant in a federal criminal trial, after a
government witness has testified on direct examination, is entitled to
receive for purposes of cross-examination any written statement of the
witness in the government's possession "which relates to the
subject matter as to which the witness has testified." 18 U.S.C. §3500(b);
United States v. Pacelli, 491 F.2d 1108, 1118 (2d Cir.), cert.
denied, 419 U.S. 826 (1974). If the government's representations as
to relevancy are challenged, the government must make the disputed
statement available to the district court for an in camera
inspection and ruling. 18 U.S.C. §3500(c); see Goldberg v. United
States, 425
U.S.
94, 109 (1976). The district court's ruling that documents do not
contain Jencks Act material cannot be overturned absent a clear showing
of abuse of discretion. United States v. Singh, 628 F.2d 758, 765
(2d Cir.), cert. denied, 449
U.S.
1034 (1980). Here, the district court reviewed the handwritten notes in
camera and determined that the notes did not pertain to anything
said by the agent on direct examination. We find no error in the
district court's determination.
Appellant
also argues that he was entitled to the full SAR rather than the
redacted version provided by the government, under Fed.R.Crim.P.
16(a)(1)(A) and the Jencks Act. The district court found that the
materials relating to the net worth computations of appellant's taxable
income and to the computations of tax due and owing were "reports,
memoranda, or other internal government documents" under
Fed.R.Crim.P. 16(a)(2) and were therefore exempt from discovery.
Rule
16(a)(2) provides that reports, memoranda, or other internal government
documents made by the attorney for the government or other government
agents in connection with the investigation or prosecution of the case
are not subject to disclosure. Since Rule 16 clearly recognizes
"the prosecution's need for protecting communications concerning
legitimate trial tactics," United States v. Pfingst, 490
F.2d 262, 275 n.14 (2d Cir. 1973), cert. denied, 417 U.S. 919
(1974), we hold that the district court did not abuse its discretion in
ruling that the analysis of tax liability was not discoverable under
Rule 16, see 2 C. Wright, Federal Practice and Procedure §261 (1982).
Defendant
also claims that the entire SAR should have been disclosed under the
Jencks Act. The district court conducted an in camera inspection
of the redacted SAR and the full SAR. The court determined that the
redacted SAR was producible under the Jencks Act and ordered it provided
to the defense for the purpose of its cross-examination of Agent Kramer.
The court also compared the redacted SAR with the full SAR and
determined that nothing else contained in the full SAR related to Agent
Kramer's direct testimony. The district court's determination, after an in
camera inspection, that the full SAR need not be disclosed was
within the court's discretion. Singh, 628 F.2d at 765; Pacelli,
491 F.2d at 1118.
III.
ADMISSION OF SUMMARY CHARTS
Appellant
claims error in the district court's decision to admit summary charts
prepared by the government. We will not overturn the court's decision to
admit summary charts in the absence of abuse of discretion. United
States v. Pinto, 850 F.2d 927, 935 (2d Cir.), cert. denied,
109 S.Ct. 174 (1988) and 109 S.Ct. 323 (1988).
Appellant
contends that the district court erred in admitting three large charts
on which were set out net worth tax computations. Appellant claims that
the charts should not have been admitted at trial because they had not
been disclosed during pretrial discovery. In its pretrial motions for
discovery, appellant requested access to the IRS' net worth computations
as well as access to any and all papers, documents or tangible objects
which were in the possession of the government, which were material to
the defense, or which were intended for use by the government as
evidence at trial. The district court ruled that the actual computations
and analysis of appellant's tax liability constituted government
reports, memoranda, or other internal documents not discoverable under
Rule 16(a)(2). Prior to trial, the defense specifically requested,
pursuant to Rules 16(d)(1) and (2), that the court preclude the
government from introducing evidence in its case in chief any Rule 16
materials which had not been disclosed. The court denied this request,
based upon its prior ruling that the computations were exempt by Rule
16(a)(2). We find no error in the district court's ruling.
