Filed: May 5, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 95-5816

(CR-94-165-WMN)

United States of America,

Plaintiff - Appellee,

versus

Charles Zandford,

Defendant - Appellant.

ORDER

The Court amends its opinion filed April 3, 1997, as follows:

On page 2, first paragraph of the opinion, line 1 -- "53

months" is corrected to read "5 2 months."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5816

CHARLES ZANDFORD,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, District Judge.

(CR-94-165-WMN)

Argued: January 30, 1997

Decided: April 3, 1997

Before RUSSELL and WILKINS, Circuit Judges, and HERLONG,

United States District Judge for the District of South Carolina,

sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Deborah C. Wyatt, WYATT & CARTER, Charlottesville, Virginia, for Appellant. Thomas Michael DiBiagio, Assistant

United States Attorney, Baltimore, Maryland, for Appellee. ON

BRIEF: Lynne A. Battaglia, United States Attorney, Baltimore,

Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Charles Zandford appeals his conviction and sentence of 52 months

imprisonment for committing thirteen counts of wire fraud. Zandford

contends the Government failed to present sufficient evidence of wire

fraud to sustain his convictions; and that the district court erred in

admitting the testimony of four Government witnesses. Because each

of Zandford's grounds for appeal is meritless, we affirm.

I.

Charles Zandford worked as a stockbroker for a brokerage firm,

which had offices in Bethesda, Maryland, and New York, New York,

from May 1987 through February 1991. He met William Wood in

November 1987, and solicited Wood to invest with him. Wood, 71

years old at the time, opened a joint investment account with Zandford. The account was titled in Wood's name and that of his daughter,

Diane Okstulski, who suffered from a multiple personalities disorder.

Within four months after their first meeting, Zandford persuaded

Wood to entrust him with $419,255 to "conservatively invest." Nineteen months later, all of Wood's money was gone.

In January 1991, the National Association of Security Dealers

("NASD") inadvertently discovered that Zandford had systematically

transferred money on over twenty-six separate occasions from

Wood's and Diane's investment account to accounts either controlled

by Zandford or in Zandford's name. When confronted about the transfers one month later, Zandford acknowledged that Wood and Okstulski (hereinafter "the Woods") had transferred money to him. He

explained that pursuant to three agreements he had entered into with

the Woods in 1988 and 1989, they gave him: $100,000 under a personal services agreement for services he rendered to them as an overseer of their personal and medical needs; $150,000 to invest in and

 2
operate a vintage car restoration business; and $140,000 as an unsecured personal loan for reasons undisclosed. The remaining money he

allegedly spent on behalf of the Woods. Mr. Wood died in 1991.

In April 1995, a federal grand jury issued a superseding indictment

against Zandford for thirteen counts of wire fraud in violation of 18

U.S.C. § 1343. The first count related to money Zandford obtained

from selling the Woods' shares in a mutual fund. The remaining

counts related to twelve separate withdrawals Zandford made from

the Woods' joint investment account. After a three-week trial, a jury

convicted Zandford on all counts. He received a sentence of 52

months imprisonment.

II.

Zandford contends that the evidence is insufficient to support his

wire fraud convictions. When reviewing challenges to sufficiency of

the evidence, we determine whether any rational trier of fact could

have found the essential elements of the charged offenses beyond a

reasonable doubt.1 Assuming the jury weighed the evidence, resolved

all conflicts in the testimony, and drew all reasonable inferences from

the facts, we consider all of the evidence in the light most favorable

to the government.2

To prove Zandford violated the wire fraud statute, the Government

had to establish: (1) the existence of a scheme to defraud and (2) use

of interstate wire communications to facilitate the scheme.3

First, Zandford contends there was insufficient evidence to find

that he had engaged in a scheme to defraud. He claims the Woods

willfully transferred their money to him via three lawfully-executed

agreements. He also maintains that the Government's case against

him was flawed because it failed to use relevant contract law to invalidate the agreements. The Government's burden, however, was not to

_________________________________________________________________

1 Jackson v. Virginia, 443 U.S. 307, 319 (1979).

2 Id.

3 18 U.S.C.A. § 1343 (West Supp. 1997); United States v. ReBrook, 58

F.3d 961, 966 (4th Cir. 1995) (citation omitted).

 3
disprove Zandford's defense. Rather the Government's obligation was

to place enough evidence before the jury to prove beyond a reasonable doubt that Zandford engaged in a scheme to defraud the Woods.

