United States v. Sofidiya

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4681
MICHAEL S. SOFIDIYA, SR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-97-21-A)
Submitted: September 30, 1998
Decided: October 23, 1998
Before WIDENER, ERVIN, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Gregory Beckwith, PHILLIPS, BECKWITH & HALL, Fairfax, Vir-
ginia, for Appellant. Helen F. Fahey, United States Attorney, Stephen
P. Learned, Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael S. Sofidiya appeals his conviction and sentence for one
count of embezzlement of postal funds, 18 U.S.C.§ 1711 (1994), and
two counts of conversion of United States property, specifically
money orders, 18 U.S.C.A. § 641 (West Supp. 1998). Sofidiya con-
tends the trial court erred in denying his motion to dismiss the indict-
ment, or alternatively to suppress the Government's evidence due to
the destruction by the Government of allegedly exculpatory evidence.
Sofidiya also contends: (1) there was no evidence that the Postal Ser-
vice suffered any loss; (2) bank records and postal records were
admitted in evidence in error; and (3) the sentence was based upon
an incorrect application of the Sentencing Guidelines. Finding no
reversible error, we affirm.
Sofidiya was employed by the United States Postal Service as a
window supervisor. He provided technical direction to other window
clerks, reviewed and consolidated their work, and prepared the daily
bank deposit containing cash and checks clerks received from cus-
tomers. The evidence at trial showed that Sofidiya created an elabo-
rate scheme to embezzle funds. As a window clerk, Sofidiya received
checks made payable to the United States Postal Service from cus-
tomers in exchange for the purchase of postage meter settings.
Sofidiya put postage on the meters, entered the transaction on his
Integrated Retail Terminal ("IRT"), which is similar to a cash register,
provided the customer a receipt, then voided the transaction. Sofidiya
would hold on to the check rather than return it to the customer. The
new postage meter setting was entered on Meter Settings Form 3610.
Several days later, Sofidiya would include the check in a deposit
in exchange for embezzled cash of the same amount. Therefore, the
total deposit would reflect the total amount of sales for that day. How-
ever, less cash was deposited than was collected by the window
clerks. Sofidiya would also use the check to reduce his stamp stock
accountability by recording non-existent stamp sales. He would also
exchange the check for smaller checks which totaled the amount of
the withheld check. He would then use the smaller checks to compen-
sate for subsequently embezzled cash receipts. From September 1992
2
and continuing until September 1993, Sofidiya embezzled approxi-
mately $90,000.
In May 1993, while Sofidiya was on vacation, the Postal Service
removed two filing cabinets from his office. It was never established
why the cabinets were removed. The cabinets were taken to a nearby
building and presumed destroyed when the building was destroyed.
Sofidiya contends that the indictment should have been dismissed,
or alternatively, the Government's evidence suppressed because the
Government was derelict in failing to take affirmative steps to pre-
serve exculpatory evidence allegedly contained in the cabinets. He
also contends an investigator wrongfully destroyed evidence.
In California v. Trombetta, 467 U.S. 479 (1984), the Supreme
Court held that the Government had a limited duty to preserve evi-
dence. In order to impose the duty, the "evidence must both possess
an exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be unable
to obtain comparable evidence by other reasonably available means."
Id. at 489. In Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988), the
Supreme Court extended the protection to evidence which is "poten-
tially useful," but only if the defendant can demonstrate that the Gov-
ernment exercised bad faith in its failure to preserve the evidence.
Upon our review of the record, we find that Sofidiya failed to sat-
isfy the required showing under either Trombetta or Youngblood. It
was mere speculation that the relevant documents were in the cabinets
when they were removed from Sofidiya's office. In addition, Sofidiya
failed to show the exculpatory significance of any of the documents
or that he could not obtain comparable evidence by other means.
For instance, Sofidiya contends that completed PS Forms 17 were
in the cabinets. According to Sofidiya, such forms would reflect trans-
fers of stamp stocks to other window clerks. Sofidiya conceded that
a copy of the same form was given to the receiving window clerk at
the time of the transfer. He never established that those copies were
unavailable.
3
Sofidiya failed to demonstrate the relevance of PS 1908 forms
which, according to Sofidiya, showed if there were any shortages or
overages in the daily bank deposit. Sofidiya's scheme involved depos-
iting funds equal to what was collected on that day. Whether there
were shortages or overages was irrelevant. Furthermore, the Govern-
ment showed that copies of the forms were maintained by the
accounting department and available for his use. The Government
also showed that any information on missing individual PS 1412 and
3603 forms was available on consolidated PS 1412 and 3603 forms.
As for the forms admittedly destroyed by John Evans, a postal ser-
vice employee who investigated some of Sofidiya's transactions, it
was never shown that those forms were relevant. They did not con-
cern any irregular transactions.
Even if Sofidiya were able to show the potential usefulness of any
of the documents he now claims were destroyed, he fails to show the
Government's bad faith. The destruction of the filing cabinets appears
to have been inadvertent. See United States v. Sanders, 954 F.2d 227,
231 (4th Cir. 1992) (defendant's due process rights were not violated
when videotape of bank robbery was inadvertently erased). As for the
forms destroyed by Evans, it was shown that he believed the forms,
which were not useful to him in investigating the irregular transac-
tions, should have been destroyed in accordance with the Postal Ser-
vice's retention policy.
