                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1608
                                   ___________

United States of America,               *
                                        *
                     Appellee,          * Appeal from the United States
                                        * District Court for the District
      v.                                * of Minnesota.
                                        *
Robert L. Janecek,                      *      [UNPUBLISHED]
                                        *
                     Appellant.         *
                                   ___________

                              Submitted: November 18, 2003

                                  Filed: December 22, 2003
                                   ___________

Before MURPHY, LAY, and FAGG, Circuit Judges.
                           ___________

PER CURIAM.

       From August 1991 through February 1999, Robert L. Janecek was the
executive director of the Osman Temple Shrine Circus in Minnesota. After Shrine
officials discovered a secret checking account opened by Janecek in the Shrine’s
name, an investigation ensued. The investigation revealed Janecek had taken much
more than his $12,000 annual pay from the Shrine. Using a defunct company and
multiple bank accounts, Janacek understated Circus income and diverted it to himself,
and falsely reported some of the money he took as legitimate Circus expenses. To
explain the embezzlement, Janecek claimed he had a secret agreement with a
deceased Shrine leader to pay him commissions and expenses, although Shrine
leadership stated Janecek was not entitled to more than $12,000. Ultimately, the
Shrine lost over $300,000 as a result of Janecek’s actions. The Government charged
Janecek with mail fraud, tax evasion, willful failure to file tax returns, and willful
filing of a false tax return. A jury convicted Janecek on all counts, and the district
court* sentenced him to fifty-one months in prison.

       Janecek appeals challenging the sufficiency of the evidence to convict him.
Viewing the evidence in the light most favorable to the verdict, we conclude a
reasonable jury could conclude beyond a reasonable doubt that Janecek was guilty of
each offense. See United States v. Frost, 321 F.3d 738, 740 (8th Cir. 2003). On the
mail fraud counts, the evidence showed Janecek embezzled thousands of dollars
annually for more than six years and he used the mails to further his scheme. The
Shrine’s leadership, the circumstances surrounding the theft, and Janecek’s own
statements and actions showed the money was stolen rather than earned and he
intended to defraud the Shrine. See id. at 740-41 (elements of offense). With respect
to the tax evasion counts, the evidence showed Janecek willfully evaded taxes every
year from 1995-98. See United States v. Brooks, 174 F.3d 950, 954 (8th Cir. 1999)
(elements of offense). Janecek gave inconsistent reasons for failing to file tax returns
and had no legitimate bad debt to write off as he eventually claimed. The
Government presented enough evidence of willfulness to give the jury a reasonable
basis to find Janecek intentionally evaded his income tax obligation. Id. at 955. The
same evidence also showed Janecek willfully failed to file tax returns or filed a false
tax return each year from 1995-98.

      Janecek next asserts the district court abused its discretion by admitting a
transcript of Janecek’s sworn deposition testimony about his assets from a civil
proceeding against him by his divorce lawyers. Janecek did not object to admission


      *
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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of the evidence at trial, however, so we review only for plain error. United States v.
Johnson, 28 F.3d 1487, 1499 (8th Cir. 1994). We find none. The district court
properly admitted the evidence. Janecek’s deposition statements that he was a
volunteer and received no income from the Shrine were relevant to the mail fraud
counts for which Janecek claimed he was earning commissions rather than stealing.
Janecek’s numerous false statements in the deposition were admissible to impeach
Janecek, whose credibility was at issue. The deposition testimony was also
admissible to show Janecek’s intent to evade taxes.

      Janecek also challenges sentencing enhancements for his use of sophisticated
means to commit his offenses and for his obstruction of justice. The district court
did not commit clear error in finding Janecek’s scheme to defraud involved
sophisticated means because he “moved embezzled funds through both current and
defunct entities in an attempt to conceal the fraud.” See U.S.S.G. § 2F1.1(b)(5)(c).
Note 15 to the Guideline states § 2F1.1(b)(5)(C) specifically applies to conduct like
Janecek’s–hiding assets or transactions by using fictitious entities. Last, the district
court did not commit clear error in finding Janecek obstructed justice. U.S.S.G. §
3C1.1. The district court properly found by a preponderance of evidence that Janecek
“knowingly and willfully testified falsely to several material facts,” and thus properly
enhanced Janecek’s sentence for obstruction of justice. See United States v.Pena, 339
F.3d 715, 718 (8th Cir. 2003).

      We affirm Janecek’s conviction and sentence.

LAY, Circuit Judge, concurs in the result only.
                     ______________________________




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