US v. Brian Gay
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:11-cr-00106-RAJ-TEM-1 Copies to all parties and the district court/agency. [998997552].. [12-4082]
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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.
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Gay was
and
the
The irrevocable
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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
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internal
quotation
marks
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omitted).
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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
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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
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insured
financial
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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)
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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.
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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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