Josephine Gray, known as
“The Black Widow,” re-sentenced to 40 years in insurance fraud
Deaths of A Husband and Lover to Collect Life Insurance Proceeds
August 7, 2006
GREENBELT, Maryland - Josephine V. Gray, age
60, of Wheaton, Maryland was re-sentenced today to 40 years in
prison arising from her 2002 convictions for mail and wire fraud
stemming from the homicides of two men, announced United States
Attorney for the District of Maryland Rod J. Rosenstein. Gray was
convicted on August 16, 2002 of intentionally causing the death of
William Robert Gray and Clarence Goode, making it illegal for her
to profit from those crimes by filing claims for their life
Gray appealed her original 40 year sentence
based on the Supreme Court’s 2005 decision in United States v.
Booker finding that the mandatory U.S. Sentencing Guidelines were
unconstitutional. At her original sentencing hearing U.S. District
Court Judge Deborah K. Chasanow held that since Gray committed
premeditated murder, she should be sentenced using the guidelines
for first degree murder rather than fraud. Under the advisory
Sentencing Guidelines currently in place, Judge Chasanow
reinforced her original ruling and resentenced Gray to 40 years.
According to trial testimony, on March 3, 1974
Norman Stribbling, Gray’s husband at that time, was found
murdered. He died of a single gunshot wound to the right side of
his head. Gray was suspected in that murder and two witnesses
testified that Gray had solicited them, on separate occasions, to
murder Norman Stribbling. Nevertheless, Gray was not convicted of
his murder and received $16,000 from Stribbling’s life insurance.
According to trial testimony, Gray married
William Robert Gray in November, 1975 with whom she had been
having an affair for several years. Josephine and William Gray
separated in August of 1990. At the time, Josephine Gray was
having an affair with Clarence Goode and a co-worker. Witnesses at
trial testified that William Gray stated on numerous occasions
that his estranged wife was trying to kill him and that she had
assaulted him. From August through October 1990, William Gray
changed several of his life insurance policies to remove Josephine
Gray as beneficiary. On November 9, 1990, Mr. Gray was discovered
shot to death in his apartment. Josephine Gray’s co-worker
boyfriend testified at trial that Gray admitted to being involved
in the murder. Despite being a suspect in this murder, Josephine
Gray collected over $54,000 from Mr. Gray’s life insurance
From 1990 to 1996 Clarence Good and Josephine
Gray lived together. In March, 1996 Goode applied for a $100,000
life insurance policy, naming Josephine Gray as the sole
beneficiary. On June 21, 1996 Goode’s body was discovered in the
trunk of his car in Baltimore. He had been shot in the head. A
search warrant executed at Josephine Gray’s home several weeks
after the murder found a large stain on the concrete floor of the
garage which tested positive for blood. Next to the stain was a
commercial vacuum cleaner and small amounts of possible blood was
recovered from inside. State charges were never brought against
Gray and the insurance company paid Gray $90,000. They paid Mr.
Goode’s minor son the remaining $10,000.
United States Attorney Rod J. Rosenstein
thanked the Federal Bureau of Investigation, Montgomery County
Police Department and Baltimore City Police Department for their
investigative work performed in this case. Mr. Rosenstein also
praised Assistant United States Attorneys Sandra Wilkinson and
James Trusty who prosecuted the case.
Woman guilty of insurance
She collected $165,000 after deaths of 3 men
By Gail Gibson - BaltimoreSun.com
August 17, 2002
escaping prosecution for more than two decades by using threats of
voodoo against potential witnesses, a woman who authorities said
had a hand in the deaths of three lovers was convicted yesterday
of fraudulently collecting the victims' life insurance benefits.
Virginia Gray, 55, of Upper Marlboro was found guilty on eight
counts of mail and wire fraud by a federal jury in U.S. District
Court in Greenbelt. Prosecutors said she collected $165,000 in
insurance money after two husbands were shot to death in
Montgomery County and a young boyfriend was found dead in
charged in the 1974 and 1990 Montgomery County killings, but
authorities said the charges in each case were dropped when
witnesses, frightened by rumors that Gray practiced voodoo,
refused to testify against her.
hearing the fraud case against Gray did not have to decide whether
the grandmother and former school janitor committed murder. To
find her guilty, jurors had to decide that Gray had a role in the
men's deaths and was banned under the so-called slayer's rule from
collecting insurance benefits.
the case declined to comment, noting a gag order that extends
until Gray is sentenced Dec. 3. She faces up to 40 years in
prosecutors in Montgomery County also have filed new murder
charges against Gray. That case is pending.
