United States v. Wein
| Decision Date | 18 April 2013 |
| Docket Number | No. 12-4489,12-4489 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRADLEY DOUGLAS WEIN, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
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)
Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 the record was a regular practice of that activity." Fed. R. Evid. 803(6). The nature of the record may be established by "the custodian or another qualified witness." Fed. R. Evid. 803(6)(D). Further, the business record is admissible so long as "neither the source of information nor themethod or circumstances of preparation indicate a lack of trustworthiness." Fed. R. Evid. 803(6)(E).
Wein contends that the district court abused its discretion in finding that Valerie Dunagin, an investigative manager for credit card fraud with Bank of America, was a qualified witness to lay the foundation for the credit card account records. 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 Bank of America, and that FIA Card Services is currently owned by Bank of America. See United States v. Duncan, 919 F.2d 981, 986 (5th Cir. 1990) ().
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) (). Wein also incorrectly asserts that Dunagin was required to confirm the accuracy of the records in order to be a qualified witness. See Duncan, 919 F.2d at 986 (). Accordingly, we conclude that the district court did not 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 service representatives in shorthand during the calls. We conclude that this argument does not affect the admissibility of the records and is directed to the weight of the evidence. See Am. Int'l Pictures, Inc. v. Price Enters., Inc., 636 F.2d 933, 935 (4th Cir. 1980) (). 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 erred in denying his Rule 29 motion for judgment of acquittal. We review de novo the district court's denial of a Rule 29 motion. United States v. Penniegraft, 641 F.3d 566, 571 (4th Cir.), cert. denied, 132 S. Ct. 564 (2011). 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." United States v. Abu Ali, 528 F.3d 210, 244 (4th Cir. 2008) (internal quotation marks and brackets omitted). In conducting this review, we will not weigh evidence or review witness credibility. United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007).
Wein argues that there was insufficient evidence establishing that he submitted a fraudulent letter to the district court. 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 defenseto the indictment charging him with mail...
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