Thus, we find that the district court appropriately denied Sofidiya's
motion to dismiss, or alternatively to suppress the Government's evi-
dence.
Sofidiya's contention that the Government failed to prove the loss
of property with regard to the withheld checks or the money orders
is without any merit. We note that the prosecution need not show that
the victim of the embezzlement suffered an actual loss in the value
of its property. See United States v. Stockton , 788 F.2d 210, 219 n.13
(4th Cir. 1986); but see United States v. Gibbs , 704 F.2d 464, 465 (9th
Cir. 1983) (to obtain a conviction under § 641, the government must
prove that the United States suffered some loss).
Here, the Government suffered a loss. Sofidiya set a customer's
postage meter, collected a check, and voided the transaction without
4
resetting the postage meter or returning the check. He would convert
the check for his own purposes. The Government obviously suffered
a loss of money due to the setting of the postage meters for which it
did not receive payment.
As for the money orders, Sofidiya asserts that he had a payroll
check and a refund check that could have been used to purchase the
money orders. The evidence showed that Sofidiya withdrew money
orders for himself without submitting a voucher or logging the sale
on his IRT. After Sofidiya negotiated the money orders, he was ques-
tioned by his supervisor. He initially denied receiving the money
orders, then admitted purchasing them with a NationsBank check. He
then claimed to have purchased the money orders with a paycheck,
a credit union check and other checks. Finally, he claimed that he had
overages on the days the checks were purchased and the accounting
department had issued a form showing the overages. Further investi-
gation with the accounting department could not uncover the forms.
We find, taking the view most favorable to the Government, that the
evidence was sufficient to support the jury's verdicts regarding the
conversion of the money orders. See Glasser v. United States, 315
U.S. 60, 80 (1942).
Sofidiya contends that the district court abused its discretion in
admitting evidence of bank records and money orders under Fed. R.
Evid. 803(6)--the business records exception, because a proper foun-
dation was not laid by an appropriate witness. Under Rule 803(6), a
custodian or an otherwise "qualified witness" can lay the evidentiary
foundation to ensure the records' trustworthiness. A"qualified wit-
ness" is not required to have "personally participated in or observed
the creation of the document," United States v. Moore, 791 F.2d 566,
574 (7th Cir. 1986), or to have known who actually recorded the
information, see United States v. Dominguez, 835 F.2d 694, 698 (7th
Cir. 1987). There is no requirement that the witness be able to person-
ally attest to its accuracy. See United States v. Duncan, 919 F.2d 981,
986 (5th Cir. 1990). The term "qualified witness" is interpreted
broadly. It requires only someone who understands the system used
to record and maintain the information. See Moore, 791 F.2d at 574-
75. "The witness ``need only be someone with knowledge of the pro-
cedure governing the creation and maintenance of the type of record
5
sought to be admitted.'" Dominguez, 835 F.2d at 698 (quoting United
States v. Keplinger, 776 F. 2d 678, 693 (7th Cir. 1985)).
The Government called bank employee Linnea Viddo, a Vice Pres-
ident, to lay the foundation for the admission of bank records. Viddo
is responsible for retrieving bank records pursuant to a grand jury
subpoena. Sofidiya contends that Viddo did not have personal knowl-
edge concerning the compilation of the bank records relating to the
questionable deposits. But it is without a doubt that she was familiar
with the procedure used to generate the records. Sofidiya fails to
establish any indication that the procedure indicated a lack of trust-
worthiness.
Likewise, Travist Wiggins, National Money Order Coordinator for
the Postal Inspection Service, was able to explain how money orders
are maintained on microfilm in setting the foundation for the admis-
sion of microfilm copies of Sofidiya's stolen money orders. The court
did not abuse its discretion in admitting evidence of the bank records
and money orders.
Finally, Sofidiya challenges the court's decision to enhance his
offense level eight levels for a loss of greater than $70,000 under U.S.
Sentencing Guidelines Manual § 2B1.1(b)(1)(I) (1995) and two levels
for abusing a position of trust under USSG § 3B1.3.
With regard to the eight-level increase, Sofidiya repeats his argu-
ment that the Government was unable to prove a loss. Factual find-
ings for sentencing purposes are reviewed for clear error. See United
States v. Cutler, 36 F.3d 406, 407 (4th Cir. 1994). Clearly, the Gov-
ernment established a pattern of lost funds due to Sofidiya's scheme.
With regard to the two-level enhancement, Sofidiya asserts that he
was nothing more than "a glorified bank teller." As a window supervi-
sor, he had more responsibility than a bank teller or window clerk. He
was responsible for collecting all the cash and checks from other tell-
ers at the end of the day. He then prepared the bank deposit, which
was a key component to his scheme. Thus, we do not find the court
clearly erred in finding that Sofidiya abused a position of trust.
6
Accordingly, we affirm the convictions and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
7