UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4039

MICHAEL J. SINDRAM,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Herbert N. Maletz, Senior Judge, sitting by designation.

(CR-96-111-HNM)

Submitted: December 9, 1997

Decided: January 26, 1998

Before ERVIN, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

W. Michel Pierson, Baltimore, Maryland, for Appellant. Lynne A.

Battaglia, United States Attorney for the District of Maryland, Jan

Paul Miller, Assistant United States Attorney, Greenbelt, Maryland;

Hollis Raphael Weisman, Assistant United States Attorney, Hyattsville, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Michael J. Sindram appeals from his convictions and sentences on

four counts of mail fraud in violation of 18 U.S.C.§ 1341 (1994).

Sindram asserts that the district court erred in declining to suppress

evidence seized during a search of his apartment, in admitting evidence of his threatening conduct, in permitting cross-examination

regarding a prior conviction, and in increasing his offense level based

on alleged inaccurate findings of loss and for obstruction of justice.

He also asserts that the evidence was insufficient to support his convictions. Finding no error, we affirm.

Sindram was indicted for conducting a scheme whereby he ordered

goods, mostly books, through the mail under false names without

remitting payment to the vendors. Viewed in the light most favorable

to the Government, see Glasser v. United States , 315 U.S. 60, 80

(1942), the facts are as follows. Using many false names, Sindram

ordered materials from book publishers, distributors and mail order

houses. He received the mail-order shipments at two post office boxes

at the Colesville Branch Post Office in Colesville, Maryland. Sometimes, he received over 100 parcels a week, well above the post office

average. Sindram was often observed at the post office loading the

parcels into his automobile.

Representatives from five different mail order publishers and sellers testified they mailed various products to Sindram's post office

box. Medical Economics, a publisher, sent over fifty shipments containing Physicians' Desk References and other medical books in various names to Sindram's post office box. Unpaid invoices on these

shipments totaled $16,300. In total, there was evidence of over

$50,000 worth of unpaid invoices from the five mail order houses for

shipments made to Sindram's post office box. Sindram was able to

sell some of the books to retail bookstores. He also attempted to "re-

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turn" some books to bookstores under the pretense that the books

were purchased there.

After an indictment was filed in March 1996 charging Sindram

with mail fraud, search warrants were executed on Sindram's home

and his car. Postal inspectors seized books, bills and collection notices

from various mail order houses and collection agencies. They also

seized $15,500 cash in $100 bills.

Sindram testified in his own defense that he ordered books because

of their weight for the purpose of "punishing" the Postal Service for

closing his first post office box. He conceded that he ordered the

books under false names; however, he asserted that he intended to pay

the invoices.

At sentencing, the court increased Sindram's base offense level

from level 6 to level 12 based on its conclusion regarding the amount

of loss suffered by the mail order houses. The Government showed

that the total loss due to Sindram's illegal conduct was over $82,000.

This amount was derived from information provided by thirteen mail

order companies that mailed goods to Sindram's post office box. The

court also increased the offense level two levels for obstruction of justice after finding that Sindram committed perjury. He was sentenced

to four concurrent terms of 41 months' imprisonment.

Sindram contends that there was insufficient probable cause to support the search warrant for his home because there was insufficient

evidence to establish a nexus between his alleged criminal activity

and his residence. He also asserts that the seizure of the money was

beyond the scope of the search warrant.

The legal question of whether a search warrant and its supporting

affidavit are legally sufficient is reviewed de novo and substantial

deference is accorded to a neutral and detached magistrate judge's

judgment. See United States v. Oloyede, 982 F.2d 133, 138 (4th Cir.

1992). This Court must simply insure that the magistrate judge had

a substantial basis for concluding that probable cause existed. See

Illinois v. Gates, 462 U.S. 213, 238 (1983). The magistrate's task is

"to make a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit before him . . . there is a fair

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probability that contraband or evidence of a crime will be found in a

particular place." Id.

The search warrant's supporting affidavit clearly showed that it

was likely that Sindram was taking the parcels from the post office

to his home. Moreover, information does not necessarily become stale

after a certain period of time. Factors to be considered are the nature

of the alleged unlawful activity, the length of time of the activity, and

the nature of the property to be seized. See United States v. McCall,

740 F.2d 1331, 1336 (4th Cir. 1984). Here, there was evidence that

Sindram's scheme was continuous. Furthermore, there was no indication that books needed to be disposed of quickly.

