## Facts

- Fred S. Pang owned and operated Sin Ma Imports, a cooking-oil wholesaler.
- The IRS conducted a criminal tax investigation of Pang.
- On August 19, 1998, IRS Special Agent Caramucci and other agents arrived at Sin Ma’s premises, identified themselves, and entered after Pang unlocked a security gate.
- Agents interviewed Pang at his business for about an hour; agents remained seated while Pang answered questions and retrieved records.
- Agents testified that, before questioning, Pang was advised via an IRS non-custodial rights card that he could remain silent, obtain counsel, and that statements and documents could be used against him; Pang agreed to speak.
- Pang testified he was not advised of rights and that agents used coercion, deceit, and misrepresentations; the district court found Pang not credible.
- The investigation produced invoices and customer checks (including from a customer) supporting allegations of unreported income and cash-deposit structuring to evade reporting requirements.
- Pang later made tax payments after prosecution began and sought to introduce them to show lack of willfulness.
- A jury in the Northern District of California convicted Pang of five structuring counts, four tax-evasion counts, and four false-return counts; he received a 24-month sentence.

## Issues

1. Whether Pang’s consent to agents’ entry and his statements during the non-custodial IRS interview were voluntary, making them admissible.
2. Whether invoices and customer checks were properly admitted, including hearsay and authentication objections.
3. Whether the government’s proof or the jury instructions constructively amended the information on the structuring counts.
4. Whether excluding evidence of tax payments made after prosecution began improperly prevented Pang from contesting willfulness.
5. Whether use of a grand jury subpoena to obtain records from Pang’s accountant required suppression or otherwise violated Pang’s rights.

## Decision

- Affirmed Pang’s convictions and sentence.
- Upheld the finding that Pang voluntarily consented to entry and voluntarily answered questions after receiving non-custodial warnings.
- Held that invoices and customer checks were properly admitted; the checks were not barred as hearsay when used to show transactions and were adequately authenticated.
- Rejected the constructive-amendment claim because the jury instructions tracked the charged offense and statutory elements of unlawful structuring.
- Approved exclusion of post-prosecution tax payments as irrelevant to intent at the time of the offenses and potentially confusing.
- Rejected challenges to the grand jury subpoena and the accountant’s production of documents.

## Legal Principles

- Voluntariness of consent and statements is assessed under the totality of circumstances, with deference to trial-court credibility findings on appellate review.
- Non-custodial warnings and an interview setting lacking restraint or threats support a finding that statements are voluntary.
- Checks may be admissible when offered as evidence of a transaction rather than for the truth of any assertion, and bank-related documents may be authenticated through rule-based mechanisms and supporting foundation.
- A constructive amendment occurs only if the charging instrument is effectively broadened; instructions consistent with the charged theory and statutory elements ordinarily defeat such a claim.
- In tax cases, willfulness focuses on the defendant’s state of mind at the time of the offense; post-charge payments are generally irrelevant and may be excluded under evidentiary balancing.
- Voluntary third-party production of records in response to a grand jury subpoena does not, without more, establish a Fourth or Fifth Amendment violation requiring suppression.

## Conclusion

The Ninth Circuit affirmed Pang’s structuring and tax convictions, holding that the non-custodial IRS interview and entry were voluntary, the government’s financial documents were properly admitted, the structuring charges were not constructively amended, post-prosecution tax payments were properly excluded as irrelevant to willfulness, and the subpoenaed accountant records did not warrant suppression.


United States v. Pang, 362 F.3d 1187 (9th Cir. 2004)