United States v. Melinsky , 208 F. App'x 263 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4948
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SUZANNE L. MELINSKY,
Defendant - Appellant.
No. 05-5040
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAYMOND J. MELINSKY,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CR-05-95)
Submitted: October 23, 2006 Decided: December 4, 2006
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul P. Vangellow, BABIRAK, VANGELLOW & CARR, PC, Falls Church,
Virginia; Robert C. Whitestone, WHITESTONE, BRENT, YOUNG & MERRIL,
Fairfax, Virginia, for Appellants. Chuck Rosenberg, United States
Attorney, Charles F. Connolly, Assistant United States Attorney,
Caroline E. Laise, Special Assistant United States Attorney,
Alexandria, Virginia; Mark C. Grundvig, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Raymond J. and Suzanne L. Melinsky appeal their
convictions for conspiracy in violation of 18 U.S.C. § 371 (2000);
bank fraud in violation of 18 U.S.C. § 1344 (2000); and false
statements in violation of 18 U.S.C. § 1014 (2000). We affirm.
The Melinskys first argue that the Government violated
Brady v. Maryland, 373 U.S. 83 (1963), because it failed to
disclose that it lacked proof of Suzanne Melinsky’s prior criminal
conviction. We agree with the district court that the Melinskys’
Brady claim lacks merit because the Government is not required to
provide a defendant with information that the defendant has or with
reasonable diligence could obtain himself. Stockton v. Murray, 41
F.3d 920, 927 (4th Cir. 1994). Additionally, the information was
not exculpatory.
The Melinskys next argue the evidence was insufficient to
support their convictions for counts One, Two, and Eight of the
indictment, because they lacked the requisite mens rea for these
offenses. A jury’s verdict must be upheld on appeal if there is
substantial evidence in the record to support it. Glasser v.
United States, 315 U.S. 60, 80 (1942). In determining whether the
evidence in the record is substantial, we view the evidence in the
light most favorable to the government, and inquire whether there
is evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of the defendants’
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guilt beyond a reasonable doubt. United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en banc). We do not review the
credibility of the witnesses and assume that the jury resolved all
contradictions in the testimony in favor of the government. United
States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).
With respect to Count One, to prove a conspiracy under 18
U.S.C. § 371, the government must establish an agreement to commit
an offense, willing participation by the defendants, and an overt
act in furtherance of the conspiracy. See United States v. Tucker,
376 F.3d 236, 238 (4th Cir. 2004). Knowledge and participation in
the conspiracy may be proven by circumstantial evidence. Id.,citing United States v. Meredith, 824 F.2d 1418, 1428 (4th Cir.
1987). Count Two alleged bank fraud, for which the government must
establish that the defendants knowingly executed a scheme to obtain
the money, funds, or other property owned by or under the control
of a financial institution by means of material false or fraudulent
pretenses, representations, or promises, and that they did so with
the intent to defraud, and the financial institution was insured by
the Federal Deposit Insurance Corporation. See United States v.
Bales, 813 F.2d 1289, 1293 (4th Cir. 1987). Count Eight required
the government to prove that the Melinskys knowingly made a false
statement or willfully overvalued a property or security for the
purpose of influencing in any way the action of the Small Business
Administration or First Savings Bank of Virginia. We conclude the
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evidence presented to the jury was sufficient to prove that the
Melinskys possessed the mens rea alleged in the challenged counts
of the indictment.
The Melinskys challenge the district court’s denial of
Raymond’s request to provide the jury with a “puffing” instruction.
This court reviews a district court’s jury instructions for abuse
of discretion. United States v. Bolden, 325 F.3d 471, 486 (4th
Cir. 2003). Failure to give a requested instruction is not
reversible error unless the instruction (1) was correct; (2) was
not substantially covered by the court’s charge to the jury; and
(3) dealt with some point in the trial so important that failure to
give the requested instruction seriously impaired the defendant’s
ability to conduct his defense. See United States v. Patterson,
150 F.3d 382, 388 (4th Cir. 1998).
Here, the district court provided the jury with an
extensive instruction regarding the good faith of the Melinskys as
a complete defense to the charge of bank fraud (Count Two of the
indictment). We find the district court did not abuse its
discretion in declining to give the proposed “puffing” instruction.
See United States v. Thaw, 353 F.2d 581, 584-85 (4th Cir. 1965)
(holding that when substance of requested puffing charge covered in
instructions given, failure to give puffing instruction not error).
We therefore affirm the Melinskys’ convictions. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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