United States v. Day

789 F.2d 1217 (6th Cir. 1986)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Moore was charged with willfully preparing and subscribing to his own false individual tax returns and willfully aiding and assisting in the preparation of false partnership tax returns for the tax years 1977 and 1978. Pack (D) was charged with willfully preparing and subscribing his own false tax returns for the years 1977 and 1978 and willfully preparing and subscribing false partnership tax returns for the year 1977. Day (D) was charged with willfully aiding and assisting in the preparation of false income tax returns for Moore, individually, for the tax year 1977, for Pack as an individual for the years 1977 and 1978, and for the partnership for the tax year 1977. Pack and Moore entered into an informal business relationship to strip-mine coal under the firm name of Log Mountain Mining Company (the Company). They formalized their arrangement in a partnership. They hired Day (D) to devise and program an accounting system for the newly created enterprise. Moore used the Company's mining equipment in a wildcatting operation to illegally strip-mine coal that was sold to purchasers who were directed by him to remit the purchase price in the form of checks payable to fictitious payees identified by him. Substantial cash was generated as a result of the wildcatting and check cashing scheme. In February of 1978, Pack (D) sold his partnership interest in the Company to Moore. All the parties were arrested for tax evasion. Both Moore and Day (D) testified at trial. During the cross-examination of Moore, the government made a cursory ineffective attempt to impeach his testimony by reference to a certain recorded statement given by him during a pretrial interview conducted by Revenue Agent John Bright (Bright) and Special Agent John G. Doble (Doble) on December 15, 1980. P moved to introduce certain highly prejudicial and incriminating excerpts from the recorded interview as substantive evidence. Moore had been interviewed on December 15, 1980. Doble assured Moore that he was not the target of any pending criminal investigation. He also advised Moore of Miranda rights. Moore taped what was characterized in the record as a sworn statement in which he cast himself as an uneducated country boy who left school upon entering the third grade and who had labored his way through the trials of life until he was misled by Ds, both of whom had counseled and advised him in his business and financial affairs including the manner in which to accumulate the necessary cash monies with which to purchase Pack's (D) partnership interest in the Company without legal implications. He characterized Day (D) as a 'damn crook' and identified Pack (D) as the primary perpetrator of the check conversion scheme. The court permitted the jury to listen to the offered testimony over defense objections. Moore’s statements contradicted his own testimony given during his appearance as a witness at trial. The district court justified the admission of Moore's recorded interview as a statement of a co-conspirator given during the course and in furtherance of a conspiracy. Rule 801(d)(2)(E). Ds were convicted and Moore was acquitted on all counts. Ds appealed. P supports the admission under 801(d)(2)(E) in furtherance of a conspiracy and 801(d)(1)(A) as a prior inconsistent statement.