At the fraud
trial, defense attorneys called Gray a three-time surviving victim
who was wrongly targeted by police with tunnel vision who wrongly
relied on "gossip, rumor and innuendo."
than a quarter-century, she has been under scrutiny, when all this
time she has been a victim who deserves our sympathy and our
compassion, not this prosecution," Daniel W. Stiller, an assistant
federal public defender, said in court.
offered a different portrayal of Gray, calling her a master
manipulator who used new lovers to help her kill men she no longer
U.S. Attorney James Trusty called Gray's story a book of many
chapters and said some of them "really are written in the blood of
three men who loved Josephine Gray."
Montgomery police charge
woman with murder in deaths of two husbands
Voodoo fears undermined earlier cases against
By Dennis O'Brien - BaltimoreSun.com
January 5, 2002
Gray, feared for her use of voodoo and charged by federal
authorities with collecting insurance proceeds after "causing" the
deaths of two husbands and a boyfriend, was charged by Montgomery
County police yesterday with murder in the deaths of both
who is being held by federal authorities, was charged with two
counts of first-degree murder in an arrest warrant filed by police
late yesterday in Montgomery County District Court in Rockville.
charged with killing her first husband, Norman Stribbling, in 1974
and her second husband, William Robert Gray, in 1990.
charged with both killings shortly after they occurred, but the
charges were dismissed in both cases after witnesses -- fearful of
the voodoo in Gray's past -- recanted and disappeared before her
trial, Montgomery County State's Attorney Douglas F. Gansler said.
yesterday that witnesses have offered new information about the
killings because they are less fearful of retaliation by Gray now
that she is in federal custody.
seeing a lot more cooperation in terms of witnesses' willingness
to go forward," Gansler said.
attorney, Michael CitaraManis, has declined to comment on the
Gray also is
implicated in federal court papers in the killing of Clarence
Goode, a former boyfriend whose body was found June 21, 1996,
stuffed in the trunk of his car in West Baltimore.
described in court papers as a mother of six and a grandmother of
11 who retired after 27 years as a custodian in the Montgomery
County schools. Before her arrest, she provided day-care services
in the Upper Marlboro home where she has lived for 11 years.
witnesses have lived in fear of Gray and that some are willing to
come forward only because she has been ordered held without bail
on the federal charges.
searched Gray's home in 1990, they found "dolls with pins in them"
and other voodoo paraphernalia, Gansler said. Witnesses also have
told police they feared Gray because of her voodoo, according to
Gansler and court papers.
charged by federal authorities with mail and wire fraud for
collecting life insurance policies for all three victims after she
was "involved in" their deaths, according to federal court papers.
eight-count federal indictment handed up in November says Gray
"intentionally caused the Death" of all three victims for a total
of $165,000 in life insurance money.
the witnesses who have come forward include Andre Savoy, who was
Gray's boyfriend when she was arrested on federal charges in
court papers, Savoy told police in 1990 that Gray had admitted to
him that she planned to kill her estranged husband, William Gray.
told police that a few weeks before William Gray was shot to
death, Josephine Gray pulled a .45-caliber handgun from beneath
her bed and said she would shoot anyone who came near her house at
night, including William Gray.
husband was killed with a .45-caliber handgun, Gray denied to
police that she ever owned such a weapon, according to court
A feared woman, 3 killings
and allegations of voodoo
She collected benefits, is charged with fraud
By Dennis O'Brien - BaltimoreSun.com
December 8, 2001
Before they were killed, Norman Stribbling, William Robert Gray
and Clarence Goode each told friends that a dangerous woman was
were shot to death, Stribbling in 1974, Gray in 1990 and Goode in
they feared had been married to Stribbing and Gray and had been
prosecutors say Josephine Gray escaped justice for 27 years by
using violence and voodoo to intimidate people, according to
papers released by court officials yesterday.
Gray, 55, of
Upper Marlboro is charged in U.S. District Court in Greenbelt with
mail and wire fraud for collecting $165,000 in life insurance
benefits on policies for the men after she was "involved in" their
Her trial is
scheduled to begin July 29.
federal court papers, Gray attacked all three victims in the weeks
and months before they were killed.
told friends weeks before he was killed in 1974 that his wife had
tried to shoot him in the head one morning while they were in bed
together. He survived because the gun misfired, Assistant U.S.
Attorney James Trusty said.
police about two months before he was killed that Gray had
assaulted him and pulled a knife on him, federal prosecutors said.
after William Gray with a screwdriver and a baseball bat, and a
short time before he was killed chased him in her car so that her
boyfriend could point a gun at him, Trusty said.
filed a complaint with Montgomery County police, and a few weeks
before he was killed he told Detective Joseph Mudano, "I believe
I'm going to get killed," Mudano testified.
