United States v. Bradshaw , 282 F. App'x 264 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4465
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE WILLIAM BRADSHAW, II,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Frederick P. Stamp,
Jr., Senior District Judge. (3:05-cr-00073-FPS)
Argued: May 14, 2008 Decided: June 24, 2008
Before MICHAEL and DUNCAN, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Byron Craig Manford, Martinsburg, West Virginia, for
Appellant. Paul Thomas Camilletti, OFFICE OF THE UNITED STATES
ATTORNEY, Martinsburg, West Virginia, for Appellee. ON BRIEF:
Sharon L. Potter, United States Attorney, Wheeling, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George William Bradshaw, II, former commander of the West
Virginia state police detachment at Martinsburg, appeals from his
conviction of one count of mail fraud under 18 U.S.C. § 1341. At
trial the government contended that Bradshaw had devised a
fraudulent scheme to steal cash that had been seized as evidence.
According to the government, Bradshaw, in furtherance of his
scheme, falsely reported to the state treasury department (through
the mail) that there was no unclaimed property at the Martinsburg
detachment. After the jury returned a guilty verdict, the district
court denied Bradshaw’s motion for judgment of acquittal and
sentenced him to fifteen months’ incarceration followed by three
years of supervised release. On appeal Bradshaw argues (1) that
the evidence was insufficient to support his mail fraud conviction
and (2) that the district court abused its discretion by admitting
evidence of a theft that was not alleged in the indictment. As
explained below, we reject Bradshaw’s claims and affirm his
conviction and sentence.
I.
On November 15, 2005, a grand jury in the Northern
District of West Virginia returned an indictment against Bradshaw
for one count of mail fraud. The indictment alleged that Bradshaw
sent an unclaimed property report to the West Virginia state
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treasurer’s office in furtherance of his scheme to steal cash that
had been seized as evidence. The indictment alleged that an audit
of the Martinsburg detachment revealed that seized cash was missing
in twenty different cases, and it described eight of the missing
seizures of cash in more detail.
Bradshaw’s four-day trial began on August 1, 2006, and
the following evidence was introduced. Government testimony
described the procedures for recording and storing seized evidence
at the Martinsburg detachment. After seizing evidence from a
criminal suspect, the officer completes an evidence report on form
109. The officer then turns over the evidence (and the completed
form 109) to a supervisor, and the supervisor places the evidence
in the evidence room, noting this on the 109 form. In addition,
the evidence is recorded in a property disposition report on form
31. The completed 109 and 31 forms are stored in separate binders
in the evidence room. Copies are also kept with the criminal
investigation reports elsewhere at the detachment.
All state agencies are required by law to report
unclaimed property annually to the West Virginia state treasurer.
Treasury personnel visit the agencies to collect the unclaimed
property, and unclaimed cash is deposited into the general revenue
fund of the state. Property is deemed unclaimed if (1) it has been
in law enforcement hands for at least six months; (2) there is no
reasonable likelihood that it can be returned to the owner; and (3)
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it has no evidentiary value. Most seizures of cash in drug
trafficking cases undergo forfeiture to the state through a
different process and do not qualify as unclaimed property.
In late 2002 an undercover officer became aware that cash
seized in two different cases was missing from the Martinsburg
detachment, and he began an investigation of the whereabouts of all
cash seized by the detachment. The officer uncovered several
instances of missing cash, and in mid-September 2004 First Sergeant
Scott Dillon was assigned to investigate thefts of money from the
Martinsburg detachment evidence room. At trial Dillon testified
about nine missing seizures of money, ranging in amount from $341
to $2880. Because only eight of these seizures had been described
in the indictment, Bradshaw requested and received a limiting
instruction from the district court prior to testimony about the
ninth seizure (the Tigney seizure). The district court cautioned
the jury that the evidence about the Tigney seizure was not be used
to conclude “that the defendant has bad character in general . . .
[or] is more likely to have committed the crime for which he is
currently charged.” J.A. 684.
Each of the nine seizures occurred between 1999 and 2001.
In most cases, the original 109 and 31 forms in the evidence room
had been replaced. The new forms deleted the reference to the cash
seizures and instead reported seizures of other evidence (usually
blood alcohol kits) that did not exist. The new forms were in
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Bradshaw’s handwriting. In other cases the 31 and 109 forms for
the actual cases were missing, and Bradshaw had placed dummy forms
that did not link to actual cases in the same locations in the
binders. Forfeiture orders were ultimately issued for seven of the
seizures, thereby rendering them property of the state. Two
seizures did not undergo forfeiture. Dillon testified that at
least one of these non-forfeited seizures (the Lewis seizure)
should have been reported as unclaimed property to the state
treasurer. Nonetheless, in July 2001 Bradshaw mailed the
Martinsburg detachment annual unclaimed property report to the
treasurer’s office, stating that the detachment had no unclaimed
property for the period of July 1, 2000, through June 30, 2001.
