dissenting from Parts 111(A) and IV(C).
I.
In Part III(A) of its opinion the majority holds that evidence offered by Frank Get-tleson, Hatchett’s former tax attorney, as to disclosures made by Hatchett when he sought legal advice for his tax difficulties was properly excluded as hearsay. As this testimony was vital for establishing the essential disclosure element of Hatchett’s advice of counsel defense and the trial judge’s improper exclusion of this evidence made proof of the advice of counsel defense substantially more difficult, I would reverse and remand.
Hatchett contends that the testimony was not offered for its truth, but instead to prove that certain disclosures were in fact *645made. Hatchett cites in support of his position United States v. Eisenstein, 731 F.2d 1540, 1545 (11th Cir.1984), which in circumstances very similar to this case holds that testimony of defendant’s lawyer relating to disclosure by defendant was improperly excluded as hearsay because it was offered to demonstrate the lawyer’s knowledge and that defendant disclosed.
The majority holds that Gettleson’s testimony as to Hatchett’s disclosure was properly excluded by the trial judge as hearsay offered for the truth of the matter asserted. In reaching this conclusion, the majority has conflated two issues: first, whether the evidence was offered to demonstrate that defendant disclosed his tax situation to his attorney; and secondly, whether the content of that disclosure was true.
In answer to the first issue, there is no requirement that a litigant supply corroborating testimony in order to demonstrate that he is putting on evidence to show that certain statements were in fact made. It would be perfectly legitimate for Gettleson to testify to the fact that certain statements were made to him. The jury would then decide whether Gettleson told the truth as to the fact that the statements were made. Whether or not the statements themselves were true or not raises a wholly separate inquiry. Presumably, if Gettleson testified to Hatchett’s disclosure, Hatchett would still need to produce evidence that he disclosed accurate and truthful information to Gettleson. But he need not do so with the same witness. Whether or not Hatchett ultimately put on enough evidence for the jury to infer that he had made out his advice of counsel defense has no bearing on the propriety of the trial judge’s ruling on the admission of Gettle-son’s testimony. The appropriate procedure would have been for the trial judge to admit the testimony and give proper limiting instructions at the close of trial if they seemed appropriate.
The majority seems to place great weight on the fact that Hatchett did not testify to the matters disclosed and therefore assert their truth. The majority suggests that if Hatchett had testified, or put on other evidence that went to the truth of the disclosure he made to Gettleson, then Gettleson’s statements that disclosure was made would only go to the fact of disclosure. But this argument is circular. Presumably, if the defense put on Hatchett to testify as to his conversations with Gettleson, this testimony would have been objected to as hearsay on the same grounds as Gettleson’s. The defense would then have been required to corroborate Hatchett’s testimony with other evidence as to the truth of his disclosure statements. The logical witness to corroborate Hatchett would be Gettleson But then, that is where we started.
The fact of the matter is that the trial judge precluded Hatchett from putting on evidence which was essential to his only defense: advice of counsel. It was for the jury to decide whether the facts disclosed were accurate based upon a comparison of the record to the alleged disclosures to Gettleson. In order to put on Gettleson’s testimony as to disclosure statements made to him by Hatchett, the defendant was not required to offer support for the truth of the disclosures independent of the facts in the record concerning the amount of his tax liability, the filing of returns, the audit, etc. The trial court and the majority are in error in ruling that independent confirmation of the truth of a statement is required when that statement is not offered for its truth.
As the exclusion of this testimony went to the heart of Hatchett’s defense and therefore, to the heart of the fairness of his trial, I would reverse.
II.
I also disagree with the court’s analysis and conclusions in Part IV(C) of its opinion. In that section, the majority holds that the trial court did not abuse its discretion when it made Hatchett’s payment of “all back taxes” (not only those owed on indictments for which he was convicted), a condition for Hatchett’s probation. The majority reasons that it was legitimate for the trial judge to include in his conditions for Hatchett’s probation that Hatchett pay back taxes even on those counts for which *646he was acquitted because these debts represented “definite legal obligations.”
The majority’s reasoning here seems to me to be faulty. The fact that defendant has outstanding legal obligations unrelated to those offenses for which he was convicted should have no bearing on defendant’s probation relating to his convictions. For example, it certainly would not be appropriate for the trial court to condition probation from a criminal offense on the defendant’s paying his rent or his credit card debts. The absurdity and inherent danger of allowing trial courts to condition probation on the payment of debts unrelated to a defendant’s convictions merely because they represent “definite legal obligations” seems clear.
In United States v. Green, 735 F.2d 1203, 1205 (9th Cir.1984), the district court sentenced Green to three years probation for failure to file returns for the years 1975-77, on the condition that Green pay all back taxes due and owing. The Ninth Circuit ruled that the district court had overreached its authority stating that, “In criminal tax cases, the court may order restitution only of back taxes for the years involved in the conviction.” Id. I agree with the Ninth Circuit’s conclusion and would reverse in this case as the district court only had the authority to order restitution for the tax years in which Hatchett was convicted of a tax crime.
Such a rule makes sense not only out of basic fairness to the defendant, but also because an order to pay “all back taxes” may place an obligation on the defendant which exceeds the term of the probation and hence the court’s jurisdiction over the case.
‘Normal’ criminal restitution remains within the equitable power of the judge who orders it; he can modify his order (or at least refuse to revoke probation for failure to comply) if the circumstances of the defendant change. When the court purports to order a particular schedule of payment extending beyond the period of the court’s jurisdiction, however, the opportunity for equitable adjustment ceases.
United States v. Bruchey, 810 F.2d 456, 460 (4th Cir.1987). Applying this reasoning in interpreting the Victim and Witness Protection Act, 18 U.S.C. §§ 3579 and 3580, the Bruchey court reversed the district court’s conditioning defendant’s 5 year probation on signing a promissory note for payment of restitution of embezzled funds over a 21 year period. While the Victim Act is not at issue here, the rationale seems apposite: the court may not order restitution which exceeds the term of probation. While the district court in the case at bar made no findings as to Hatchett’s ability to pay the “restitution” ordered, it would appear given Hatchett’s tenuous financial circumstances and the prior payment arrangements he negotiated with the Internal Revenue Service, that the court’s order to pay “all back taxes” will involve payments beyond the 5 year probation. Thus, in addition to exceeding its authority by conditioning Hatchett’s probation on the payment of debts unrelated to the convictions, the district court exceeded its authority by ordering restitution which will in all likelihood extend beyond the probation period.
I recognize that the government has an interest in recovering back taxes but it may not do so by tacking on debts unrelated to a criminal defendant’s conviction by making their payment a condition of probation for offenses for which the defendant was convicted. A defendant’s sentence must relate only to the crimes for which he was convicted. By allowing the government to include payment for acquitted offenses in a sentence for convicted ones, the court today unsettles this time-honored principle.
III.
For the foregoing reasons I respectfully dissent.