When he was
found shot to death in his apartment in Germantown a few weeks
later, Gray was carrying Mudano's business card.
say Gray used voodoo to put a hex on the police officers
investigating her in 1991.
has been intimately involved in the practice of voodoo for a long
time," Trusty told Magistrate Judge Jillyn K. Schulze in Greenbelt
at a hearing Nov. 15, shortly after Gray's arrest.
surrounding her believe that somehow she has that ability to harm
people, whether it is the indirect mystical way of voodoo or the
direct way of committing homicides with firearms," Trusty told
Schulze, according to a transcript of the hearing that was
police wiretapped Gray's home in 1991 and that the device recorded
"a ritual" in which she mentioned the investigators working on the
them harm," Trusty told Schulze.
relatives refused requests for an interview yesterday. Her lawyer,
Assistant Public Defender Michael T. CitaraManis, also declined to
comment on the case.
hearing Tuesday to argue for Gray's release, CitaraManis told U.S.
District Judge Deborah K. Chasanow that much of the government's
case is based on statements made more than 20 years ago.
"It's a case
that has holes in it already," CitarManis said. "There's going to
be more holes in it as the case goes on."
charged with murder in the deaths of Stribbling and Gray by
Montgomery County prosecutors in 1990, based in part on statements
to police from Gray's brother, Donald Mills, and her daughter,
charges were dropped when Gray's brother and daughter recanted
their incriminating statements after she was released on bond.
afraid," Mudano said in testimony at the hearing Nov. 15.
a former Montgomery County prosecutor, testified that a number of
other potential witnesses "expressed fear" of Gray.
"I would say
that fear permeated the case," Tamm told Schulze.
he went to federal prosecutors with the case about a year ago,
approaching Trusty because he knew him as a former Montgomery
detective testified that Gray threatened to kill her boyfriend,
Andre Savoy, over the summer. She also called Savoy from a federal
detention facility Nov. 13 and warned him to "take the Fifth"
Amendment and remain silent, rather than testify against her,
Mudano told Schulze.
said Gray might have been warning Savoy not to testify because he
could implicate himself and face prosecution based on what he
probably be wise for some people close to Ms. Gray to take the
Fifth and obtain counsel if they're being pressured by the
government," he said.
said some of the potential witnesses against Gray might be
relatives who have been involved in disputes over the insurance
proceeds, he said.
Gray's critics have been involved in disputes over insurance
proceeds, according to court records.
In a suit
filed in Baltimore City Circuit Court in 1998, Clarence Goode's
relatives argued that Gray should have been barred from collecting
on a $100,000 policy on Goode's life. Goode was shot in the back,
and his body was found in the trunk of his car in West Baltimore
on June 21, 1996.
Goode, Goode's brother, said Gray ignored his brother's request
that she stay away when he began seeing another woman.
was scared of this woman," Goode wrote in a 1998 letter to the
city Circuit Court.
Gray is not
the first woman accused of using voodoo in a case in which victims
were killed for insurance money.
Parrish, a storefront preacher from East Baltimore, is in prison,
sentenced to multiple life terms, after being convicted in 1989 of
arranging the murders of four friends and relatives to collect on
their insurance policies.
writers Michael Scarcella and Caitlin Francke contributed to this
Woman accused in 3 killings
held without bail
Upper Marlboro resident charged with fraud in
By Dennis O'Brien - BaltimoreSun.com
December 5, 2001
Josephine Gray, who is accused in the deaths of three men and
feared by some for her practice of voodoo, was ordered held
without bond yesterday by a federal judge after prosecutors said
that she has a history of threatening witnesses.
Gray, 55, of
Upper Marlboro is charged with mail and wire fraud in collecting
life insurance benefits on policies for two husbands and a
boyfriend after she was "involved in" their killings, prosecutors
very strong and compelling evidence that Ms. Gray was involved in
all three murders and as a result, she profited," Assistant U.S.
Attorney Sandra Wilkinson told U.S. District Judge Deborah K.
mother of six and a grandmother of 11, is charged with defrauding
three insurance companies by collecting benefits after the deaths
of her first husband, Norman Stribbling, in 1974; her second
husband, William Robert Gray, in 1990; and her boyfriend, Clarence
Goode, in 1996.
told Chasanow that Gray made threats against all three victims,
and alleged in court papers that witnesses were reluctant to come
forward because of her powers with voodoo.
and reluctant witnesses have told the police, directly and
indirectly, that they are fearful of the defendant - particularly
because some believe in the power of voodoo, which Josephine Gray
actively practices," according to papers filed yesterday by
Wilkinson and Assistant U.S. Attorney James M. Trusty.
an acquaintance $2,000 to kill Stribbling in 1974, according to
William Gray in her car in 1990, pulling alongside his car so that
Goode, who was her boyfriend, could point a handgun at him,
Goode told police that Gray had assaulted him and pulled a knife
on him, she said.