The term "scheme to defraud" means "any scheme to deprive

another of money or property by means of false or fraudulent pretenses, representations or promises."4 It includes fraudulent schemes

based on false statements or factual misrepresentations.5 Thus, with

respect to the alleged agreements, it was sufficient for the Government to cast doubt upon the validity of the agreements or demonstrate

that the agreements themselves manifested the scheme by which

Zandford tried to "legitimize" the wholesale theft of the Woods'

money.

The Government presented ample direct and circumstantial evidence showing that Zandford had engaged in a scheme to defraud the

Woods. It showed that: (1) Zandford had systematically transferred

large sums of money from the Woods' account to his own accounts

over a nineteen month period; (2) prior to November 1987, the

Woods had no relationship with Zandford; (3) Zandford, and not the

Woods, benefitted from the money transfers; (4) the Woods were

vulnerable victims due to their physical and mental limitations;

(5) the personal services agreement, the loan, and the vintage car restoration business were not only contrary to the Woods' stated investment objectives, but they violated the rules of NASD and those of

Zandford's employer that prohibited brokers from engaging in such

arrangements; and (6) vehicles owned as part of the vintage car restoration business were titled in the name of Zandford's girlfriend as

opposed to the Woods' names. Additional evidence showing a

scheme to defraud included Zandford's failure to disclose to his

employer the existence of the agreements and personal loans; his failure to report on his taxes or bank loan applications that he received

income from acting as the Woods' personal representative; and his

failure to disclose on his taxes his involvement in a vintage car restoration business. Zandford's contention that there is insufficient evidence supporting that he had engaged in a scheme to defraud the

Woods is meritless.

_________________________________________________________________

4 Carpenter v. United States, 484 U.S. 19, 27 (1987).

5 See, McNally v. United States, 483 U.S. 350, 359 (1987).

 4
Zandford also contends that there was insufficient evidence to find

that he used wire transfers in furtherance of a scheme to defraud. This

contention is also without merit. On behalf of the Government, the

branch manager and the compliance officer of the brokerage firm testified that every time money was withdrawn from the Woods' account

a wire communication was used between the branch office in

Bethesda, Maryland, where Zandford worked, and New York, New

York, to verify the availability of funds and permit the transfer. Additionally, computer-monitored money line documents showed that

Zandford used a wire communication between Maryland and New

York for nine of the thirteen withdrawals he made from the Woods'

joint account.

Given the foregoing evidence, we hold that any rational trier of fact

could have found the essential elements of wire fraud beyond a reasonable doubt. We affirm Zandford's thirteen convictions for wire

fraud.

III.

Next, Zandford contends the district court erred in admitting the

testimony of four government witnesses. We review evidentiary rulings for abuse of discretion.6

First, Zandford contends that the Government used the hearsay testimony of two doctors and a nurse in order to establish Mr. Wood's

incompetence during the time period in which Zandford entered into

the agreements with the Woods. The record reveals both doctors testified as expert witnesses and treating physicians. A neurologist testified that Mr. Wood was his patient during 1988-91 and was virtually

blind, completely incompetent, and medically disabled. The other

doctor, a general physician, corroborated much of the neurologist's

testimony, and stated that from January 1989 to February 1990, Mr.

Wood suffered from dementia. The doctors' proffered testimony as to

Mr. Wood's medical condition during the relevant time period was

admissible under Federal Rule of Evidence 703, "Bases of Opinion

Testimony by Experts," and under a hearsay exception, Federal Rule

_________________________________________________________________

6 United States v. Heater, 63 F.3d 311, 320 (4th Cir. 1995).

 5
of Evidence 803(4), "Statements for purposes of medical diagnosis or

treatment."

Zandford also contends that the district court erred in allowing the

Government to admit into evidence the nursing notes of the nurse

assigned to care for Mr. Wood in a nursing home from January 1990

to June 1991. The notes characterized Mr. Wood's medical condition

as "senile dementia," and the nurse testified that her observations of

Mr. Wood were consistent with that characterization. Pursuant to Federal Rule of Evidence 803(6), "Records of regularly conducted activity," these notes were properly admitted as they were kept in the

regular course of business by the nursing staff at the nursing home.

Second, Zandford contends that the district court erred in allowing

a psychologist to testify regarding Okstulski's mental capacity during

the relevant time period. This testimony was also properly admitted

under Federal Rules of Evidence 703 and 803(4) as discussed above.

The district court did not abuse its discretion in admitting the testimony of the doctors, the psychologist, or the nurse's notes.7

IV.

For the foregoing reasons Zandford's conviction and sentence for

thirteen counts of wire fraud is

AFFIRMED.

_________________________________________________________________

7 Zandford raises numerous other issues which we hold to be meritless.

 6