Defendant Fred S. Pang was charged in an information, and found guilty by a jury, of five counts of unlawful structuring of currency transactions, four counts of income tax evasion, and four counts of filing false tax returns. He was sentenced to twenty-four months imprisonment, and raises several arguments on appeal.
I. THE VOLUNTARINESS OF PANG’S CONSENT TO ENTER HIS PREMISES AND OF THE STATEMENTS HE MADE TO THE IRS AGENTS
A. FACTS
Pang owned and operated Sin Ma Imports, a wholesale company that sells cooking oils to restaurants and retailers. At around 9:00 A.M. on August 19, 1998, IRS Special Agent Kevin Caramueci and six other agents went to the offices of Sin Ma Imports, presented themselves at a locked iron security gate at the entrance, rang the bell, showed badges, and identified themselves. All of the agents wore business attire and carried concealed weapons. Pang unlocked the gate and allowed the agents to enter. Pang’s wife Nancy escorted two agents to her office where they interviewed her. Two other agents interviewed Sin Ma employees.
Three agents stayed with Pang and interviewed him in an outer office. According to the agents, prior to commencing the interview, Caramueci read Pang the so-called “IRS Non-Custodial Statement of Rights Card.” 1 Pang responded that he understood his rights and voluntarily agreed to answer questions. Pang was asked about his businesses practices and records. He responded to questions with explanations and examples and left his chair to get records to substantiate his responses. The agents remained seated until the interview was completed, about an hour later. At the conclusion of the interview, the agents gave Pang a list of documents they needed, and then left.
At the hearing on Pang’s motion to suppress the statements he made to the agents, Pang testified that he was never read his rights and that he was coerced into talking to the agents or induced into doing so by the agents’ deceit and misrepresentations. He also claimed that he was particularly vulnerable to intimidation, having been raised in Singapore where “brutal consequences befall those who do not accede to government actions,” even *1191 though he and his wife have lived in the United States for nearly 40 years and are U.S. citizens.
The district court denied the motion to suppress. The court specifically found Pang not to be credible. The court also found that Caramucci read Pang the IRS warnings and that Pang’s statements and his consent to the IRS agents to enter his premises were voluntary and not the product of coercion, fraud, or misrepresentation. The court also found “suspect” Pang’s claim that he feared the agents. In any event, the court found that the agents did nothing improper.
B. STANDARD OF REVIEW AND ANALYSIS
“We review de novo the district court’s denial of a suppression motion. The district court’s underlying factual finding that a person voluntarily consented to a search is reviewed for clear error.”
United States v. Patayan Soriano,
No. 01-50461,
Having examined the record, we hold that the district court did not clearly err in finding Pang not credible. Likewise, the court did not clearly err in finding Pang voluntarily consented to the entry of his premises and voluntarily made the statements to the agents.
See United States v. Huynh,
II. THE ADMISSIBILITY OF THE SIN MA INVOICES AND THE WO LEE CANCELLED CHECKS
The gist of the government’s tax case was that Pang failed to fully report income derived from sales to six of Sin Ma Import’s customers. Representatives of five of the customers testified at trial concerning how they conducted business with Sin Ma. However, the government was unable to procure the testimony of a representative of the sixth customer, Wo Lee Co. Consequently, the government sought to introduce into evidence documents obtained from Wo Lee without calling anyone from Wo Lee to authenticate them.
' These documents consisted of original invoices issued by Sin Ma and corresponding original cancelled checks written on Wo Lee’s bank account. Agent Caramucci testified that Wo Lee’s owner, Ming Tzeu Chen, gave these documents to IRS Agent Charlie Busch, who in turn gave them to Caramucci. Pang objected to these invoices and checks on hearsay and foundation grounds. The district court found, and Pang does not dispute, that the invoices are identical to numerous other invoices that were already admitted into evidence. Many of the invoices matched up to carbonless copies of the same invoices contained in Pang’s own records seized pursuant to a search warrant. Other invoices not matched with carbonless copies bore invoice numbers appearing in sequence with other invoices contained in Sin Ma’s invoice book. The district court admitted these documents into evidence, but instructed the jury that it was the final arbiter of whether the documents were authentic.
A. STANDARD OF REVIEW
We review for abuse of discretion a district court’s finding that evidence is supported by a proper foundation.
United
*1192
States v. Tank,
B. ANALYSIS
1. The Cancelled Checks
The Wo Lee checks did not require extrinsic evidence of authenticity. As a negotiable instrument, a check is a species of commercial paper, and therefore self-authenticating.
See
Fed.R.Evid. 902(9);
2
United States v. Hawkins,
Pang also argues that the Wo Lee checks were hearsay. Hearsay is “a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed R. Evid. 801(c). However, o’ut-of-court statements that are offered as evidence of legally operative verbal conduct are not hearsay. They are considered “verbal acts.”
