United States v. Brian Gay , 498 F. App'x 335 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4082
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN GAY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:11-cr-00106-RAJ-TEM-1)
Submitted: October 16, 2012 Decided: December 7, 2012
Before KING and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Alexandria, Virginia, V.
Kathleen Dougherty, Robert J. Seidel, Jr., Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial in the United States District Court
for the Eastern District of Virginia, Brian Gay was convicted of
three counts of mail fraud, 18 U.S.C. § 1341, one count of wire
fraud, id. § 1343, four counts of conducting an unlawful
monetary transaction, id. § 1957, and one count of making a
false document, id. § 1001(a)(3). He was sentenced to sixty
months’ imprisonment. On appeal, he challenges the sufficiency
of the evidence on these convictions. We affirm.
I
Gay was an attorney licensed to practice law in the
Commonwealth of Virginia. Before practicing law, Gay worked as
a real estate agent in the Virginia Beach area and through this
employment met Daniel Woodside, whom he helped buy a house in
late 1999. A few years later, in 2002, Gay also handled
Woodside’s divorce from his wife, Carla, the mother of
Woodside’s three children.
In January 2005, Woodside was diagnosed with terminal lung
cancer. In preparation for his death, Woodside asked Gay to
prepare certain estate documents, including an irrevocable trust
agreement and a last will and testament. Gay complied. Gay was
the trustee under the irrevocable trust agreement and the
beneficiaries were Woodside’s three children. The irrevocable
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trust was to be funded by, among other things, Woodside’s life
insurance policies.
Woodside died in April 2006. Before his death, Gay used
his position as Woodside’s friend and attorney to orchestrate a
scheme to defraud the Woodside children out of hundreds of
thousands of dollars. Gay’s plan involved stealing the life
insurance proceeds intended to benefit the health, education,
and well-being of Woodside’s children and using it for his own
purposes. Following Woodside’s death, the life insurance
proceeds were deposited in accounts set up to administer the
Woodside estate. As trustee, Gay wrote checks to himself and
deposited the checks in his own accounts. The scheme to defraud
resulted in the theft of nearly $400,000.00.
II
A defendant challenging the sufficiency of the evidence
“faces a heavy burden,” as reversal of a conviction is limited
to “cases where the prosecution’s failure is clear.” United
States v. Foster, 507 F.3d 233, 244–45 (4th Cir. 2007) (citation
and internal quotation marks omitted). Generally, we will
“sustain a guilty verdict that, viewing the evidence in the
light most favorable to the prosecution, is supported by
substantial evidence.” United States v. Osborne, 514 F.3d 377,
385 (4th Cir. 2008) (citation and internal quotation marks
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omitted). Further, we will “not review the credibility of the
witnesses and assume that the jury resolved all contradictions
in the testimony in favor of the government.” Foster, 507 F.3d
at 245.
Gay first challenges the sufficiency of the evidence on the
mail and wire fraud counts. To establish a mail fraud or wire
fraud violation, the government must prove that the defendant
(1) knowingly participated in a scheme to defraud and (2) used
the mail or wire communications in furtherance of the scheme.
United States v. Wynn, 684 F.3d 473, 477 (4th Cir. 2012). To
establish a scheme to defraud, “the [g]overnment must prove that
the defendant[] acted with the specific intent to defraud.”
United States v. Godwin, 272 F.3d 659, 666 (4th Cir. 2001).
With respect to the mail and wire fraud counts, Gay
contends that the evidence does not support the finding that he
had any intent in the spring of 2006 to defraud the Woodside
children. Gay’s argument misses the mark.
Gay produced at least two fraudulent documents prior to
Woodside’s death in April 2006. After fabricating these
documents, which purport to name Gay as the beneficiary of
Woodside’s life insurance policies, Gay continued to falsely
represent to numerous parties, including Carla, the children,
the probate court, the two life insurance companies, and the
title company involved in the sale of Woodside’s home, that the
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proceeds were in trust for the benefit of the children. Gay
also falsely represented to the Woodside family in April 2006
that he would invest the trust money for their benefit, but
never invested a penny. This evidence, along with other
evidence in the record, clearly supports the jury’s finding that
Gay had the specific intent to defraud in the spring of 2006.
Gay next challenges the sufficiency of the evidence on the
four unlawful monetary transaction counts. At trial, the
government demonstrated that, as trustee of the Woodside estate,
Gay wrote four checks (one in March 2008, one in November 2008,
and two in July 2010) from Woodside estate checking accounts to
himself and deposited these checks in his own accounts.
To prove a § 1957 violation, the government must show: (1)
that the defendant knowingly engaged in a monetary transaction;
(2) that the defendant knew the property involved derived from
specified unlawful activity; and (3) that the property was of a
value greater than $10,000. United States v. Blair, 661 F.3d
755, 776 n.1 (4th Cir. 2011) (Traxler, C.J., dissenting in
part). The statute defines “monetary transaction” as “the
deposit, withdrawal, transfer, or exchange, in or affecting
interstate or foreign commerce, of funds or a monetary
instrument . . . by, through, or to a financial institution.”
18 U.S.C. § 1957(f). Evidence of a deposit of unlawful proceeds
in a Federal Deposit Insurance Corporation insured financial
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institution is sufficient to satisfy the monetary transaction
element. See United States v. Peay, 972 F.2d 71, 74 (4th Cir.
1992) (§ 1956).
Gay’s first attack on the § 1957 convictions is premised
on the argument that the government failed to prove a scheme to
defraud with respect to the mail and wire fraud counts. This
attack fails for the reasons set forth above.
Gay’s next attack relates to the interstate commerce
component of § 1957. He posits that although the government’s
evidence on the interstate commerce element was sufficient
concerning the two checks written to himself in 2008, it was
insufficient concerning the two checks written to himself in
2010. However, Gay failed to raise this argument below in his
Rule 29 motion, precluding the district court from having the
first opportunity to opine on it. When a defendant raises
specific grounds in a Rule 29 motion, grounds that are not
specifically raised are waived on appeal. United States v.
Chong Lam, 677 F.3d 190, 200 (4th Cir. 2012). We therefore
decline to consider this argument for the first time on appeal. *
*
To the extent that an exception to this rule exists in
situations in which a manifest miscarriage of justice has
occurred, see Chong Lam, 677 F.3d 200-01 n.10, this is not such
a case. In a light most favorable to the government, the
government presented ample evidence at trial to allow a
reasonable jury to conclude that the monetary transaction
(Continued)
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Finally, Gay challenges the sufficiency of the evidence on
the false document count. To prove a violation of § 1001(a)(3),
the government must show that (1) the defendant made a false
writing or document to a governmental agency, (2) the defendant
acted knowingly or willfully, and (3) the false writing or
document was material to a matter within the jurisdiction of the
governmental agency. United States v. Ismail, 97 F.3d 50, 60
(4th Cir. 1996) (§ 1001). A fact about a matter within a
governmental agency’s jurisdiction is material if it has a
natural tendency to influence agency action or is capable of
influencing agency action. Id.
At trial, the government presented evidence that Gay asked
his friend, Tony Hill, to present a seventy-page stack of
documents to the investigating federal agents when Hill arrived
for his testimony before the grand jury. Hill complied. When
the agents reviewed these materials, they discovered a never-
before-seen letter Gay purportedly sent to Midland Life
Insurance Company claiming that he, personally, was the
beneficiary of Woodside’s life insurance proceeds. Because the
letter was both false and material, substantial evidence
support’s Gay’s false document conviction.
element was satisfied with regard to the two checks Gay wrote to
himself in 2010.
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We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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