The jury returned a verdict of guilty, and Bradshaw moved
for judgment of acquittal. After briefing and argument, the
district court denied the motion and scheduled the matter for
sentencing. At sentencing the district court calculated that
Bradshaw’s conduct resulted in a $10,179.60 loss based on his total
thefts and sentenced him to fifteen months’ incarceration followed
by three years of supervised release. Bradshaw filed a timely
notice of appeal.
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II.
Bradshaw first argues that the district court erred in
denying his motion for judgment of acquittal. We review de novo a
district court’s denial of a motion for judgment of acquittal.
See United States v. Ryan-Webster, 353 F.3d 353, 359 (4th Cir.
2003). We must sustain a guilty verdict if, viewing the evidence
in the light most favorable to the prosecution, the verdict is
supported by “‘substantial evidence.’” United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc) (quoting Glasser v. United
States, 315 U.S. 60, 80 (1942)). “[S]ubstantial evidence is
evidence that a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt.” Id.To obtain a mail fraud conviction, the prosecution must
prove that “the defendant (1) knowingly participated in a scheme to
defraud and (2) mailed . . . anything ‘for the purpose of executing
that scheme.’” United States v. Pierce, 409 F.3d 228, 232 (4th
Cir. 2005) (quoting 18 U.S.C. § 1341). A mailing is considered to
be “for the purpose of executing” a fraudulent scheme if it is
“designed to lull the victims into a false sense of security,” even
if it is “incident to an essential part of the scheme.” Id.(quoting Schmuck v. United States, 489 U.S. 705, 711 (1989); United
States v. Lane, 474 U.S. 438, 451-52 (1986)) (internal quotation
marks omitted). Thus, a mailing that is accurate, routine, or sent
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after the goods have been received can support a mail fraud
conviction, so long as the mailing was designed to “make
apprehension of the defendant[] less likely.” Lane, 474 U.S. at
451-52; see Schmuck, 489 U.S. at 715.
Bradshaw advances several arguments in support of his
position that his mailing was not in furtherance of the scheme to
defraud. First, Bradshaw argues that the mailing and the
fraudulent scheme were insufficiently connected because the cash
was stolen prior to the mailing. However, “[m]ailings occurring
after receipt of the goods obtained by fraud are within the statute
if they were designed to lull the victims into a false sense of
security, postpone their ultimate complaint to the authorities, and
therefore make the apprehension of the defendants less likely than
if no mailings had taken place.” Lane, 474 U.S. at 451-52(internal quotation marks and citation omitted). Here a reasonable
jury could have found that Bradshaw sent the mailing, which falsely
informed the treasury that there was no unclaimed property, to
ensure that the treasury would not come to the detachment to
collect the property and discover the missing cash. Because the
mailing was designed to “lull the victim[]” -- the state treasury
-- it is of no moment that the mailing occurred after Bradshaw
stole the cash. Id.Bradshaw next asserts that the mailing was unconnected to
the fraudulent scheme because the mailing accurately reported that
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there was no unclaimed property at the Martinsburg detachment.
Bradshaw argues that the Lewis seizure did not meet the three-part
test for unclaimed property because it had evidentiary value.
While the evidence could be interpreted to support Bradshaw’s
contention, we must review the record in the light most favorable
to the government. See Burgos, 94 F.3d at 862. At trial Dillon
testified that the Lewis seizure did not have evidentiary value
because, although the cash was recovered from the street at the
scene of a crime, it could not actually be linked to the crime.
Thus, a reasonable jury could have concluded that Bradshaw’s report
to the treasury was false, lending further support to the
government’s position that the mailing was designed to further
Bradshaw’s scheme.
Finally, Bradshaw contends that the mailing did not
further his fraud because a report of no unclaimed property would
be unusual and thus lead to heightened suspicion from the state
treasury. But “[t]he relevant question at all times is whether the
mailing is part of the execution of the scheme as conceived by the
perpetrator at the time, regardless of whether the mailing later,
through hindsight, may prove to have been counterproductive.”
Schmuck, 489 U.S. at 715. Because a reasonable jury could have
concluded that Bradshaw believed at the time that the mailing would
conceal his scheme from detection, this argument is foreclosed as
well.
