U.S. v. Fox, 79-5345

• Decision Date: 06 March 1980
• Docket Number: No. 79-5345,79-5345
• Citation: 613 F.2d 99
• Parties: 80-1 USTC P 9337, 5 Fed. R. Evid. Serv. 1126 UNITED STATES of America, Plaintiff-Appellee, v. Robert L. FOX and William R. Just, Sr., Defendants-Appellants. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 99

613 F.2d 99

80-1 USTC P 9337, 5 Fed. R. Evid. Serv. 1126

UNITED STATES of America, Plaintiff-Appellee, v. Robert L. FOX and William R. Just, Sr., Defendants-Appellants.

No. 79-5345

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

March 6, 1980.

Robert J. Buonauro, Orlando, Fla., for defendants-appellants.

Gilbert E. Andrews, Chief, App. Sect., M. Carr Ferguson, Asst. Atty. Gen., Robert E. Lindsay, Michael E. Greene, James A. Bruton, III, Attys., Tax Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before BROWN, TJOFLAT and FRANK M. JOHNSON, Jr., Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

Robert L. Fox and William R. Just, Sr., were directors of a Florida corporation. Just was also president of the corporation. They were charged with failing to make federal tax deposits of the payroll taxes of the corporation during the last quarter of 1977 (Count I) and the first quarter of 1978 (Count II), in violation of 26 U.S.C. § 7206(1) and 18 U.S.C. § 2. The Government also charged that they conspired to impede the collection of taxes (Count III), in violation of 18 U.S.C. § 371. At the close of the Government's case during trial, the district court granted Fox's motion for a judgment of acquittal as to Count II. The jury returned guilty verdicts as to each defendant on all other counts.

On appeal, appellants raise several objections to the proceedings below. They claim that the trial court improperly admitted certain coconspirator statements into evidence, that the convictions were not supported by sufficient evidence, and that appellants were deprived of their constitutional right to effective assistance of counsel because they were represented by the same lawyer. We have considered all of the points raised by Fox and Just and find no reversible error. Accordingly, we affirm.

The first argument raised by the appellants is that several out-of-court declarations made by one of the defendants were improperly introduced against the other defendant. ¹ Appellants claim that the Government did not establish the proper foundation to rely on the coconspirator exception to the hearsay rule. See F.R. Evid. 801(d)(2)(E) ("statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is admissible); United States v. James, 590 F.2d 575, 580-83 (5th Cir. 1979) (en banc). Because none of these nine statements was introduced at trial under the coconspirator exception to hearsay, this claim is without merit.

An out-of-court statement is considered hearsay only if the witness (other than the declarant) is testifying to the statement in order to prove or demonstrate the truth of that statement. F.R. Evid. 801(c). The purpose of the introduction of each of the statements here challenged was to show that one or the other of the defendants had made certain statements. The prosecution's theory was to prove through independent admissible evidence that the statements were false. Indeed, appellants admit that these challenged statements were offered to prove their falsity rather than their truth. See Anderson v. United States, 417 U.S. 211, 219, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974); United States v. Bernes, 602 F.2d 716, 719 (5th Cir. 1979).

Furthermore, the trial judge in his jury instructions directed the jury to consider the statements only against the one making the statements. He similarly instructed the jury concerning certain statements during the trial. Thus, it is clear that the Government did not rely on the coconspirator exception to the hearsay rule to introduce these statements into evidence and that the statements were properly admitted.

In the last challenged group of statements, a secretary testified that both appellants claimed that they could not afford to give raises because they owed money in taxes. Appellants did object to the introduction of this testimony. However, the basis of the objection they voiced below, irrelevancy, is not the same ground they now urge upon us, that the Government did not establish the proper foundation to rely on the coconspirator exception to the hearsay rule. Inasmuch as they did not assert "the specific ground of objection," F.R.Evid. 103(a)(1), this claim of error has been waived. Furthermore, the admission of this testimony, even against a coconspirator under F.R.Evid. 801(d)(2)(E), could hardly be prejudicial because both appellants made the same statement.

Appellants also argue that, apart from these nine statements to which they object, the evidence against them is merely circumstantial. They suggest that a more stringent sufficiency of evidence test should be applied when the conviction is based on circumstantial, rather than direct, evidence. It is firmly established that the same standard of review is employed when reviewing a conviction whether it is based on direct or circumstantial evidence. See United States v. Cowart, 595 F.2d 1023, 1034-35 n.16 (5th Cir. 1979). The question is whether the evidence and all reasonable inferences favorable to the Government's position, See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), are such that the trier of fact could reasonably infer that appellant was guilty beyond a reasonable doubt. See United States v. Cowart, supra, at 1034. By appellants' own admission, the circumstantial evidence showed:

that 941 tax returns were in fact filed, that there were no outstanding checks on the bank statements of Southeast Interiors, Inc. payable to the Internal Revenue Service, that the Appellants secretary made weekly tax computations, that she in fact wrote these checks for deposits and presented these checks to the Appellant Just, that various employees from the bank in which the Appellants made their tax deposits, testified that the bank records did not indicate any tax deposits made by the Appellants which were not properly credited, and that there were in fact, no...