United States v. Bradshaw

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4465

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GEORGE WILLIAM BRADSHAW, II,

Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Frederick P. Stamp,
Jr., Senior District Judge. (3:05-cr-00073-FPS)

Argued: May 14, 2008 Decided: June 24, 2008

Before MICHAEL and DUNCAN, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Byron Craig Manford, Martinsburg, West Virginia, for
Appellant. Paul Thomas Camilletti, OFFICE OF THE UNITED STATES
ATTORNEY, Martinsburg, West Virginia, for Appellee. ON BRIEF:
Sharon L. Potter, United States Attorney, Wheeling, West Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

George William Bradshaw, II, former commander of the West

Virginia state police detachment at Martinsburg, appeals from his

conviction of one count of mail fraud under 18 U.S.C. § 1341. At

trial the government contended that Bradshaw had devised a

fraudulent scheme to steal cash that had been seized as evidence.

According to the government, Bradshaw, in furtherance of his

scheme, falsely reported to the state treasury department (through

the mail) that there was no unclaimed property at the Martinsburg

detachment. After the jury returned a guilty verdict, the district

court denied Bradshaw’s motion for judgment of acquittal and

sentenced him to fifteen months’ incarceration followed by three

years of supervised release. On appeal Bradshaw argues (1) that

the evidence was insufficient to support his mail fraud conviction

and (2) that the district court abused its discretion by admitting

evidence of a theft that was not alleged in the indictment. As

explained below, we reject Bradshaw’s claims and affirm his

conviction and sentence.

I.

On November 15, 2005, a grand jury in the Northern

District of West Virginia returned an indictment against Bradshaw

for one count of mail fraud. The indictment alleged that Bradshaw

sent an unclaimed property report to the West Virginia state

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treasurer’s office in furtherance of his scheme to steal cash that

had been seized as evidence. The indictment alleged that an audit

of the Martinsburg detachment revealed that seized cash was missing

in twenty different cases, and it described eight of the missing

seizures of cash in more detail.

Bradshaw’s four-day trial began on August 1, 2006, and

the following evidence was introduced. Government testimony

described the procedures for recording and storing seized evidence

at the Martinsburg detachment. After seizing evidence from a

criminal suspect, the officer completes an evidence report on form

109. The officer then turns over the evidence (and the completed

form 109) to a supervisor, and the supervisor places the evidence

in the evidence room, noting this on the 109 form. In addition,

the evidence is recorded in a property disposition report on form

31. The completed 109 and 31 forms are stored in separate binders

in the evidence room. Copies are also kept with the criminal

investigation reports elsewhere at the detachment.

All state agencies are required by law to report

unclaimed property annually to the West Virginia state treasurer.

Treasury personnel visit the agencies to collect the unclaimed

property, and unclaimed cash is deposited into the general revenue

fund of the state. Property is deemed unclaimed if (1) it has been

in law enforcement hands for at least six months; (2) there is no

reasonable likelihood that it can be returned to the owner; and (3)

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it has no evidentiary value. Most seizures of cash in drug

trafficking cases undergo forfeiture to the state through a

different process and do not qualify as unclaimed property.

In late 2002 an undercover officer became aware that cash

seized in two different cases was missing from the Martinsburg

detachment, and he began an investigation of the whereabouts of all

cash seized by the detachment. The officer uncovered several

instances of missing cash, and in mid-September 2004 First Sergeant

Scott Dillon was assigned to investigate thefts of money from the

Martinsburg detachment evidence room. At trial Dillon testified

about nine missing seizures of money, ranging in amount from $341

to $2880. Because only eight of these seizures had been described

in the indictment, Bradshaw requested and received a limiting

instruction from the district court prior to testimony about the

ninth seizure (the Tigney seizure). The district court cautioned

the jury that the evidence about the Tigney seizure was not be used

to conclude “that the defendant has bad character in general . . .

[or] is more likely to have committed the crime for which he is

currently charged.” J.A. 684.

Each of the nine seizures occurred between 1999 and 2001.

In most cases, the original 109 and 31 forms in the evidence room

had been replaced. The new forms deleted the reference to the cash

seizures and instead reported seizures of other evidence (usually

blood alcohol kits) that did not exist. The new forms were in

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Bradshaw’s handwriting. In other cases the 31 and 109 forms for

the actual cases were missing, and Bradshaw had placed dummy forms

that did not link to actual cases in the same locations in the

binders. Forfeiture orders were ultimately issued for seven of the

seizures, thereby rendering them property of the state. Two

seizures did not undergo forfeiture. Dillon testified that at

least one of these non-forfeited seizures (the Lewis seizure)

should have been reported as unclaimed property to the state

treasurer. Nonetheless, in July 2001 Bradshaw mailed the

Martinsburg detachment annual unclaimed property report to the

treasurer’s office, stating that the detachment had no unclaimed

property for the period of July 1, 2000, through June 30, 2001.