The seizure of the money was not beyond the scope of the warrant.

The warrant authorized the seizure of, among other items, "receipts

for sales transactions, bills, canceled checks, check books, [and] bank

deposit records." The requirement that a search warrant describe its

objects with particularity is a standard of practical accuracy rather

than a hypertechnical one. See United States v. Lowe, 50 F.3d 604,

607 (8th Cir. 1995); see also United States v. Jacob, 657 F.2d 49, 52

(4th Cir. 1981) (suppression of evidence due to hypertechnical errors

should be avoided). Here, as shown by the warrant, postal inspectors

were looking for the fruits of Sindram's fraudulent activities, which

included the goods sent to him and any evidence of monetary gain

through the subsequent sale of the books. Thus, the district court

properly found that the cash was subsumed within the items listed to

be seized, and we affirm the court's denial of Sindram's motion to

suppress evidence.

There was considerable testimony provided by postal employees

and booksellers, admitted without objection, that Sindram was impatient, impolite, uncivil, intimidating and threatening. Sindram contends that admitting this evidence was in violation of Fed. R. Evid.

404(b). Because Sindram did not object, we review for plain error.

See Fed. R. Crim. P. 52(b). To reverse for plain error, this Court must

"(1) identify an error; (2) which is plain; (3) which affects substantial

rights; and (4) which seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Moore, 11

F.3d 475, 481 (4th Cir. 1993). The challenged evidence concerned

Sindram's conduct when he was perpetuating his scheme, i.e. when

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he was picking up his mail or attempting to sell the books. Even if

admitting the evidence were error, Sindram failed to show that it

affected the outcome of the trial. See Moore, 11 F.3d at 481. There

was considerable evidence of Sindram's guilt, including business

records and order forms under a variety of names directing that parcels be sent to Sindram's post office box. Furthermore, Sindram conceded that he ordered the books under assumed names and had not

paid for them. We therefore find no plain error.

Over defense counsel's objection, the Government was permitted

to ask Sindram about a 1995 conviction for felony theft. The court

found that the probative value outweighed the prejudicial effect. Evidentiary rulings are reviewed for an abuse of discretion, and such rulings are subject to a harmless error analysis. See United States v.

Brooks, 111 F.3d 365, 371 (4th Cir. 1997). "In order to find a district

court's error harmless, we need only be able to say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially

swayed by the error." Id. (citation omitted). Any error that may have

occurred by admitting evidence of Sindram's prior conviction was

harmless. In light of the Government's substantial evidence, the jury's

finding of guilt was not swayed by the alleged improper evidence.

Sindram's contention that the court erred in increasing his offense

level based upon the loss suffered by various mail order houses is

without merit. Much of the evidence was actual invoices billed to Sindram or an assumed name at his post office box. Furthermore, the

court did not err by increasing Sindram's offense level by 2 for

obstruction of justice based upon the court's finding that Sindram

committed perjury. The court's finding encompassed all of the factual

predicates for a finding of perjury. See United States v. Dunnigan,

507 U.S. 87, 95 (1993).

We also find sufficient evidence to support Sindram's conviction.

A conviction must be affirmed if there is substantial evidence, viewed

in light most favorable to the Government, to support a finding of

guilt. See Glasser, 315 U.S. at 80. Circumstantial and direct evidence

are both considered, and the government is given the benefit of all

reasonable inferences from the facts proven to the facts sought to be

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established. See United States v. Tresvant, 677 F.2d 1018, 1021 (4th

Cir. 1982).

To prove mail fraud, the Government had to show beyond a reasonable doubt that Sindram: (1) engaged in a scheme to defraud; (2)

by using the mails; (3) in furtherance of the scheme. See United States

v. Locklear, 829 F.2d 1314, 1318 (4th Cir. 1987). A scheme to

defraud means "any scheme to deprive another of money or property

by means of false or fraudulent pretenses, misrepresentation or promises." Carpenter v. United States, 484 U.S. 19, 27 (1987). Clearly, the

evidence, when viewed in the light most favorable to the Government,

established that Sindram intended to deprive the mail order houses of

property.

Finally, Sindram's contention that Congress did not intend § 1341

to encompass conduct which involved the use of a false name because

it enacted 18 U.S.C. § 1342 (1994) is without merit. The scope of

each statute is different, and the plain language of§ 1341 covers Sindram's conduct.

We therefore affirm Sindram's convictions and sentences. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

will not aid the decisional process.

AFFIRMED

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