Appellant
also contends that no proper foundation was established for admission in
evidence of the three large charts at trial. According to appellant, the
primary evidence upon which these exhibits were based was not available
for the purpose of testing its accuracy. Summary charts may be admitted
upon a proper foundation connecting the numbers on the chart with the
underlying evidence. United States v. Citron [86-1
USTC ¶9228 ], 783 F.2d 307, 316 (2d Cir. 1986). The district
court must determine as part of the foundation that the summary charts
"fairly represent and summarize the evidence on which they are
based." United States v. O'Connor [56-2 USTC ¶9936 ],
237 F.2d 466, 475 (2d Cir. 1956); see Citron, 783 F.2d at 316.
Here, that was done by the district court. Moreover, the court
instructed the jury that the charts were admitted as summaries and
should be disregarded if they did not reflect the facts as shown by the
other evidence in the case. We find no error in the district court's
decision that a proper foundation had been made for admission of the
summary charts.
IV.
TESTIMONY OF AGENT GAMBINO
Appellant
contends that the trial court erred in admitting the testimony of agent
Vincent Gambino over hearsay objections. Gambino testified about
statements made through an interpreter by appellant's father-in-law in
Greece
concerning funds given to appellant. Gambino interviewed George
Kiriakides and his wife, Eleni, in
Greece
. Gambino conducted the interview through an interpreter who was
employed at the American Embassy in
Athens
. Kiriakides was deceased and unavailable to appear at the trial.
However, Eleni Kiriakides appeared and testified for the government
regarding her recollection of the interview. The government made no
showing that the interpreter was unavailable.
Appellant
makes two claims of error in the admission of Gambino's testimony.
First, appellant claims that Gambino's testimony contained multiple
hearsay and was inadmissible because the testimony of the interpreter
did not qualify as an exception to the hearsay rule. Second, appellant
contends that the statements of declarant Kiriakides were inadmissible
hearsay. Appellant contends that Kirakides' statements were crucial to
the government's case because the statements were part of the
government's evidence that it satisfied its duty to pursue leads to
nontaxable sources of funds.
When
offered for this purpose, the testimony of Gambino about Kiriakides'
statements was admissible non-hearsay. Under Fed.R.Civ.P. 801(c), a
statement is hearsay only when "offered in evidence to prove the
truth of the matter asserted." When it offered Gambino's testimony
to prove that it investigated all leads given by Koskerides to
non-taxable income, the government did not seek to prove the truth of
Kiriakides' statements, but rather to prove that the interview took
place.
Appellant
indicates that the government also offered Kiriakides' statements for
their truth. Appellant claims that the government offered Kiriakides'
statements to disprove appellant's alleged source of non-taxable funds
from his relatives in
Greece
. To the extent that the statements of Kiriakides were offered for the
truth of the amount of funds transferred to appellant, the error was
harmless. Eleni Kiriakides, who was present at the interview, testified
at trial. In addition, the overwhelming evidence against appellant
rendered the error harmless beyond a reasonable doubt. See United
States v. Castro, 813 F.2d 571, 577 (2d Cir.), cert. denied,
108 S. Ct. 137 (1987). In any event, we will examine whether this
admission violated hearsay rules.
We
reject appellant's contention that Gambino's testimony was inadmissible
as multiple hearsay. The interpreter was no more than a language conduit
and therefore his translation did not create an additional layer of
hearsay. See
United States
v. Ushakow, 474 F.2d 1244, 1245 (9th Cir. 1973). The interpreter
translated Kiriakides' statements concurrently as made. There is nothing
in the record to suggest that the interpreter had any motive to mislead
or distort, and there is no indication that the translation was
inaccurate. See
United States
v. Da Silva, 725 F.2d 828, 831-32 (2d Cir. 1983). In addition,
Eleni Kiriakides, who was also present at the conversation, testified at
trial and was fully subject to cross-examination.
Kiriakides'
statements were admissible as statements against interest. Fed. R. Evid.
804(b)(3). The evidence offered by the government satisfies the
conditions set forth in
United States
v Stratton, 779 F.2d 820, 828 (2d Cir. 1985), cert. denied,
476
U.S.
1162 (1986):
A declaration
against interest is not excludable as hearsay if three conditions are
met: (1) the declarant is unavailable as a witness; (2) the statement is
sufficiently contrary to the declarant's pecuniary or penal interests
that a reasonable person in his position would not have made the
statement unless he believed it to be true; and (3) corroborating
circumstances indicate that the statement is trustworthy.
In this case, Kiriakides was
unavailable as a witness due to his death in 1987. His statements were
against his penal interest because they implicated him in a serious
crime under Greek law, the expatriation of funds from
Greece
. Corroboration by Eleni Kiriakides, who was present during the
conversation and who testified at trial, indicate that the statements
were trustworthy.