Assistant Public Defender Michael T. CitaraManis said the
government's witnesses are relatives of Gray's who have been
involved in disputes with her over the insurance proceeds. He
added that much of the government's case is based on statements
heard more than 20 years ago.
what was said back in 1974 or 1991?" he said.
County prosecutors charged Gray in the killings of her husbands in
1974 and in 1990, but dropped charges after witnesses recanted and
disappeared before trial, prosecutors said.
Gray has not
been charged in the shooting June 21, 1996, of Goode, whose body
was found in his car trunk in West Baltimore.
noted testimony from a former Montgomery prosecutor who said that
he had dropped murder charges against Gray in 1991 because "fear
permeated the case" and witnesses were reluctant to come forward.
States Court of Appeals
United States v. Gray
UNITED STATES of America, Plaintiff-Appellee,
Josephine Virginia GRAY, a/k/a Josephine Stribbling, a/k/a
Josephine Mills, Defendant-Appellant.
Argued: Feb. 4, 2005. -- April 29, 2005
Before WIDENER and SHEDD, Circuit Judges, and
James C. CACHERIS, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
ARGUED:Denise Charlotte Barrett, Assistant
Federal Public Defender, Office of the Federal Public Defender,
Baltimore, Maryland, for Appellant. Sandra Wilkinson, Assistant
United States Attorney, Office of the United States Attorney,
Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal
Public Defender, Baltimore, Maryland, for Appellant. Thomas M.
DiBiagio, United States Attorney, James M. Trusty, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
A grand jury indicted Josephine Gray on five
counts of mail fraud and three counts of wire fraud relating to
her receipt of insurance proceeds following the deaths of her
second husband and a former paramour. Gray was convicted on all
counts, and the district court sentenced her to 40 years'
imprisonment, three years of supervised release, restitution in
the amount of $170,000, and a special assessment of $800. Gray
now challenges her conviction, arguing that the evidence was
insufficient to prove the elements of the charged offenses; the
district court improperly permitted the Government to reopen its
case to prove the alleged mailings; and the district court
improperly admitted “other crimes” and hearsay evidence against
Gray. We find no reversible error on these grounds and affirm
Gray's conviction. We vacate Gray's sentence, however, and
remand this case for resentencing consistent with the Supreme
Court's recent decision in United States v. Booker, 543U.S. 220,
125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Wilma Jean Wilson met Gray in the late summer
of 2000, and the two became friends.1
They spoke over the telephone, and Wilson sometimes visited
Gray's house. During one of those visits, Gray was busy cleaning
a cluttered room and Wilson offered to help. As they were
talking, Gray stopped cleaning and left the room briefly; when
she returned, she brought newspaper articles describing her prior
arrests. In fact, those articles reported that Gray had killed
her former husbands. Wilson asked if the reports were true, and
Gray replied that she was going to tell Wilson something she had
never told anyone before and she did not want Wilson to say
anything about it. In an emotionless, matter-of-fact manner,
Gray then told Wilson that “she had killed both her husbands and
another gentleman.” J.A. 144.
Gray told Wilson that she had killed her first
husband, Norman Stribbling, because she was tired of being abused
by him. According to Wilson, “[s]he told me that they had gone
out for a ride and that she had shot him․ [S]he left the body
over on River Road, and it was set up to look like it was a
robbery.” J.A. 145. Gray then confessed to Wilson that she had
also killed her second husband, William “Robert” Gray. Although
Gray said she was alone with Stribbling when she killed him, “she
had help” killing Robert Gray. J.A. 146. The help came from
Clarence Goode, Gray's cousin and boyfriend. Gray explained to
Wilson that Goode “had tried to blackmail her,” demanding money in
exchange for his silence about the murder of Robert Gray, so “she
had to get rid of him too.” J.A. 147.
Gray's first husband, Stribbling, maintained a
life insurance policy through John Hancock Mutual Life Insurance
Company and named Gray as the beneficiary. In the early morning
of March 3, 1974, Stribbling was found dead in his parked car on
River Road, near his home in Montgomery County, Maryland. An
autopsy revealed that Stribbling died from a single gunshot wound
to the head. Shortly after Stribbling's death, Gray made a claim
for insurance benefits and later received a check in the amount of
Gray had been having an affair with Robert Gray
while she was still married to Stribbling. In August 1975, the
couple bought a house in Gaithersburg, Maryland-using most of the
proceeds from Stribbling's insurance policy as a down payment-and
three months later they married. Robert Gray maintained an
insurance policy through Minnesota Mutual Life Insurance Company
(“Minnesota Mutual”) that provided for payment of the mortgage on
the Grays' house in Gaithersburg in the event of his death, with
any excess going to his spouse. Robert Gray also maintained an
accidental death insurance policy through Life Insurance Company
of North America (“LINA”) and designated Gray as his beneficiary.
