                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5003


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

BARRY E. GITARTS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:07-cr-00464-LO-1)


Submitted:    July 29, 2009                 Decided:   August 28, 2009


Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jonathan L. Katz, JON KATZ, P.C., Silver Spring, Maryland, for
Appellant.    Dana J. Boente, United States Attorney, Jay V.
Prabhu, Assistant United States Attorney, Josh Goldfoot, Tyler
G. Newby, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Barry       E.     Gitarts          was       convicted        of       conspiracy    to

defraud     the       United      States,          in       violation     of       18   U.S.C.    §   371

(2006).           He        received           a     sentence           of      eighteen         months’

imprisonment.               Gitarts        raises             several        issues       on     appeal:

(1) evidence          obtained          from       searches       of    his        home    and    remote

computer server should have been suppressed; (2) the indictment

should have been dismissed for failing to sufficiently charge a

crime; (3) statements made by Gitarts during questioning at his

residence        should          have    been        suppressed;             (4)    venue      did    not

properly        lay    in    the        Eastern         District       of      Virginia;       (5)    the

district court improperly admitted business records in violation

of the Confrontation Clause; (6) the evidence against him was

insufficient to support the conviction; (7) the district court

abused its discretion in providing the indictment to the jury

during its deliberations; and (8) his sentence was unreasonable.

We affirm.



           I.     Searches of Gitarts’s Home and the TSV Server

                Gitarts asserts that the searches executed on his home

and   on   the        TSV   server,       a        computer       server       located      in    Texas,

should     have       been       suppressed             because     the       authorities        lacked

probable cause.             In reviewing the district court’s ruling on a

motion     to     suppress,         we    review            the   district          court’s      factual

                                                        2
findings for clear error and its legal determinations de novo.

United States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008).                              The

facts are reviewed in the light most favorable to the prevailing

party below.          United States v. Jamison, 509 F.3d 623, 628 (4th

Cir. 2007).

            The relevant inquiry when reviewing the propriety of

the issuance of a search warrant is whether, under the totality

of the circumstances, the issuing judge had a substantial basis

for concluding there was probable cause to issue the warrant.

See Illinois v. Gates, 462 U.S. 213, 238-39 (1983).                            The facts

presented to the issuing judge need only convince a person of

reasonable caution that contraband or evidence of a crime will

be found at the place to be searched.                  Texas v. Brown, 460 U.S.

730, 742 (1983).          Reviewing courts afford great deference to a

magistrate’s finding of probable cause.                     See Gates, 462 U.S. at

236.

            It    is    clear   that    the    TSV    warrant      was   supported     by

probable   cause.         The   affidavits      presented        in    support    of   the

warrant explicitly detailed the information given to the FBI by

the    Recording        Industry       Association          of     America       (“RIAA”)

concerning       an    underground     music    piracy       conspiracy        known   as

Apocalypse       Production     Crew    (“aPC”)       and    its      distribution     of

pirated    material.        A   confidential         informant        worked   with    the

RIAA, allowing the RIAA to access infringing music files stored

                                          3
on the TSV server and download them directly to an independent

contractor    working      with       the    RIAA.      On    this    basis,   the    RIAA

provided     the     government          with       (1) infringing       music    titles

downloaded by the independent contractor from TSV; (2) transfer

logs   showing     such    downloads;         (3)    sample    screen    shots   of   the

downloads; (4) a listing of several TSV directories; (5) logs of

chat   groups       between       aPC       members.         This     information     was

independently analyzed and confirmed by the FBI.                            The FBI then

learned the location of the server by way of its IP address, and

through    the     server’s      internet       service      provider    (“ISP”).      In

light of the great deference due to the judgment of the issuing

magistrate, Gates, 462 U.S. at 236, we find that probable cause

supported the issuance of the warrant for the TSV server.

            We     reach    the       same    result    regarding       the    affidavit

supporting the warrant for a search of Gitarts’s residence.                            In

addition to incorporating the information in support of the TSV

warrant,    the     affidavit         contained      further    information      linking

Gitarts to aPC and the TSV server.                     Records turned over by the

ISP indicated that Gitarts was paying for the TSV’s ISP services

from his New York residence.                    Records from PayPal, an online

money transfer service, indicated a monetary transfer from Paul

Davis, the leader of aPC, to Gitarts.                         Moreover, analysis of

data   contained     on    the    TSV       server    indicated      that   someone   had

accessed     the    server       as    an    administrator       on     more   than   one

                                              4
occasion     from     a    computer       located      at     Gitarts’s      residence.