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Thus, in reviewing the evidence, we find that there was
sufficient evidence to support the jury’s verdict of guilt. We
therefore affirm the district court’s denial of the motion for
judgment of acquittal.
III.
Bradshaw next argues that the district court erred by
failing to exclude evidence of the Tigney seizure under Federal
Rule of Evidence Rule 404(b).
Rule 404(b) prohibits the admission of “[e]vidence of
other crimes, wrongs, or acts” for the purpose of showing a
defendant’s propensity to commit a crime. Fed. R. Evid. 404(b).
Rule 404(b) does, however, allow prior bad act evidence to be
included “for purposes other than character, such as ‘motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.’” United States v. Queen, 132 F.3d
991, 994 (4th Cir. 1997) (quoting Fed. R. Evid. 404(b)). We review
a district court’s rulings under Rule 404(b) for abuse of
discretion. Id. at 995. A district court has abused its
discretion if the admitted evidence fails to meet the following
criteria:
(1) The evidence must be relevant to an issue, such as an
element of an offense, and must not be offered to
establish the general character of the defendant. . . .
(2) The act must be necessary in the sense that it is
probative of an essential claim or an element of the
offense. (3) The evidence must be reliable. And (4)
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the evidence’s probative value must not be substantially
outweighed by confusion or unfair prejudice in the sense
that it tends to subordinate reason to emotion in the
factfinding process.
Id. at 997. Furthermore, the defendant’s interests are better
protected if the court instructs the jury to limit consideration of
the evidence to the purposes permitted by the rule. Id.Bradshaw argues that the evidence of the Tigney seizure
was not probative under the second part of the test, because
Bradshaw was not required to report the Tigney seizure in the
mailing. However, the evidence does not have to be directly linked
to the mailing itself to be probative of the elements of the mail
fraud offense. The first element of mail fraud -- knowing
participation in a scheme to defraud -- can extend beyond the
specific mailing. Pierce, 409 F.3d at 232. Bradshaw’s theft of
the Tigney seizure and his replacement of the records with
falsified forms were part of Bradshaw’s larger scheme to defraud,
which the mailing served to further. Thus, introduction of the
evidence related to the Tigney seizure, which included forms in
Bradshaw’s handwriting, helped prove Bradshaw’s knowledge of and
participation in the scheme. The Tigney seizure was also probative
of the second element of mail fraud, that the mailing furthered the
scheme. This theft (of a somewhat larger amount of money than the
other thefts) provided Bradshaw with an increased motive to conceal
his activities, a goal that was furthered by mailing the unclaimed
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property form to the state treasury. Thus, the Tigney evidence was
probative, and the second part of the test is satisfied.
Bradshaw also argues that the evidence was unduly
prejudicial “because of the sheer volume of the exhibits,” and thus
failed to meet the fourth part of the Queen test. Appellant’s Br.
35. The introduction of nine, rather than eight, examples of
Bradshaw’s scheme to steal cash from the Martinsburg detachment
would not lead a jury to “subordinate reason to emotion in the
factfinding process.” Queen, 132 F.3d at 997. The theft of the
Tigney seizure followed the same pattern as the other thefts in the
scheme and did not present any particularly shocking facts.
Furthermore, the district court repeatedly cautioned the jury that
it could not consider the evidence for proof of character or
propensity, including one such instruction that directly preceded
the introduction of the contested evidence. Thus, the evidence
provided relevant, probative support to the government’s contention
that Bradshaw was actively engaged in defrauding the detachment and
the state treasury, and it presented little risk of unfair
prejudice. The evidence thus meets the fourth part of the test.
Because the evidence about the Tigney seizure met all
four parts of the Queen test, the district court did not abuse its
discretion by admitting the evidence. We thus reject Bradshaw’s
second claim as well.
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IV.
Bradshaw finally argues that the district court’s
calculation of loss for sentencing purposes was clear error,
because the court included the loss from all of the stolen seizures
rather than solely the seizure that should have been reported in
the unclaimed property report. This argument is unavailing. The
loss calculation for a mail fraud conviction may include any loss
from the fraudulent scheme that the mailing furthered. See Pierce,
409 F.3d at 234. The district court appropriately considered only
those losses from Bradshaw’s scheme that the government proved by
a preponderance of the evidence. We therefore affirm Bradshaw’s
sentence of fifteen months’ imprisonment and three years of
supervised release.
* * *
For the foregoing reasons, Bradshaw’s conviction and
sentence are
AFFIRMED.
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