Robert Gray left the Gaithersburg house in
August 1990, telling family members that his wife was trying to
kill him and that she was having an affair with Goode, who had
been living with the Grays. So convinced was Robert Gray that
his wife intended him harm that he removed her as his beneficiary
under two other insurance policies. He asked relatives and
friends for help in avoiding a possible assault by Gray or Goode.
In late August 1990, Robert Gray brought
criminal charges against Gray, alleging that Gray had assaulted
him at his workplace by swinging at him with a club and lunging at
him with a knife. Robert Gray also brought charges against
Goode, alleging that Goode had threatened him with a 9-millimeter
handgun. Robert Gray appeared in court on October 5, 1990, but
the case against Gray and Goode was continued. Later that same
day, Robert Gray was driving home when he noticed his wife's car
behind him. She was flashing her lights and signaling her
husband to pull over. When Robert Gray did not pull over, Gray
drove her car alongside her husband's car. As Robert Gray turned
to look toward his wife, Goode sat up (from a reclined position)
in the front passenger seat and pointed a gun at him. Robert
Gray reported this incident to police, and a warrant was issued
for the arrests of Gray and Goode. One week before the November
16, 1990 trial date, Robert Gray was discovered dead in his new
apartment, shot once in the chest and once in the neck with a .45
Gray told police investigators that she was not
involved in her husband's death and that she did not own a .45
caliber handgun. Other witnesses testified, however, that they
had seen Gray in possession of a .45 caliber handgun, and police
investigators retrieved a .45 caliber bullet from her purse.
Gray also offered an alibi that other witnesses at trial
As a result of Robert Gray's death, Minnesota
Mutual paid approximately $51,625 to Perpetual Savings Bank-the
named beneficiary-to cover the mortgage on the Gaithersburg house.
Once the mortgage was satisfied, Gray sold the house for a
significant profit. The total benefit under Robert Gray's policy
exceeded the mortgage payoff amount, so Minnesota Mutual expected
to pay the excess benefit to Robert Gray's spouse. Because
Gray's whereabouts were unknown to Minnesota Mutual, that benefit
was not processed for about ten years.
In 2001, federal law enforcement officers
provided Minnesota Mutual a current address for Gray, and the
company mailed Gray a form letter notifying her of the
availability of the excess benefit and enclosing an application.
Having received this information, Gray telephoned Minnesota Mutual
and asked whether the policy had a double indemnity benefit if
Robert Gray's death was accidental; it did not. Gray then
completed the claim application and mailed it to Minnesota Mutual.
The next week, Gray telephoned Minnesota Mutual to monitor the
status of her claim. Minnesota Mutual eventually mailed Gray a
check for more than $2,400.
Gray made a claim for benefits under the LINA
policy in May 1991. LINA did not initially pay any benefit
because it knew that Gray was a suspect in Robert Gray's murder.
After learning that Gray had been indicted, LINA asked Gray to
disclaim her interest in the benefits under its policy. She
refused, so LINA filed an interpleader action to determine the
proper beneficiary under Robert Gray's policy and Maryland law.
Gray counterclaimed against LINA, seeking the full benefit under
the policy plus attorneys' fees. LINA bore the costs of this
litigation, which far exceeded the value of the policy. LINA
ultimately paid Gray $2,000 when the other beneficiaries abandoned
their claims to the benefits.
Consistent with Maryland law, both Minnesota
Mutual and LINA refused to pay benefits to named beneficiaries who
wrongfully caused the death of the insured. Both Minnesota
Mutual and LINA relied upon local law enforcement investigators to
determine whether Gray was involved in Robert Gray's death.
Gray told Wilson that she “had to get rid of”
Goode because he was blackmailing her. Goode had conspired with
Gray in Robert Gray's murder, and he was demanding “part of the
insurance money that she received” from Robert Gray's death in
return for his silence. J.A. 147. On June 21, 1996, Baltimore
City Police officers found Goode's body in the trunk of his car;
he had been shot in the back with a 9-millimeter handgun. Goode
had told his sister that he was going to visit Gray at her house,
where police later found 9-millimeter bullets and a large blood
stain on the floor of the garage.