Therefore, we find that probable cause supported issuance of the

warrant for a search of Gitarts’s residence.



                        II.    Statements Made by Gitarts

            Gitarts next contends the district court erroneously

determined    Gitarts         was   not   in    custody      at    the   time    he   gave

statements to authorities during the search of his apartment.

Therefore, according to Gitarts, the district court erred in

denying the motion to suppress his statements.

            Statements         obtained        from    an    individual         during    a

custodial interrogation are presumptively compelled in violation

of the Fifth Amendment, unless the Government shows that law

enforcement officers adequately informed the individual of his

Miranda 1 rights and secured a waiver of those rights.                             United

States v. Cardwell, 433 F.3d 378, 388 (4th Cir. 2005).                                   An

individual is in custody for Miranda purposes when, under the

totality    of    the     circumstances,         the   individual’s       “freedom       of

action is curtailed to a degree associated with formal arrest.”

Berkemer     v.     McCarty,        468   U.S.    420,       440    (1984)      (internal

quotation marks and citation omitted).                      Thus, an individual may

still be “in custody” even when informed that he is not under

     1
         Miranda v. Arizona, 384 U.S. 436 (1966).



                                            5
arrest,   if    a     “reasonable       man       in    [his]       position   would    have

understood      his    situation     to       be        one    of    custody.”      United

States v. Colonna, 511 F.3d 431, 435 (4th Cir. 2007) (internal

quotation marks and citation omitted).

             Here,      Gitarts     was           not     in     custody       during    his

questioning.          Gitarts was questioned in his own home in the

presence of his family.              He was not handcuffed or otherwise

restrained, was not told he was under arrest, and was told he

could leave at any time.            See United States v. Parker, 262 F.3d

415, 419 (4th Cir. 2001) (finding no Miranda violation where

subject questioned in own home, without restraint, and never

told   she   was      not   free   to     leave).              Accordingly,      because   a

reasonable person in Gitarts’s situation would not have felt his

freedom was curtailed to the degree associated with a formal

arrest, Miranda was not implicated during Gitarts’s questioning.

Therefore, the district judge did not err in denying Gitarts’s

motion to suppress.



               III. Denial of Motion to Dismiss Indictment

             Next, Gitarts contends that the district court erred

in denying his pretrial motion to dismiss his indictment for

failure   to    sufficiently        charge         a    crime.         Where   a   district

court’s denial of a defendant’s motion to dismiss an indictment

depends on a question of law, we review de novo the propriety of

                                              6
such a denial.         United States v. Hatcher, 560 F.3d 222, 224 (4th

Cir.   2009).         Rule    7(c)(1),       Fed.      R.    Crim.    P.,    provides,      in

pertinent part:         “The indictment or information must be a plain,

concise, and definite written statement of the essential facts

constituting      the       offense    charged         and    must    be    signed     by   an

attorney    for       the    government.”              Gitarts       contends    that       the

indictment is not sufficiently plain, concise, or definite, and

fails to contain the “essential facts constituting the offense

charged.”

            Gitarts’s         assertion       lacks         merit.         The   indictment

clearly delineates the scope of the online piracy conspiracy, in

which Gitarts, in cooperation with others, “would obtain, rip,

. . . and distribute copyrighted music files to group-affiliated

Internet file storage sites . . . throughout the world.”                                    In

furtherance       of        that   conspiracy,              Gitarts     paid      for       and

administered      a    computer       server      in    Texas    in    order     “to    store

hundreds of unauthorized copies of copyrighted works.”                               We find

the indictment was clearly adequate.



                                       IV.     Venue

            Gitarts next contends that his conviction should be

reversed for improper venue, as he “was never alleged to have

been physically present in the Eastern District of Virginia, nor



                                              7
to have known of any conspiracy-related activity taking place in

the Eastern District of Virginia.”

            We     review      de   novo    a       district      court’s    ruling      on   a

motion to dismiss for improper venue.                       United States v. Stewart,

256 F.3d 231, 238 (4th Cir. 2001).                         The U.S. Constitution and

Rule 18 of the Federal Rules of Criminal Procedure require that

a criminal defendant be tried for an offense in the district

where the offense was committed.                     United States v. Cabrales, 524

U.S. 1, 6-7 (1998); United States v. Ebersole, 411 F.3d 517, 524

(4th Cir. 2005) (“As a general proposition, venue is proper in

any district where the subject crime committed.”)                            “It is well-

accepted that there may be more than one appropriate venue, or

even a venue in which the defendant has never set foot, so long

as   it     meets        the    relevant            constitutional         and     statutory

requirements.”       United States v. Johnson, 510 F.3d 521, 524 (4th

Cir. 2007) (internal quotation marks and citation omitted).

