US v. Bradley Wein

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cr-00161-HEH-1 Copies to all parties and the district court/agency. [999089547].. [12-4489]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4489

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRADLEY DOUGLAS WEIN,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:11-cr-00161-HEH-1)

Submitted:

March 27, 2013

Before AGEE and
Circuit Judge.

FLOYD,

Decided:

Circuit

Judges,

and

April 18, 2013

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Amy L. Austin,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Michael C.
Moore, Assistant United States Attorney, Charles A. Quagliato,
Special Assistant United States Attorney, Richmond, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM
Bradley Douglas Wein appeals his conviction by a jury
of obstruction of an official proceeding, in violation of 18
U.S.C. § 1512(c)(2) (2006).

On appeal, Wein argues that the

district court erred in admitting credit card account records
into evidence under Fed. R. Evid. 803(6), the business records
exception

to

the

hearsay

rule.

Wein

also

argues

that

the

district court erred in denying his Fed. R. Crim. P. 29 motion
for judgment of acquittal.

We affirm.

We review the district court’s decision regarding the
admissibility of evidence for abuse of discretion and will not
find an abuse unless a decision is “arbitrary and irrational.”
United

States

v.

Cloud,

680

F.3d

396

(4th

Cir.)

(internal

quotation marks omitted), cert. denied, 133 S. Ct. 218 (2012).
The hearsay rule does not prohibit the admission of a record
“if[] (A) the record was made at or near the time by . . .
someone with knowledge; (B) the record was kept in the course of
a regularly conducted activity of a business . . . ; [and] (C)
making
Fed.

the
R.

Evid.

established
Fed.

R.

record

by

Evid.

was

a

803(6).
“the

regular
The

custodian

803(6)(D).

practice

nature
or

of

another

Further,

the

of
the

that

activity.”

record

qualified
business

may

be

witness.”
record

is

admissible so long as “neither the source of information nor the

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or

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circumstances

trustworthiness.”
Wein
discretion
manager

in

for

qualified

of

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preparation

indicate

a

lack

of

Fed. R. Evid. 803(6)(E).

contends
finding

credit

witness

account records.

that
that

card

to

lay

the

district

Valerie

fraud
the

court

Dunagin,

with

Bank

foundation

an

of

abused

investigative

America,

for

its

the

was

credit

a

card

However, Dunagin testified that she had worked

with similar records throughout her nineteen-year career at Bank
of

America.

Additionally,

Dunagin

described

in

detail

the

manner in which the records were prepared and testified that
Bank of America kept and relied upon the records in its regular
course of business.
Wein

asserts

that

Dunagin,

as

a

Bank

of

America

employee, could not be considered a qualified witness for the
credit card account records created by FIA Card Services.

We

find this argument unavailing because Dunagin testified that she
was familiar with the records created by FIA Card Services, that
the records were maintained in the same manner as the records
created

by

currently

Bank
owned

of
by

America,
Bank

of

and

that

America.

FIA

Card

Services

See

United

States

is
v.

Duncan, 919 F.2d 981, 986 (5th Cir. 1990) (holding “there is no
requirement that the records be created by the business having
custody of them”).

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Further, contrary to Wein’s contentions, Dunagin was
not required to create the records or speak to the individuals
who created the records.

See United States v. Dominguez, 835

F.2d 694, 698 (7th Cir. 1987) (holding that “‘qualified witness’
need not have personally participated in the creation of the
document,
Wein

nor

also

know

who

incorrectly

actually
asserts

recorded

that

the

Dunagin

information”).

was

required

to

confirm the accuracy of the records in order to be a qualified
witness.
witness

See Duncan, 919 F.2d at 986 (holding that qualified
need

accuracy”).
did

not

not

“be

able

to

personally

attest

to

.

.

.

Accordingly, we conclude that the district court

abuse

its

discretion

in

finding

that

Dunagin

was

a

qualified witness.
Next, Wein argues on appeal that the method by which
the credit card account records were prepared indicates that the
records were untrustworthy.

Specifically, Wein contends there

was no testimony regarding the accuracy or completeness of the
comments describing customer service phone calls in the records,
which

were

entered

by

customer

shorthand during the calls.

service

representatives

in

We conclude that this argument does

not affect the admissibility of the records and is directed to
the weight of the evidence.
Price

Enters.,

(rejecting

claim

Inc.,
that

636

See Am. Int’l Pictures, Inc. v.
F.2d

business
4

933,
record

935

(4th

lacked

Cir.

