United States v. Warith , 131 F. App'x 32 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4364
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
YAHYA WARITH, a/k/a Johnnie Wallace,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (CR-03-271)
Submitted: March 18, 2005 Decided: April 28, 2005
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henry L. Marsh, III, Frederick H. Marsh, HILL, TUCKER & MARSH,
Richmond, Virginia, for Appellant. Paul J. McNulty, United States
Attorney, Michael J. Elston, G. Wingate Grant, Assistant United
States Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Yahya Warith appeals his conviction on fifteen counts of
fraud by wire affecting a financial institution in violation of 18
U.S.C.A. § 1343 (West Supp. 2004). On appeal, he challenges the
fact that he was convicted based on circumstantial evidence. He
also argues that the evidence was insufficient to support a guilty
verdict and therefore the district court erred in denying his
motion for judgment of acquittal. Finding no error, we affirm
Warith’s convictions.
Warith first contends that the government failed to meet
its burden of proof because the only evidence supporting his
conviction was circumstantial evidence. This court has previously
held that circumstantial evidence may be sufficient to support a
conviction even if it does not exclude every reasonable hypothesis
consistent with innocence. United States v. Jackson, 863 F.2d
1168, 1173 (4th Cir. 1989) (citing United States v. George, 568
F.2d 1064, 1069 (4th Cir. 1978)). Accordingly, we find no merit to
Warith’s challenge to the use of circumstantial evidence to support
his convictions.
Warith next contends that the evidence was insufficient
to support a guilty verdict and therefore the district court erred
in denying his motion for judgment of acquittal. Warith does not
contest that unauthorized transactions were made transferring funds
from the bank accounts of various companies to the bank account of
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Consumer Diversified Services, Inc. (“CDS”), a company owned and
operated by Warith and his wife. But he argues that there was
insufficient evidence that he was involved in the transactions.
The government presented evidence that, during May and
June 1998, unauthorized bank transactions were being initiated by
someone using Automated Clearing House (“ACH”) software issued to
CDS, transferring money from the bank accounts of various companies
into the First Union Bank account of CDS. Prior to May 1998, the
highest average daily balance in the CDS bank account was $7235.96
in April 1998. The average daily balance skyrocketed to $43,621.85
in May 1998 and jumped further to $57,363.46 in June 1998. Neither
Warith nor his wife ever contacted First Union to question these
increases in deposits into the CDS account; rather, during these
two months, Warith and his wife withdrew sizable amounts from this
account. Tens of thousands of dollars were paid to Warith — either
directly by a check made payable to him, or through a number of
transactions that transferred the funds into several different bank
accounts on which he had signatory authority.
Additionally, the government produced documents recovered
during the execution of search warrants at CDS’s business office
and at the Warith residence. These documents included the ACH
software manual that was issued to CDS in 1998, and copies of
checks drawn on the very accounts from which unauthorized payments
were being made and made payable to Cable & Wireless, a company
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unrelated to CDS. The searches also recovered a notice of the
reversal of one of the unauthorized transactions and forms
purporting to authorize the debit of various bank accounts in favor
of CDS.
We find that, viewing all the evidence in the light most
favorable to the government, this evidence was sufficient to
support the jury’s verdict that Warith was guilty of the fifteen
charges of wire fraud. See Glasser v. United States, 315 U.S. 60,
80 (1942); United States v. Wills, 346 F.3d 476, 495 (4th Cir.
2003), cert. denied, 124 S. Ct. 2906 (2004). Thus, the district
court properly denied Warith’s motion for judgment of acquittal.
See United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).
Accordingly, we affirm Warith’s fifteen convictions for
wire fraud. 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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