            Here,        the   indictment           alleged    sufficient        conspiracy-

related activity to justify venue in the Eastern District of

Virginia.     The indictment alleged that a former leader of aPC

used his access to a computer server located in the Eastern

District     of     Virginia        to   reward           various    aPC     members     with

additional       copyrighted        works       for       their     involvement     in    the

conspiracy.         In    addition,        an       aPC    member    using    an    internet

connection        located      in    the        Eastern       District       of    Virginia

                                                8
downloaded an infringing work from the TSV server paid for and

administered by Gitarts.           As the sole purpose of the conspiracy

was to gain access to additional infringed works, these actions

in furtherance of the conspiracy are sufficient to place venue

in   the   Eastern     District    of   Virginia,          despite         the    fact   that

Gitarts alleges he was never physically present in the district.



                             V.    Business Records

             Gitarts next alleges that the trial court violated his

Sixth Amendment rights in allowing the Government to introduce

business     records        into   evidence         through        “declarations           of

purported records custodians” instead of the live testimony of a

records     custodian.        Gitarts     alleges         that     such      records      are

testimonial, and are therefore inadmissible under Crawford v.

Washington, 541 U.S. 36 (2004).

             Where     evidentiary       issues       relate          to     an    asserted

violation of the Sixth Amendment, the appropriate standard of

review     employed    by    courts     of       appeal    is    de    novo.         United

States v. Robinson, 389 F.3d 582, 592 (6th Cir. 2004).                                   Under

Crawford,     the     Confrontation      Clause       of     the      Sixth       Amendment

prohibits the introduction of out-of-court testimonial evidence

unless the witness is unavailable and the defendant has had a

prior opportunity for cross-examination.                   541 U.S. at 68.



                                             9
             However,       Crawford       explicitly       states       that        business

records      are    not     testimonial         evidence.         541     U.S.       at     56.

Therefore,     they       are   not    subject      to   the    requirements          of    the

Confrontation       Clause,      and     the    district    court       did    not    err    in

allowing the introduction of the business records. 2



                      VI.       Sufficiency of the Evidence

             Next, Gitarts contends that the evidence presented to

the   jury    was   insufficient          to    support    the    jury’s       finding       of

guilt.    Specifically, Gitarts asserts that his conviction should

be    reversed      because        the     Government          failed     to     introduce

certificates of copyright registration in order to demonstrate

infringement and generally failed to prove the existence of a

conspiracy, or that Gitarts was part of any conspiracy.




      2
       Subsequent to briefing, Gitarts filed notice pursuant to
Fed. R. App. P. 28(j) advising this Court of the Supreme Court’s
recent decision in Melendez-Diaz v. Massachusetts, 557 U.S. __,
129 S. Ct. 2527 (2009).     In Melendez-Diaz, the Supreme Court
applied Crawford to preclude the admission into evidence of
“certificates of analysis” detailing the results of forensic
testing performed on seized cocaine. See id. at 2542. Gitarts
asserts that Melendez-Diaz requires “the exclusion of business
records and all other testimonial hearsay” and requests oral
argument, or, in the alternative, briefing on this issue.
However, because Melendez-Diaz explicitly reaffirms Crawford’s
holding that traditional business records are not testimonial
evidence, we conclude that Melendez-Diaz does not advance
Gitarts’s position. See id. at 2539-40.



                                               10
            “A    defendant    challenging     the     sufficiency        of    the

evidence faces a heavy burden.”             United States v. Foster, 507

F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690

(2008).     We review a sufficiency of the evidence challenge by

determining      whether,   viewing   the   evidence    in   the       light    most

favorable to the Government, any rational trier of fact could

find the essential elements of the crime beyond a reasonable

doubt.     United States v. Collins, 412 F.3d 515, 519 (4th Cir.

2005); see Glasser v. United States, 315 U.S. 60, 80 (1942).                      We

review both direct and circumstantial evidence, and accord the

Government all reasonable inferences from the facts shown to

those sought to be established.             United States v. Harvey, 532

F.3d 326, 333 (4th Cir. 2008).

            In order to prove conspiracy to defraud the United

States, the Government must demonstrate:             “(1) the existence of

an agreement, (2) an overt act by one of the conspirators in

furtherance of the objectives, and (3) an intent on the part of

the conspirators to agree, as well as to defraud the United

States.”    United States v. Tedder, 801 F.2d 1437, 1446 (4th Cir.

