Filed: Apr. 18, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4489 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRADLEY DOUGLAS WEIN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:11-cr-00161-HEH-1) Submitted: March 27, 2013 Decided: April 18, 2013 Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Michae
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4489 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRADLEY DOUGLAS WEIN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:11-cr-00161-HEH-1) Submitted: March 27, 2013 Decided: April 18, 2013 Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Michael..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4489
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRADLEY DOUGLAS WEIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:11-cr-00161-HEH-1)
Submitted: March 27, 2013 Decided: April 18, 2013
Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Amy L. Austin,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Michael C.
Moore, Assistant United States Attorney, Charles A. Quagliato,
Special Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Bradley Douglas Wein appeals his conviction by a jury
of obstruction of an official proceeding, in violation of 18
U.S.C. § 1512(c)(2) (2006). On appeal, Wein argues that the
district court erred in admitting credit card account records
into evidence under Fed. R. Evid. 803(6), the business records
exception to the hearsay rule. Wein also argues that the
district court erred in denying his Fed. R. Crim. P. 29 motion
for judgment of acquittal. We affirm.
We review the district court’s decision regarding the
admissibility of evidence for abuse of discretion and will not
find an abuse unless a decision is “arbitrary and irrational.”
United States v. Cloud, 680 F.3d 396 (4th Cir.) (internal
quotation marks omitted), cert. denied,
133 S. Ct. 218 (2012).
The hearsay rule does not prohibit the admission of a record
“if[] (A) the record was made at or near the time by . . .
someone with knowledge; (B) the record was kept in the course of
a regularly conducted activity of a business . . . ; [and] (C)
making the record was a regular practice of that activity.”
Fed. R. Evid. 803(6). The nature of the record may be
established by “the custodian or another qualified witness.”
Fed. R. Evid. 803(6)(D). Further, the business record is
admissible so long as “neither the source of information nor the
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method or circumstances of preparation indicate a lack of
trustworthiness.” Fed. R. Evid. 803(6)(E).
Wein contends that the district court abused its
discretion in finding that Valerie Dunagin, an investigative
manager for credit card fraud with Bank of America, was a
qualified witness to lay the foundation for the credit card
account records. However, Dunagin testified that she had worked
with similar records throughout her nineteen-year career at Bank
of America. Additionally, Dunagin described in detail the
manner in which the records were prepared and testified that
Bank of America kept and relied upon the records in its regular
course of business.
Wein asserts that Dunagin, as a Bank of America
employee, could not be considered a qualified witness for the
credit card account records created by FIA Card Services. We
find this argument unavailing because Dunagin testified that she
was familiar with the records created by FIA Card Services, that
the records were maintained in the same manner as the records
created by Bank of America, and that FIA Card Services is
currently owned by Bank of America. See United States v.
Duncan, 919 F.2d 981, 986 (5th Cir. 1990) (holding “there is no
requirement that the records be created by the business having
custody of them”).
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Further, contrary to Wein’s contentions, Dunagin was
not required to create the records or speak to the individuals
who created the records. See United States v. Dominguez, 835
F.2d 694, 698 (7th Cir. 1987) (holding that “‘qualified witness’
need not have personally participated in the creation of the
document, nor know who actually recorded the information”).
Wein also incorrectly asserts that Dunagin was required to
confirm the accuracy of the records in order to be a qualified
witness. See Duncan, 919 F.2d at 986 (holding that qualified
witness need not “be able to personally attest to . . .
accuracy”). Accordingly, we conclude that the district court
did not abuse its discretion in finding that Dunagin was a
qualified witness.
Next, Wein argues on appeal that the method by which
the credit card account records were prepared indicates that the
records were untrustworthy. Specifically, Wein contends there
was no testimony regarding the accuracy or completeness of the
comments describing customer service phone calls in the records,
which were entered by customer service representatives in
shorthand during the calls. We conclude that this argument does
not affect the admissibility of the records and is directed to
the weight of the evidence. See Am. Int’l Pictures, Inc. v.
Price Enters., Inc., 636 F.2d 933, 935 (4th Cir. 1980)
(rejecting claim that business record lacked trustworthiness
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because objection was directed to weight of evidence, not
admissibility). Accordingly, the district court did not abuse
its discretion in admitting the credit card account records in
to evidence under Fed. R. Evid. 803(6).
