ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 95-00067-1)
Before: Mansmann, Cowen, and Alito, Circuit Judges
The opinion of the court was delivered by: Alito, Circuit Judge:
(Opinion Filed: July 9, 1998)
Joseph Moses appeals his criminal convictions for willfully failing to file corporate tax returns, willfully filing false personal tax returns, and conspiring to defraud the United States by obstructing the lawful functions of the Internal Revenue Service (IRS). Moses assigns as error the district court's denial of his post-trial motion for a judgment of acquittal, as well as its admission of certain hearsay statements. We affirm.
While Director of the Allegheny County Maintenance Department, Joseph Moses accepted kickbacks from Edmond Gaudelli, a commercial vendor who did business with the County. These kickbacks were routed through Catherine Jean Ronschke, an employee of the Department, to conceal the source and nature of the payments. With the aid of the kickbacks from Gaudelli, Moses was able to meet the financial obligations of Sadies Place, Inc., a private corporation he had formed in 1985. Between 1985 and 1993, Moses failed to file several corporate tax returns for Sadies Place and failed to report his kickback income on his personal tax returns. Meanwhile, Gaudelli deducted the kickbacks as business expenses on his returns. When called before a grand jury in May 1994 to discuss these matters, Gaudelli and Ronschke both made false statements regarding their financial dealings with Moses.
Based on these and other events, Moses, Gaudelli and Ronschke were indicted for conspiring to defraud the United States by obstructing the lawful functions of the IRS. See 18 U.S.C. § 371. In addition, Moses was indicted for willfully filing a false personal income tax return, in violation of 26 U.S.C. § 7206(1), and willfully failing to file four corporate tax returns for Sadies Place, in violation of 26 U.S.C. § 7203.
At trial, Moses objected to the admission of several hearsay statements made by Gaudelli and Ronschke. The district court overruled these objections, concluding that some of the statements were admissible because they were against the declarant's penal interest, see Fed. Rule Evid. 804(b)(3), and others were admissible because they were made in furtherance of the conspiracy. See Fed. Rule Evid. 801(d)(2)(E). After the jury convicted Moses on all counts, he moved for a judgment of acquittal on the ground that there was insufficient evidence to convict him of willfully failing to file the Sadies Place returns. The district court denied the motion, and Moses brought this appeal.
Moses's primary contention on appeal is that the district court erroneously admitted out-of-court statements made by Edmond Gaudelli. Gaudelli's statements, which implicated Moses in the kickback scheme, were presented through the testimony of Michael Tutro, a government witness who had been a friend and colleague of Gaudelli's. According to Tutro, Gaudelli said on several occasions that he was "tak[ing] care" of Moses "moneywise." App. 434-37. Tutro further testified that Gaudelli would tell him where he was meeting with Moses to make these payments. The district court concluded that Gaudelli's statements were admissible under Federal Rule of Evidence 804(b)(3) as statements against penal interest, and further held that admission of Gaudelli's statements would not violate the Confrontation Clause. Moses challenges both of these rulings on appeal.
A hearsay statement made by an unavailable declarant can be admitted pursuant to Rule 804(b)(3) if, at the time of its making, "it so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Since there is no dispute over Gaudelli's ...