US v. Brian Gay, No. 12-4082 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4082 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRIAN GAY, Defendant - Appellant.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 Before KING and Circuit Judge. AGEE, Circuit Decided: Judges, and December 7, 2012 HAMILTON, Senior Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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). months imprisonment. He was sentenced to sixty On appeal, he challenges the sufficiency of the evidence on these convictions. We affirm. I Gay was an attorney Commonwealth of Virginia. licensed to practice law in the 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. Woodside s A few divorce years from later, his in 2002, wife, Gay Carla, also the handled 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. the trustee under the irrevocable Gay complied. trust agreement beneficiaries were Woodside s three children. - 2 - Gay was and the The irrevocable 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 thousands of dollars. children out of hundreds of 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 sustain a light quotation guilty most verdict favorable substantial evidence. 385 (4th Cir. marks 2008) to omitted). that, the viewing Generally, the prosecution, we evidence is will in the supported by United States v. Osborne, 514 F.3d 377, (citation and - 3 - internal quotation marks 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 documents, which Woodside s life in April purport insurance to 2006. name After Gay policies, as Gay fabricating the these beneficiary continued to of 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 - 4 - 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. 755, 776 n.1 (4th part). The deposit, Cir. withdrawal, interstate or statute United States v. Blair, 661 F.3d 2011) defines (Traxler, monetary transfer, foreign or commerce, C.J., transaction exchange, of dissenting funds in or as in the or affecting a monetary instrument . . . by, through, or to a financial institution. 18 U.S.C. § 1957(f). in a Federal Deposit Evidence of a deposit of unlawful proceeds Insurance Corporation - 5 - insured financial 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 component of § 1957. evidence on the relates to the interstate commerce He posits that although the government s 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 specific grounds specifically to in raised opine a are Rule on 29 waived it. When motion, on a defendant grounds appeal. that United Chong Lam, 677 F.3d 190, 200 (4th Cir. 2012). raises are not States v. 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) - 6 - 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. (4th Cir. 1996) governmental (§ United States v. Ismail, 97 F.3d 50, 60 1001). agency s A fact jurisdiction about is a matter material if within it has a 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 neverbefore-seen Insurance letter Company Gay purportedly claiming that sent he, to personally, beneficiary of Woodside s life insurance proceeds. letter was both false and material, Midland was Life the Because the substantial evidence support s Gay s false document conviction. element was satisfied with regard to the two checks Gay wrote to himself in 2010. - 7 - 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 - 8 -
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