                             UNPUBLISHED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            Decided:     December 7, 2012


Before KING and    AGEE,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).                         He was sentenced to sixty

months’ imprisonment.               On appeal, he challenges the sufficiency

of the evidence on these convictions.                         We affirm.



                                                  I

       Gay   was       an     attorney       licensed         to    practice     law    in   the

Commonwealth of Virginia.                  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.           A    few    years    later,       in    2002,     Gay    also   handled

Woodside’s       divorce           from     his       wife,    Carla,      the    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.                            Gay complied.      Gay was

the    trustee      under         the     irrevocable         trust    agreement       and   the

beneficiaries were Woodside’s three children.                              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        children   out     of     hundreds      of

thousands of dollars.              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      quotation       marks    omitted).         Generally,          we    will

“sustain a       guilty    verdict     that,       viewing    the    evidence       in    the

light     most    favorable       to   the        prosecution,       is     supported     by

substantial evidence.”             United States v. Osborne, 514 F.3d 377,

385   (4th     Cir.   2008)       (citation       and    internal     quotation         marks

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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    in     April      2006.       After      fabricating       these

documents,   which     purport      to    name   Gay    as    the    beneficiary     of

Woodside’s   life     insurance     policies,        Gay   continued        to   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.                United States v. Blair, 661 F.3d

755,     776   n.1    (4th    Cir.    2011)    (Traxler,    C.J.,       dissenting      in

part).         The    statute    defines      “monetary    transaction”         as    “the

deposit,       withdrawal,      transfer,      or    exchange,     in     or   affecting

interstate       or     foreign       commerce,      of   funds     or     a   monetary

instrument . . . by, through, or to a financial institution.”

18 U.S.C. § 1957(f).            Evidence of a deposit of unlawful proceeds

in   a    Federal     Deposit     Insurance     Corporation       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      relates       to   the     interstate      commerce

component of § 1957.                  He posits that although the government’s

evidence        on    the   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      to   opine       on   it.     When    a   defendant     raises

specific       grounds      in    a    Rule   29   motion,       grounds    that   are    not

specifically          raised     are    waived     on    appeal.       United    States    v.

Chong Lam, 677 F.3d 190, 200 (4th Cir. 2012).                                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.             United States v. Ismail, 97 F.3d 50, 60

(4th    Cir.    1996)    (§     1001).         A    fact    about       a    matter     within    a

governmental      agency’s        jurisdiction           is      material        if    it   has   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 never-

before-seen       letter        Gay   purportedly                sent       to   Midland      Life

Insurance       Company        claiming        that        he,     personally,          was     the

beneficiary of Woodside’s life insurance proceeds.                                    Because the

letter    was     both        false   and          material,       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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