Wein also argues that the district court erred in
denying his Rule 29 motion for judgment of acquittal. We review
de novo the district court’s denial of a Rule 29 motion. United
States v. Penniegraft, 641 F.3d 566, 571 (4th Cir.), cert.
denied,
132 S. Ct. 564 (2011). We will uphold a conviction in
the face of a challenge to the sufficiency of the evidence “if
there is substantial evidence, taking the view most favorable to
the Government, to support it.” United States v. Abu Ali,
528
F.3d 210, 244 (4th Cir. 2008) (internal quotation marks and
brackets omitted). In conducting this review, we will not weigh
evidence or review witness credibility. United States v.
Foster,
507 F.3d 233, 245 (4th Cir. 2007).
Wein argues that there was insufficient evidence
establishing that he submitted a fraudulent letter to the
district court. However, the Government presented evidence that
Wein fabricated a letter to his former client, advising her of
the settlement of her outstanding credit card debt on several
accounts. The Government presented further evidence that Wein
provided this letter, along with other documents, to his defense
counsel and claimed that it provided him with a complete defense
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to the indictment charging him with mail fraud and aggravated
identity theft, charges on which the jury ultimately found him
not guilty. Wein’s counsel subsequently attached the fraudulent
letter to a motion to dismiss. Additionally, Wein’s computer
forensics expert testified that the time and date stamps of the
electronic version of the letter could be manipulated and that
he could not testify as to whether the file was manipulated
during an eleven-month period when Wein was aware that he may
face charges. Accordingly, we conclude that there was
sufficient evidence from which a reasonable juror could conclude
that Wein was responsible for the submission of a fraudulent
letter to the court.
Wein’s argument that there was insufficient evidence
to establish that he acted with corrupt intent because it was
his defense counsel who attached the fraudulent letter to the
motion to dismiss is unavailing. A defendant acts corruptly
where he “act[s] with the purpose of wrongfully impeding the due
administration of justice.” United States v. Matthews, 505 F.3d
698, 706 (7th Cir. 2007) (internal quotation marks and emphasis
omitted). The jury could infer Wein’s corrupt intent by the
fact that he fabricated the letter and gave it to his defense
counsel, claiming that it provided him with a complete defense
to the pending charges of mail fraud and aggravated identity
theft.
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Finally, Wein argues that there was no nexus between
the fraudulent letter and the criminal proceeding against him.
“To satisfy [the nexus] requirement, the defendant’s conduct
must ‘have a relationship in time, causation, or logic with the
judicial proceedings.’” United States v. Reich, 479 F.3d 179,
185 (2d Cir. 2007) (quoting United States v. Aguilar,
515 U.S.
593, 599 (1995)); see also United States v. Johnson, 553 F.
Supp. 2d 582, 626 (E.D. Va. 2008). We conclude that Wein has
failed to show that the evidence was insufficient to establish a
nexus between his actions and obstruction of the proceeding.
Wein’s fraudulent letter was attached in a motion to
dismiss the charges of mail fraud and aggravated identity theft,
and thus, there is a clear, logical relationship between his
conduct and the judicial proceeding. Wein’s argument that the
subject matter of the fraudulent letter had nothing to do with
the arguments raised in his motion to dismiss is unavailing
because it ignores that the fraudulent letter was nevertheless
presented to the court. Moreover, Wein’s argument that the
fraudulent letter lacked a relationship in time to his use of
his former client’s credit cards fails because the nexus
analysis only requires that there be a relationship in time
between the fraudulent letter and the court proceeding. See
Reich, 479 F.3d at 179. Finally, Wein argues that, because the
jury found him not guilty of mail fraud and aggravated identity
7
theft, there was no nexus between the fraudulent letter and
those charges. However, we must not consider the jury’s verdict
on other counts when reviewing the sufficiency of the evidence.
See United States v. Powell, 469 U.S. 57, 67 (1984) (holding
that sufficiency of evidence “review should be independent of
the jury’s determination that evidence on another count was
insufficient”). We therefore conclude that there was sufficient
evidence from which a reasonable juror could find Wein guilty of
obstruction of an official proceeding.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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