1980)

trustworthiness

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because

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objection

admissibility).

was

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directed

to

weight

of

evidence,

not

Accordingly, the district court did not abuse

its discretion in admitting the credit card account records in
to evidence under Fed. R. Evid. 803(6).
Wein

also

argues

that

the

district

court

denying his Rule 29 motion for judgment of acquittal.

erred

We review

de novo the district court’s denial of a Rule 29 motion.
States

v.

Penniegraft,

641

F.3d

denied, 132 S. Ct. 564 (2011).

566,

571

(4th

in

United

Cir.),

cert.

We will uphold a conviction in

the face of a challenge to the sufficiency of the evidence “if
there is substantial evidence, taking the view most favorable to
the Government, to support it.”
F.3d

210,

244

(4th

brackets omitted).

Cir.

evidence

or

2008)

United States v. Abu Ali, 528
(internal

quotation

marks

and

In conducting this review, we will not weigh

review

witness

credibility.

United

States

v.

Foster, 507 F.3d 233, 245 (4th Cir. 2007).
Wein
establishing

argues
that

district court.

he

that

there

submitted

a

was

insufficient

fraudulent

letter

evidence
to

the

However, the Government presented evidence that

Wein fabricated a letter to his former client, advising her of
the settlement of her outstanding credit card debt on several
accounts.

The Government presented further evidence that Wein

provided this letter, along with other documents, to his defense
counsel and claimed that it provided him with a complete defense
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to the indictment charging him with mail fraud and aggravated
identity theft, charges on which the jury ultimately found him
not guilty.

Wein’s counsel subsequently attached the fraudulent

letter to a motion to dismiss.

Additionally, Wein’s computer

forensics expert testified that the time and date stamps of the
electronic version of the letter could be manipulated and that
he could not testify as to whether the file was manipulated
during an eleven-month period when Wein was aware that he may
face

charges.

Accordingly,

we

conclude

that

there

was

sufficient evidence from which a reasonable juror could conclude
that Wein was responsible for the submission of a fraudulent
letter to the court.
Wein’s argument that there was insufficient evidence
to establish that he acted with corrupt intent because it was
his defense counsel who attached the fraudulent letter to the
motion to dismiss is unavailing.

A defendant acts corruptly

where he “act[s] with the purpose of wrongfully impeding the due
administration of justice.”

United States v. Matthews, 505 F.3d

698, 706 (7th Cir. 2007) (internal quotation marks and emphasis
omitted).

The jury could infer Wein’s corrupt intent by the

fact that he fabricated the letter and gave it to his defense
counsel, claiming that it provided him with a complete defense
to the pending charges of mail fraud and aggravated identity
theft.
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Finally, Wein argues that there was no nexus between
the fraudulent letter and the criminal proceeding against him.
“To

satisfy

[the

nexus]

requirement,

the

defendant’s

conduct

must ‘have a relationship in time, causation, or logic with the
judicial proceedings.’”

United States v. Reich, 479 F.3d 179,

185 (2d Cir. 2007) (quoting United States v. Aguilar, 515 U.S.
593, 599 (1995)); see also United States v. Johnson, 553 F.
Supp. 2d 582, 626 (E.D. Va. 2008).

We conclude that Wein has

failed to show that the evidence was insufficient to establish a
nexus between his actions and obstruction of the proceeding.
Wein’s fraudulent letter was attached in a motion to
dismiss the charges of mail fraud and aggravated identity theft,
and thus, there is a clear, logical relationship between his
conduct and the judicial proceeding.

Wein’s argument that the

subject matter of the fraudulent letter had nothing to do with
the

arguments

raised

in

his

motion

to

dismiss

is

unavailing

because it ignores that the fraudulent letter was nevertheless
presented

to

the

court.

Moreover,

Wein’s

argument

that

the

fraudulent letter lacked a relationship in time to his use of
his

former

analysis

client’s

only

credit

requires

there

fails
be

a

because

the

relationship

nexus

in

time

between the fraudulent letter and the court proceeding.

See

Reich, 479 F.3d at 179.

that

cards

Finally, Wein argues that, because the

jury found him not guilty of mail fraud and aggravated identity
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theft,

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there

was

those charges.

no

nexus

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between

the

fraudulent

letter

and

However, we must not consider the jury’s verdict

on other counts when reviewing the sufficiency of the evidence.
See United States v. Powell, 469 U.S. 57, 67 (1984) (holding
that sufficiency of evidence “review should be independent of
the

jury’s

determination

insufficient”).

that

evidence

on

another

count

was

We therefore conclude that there was sufficient

evidence from which a reasonable juror could find Wein guilty of
obstruction of an official proceeding.
Accordingly, we affirm the district court’s judgment.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

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