Goode maintained a life insurance policy
through Interstate Assurance Company (“Interstate Assurance”) and
named Gray as his beneficiary under the policy. Shortly after an
incident in which Gray pointed a knife at him, Goode closed the
bank account from which the premiums for this policy were paid.
Interstate Assurance advised Goode by letter in June 1996 that he
had a 60-day grace period before the policy would be cancelled for
non-payment. Goode's mail was sent to Gray's address, however,
and Gray killed Goode shortly after learning that the policy might
be cancelled. Gray filed a claim for benefits in September 1996,
but Interstate Assurance refused to pay because it suspected that
Gray was involved in Goode's death. When Gray had not been
arrested after two years, Interstate Assurance filed an
interpleader action to determine the proper beneficiary under
Goode's policy. In the course of that litigation, Gray filed
pleadings, by mail, in which she flatly denied any involvement in
Goode's death. Because Gray's guilt could not be proved at that
time, the parties settled the interpleader action and Interstate
Assurance paid Gray $99,990 in benefits under Goode's policy.
Shortly after Goode's murder, Gray showed her
new boyfriend, Andre Savoy, a copy of Goode's insurance policy and
told him that she planned to buy him a new Mustang GT with the
proceeds. Gray never bought Savoy that car, but she did make
inquiries about obtaining life insurance on him. According to
Wilson, Gray asked her for help in obtaining insurance on Savoy
through a Virginia company. When federal agents contacted Wilson
in February 2002, she immediately asked about Savoy. She thought
Gray might have tried to kill him too.
Counts One through Four of the indictment
charged Gray with executing a scheme to defraud Minnesota Mutual
and LINA of life insurance benefits they paid Gray as a result of
Robert Gray's death. Counts Five through Eight charged Gray with
executing a scheme to defraud Interstate Assurance of the benefits
it paid Gray as the result of Goode's death. The indictment
alleged that Gray “intentionally caused the death[s]” of both
Robert Gray and Goode and then fraudulently concealed her role in
their murders from the insurance companies. As she submitted
claims for benefits and telephoned the insurance companies to
monitor her claims, and in papers filed in legal proceedings
concerning the insurance policies, Gray consistently denied having
any involvement in the murders.
Gray challenges her conviction on several
grounds. First, she argues that the evidence was insufficient to
support a conviction on all counts of the indictment because the
insurance companies-the victims identified in the indictment-had
no interest in the benefits paid under the policies. Second,
Gray argues that the evidence was insufficient to support a
conviction on Counts One through Four because it did not prove
that she intended to defraud Minnesota Mutual by her conduct.
Third, Gray challenges the district court's denial of her motion
for judgment of acquittal on Counts Seven and Eight because the
Government failed to prove the alleged mailings in its
case-in-chief. Finally, Gray argues that she is entitled to a
new trial because the district court erroneously admitted into
evidence “other crimes” evidence related to the Stribbling murder
and hearsay testimony from Robert Gray.
Gray first contends that her convictions on all
counts of the indictment should be vacated because the evidence
failed to establish that the insurance companies had any property
interest in the benefits paid under the relevant insurance
policies. Gray's conviction must be upheld if “there is
substantial evidence, taking the view most favorable to the
Government,” to support it. Glasser, 315 U.S. at 80, 62 S.Ct.
457. “[S]ubstantial evidence is evidence that a reasonable finder
of fact could accept as adequate and sufficient to support a
conclusion of a defendant's guilt beyond a reasonable doubt.”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en
Both the mail fraud and wire fraud statutes
criminalize “devis[ing] or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means
of false or fraudulent pretenses, representations, or promises.”
18 U.S.C. §§ 1341, 1343. It is essential to a conviction under
these statutes that the victim of the alleged fraud actually have
an interest in the money or property obtained by the defendant.
United States v. Adler, 186 F.3d 574, 576 (4th Cir.1999). Gray
contends that although she obtained more than $150,000 in
insurance proceeds from Minnesota Mutual, LINA, and Interstate
Assurance, that money never actually belonged to the insurance
The Supreme Court has made it clear that the
federal fraud statutes should be “interpreted broadly insofar as
property rights are concerned.” McNally v. United States, 483
U.S. 350, 356, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987); see also
United States v. Mancuso, 42 F.3d 836, 845 (4th Cir.1994) (stating
that “the scope of property interests protected is to be construed
fairly widely”). The Government need not prove that the victim
suffered a monetary loss as a result of the alleged fraud; it is
sufficient that the victim was deprived of some right over its
property. Carpenter v. United States, 484 U.S. 19, 26-27, 108
S.Ct. 316, 98 L.Ed.2d 275 (1987). In the analogous context of
the federal bank fraud statute, we have stated that property is
anything in which a person has a “right that could be assigned,
traded, bought, and otherwise disposed of.” Mancuso, 42 F.3d at
A property owner has an intangible right to
control the disposition of its assets. See Crane v.