1986).     Though Gitarts asserts that the Government was required

to   introduce      certificates      of    registration      in        order     to

demonstrate copyright infringement, this contention is without

merit.     While he may be correct that the Government must “show

copyright     certificate     registration    to     maintain      a    copyright

                                      11
infringement action,” Gitarts overlooks the fact that he was not

prosecuted for criminal infringement of copyright.                        In so doing,

Gitarts “confuses the offense of criminal conspiracy with the

substantive goal of the conspiracy.”                    United States v. Tucker,

376   F.3d   236,     238    (4th    Cir.    2004).       In    a     prosecution   for

conspiracy, the Government need not prove “that the object of

the conspiracy was achieved or could have been achieved, only

that the parties agreed to achieve it.”                   Id.        Our review of the

record     indicates        that    the     Government         provided      sufficient

evidence to allow a rational trier of fact to find the essential

elements of the conspiracy beyond a reasonable doubt.



                  VII. Submission of Indictment to the Jury

             As    the    final     challenge     to    his    conviction,      Gitarts

contends     that     the     district      court      erred    in     submitting   the

indictment to the jury.              In support of this argument, Gitarts

lists roughly ten paragraphs of the indictment that he asserts

contain allegations not established at trial.

             We review a district court’s decision to submit an

indictment to the jury for abuse of discretion.                             See United

States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986) (“The

submission    of     an     indictment      to   the    jury    is    a   discretionary

matter     with     the     district      court.”)         Generally,        irrelevant

allegations contained in the indictment should be redacted prior

                                            12
to   its    submission     to    the    jury.         See   id.         However,       if    no

redaction occurs, there is no reversible error so long as “the

jury   is   unequivocally        instructed       that      the    indictment        is     not

evidence, that the indictment is distributed solely as an aid in

following the court’s instructions and the arguments of counsel,

and that certain counts should be disregarded as irrelevant to

the defendants currently before the district court.”                           Id.

             Here,   the     district     court       specifically         informed         the

jury that the indictment was not evidence of any kind.                                      The

court also stated that the Government was not required to prove

all the methods of conspiracy alleged in the indictment, but

that, in order to convict, every juror must agree on at least

one alleged method of conspiracy engaged in by Gitarts.                              Because

the court unequivocally informed the jury that the indictment

was not evidence, and that it could consider nothing but the

evidence     presented       before     it,     the   court       did    not    abuse       its

discretion in submitting the indictment to the jury.



                           VIII.       Sentencing Issues

             Gitarts     asserts       that     the    sentence         imposed      by     the

district     court     was      unreasonable          in    two    respects.              When

considering the reasonableness of a sentence, we review legal

conclusions     de     novo     and      factual       findings,         such     as      loss



                                           13
calculations, for clear error.                United States v. Abu Ali, 528

F.3d 210, 261 (4th Cir. 2008).

            Gitarts    first       contends       that       the     trial      court

incorrectly    calculated    the    amount       of   loss     arising      from   his

offense    conduct,   resulting     in    an    improperly      elevated      offense

level.     Though loss must be established by a preponderance of

the evidence, the district court “need only make a reasonable

estimate of the loss, given the available information.”                        United

States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003).                        Here, the

district    court   appropriately        considered      the   loss    calculation

and, after hearing extensive argument from both sides regarding

the loss evidence, acted reasonably by accepting the estimate of

the government.       We therefore find this issue to be without

merit.

            Next, Gitarts contends that the district court erred

by adding two points to his offense level for obstruction of

justice.      Under   U.S.     Sentencing       Guidelines         Manual    (“USSG”)

§ 3C1.1 (2003),

     If (A) the defendant willfully obstructed or impeded,
     or attempted to obstruct or impede, the administration
     of   justice  with   respect   to  the  investigation,
     prosecution, or sentencing of the instant offense of
     conviction, and (B) the obstructive conduct related to
     (i) the defendant’s offense of conviction and any
     relevant conduct; or (ii) a closely related offense,
     increase the offense level by 2 levels.




                                         14
Specific examples of such behavior include the destruction of

evidence, USSG § 3C1.1, cmt. n.4(d), and providing a materially

false statement to a law enforcement officer, USSG § 3C1.1, cmt.

n.4(g).     Here, the evidence at trial was persuasive that Gitarts

lied   to   federal   investigators    on   more   than   one   occasion    and

attempted to overwrite the hard drive of his computer in an

attempt to destroy the evidence of his crimes.              Accordingly, we

find that the district court did not err in increasing Gitarts’s

offense level for obstruction of justice.

            Therefore,      we   affirm      Gitarts’s     conviction       and

sentence.     We deny Gitarts’s request for 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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