UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4681

MICHAEL S. SOFIDIYA, SR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(CR-97-21-A)

Submitted: September 30, 1998

Decided: October 23, 1998

Before WIDENER, ERVIN, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gregory Beckwith, PHILLIPS, BECKWITH & HALL, Fairfax, Virginia, for Appellant. Helen F. Fahey, United States Attorney, Stephen

P. Learned, Assistant United States Attorney, Alexandria, Virginia,

for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Michael S. Sofidiya appeals his conviction and sentence for one

count of embezzlement of postal funds, 18 U.S.C.§ 1711 (1994), and

two counts of conversion of United States property, specifically

money orders, 18 U.S.C.A. § 641 (West Supp. 1998). Sofidiya contends the trial court erred in denying his motion to dismiss the indictment, or alternatively to suppress the Government's evidence due to

the destruction by the Government of allegedly exculpatory evidence.

Sofidiya also contends: (1) there was no evidence that the Postal Service suffered any loss; (2) bank records and postal records were

admitted in evidence in error; and (3) the sentence was based upon

an incorrect application of the Sentencing Guidelines. Finding no

reversible error, we affirm.

Sofidiya was employed by the United States Postal Service as a

window supervisor. He provided technical direction to other window

clerks, reviewed and consolidated their work, and prepared the daily

bank deposit containing cash and checks clerks received from customers. The evidence at trial showed that Sofidiya created an elaborate scheme to embezzle funds. As a window clerk, Sofidiya received

checks made payable to the United States Postal Service from customers in exchange for the purchase of postage meter settings.

Sofidiya put postage on the meters, entered the transaction on his

Integrated Retail Terminal ("IRT"), which is similar to a cash register,

provided the customer a receipt, then voided the transaction. Sofidiya

would hold on to the check rather than return it to the customer. The

new postage meter setting was entered on Meter Settings Form 3610.

Several days later, Sofidiya would include the check in a deposit

in exchange for embezzled cash of the same amount. Therefore, the

total deposit would reflect the total amount of sales for that day. However, less cash was deposited than was collected by the window

clerks. Sofidiya would also use the check to reduce his stamp stock

accountability by recording non-existent stamp sales. He would also

exchange the check for smaller checks which totaled the amount of

the withheld check. He would then use the smaller checks to compensate for subsequently embezzled cash receipts. From September 1992

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and continuing until September 1993, Sofidiya embezzled approximately $90,000.

In May 1993, while Sofidiya was on vacation, the Postal Service

removed two filing cabinets from his office. It was never established

why the cabinets were removed. The cabinets were taken to a nearby

building and presumed destroyed when the building was destroyed.

Sofidiya contends that the indictment should have been dismissed,

or alternatively, the Government's evidence suppressed because the

Government was derelict in failing to take affirmative steps to preserve exculpatory evidence allegedly contained in the cabinets. He

also contends an investigator wrongfully destroyed evidence.

In California v. Trombetta, 467 U.S. 479 (1984), the Supreme

Court held that the Government had a limited duty to preserve evidence. In order to impose the duty, the "evidence must both possess

an exculpatory value that was apparent before the evidence was

destroyed, and be of such a nature that the defendant would be unable

to obtain comparable evidence by other reasonably available means."

Id. at 489. In Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988), the

Supreme Court extended the protection to evidence which is "potentially useful," but only if the defendant can demonstrate that the Government exercised bad faith in its failure to preserve the evidence.

Upon our review of the record, we find that Sofidiya failed to satisfy the required showing under either Trombetta or Youngblood. It

was mere speculation that the relevant documents were in the cabinets

when they were removed from Sofidiya's office. In addition, Sofidiya

failed to show the exculpatory significance of any of the documents

or that he could not obtain comparable evidence by other means.

For instance, Sofidiya contends that completed PS Forms 17 were

in the cabinets. According to Sofidiya, such forms would reflect transfers of stamp stocks to other window clerks. Sofidiya conceded that

a copy of the same form was given to the receiving window clerk at

the time of the transfer. He never established that those copies were

unavailable.

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Sofidiya failed to demonstrate the relevance of PS 1908 forms

which, according to Sofidiya, showed if there were any shortages or

overages in the daily bank deposit. Sofidiya's scheme involved depositing funds equal to what was collected on that day. Whether there

were shortages or overages was irrelevant. Furthermore, the Government showed that copies of the forms were maintained by the

accounting department and available for his use. The Government

also showed that any information on missing individual PS 1412 and

3603 forms was available on consolidated PS 1412 and 3603 forms.

As for the forms admittedly destroyed by John Evans, a postal service employee who investigated some of Sofidiya's transactions, it

was never shown that those forms were relevant. They did not concern any irregular transactions.