Commissioner, 331 U.S. 1, 6, 67 S.Ct. 1047, 91 L.Ed. 1301 (1947).
The Supreme Court noted in McNally that the defendant's mail
fraud conviction might have been affirmed had the jury been
“charged that to convict it must find that the Commonwealth was
deprived of control over how its money was spent.” 483 U.S. at
360, 107 S.Ct. 2875. Since McNally was decided, several other
circuits have concluded that the mail fraud and wire fraud
statutes cover fraudulent schemes to deprive victims of their
rights to control the disposition of their own assets. See
United States v. Welch, 327 F.3d 1081, 1108 (10th Cir.2003);
United States v. Dinome, 86 F.3d 277, 283-84 (2d Cir.1996);
United States v. Madeoy, 912 F.2d 1486, 1492 (D.C.Cir.1990);
United States v. Shyres, 898 F.2d 647, 652 (8th Cir.1990);
United States v. Kerkman, 866 F.2d 877, 880 (6th Cir.1989);
United States v. Fagan, 821 F.2d 1002, 1011 n. 6 (5th Cir.1987);
cf. United States v. Catalfo, 64 F.3d 1070, 1077 (7th Cir.1995)
(concluding that the victim had a property interest in “the right
to control its risk of loss”).
In this case, the insurance companies did, in
fact, suffer monetary losses as the result of Gray's fraud. The
money that Gray received was money that belonged to the insurance
companies: They wrote the checks, and those checks were backed by
the insurance companies' assets. Payment of benefits to Gray
represented a loss to the insurance companies and no one else.
Moreover, Minnesota Mutual and Interstate Assurance had a property
interest in controlling the disposition of their assets, i.e.,
paying out benefits in accordance with policy terms and applicable
law. By killing Robert Gray and Goode, Gray manufactured the
occurrences that gave rise to the insurance companies' payment
obligations. By submitting claims for benefits under the
policies, without acknowledging her culpability in the insureds'
deaths, Gray sought to obtain money from the insurance companies
under false pretenses and to interfere with their ability to
dispose of their own assets in the proper manner.2
Gray contends that the insurance companies were
merely disinterested third parties that held the insureds' money
for the named beneficiaries. Thus, the only true victims of
Gray's fraud were the rightful beneficiaries under the policies,
not the insurance companies. Whether or not the insurance
companies paid the proper parties at the end of the day, they
would not have been required to pay anyone had Gray not killed
their insureds. In other words, the insurance companies were
deprived of the use of their assets by Gray's accelerating the
necessity to pay benefits.3
Taken in the light most favorable to the Government, the evidence
supports the jury's finding that Gray intended to deprive the
insurance companies of their “money” and “property” by means of a
Gray next contends that her conviction on
Counts One through Four-the counts relating to the Minnesota
Mutual policy on Robert Gray-should be vacated because the
evidence was not sufficient to prove that she lied to police about
her involvement in Robert Gray's death with the intent to defraud
Minnesota Mutual. Again, we must affirm Gray's conviction on
these counts if the evidence was “adequate and sufficient to
support a conclusion of [her] guilt beyond a reasonable doubt.”
Burgos, 94 F.3d at 862.
“Even in the absence of a fiduciary, statutory,
or other independent legal duty to disclose material information,
common-law fraud includes acts taken to conceal, create a false
impression, mislead, or otherwise deceive in order to prevent the
other party from acquiring material information.” United States
v. Colton, 231 F.3d 890, 898 (4th Cir.2000). Although simple
nondisclosure generally is not sufficient to constitute fraud, the
Supreme Court has noted that “mere silence is quite different from
concealment,” and in some cases “a suppression of the truth may
amount to a suggestion of falsehood.” Stewart v. Wyoming Cattle
Ranche Co., 128 U.S. 383, 388, 9 S.Ct. 101, 32 L.Ed. 439 (1888).
Thus, we have stated that “deceptive acts or contrivances intended
to hide information, mislead, avoid suspicion, or prevent further
inquiry into a material matter” may constitute fraud. Colton, 231
F.3d at 899.
The evidence showed that Gray killed Robert
Gray, at least in part, in order to obtain life insurance benefits
under his Minnesota Mutual policy. During the police
investigation of Robert Gray's murder, Gray did not remain silent.
Rather, she falsely denied any involvement in the murder,
falsely denied owning a gun matching the description of the murder
weapon, and even offered a false alibi. Gray's conduct helped
keep police investigators-and Minnesota Mutual, which relied upon
the police investigation-from determining that she was involved in
Robert Gray's death.