The jury returned a verdict of guilty, and Bradshaw moved

for judgment of acquittal. After briefing and argument, the

district court denied the motion and scheduled the matter for

sentencing. At sentencing the district court calculated that

Bradshaw’s conduct resulted in a $10,179.60 loss based on his total

thefts and sentenced him to fifteen months’ incarceration followed

by three years of supervised release. Bradshaw filed a timely

notice of appeal.

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 II.

Bradshaw first argues that the district court erred in

denying his motion for judgment of acquittal. We review de novo a

district court’s denial of a motion for judgment of acquittal.

See United States v. Ryan-Webster, 353 F.3d 353, 359 (4th Cir.

2003). We must sustain a guilty verdict if, viewing the evidence

in the light most favorable to the prosecution, the verdict is

supported by “‘substantial evidence.’” United States v. Burgos, 94

F.3d 849, 862 (4th Cir. 1996) (en banc) (quoting Glasser v. United

States, 315 U.S. 60, 80 (1942)). “[S]ubstantial evidence is

evidence that a reasonable finder of fact could accept as adequate

and sufficient to support a conclusion of a defendant’s guilt

beyond a reasonable doubt.” Id.

To obtain a mail fraud conviction, the prosecution must

prove that “the defendant (1) knowingly participated in a scheme to

defraud and (2) mailed . . . anything ‘for the purpose of executing

that scheme.’” United States v. Pierce, 409 F.3d 228, 232 (4th

Cir. 2005) (quoting 18 U.S.C. § 1341). A mailing is considered to

be “for the purpose of executing” a fraudulent scheme if it is

“designed to lull the victims into a false sense of security,” even

if it is “incident to an essential part of the scheme.” Id.

(quoting Schmuck v. United States, 489 U.S. 705, 711 (1989); United

States v. Lane, 474 U.S. 438, 451-52 (1986)) (internal quotation

marks omitted). Thus, a mailing that is accurate, routine, or sent

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after the goods have been received can support a mail fraud

conviction, so long as the mailing was designed to “make

apprehension of the defendant[] less likely.” Lane, 474 U.S. at

451-52; see Schmuck, 489 U.S. at 715.

Bradshaw advances several arguments in support of his

position that his mailing was not in furtherance of the scheme to

defraud. First, Bradshaw argues that the mailing and the

fraudulent scheme were insufficiently connected because the cash

was stolen prior to the mailing. However, “[m]ailings occurring

after receipt of the goods obtained by fraud are within the statute

if they were designed to lull the victims into a false sense of

security, postpone their ultimate complaint to the authorities, and

therefore make the apprehension of the defendants less likely than

if no mailings had taken place.” Lane, 474 U.S. at 451-52

(internal quotation marks and citation omitted). Here a reasonable

jury could have found that Bradshaw sent the mailing, which falsely

informed the treasury that there was no unclaimed property, to

ensure that the treasury would not come to the detachment to

collect the property and discover the missing cash. Because the

mailing was designed to “lull the victim[]” -- the state treasury

-- it is of no moment that the mailing occurred after Bradshaw

stole the cash. Id.

Bradshaw next asserts that the mailing was unconnected to

the fraudulent scheme because the mailing accurately reported that

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there was no unclaimed property at the Martinsburg detachment.

Bradshaw argues that the Lewis seizure did not meet the three-part

test for unclaimed property because it had evidentiary value.

While the evidence could be interpreted to support Bradshaw’s

contention, we must review the record in the light most favorable

to the government. See Burgos, 94 F.3d at 862. At trial Dillon

testified that the Lewis seizure did not have evidentiary value

because, although the cash was recovered from the street at the

scene of a crime, it could not actually be linked to the crime.

Thus, a reasonable jury could have concluded that Bradshaw’s report

to the treasury was false, lending further support to the

government’s position that the mailing was designed to further

Bradshaw’s scheme.

Finally, Bradshaw contends that the mailing did not

further his fraud because a report of no unclaimed property would

be unusual and thus lead to heightened suspicion from the state

treasury. But “[t]he relevant question at all times is whether the

mailing is part of the execution of the scheme as conceived by the

perpetrator at the time, regardless of whether the mailing later,

through hindsight, may prove to have been counterproductive.”

