U.S. v. McCallum, 85-1362

• Decision Date: 23 December 1985
• Docket Number: No. 85-1362,85-1362
• Citation: 788 F.2d 1042
• Parties: 19 Fed. R. Evid. Serv. 1716 UNITED STATES of America, Plaintiff-Appellee, v. Robert Blake McCALLUM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1042

788 F.2d 1042

19 Fed. R. Evid. Serv. 1716

UNITED STATES of America, Plaintiff-Appellee, v. Robert Blake McCALLUM, Defendant-Appellant.

No. 85-1362.

United States Court of Appeals, Fifth Circuit.

Dec. 23, 1985.

Ronald L. Goranson, Dallas, Tex., for defendant-appellant.

William Kim Wade, Asst. U.S. Atty., James A. Rolfe, Christopher Lee Milner, U.S. Attys., Lynn Hastings, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

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

Before POLITZ, HIGGINBOTHAM, and JONES, Circuit Judges.

POLITZ, Circuit Judge:

Convicted of 27 counts of knowingly and willfully making false statements in violation of 18 U.S.C. Sec. 1001, Robert Blake McCallum appeals, challenging evidentiary rulings and the jury charge. Finding no error, we affirm.

FACTS

McCallum was a bail bondsman in Dallas, Texas. On May 4, 1982, he was empowered by Allied Fidelity Insurance Company to post bonds on its behalf and was given 462 powers-of-attorney. Two days later, Allied's vice-president who had contracted with McCallum, in writing revoked that authority. On May 6, 1982, Allied's regional manager for Texas personally visited McCallum, advised that the agency agreement had been revoked, and demanded the return of all powers-of-attorney. McCallum demurred. The regional manager personally advised the Dallas County Sheriff's Office that McCallum was not authorized to act on behalf of Allied. On May 19, Allied's counsel wrote McCallum, demanding a return of all powers-of-attorney. Notice of the agency revocation was not given to any federal agency or court until August 30, 1982.

From June 1 through August 27, 1982, McCallum represented himself as Allied's agent and signed and presented to the United States District Court for the Northern District of Texas bonds, with attached powers-of-attorney, to secure the appearance of persons charged with immigration law violations. These filings undergird the 27 counts for making, and causing to be made, false and fraudulent statements and representations concerning material facts to a government agency or department.

McCallum's primary defense was that he did not act willfully because he relied on the advice of his attorney, Randy Taylor. Taylor testified that on May 7, 1982, he reviewed the agreement between McCallum and Allied, a letter of underwriting authority from Allied to McCallum, and other documents, and then advised McCallum that he could continue writing bonds on Allied until Allied's president revoked his authority in writing. McCallum asserted that he wrote the 27 challenged bonds based on this advice.

The government's case was based primarily on the testimony of three witnesses, Allied's vice-president who testified that he hired and fired McCallum, exercising authority granted by Allied's president; the regional manager who testified that he gave McCallum oral notice of termination and demanded the return of all powers-of-attorney; and Allied's president who testified that in accordance with his authority he had delegated to the vice-president the power to grant and terminate bail bonding authority.

The district judge identified three elements of the offense in his charge to the jury:

First: That the Defendant knowingly made a false statement, or made or used a false document, in relation to a matter within the jurisdiction of a department or agency of the United States as charged;

Second: That the false statement or false document related to a material matter; and

Third: That the Defendant acted wilfully and with knowledge of the falsity.

Respecting McCallum's main defense theory, the court instructed:

With regard to the elements of wilful and knowing wrongdoing, the defense introduced evidence that the Defendant acted on the basis of advice from his attorney.

If the Defendant, before taking any action, sought the advice of an attorney whom he considered competent, in good faith and for the purpose of securing legal advice on the lawfulness of his possible future conduct, and made a full and accurate report to his attorney of all of the material facts of which he has the means of knowledge, and acted strictly in accordance with the advice of his attorney given following his full report, then the Defendant would not be wilfully doing something the law forbids....

McCallum received 26 concurrent five-year sentences plus five years of probation and a $10,000 fine on the 27th count.

ANALYSIS

Evidentiary Issues

1. Civil Litigation.

McCallum sought to introduce evidence that the Immigration and Naturalization Service had filed suit against Allied to collect on several forfeited bonds which McCallum had signed. The evidence was offered to impeach the testimony of Allied's officers, impugning their motivation for testifying that McCallum was without authority to bind their company. The district court noted that this evidence might show possible prejudice by Allied's officers, but that this possibility was "far outweighed under Rule 403 by confusing the jury on a matter that really is not relevant.... I don't want to get off and have to instruct them on what is involved in civil litigation of this kind."

The admissibility of evidence for impeachment purposes is committed to the broad discretion of the trial judge. We perceive no abuse of that discretion. United States v. Landes, 704 F.2d 152 (5th Cir.), cert. denied, 464 U.S. 856, 104 S.Ct. 176, 78 L.Ed.2d 158 (1983).

2. Taylor's Testimony.

McCallum assigns three errors arising out of the testimony of Randy Taylor who testified about his interview, document review, and legal advice to McCallum on May 7, 1982, regarding the bond writing. After Taylor completed his testimony, McCallum's trial counsel sought to return him to the stand to testify about continuing advice he gave McCallum after May 7, 1982. The trial judge refused to permit the recall of Taylor on the grounds that the evidence was both cumulative and irrelevant. We find no evidence presented by the government suggesting any change in McCallum's state of mind between May 7, 1982 and August 27, 1982, the date of the last bond filing. The government's case was straightforward. The defense was equally straightforward. Evidence of McCallum's reliance on advice of counsel was presented by the defense. We find no abuse of discretion in the trial judge's disallowance of the recall of Taylor. Our attention is invited to no relevant evidence that was excluded.

McCallum contends that the trial judge erred in refusing to allow Taylor to testify about statements he had made to Taylor prior to and during the course of their May 7, 1982 conference. McCallum offered the statements for the truth of their content under Fed.R.Evid. 803(3). The court allowed the hearsay statements not as assertion of a fact but as fact of an assertion, specifically, "as a predicate for what action was then taken by Mr. Taylor." The court so charged the jury. There was no error in this ruling.

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