Even if Sofidiya were able to show the potential usefulness of any

of the documents he now claims were destroyed, he fails to show the

Government's bad faith. The destruction of the filing cabinets appears

to have been inadvertent. See United States v. Sanders, 954 F.2d 227,

231 (4th Cir. 1992) (defendant's due process rights were not violated

when videotape of bank robbery was inadvertently erased). As for the

forms destroyed by Evans, it was shown that he believed the forms,

which were not useful to him in investigating the irregular transactions, should have been destroyed in accordance with the Postal Service's retention policy.

Thus, we find that the district court appropriately denied Sofidiya's

motion to dismiss, or alternatively to suppress the Government's evidence.

Sofidiya's contention that the Government failed to prove the loss

of property with regard to the withheld checks or the money orders

is without any merit. We note that the prosecution need not show that

the victim of the embezzlement suffered an actual loss in the value

of its property. See United States v. Stockton , 788 F.2d 210, 219 n.13

(4th Cir. 1986); but see United States v. Gibbs , 704 F.2d 464, 465 (9th

Cir. 1983) (to obtain a conviction under § 641, the government must

prove that the United States suffered some loss).

Here, the Government suffered a loss. Sofidiya set a customer's

postage meter, collected a check, and voided the transaction without

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resetting the postage meter or returning the check. He would convert

the check for his own purposes. The Government obviously suffered

a loss of money due to the setting of the postage meters for which it

did not receive payment.

As for the money orders, Sofidiya asserts that he had a payroll

check and a refund check that could have been used to purchase the

money orders. The evidence showed that Sofidiya withdrew money

orders for himself without submitting a voucher or logging the sale

on his IRT. After Sofidiya negotiated the money orders, he was questioned by his supervisor. He initially denied receiving the money

orders, then admitted purchasing them with a NationsBank check. He

then claimed to have purchased the money orders with a paycheck,

a credit union check and other checks. Finally, he claimed that he had

overages on the days the checks were purchased and the accounting

department had issued a form showing the overages. Further investigation with the accounting department could not uncover the forms.

We find, taking the view most favorable to the Government, that the

evidence was sufficient to support the jury's verdicts regarding the

conversion of the money orders. See Glasser v. United States, 315

U.S. 60, 80 (1942).

Sofidiya contends that the district court abused its discretion in

admitting evidence of bank records and money orders under Fed. R.

Evid. 803(6)--the business records exception, because a proper foundation was not laid by an appropriate witness. Under Rule 803(6), a

custodian or an otherwise "qualified witness" can lay the evidentiary

foundation to ensure the records' trustworthiness. A"qualified witness" is not required to have "personally participated in or observed

the creation of the document," United States v. Moore, 791 F.2d 566,

574 (7th Cir. 1986), or to have known who actually recorded the

information, see United States v. Dominguez, 835 F.2d 694, 698 (7th

Cir. 1987). There is no requirement that the witness be able to personally attest to its accuracy. See United States v. Duncan, 919 F.2d 981,

986 (5th Cir. 1990). The term "qualified witness" is interpreted

broadly. It requires only someone who understands the system used

to record and maintain the information. See Moore, 791 F.2d at 574-

75. "The witness `need only be someone with knowledge of the procedure governing the creation and maintenance of the type of record

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sought to be admitted.'" Dominguez, 835 F.2d at 698 (quoting United

States v. Keplinger, 776 F. 2d 678, 693 (7th Cir. 1985)).

The Government called bank employee Linnea Viddo, a Vice President, to lay the foundation for the admission of bank records. Viddo

is responsible for retrieving bank records pursuant to a grand jury

subpoena. Sofidiya contends that Viddo did not have personal knowledge concerning the compilation of the bank records relating to the

questionable deposits. But it is without a doubt that she was familiar

with the procedure used to generate the records. Sofidiya fails to

establish any indication that the procedure indicated a lack of trustworthiness.

Likewise, Travist Wiggins, National Money Order Coordinator for

the Postal Inspection Service, was able to explain how money orders

are maintained on microfilm in setting the foundation for the admission of microfilm copies of Sofidiya's stolen money orders. The court

did not abuse its discretion in admitting evidence of the bank records

and money orders.

Finally, Sofidiya challenges the court's decision to enhance his

offense level eight levels for a loss of greater than $70,000 under U.S.

Sentencing Guidelines Manual § 2B1.1(b)(1)(I) (1995) and two levels

for abusing a position of trust under USSG § 3B1.3.

With regard to the eight-level increase, Sofidiya repeats his argument that the Government was unable to prove a loss. Factual findings for sentencing purposes are reviewed for clear error. See United

States v. Cutler, 36 F.3d 406, 407 (4th Cir. 1994). Clearly, the Government established a pattern of lost funds due to Sofidiya's scheme.

With regard to the two-level enhancement, Sofidiya asserts that he

was nothing more than "a glorified bank teller." As a window supervisor, he had more responsibility than a bank teller or window clerk. He

was responsible for collecting all the cash and checks from other tellers at the end of the day. He then prepared the bank deposit, which

was a key component to his scheme. Thus, we do not find the court

clearly erred in finding that Sofidiya abused a position of trust.

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Accordingly, we affirm the convictions and sentence. 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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