Schmuck, 489 U.S. at 715. Because a reasonable jury could have

concluded that Bradshaw believed at the time that the mailing would

conceal his scheme from detection, this argument is foreclosed as

well.

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 Thus, in reviewing the evidence, we find that there was

sufficient evidence to support the jury’s verdict of guilt. We

therefore affirm the district court’s denial of the motion for

judgment of acquittal.

III.

Bradshaw next argues that the district court erred by

failing to exclude evidence of the Tigney seizure under Federal

Rule of Evidence Rule 404(b).

Rule 404(b) prohibits the admission of “[e]vidence of

other crimes, wrongs, or acts” for the purpose of showing a

defendant’s propensity to commit a crime. Fed. R. Evid. 404(b).

Rule 404(b) does, however, allow prior bad act evidence to be

included “for purposes other than character, such as ‘motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.’” United States v. Queen, 132 F.3d

991, 994 (4th Cir. 1997) (quoting Fed. R. Evid. 404(b)). We review

a district court’s rulings under Rule 404(b) for abuse of

discretion. Id. at 995. A district court has abused its

discretion if the admitted evidence fails to meet the following

criteria:

(1) The evidence must be relevant to an issue, such as an
element of an offense, and must not be offered to
establish the general character of the defendant. . . .
(2) The act must be necessary in the sense that it is
probative of an essential claim or an element of the
offense. (3) The evidence must be reliable. And (4)

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 the evidence’s probative value must not be substantially
outweighed by confusion or unfair prejudice in the sense
that it tends to subordinate reason to emotion in the
factfinding process.

Id. at 997. Furthermore, the defendant’s interests are better

protected if the court instructs the jury to limit consideration of

the evidence to the purposes permitted by the rule. Id.

Bradshaw argues that the evidence of the Tigney seizure

was not probative under the second part of the test, because

Bradshaw was not required to report the Tigney seizure in the

mailing. However, the evidence does not have to be directly linked

to the mailing itself to be probative of the elements of the mail

fraud offense. The first element of mail fraud -- knowing

participation in a scheme to defraud -- can extend beyond the

specific mailing. Pierce, 409 F.3d at 232. Bradshaw’s theft of

the Tigney seizure and his replacement of the records with

falsified forms were part of Bradshaw’s larger scheme to defraud,

which the mailing served to further. Thus, introduction of the

evidence related to the Tigney seizure, which included forms in

Bradshaw’s handwriting, helped prove Bradshaw’s knowledge of and

participation in the scheme. The Tigney seizure was also probative

of the second element of mail fraud, that the mailing furthered the

scheme. This theft (of a somewhat larger amount of money than the

other thefts) provided Bradshaw with an increased motive to conceal

his activities, a goal that was furthered by mailing the unclaimed

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property form to the state treasury. Thus, the Tigney evidence was

probative, and the second part of the test is satisfied.

Bradshaw also argues that the evidence was unduly

prejudicial “because of the sheer volume of the exhibits,” and thus

failed to meet the fourth part of the Queen test. Appellant’s Br.

35. The introduction of nine, rather than eight, examples of

Bradshaw’s scheme to steal cash from the Martinsburg detachment

would not lead a jury to “subordinate reason to emotion in the

factfinding process.” Queen, 132 F.3d at 997. The theft of the

Tigney seizure followed the same pattern as the other thefts in the

scheme and did not present any particularly shocking facts.

Furthermore, the district court repeatedly cautioned the jury that

it could not consider the evidence for proof of character or

propensity, including one such instruction that directly preceded

the introduction of the contested evidence. Thus, the evidence

provided relevant, probative support to the government’s contention

that Bradshaw was actively engaged in defrauding the detachment and

the state treasury, and it presented little risk of unfair

prejudice. The evidence thus meets the fourth part of the test.

Because the evidence about the Tigney seizure met all

four parts of the Queen test, the district court did not abuse its

discretion by admitting the evidence. We thus reject Bradshaw’s

second claim as well.

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 IV.

Bradshaw finally argues that the district court’s

calculation of loss for sentencing purposes was clear error,

because the court included the loss from all of the stolen seizures

rather than solely the seizure that should have been reported in

the unclaimed property report. This argument is unavailing. The

loss calculation for a mail fraud conviction may include any loss

from the fraudulent scheme that the mailing furthered. See Pierce,

409 F.3d at 234. The district court appropriately considered only

those losses from Bradshaw’s scheme that the government proved by

a preponderance of the evidence. We therefore affirm Bradshaw’s

sentence of fifteen months’ imprisonment and three years of

supervised release.

* * *

For the foregoing reasons, Bradshaw’s conviction and

sentence are

AFFIRMED.

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