Stuart v. UNUM Life Ins. Co. of America,
2. The Invoices
Unlike checks, invoices are not self-authenticating under Rule 902(9). An invoice is an “itemized list of goods or services furnished by a seller to a buyer, usu[ally] specifying the price and terms of sale.” Black’s Law Dictionary 833 (7th ed.1999). It is not commercial paper, nor is it a document “relating thereto to the extent provided by general commercial law.” Fed.R.Evid. 902(9). To the contrary, “general commercial law” — whatever that is (presumably the Uniform Commercial Code) — makes no provision for invoices. Therefore, the government, as the proponent of the invoices, was obliged to come forward with evidence sufficient to support a finding that the invoices were what they purported to' be. This it did. The government showed, and Pang does not dispute, that the invoices were *1193 identical to other invoices that were received into evidence, that they were matched to carbonless copies of the same invoices in evidence, and that the numbers were in sequence with the numbers of other invoices that were in evidence. Furthermore, the invoices correlated dollar-for-dollar with the cancelled checks.
The authentication requirement is satisfied by “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901(a). The proponent need not establish a proper foundation through personal knowledge; a proper foundation “can rest on any manner permitted by Federal Rule of Evidence 901(b) or 902.”
Orr v. Bank of America, NT &
SA,
The next question is whether the invoices were hearsay. They were not. When offered against Pang, Pang’s invoices were admissions, and therefore non-hearsay as defined by Rule 801(d)(2).
III. CONSTRUCTIVE AMENDMENT OF THE INFORMATION
With respect to the structuring counts, Pang argues that the information was constructively amended. We review de novo allegations that there was constructive amendment of an indictment,
United States v. Adamson,
31 U.S.C. § 5324(a)(3) provides: “No person shall, for the purpose of evading the reporting requirements of section 5313(a) [which requires banks to file currency transaction reports for any cash transaction exceeding $10,000] ... structure or assist in structuring ... any transaction .... ” In 1994, the Supreme Court held that conviction for structuring required proof that the “defendant acted with knowledge that his conduct was unlawful.”
Ratzlaf v. United States,
A constructive amendment occurs when the defendant is charged with one crime but, in effect, is tried for another crime.
Adamson,
IV. BELATED TAX PAYMENTS
Pang argues that the district court erred in preventing him from offering evidence that, while awaiting trial in this criminal matter, he paid the IRS $459,227.59, the amount due for the tax years in question. Pang proffered this evidence to demonstrate a lack of intent to wilfully “evade or defeat” the tax laws. We review for abuse of discretion the district court’s decision to exclude evidence.
United States v. Alvarez-Farfan,
The district court correctly ruled that evidence of belated tax payments, made while awaiting prosecution, is irrelevant.
Sansone v. United States,
IV. GRAND JURY SUBPOENA
Finally, Pang argues that the IRS abused the grand jury process by serving a grand jury subpoena on Pang’s accountant when he declined to produce Pang’s tax work papers. We review de novo alleged abuse of the grand jury process.
United States v. Fuchs,
On the day that Pang was visited by the IRS agents, two of the agents also called upon Pang’s accountant, William Wan. Wan told the agents that he was in possession of work papers used to prepare Pang’s tax returns. Wan left the room ostensibly to get the papers, but returned a few minutes later to tell the agents Pang’s attorney had advised him not to voluntarily produce information without being served with a grand jury subpoena. The agents then served Wan with a grand jury subpoena. Later that day, Wan called one of the agents and agreed to voluntarily produce the subpoenaed records prior to the grand jury return date.
As we understand it, Pang’s argument appears to be that the IRS agents misused the subpoena process to obtain information from Wan that they otherwise would not have gotten. We see no impropriety here. Nothing prohibits a subpoenaed grand jury witness from voluntarily consenting to an interview.
United States
*1195
v. Duncan,
AFFIRMED.
Notes
. The card states:
[A]s a special agent, one of my functions is to investigate the possibility of criminal violations of the Internal Revenue laws and related offenses.
In connection with my investigation of your tax liability or other matters, I would like to ask you some questions. However, first, I advise you that under the Fifth Amendment to the Constitution of the United States, I cannot compel you to answer any questions or to submit any information if such answers or information might tend to incriminate you in any way.
I also advise you that anything which you say, and documents that you submit may be used against you in any criminal proceedings which may be undertaken.
I advise you further that you may, if you wish, seek the assistance of an attorney before responding.
Do you understand these rights?
. Fed.R.Evid. 902(9) provides:
Rule 902. Self Authentication
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents related thereto to the extent provided by general commercial law.
. Pang was charged with unlawful structuring occurring in 1996, so the 1994 amendments apply.