U.S. v. Barron, 82-1631

• Decision Date: 26 May 1983
• Docket Number: No. 82-1631,82-1631
• Citation: 707 F.2d 125
• Parties: 13 Fed. R. Evid. Serv. 444 UNITED STATES of America, Plaintiff-Appellee, v. Franklin Earl BARRON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 125

707 F.2d 125

13 Fed. R. Evid. Serv. 444

UNITED STATES of America, Plaintiff-Appellee, v. Franklin Earl BARRON, Defendant-Appellant.

No. 82-1631

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

May 26, 1983.

The Wesbrooks-Yandell Firm, Ron L. Yandell, Wichita Falls, Tex., for defendant-appellant.

R.H. Wallace, Jr., Asst. U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE, RANDALL and TATE, Circuit Judges.

TATE, Circuit Judge:

The defendant Barron was convicted of two counts of committing perjury before a federal grand jury. 18 U.S.C. Sec. 1623 (1978). On his appeal, he principally contends that the district court reversibly erred in admitting evidence of extraneous offenses and other acts, although he also argues that substantial evidence does not support the conviction on either count. Finding merit in neither contention, we affirm.

Factual Context

The perjury counts against the defendant Barron arose out of a 1981 grand jury investigation for criminal tax fraud of one David Terrell. The defendant Barron was a business associate and friend of the taxpayer Terrell. The thrust of the grand jury investigation was to determine whether Terrell had concealed income. In connection with this, the government attempted to establish this taxpayer's net worth each year from 1975 through 1979 by showing his assets and liabilities at the end of each year. (After establishing Terrell's beginning net worth and comparing it to the year-end assets and liabilities, his actual taxable income each year could be determined and compared with that reported.)

Specifically, with regard to the defendant Barron's appearance before the grand jury, the government was attempting to determine whether $15,500 purported loaned by Barron to Terrell in 1974 was a bona fide loan or was, instead, disguised assets of Terrell used to purchase certain property. The perjury counts were based upon Barron's testimony of Terrell's execution of a note in connection with such alleged loan, and that Terrell had repaid that loan with interest.

Terrell, the taxpayer, was the founder of the "World Mission Church" (later, the "New Testament Holiness Church"), which had branches in San Antonio, Texas and Bangs, Texas. The defendant Barron was the pastor of the San Antonio branch from 1972 until at least 1976, and the pastor of the Bangs branch from 1974 until at least through the trial in 1982. The evidence indicates that Terrell (who appeared monthly at the Texas branches) and the defendant Barron were closely associated in church affairs, as well as close personal friends.

The other principal actor in the events upon which the perjury counts are based is Westmoreland, a principal witness for the prosecution, who had joined the taxpayer Terrell's church following 1969 and donated large sums to it, who became a member of the San Antonio branch when it was founded in 1972, and who served as assistant pastor (with the defendant Barron as pastor) of the San Antonio branch of the church from 1974-1976.

1. Sufficiency of the evidence.

As a result of the defendant Barron's testimony before the grand jury about an alleged loan he had made to Terrell, he was charged with two counts of perjury: (1) that he had falsely testified that Terrell had signed a note for $15,500 in his presence, but, instead, knew that Terrell's signature had been placed on the note by Westmoreland in the defendant Barron's presence; and (2) that his testimony was false that Terrell had repaid him the note with interest, and that he committed perjury in testifying that he himself had reported the interest he had received from Terrell on his own income tax returns.

On appeal, Barron contends that the evidence was insufficient to support his conviction on either count. In examining for sufficiency, on review the appellate court should affirm, if viewing the evidence in the light most favorable to the jury verdict upholding the government's case, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt. See, e.g., United States v. Austin, 585 F.2d 1271, 1273 (5th Cir.1978) and decisions there cited. This test is met here.

(a) Execution of the note. The defendant Barron had testified before the grand jury that he had loaned the taxpayer Terrell $15,500, and he produced what he said was the "original" note and testified that Terrell had signed it in his presence. At the trial, Westmoreland (associate of Barron and Terrell) testified that at Barron's urging he himself had signed Terrell's name to the note in a lawyer's office, having previously (before going to the office) practiced signing it from an exemplar of Terrell's signature furnished him by Barron. A handwriting expert testified that the signature was a simulated forgery of Terrell's handwriting and that it was highly probable that Westmoreland had (as he indeed testified) executed that forged signature.

The jury's conviction of this count was obviously based on sufficient evidence. Barron's contention that the jury should instead have accepted his own exculpatory explanation of inadvertency in his grand jury testimony ¹ is simply a contention that the jury erred in not finding his testimony to be credible. Evaluation of credibility is for the trial jury, not the appellate court.

(b) Non-reporting of interest on income tax. At the trial, the defendant Barron testified that Terrell had repaid him on the 1974 note of $15,500, according to its terms, in three annual installments. He testified that Terrell had paid him in cash the three annual installments plus interest on the entire balance on the three anniversary dates, i.e., $5,166.67 plus $900 interest on September 1, 1975; the same principal amount, plus $600 interest on September 1, 1976; and the same principal amount, plus $300 interest on September 1, 1977.

Again, the evidence is more than sufficient to prove Barron's perjury before the grand jury that he had reported the interest as received from Terrell each year. His tax returns for the years in question showed no receipt of interest. The work papers he had furnished his tax-return preparer reflected only income from church donations or, in one year, sales of cattle. A statement of his assets and liabilities prepared for the use of the internal revenue service in late 1976 specifically showed no outstanding notes receivable (although, by Barron's trial testimony, at least $5,000 was still due him from Terrell on the note). Again, under the evidence before it, the jury could reasonably discount the...