By 2001, when Gray learned that the excess
benefit was available, Gray had already been made aware that
insurance companies could not pay benefits to their insureds'
murderers. LINA and Interstate Assurance had resisted paying
benefits to Gray specifically because they suspected that she was
involved in the murders of Robert Gray and Goode, and Gray
confronted the issue directly in the Interstate Assurance
interpleader action. In light of this experience with other
insurance companies, Gray responded to the news that the excess
benefit was available by calling Minnesota Mutual to inquire
whether she would be entitled to a double-indemnity benefit if
Robert Gray's death was accidental. Of course, Gray knew that
his death was not accidental. When she ultimately submitted her
claim for the excess benefit, Gray made no mention of her
involvement in the murder and did not correct any of the false
information she had earlier given to the police. Thus, from the
time of Robert Gray's murder, Gray actively concealed information
that was critical to Minnesota Mutual's payment obligations.4
Taken in the light most favorable to the Government, the evidence
was sufficient to prove that Gray intended to defraud Minnesota
Mutual and thus sufficient to support Gray's conviction on Counts
One through Four.
Gray argues that her conviction on Counts Seven
and Eight-the mail fraud counts relating to the pleadings she
filed in the Interstate Assurance interpleader action-should be
vacated because the district court relied on evidence presented
after she moved for a judgment of acquittal under Fed.R.Crim.P. 29
and the district court reserved ruling on that motion. We review
de novo the district court's denial of a motion for judgment of
acquittal. United States v. Gallimore, 247 F.3d 134, 136 (4th
In order to obtain a conviction under the mail
fraud statute, the Government must prove that the defendant caused
the United States mails to be used in furtherance of a fraudulent
scheme. 18 U.S.C. § 1341. Counts Seven and Eight of the
indictment alleged that Gray caused two specific pleadings to be
mailed “from Rockville, Maryland to the Circuit Court of Baltimore
City, Maryland in Baltimore, Maryland.” J.A. 31-32.
At the hearing on Gray's Rule 29 motion, Gray's
counsel argued that the Government's evidence failed to prove that
these pleadings had been mailed to the courthouse. The
Government replied that it was relying upon three pieces of
circumstantial evidence: (1) the certificates of service showing
that the person responsible for the pleadings mailed them to
opposing counsel, (2) the date stamps on the file-stamped copies
of the pleadings, indicating that the pleadings were received by
the court several days after the date shown on the certificates of
service, and (3) the law firm that represented Gray was located in
Rockville, Maryland, while the court was located in Baltimore.
After the district court announced that it
would reserve ruling on the Rule 29 motion, the Government moved
to reopen its case-in-chief in order to present testimony from
Gray's former counsel concerning the manner in which he typically
filed pleadings. The district court granted the Government's
motion, and Gray's former attorney, John Kudel, testified that he
mailed the pleadings at issue in Counts Seven and Eight to the
Circuit Court of Baltimore City. The district court later denied
Gray's Rule 29 motion.
Gray argues that the district court was not
permitted to consider Kudel's testimony under Rule 29(b), which
The court may reserve ruling on the motion,
proceed with the trial (where the motion is made before the close
of all the evidence), submit the case to the jury, and decide the
motion either before the jury returns a verdict or after it
returns a verdict of guilty or is discharged without having
returned a verdict. If the court reserves decision, it must
decide the motion on the basis of the evidence at the time the
ruling was reserved.
(Emphasis added.) The final sentence of the
Rule was intended to address the problem that arises “where the
defense decides to present evidence and run[s] the risk that such
evidence will support the government's case.” Fed.R.Crim.P.
29(b) advisory committee note. Thus, a district court may not
reserve ruling on a defendant's motion for judgment of acquittal
and then later penalize the defendant by relying upon the
defendant's own evidence to deny the motion. See United States
v. Wahl, 290 F.3d 370, 375 (D.C.Cir.2002) (“The district court in
this case reserved Wahl's motion at the close of the government's
case. Any ruling on that motion, then, should have been made
solely on the evidence offered by the government.”).
The mailings alleged in Counts Seven and Eight
were proved solely by the Government's evidence, not Gray's.
Nevertheless, Gray contends that the district court improperly
considered the evidence presented by the Government after it
initially rested. Under Gray's theory, a district court's
reserving its ruling on a defendant's Rule 29 motion seals the
evidentiary record completely for purposes of that motion, even
excluding the possibility that the Government may reopen its
We disagree. Rule 29 provides that a district
court may grant a motion for judgment of acquittal only “[a]fter
the government closes its evidence or after the close of all the
evidence.” Fed.R.Crim.P. 29(a). Where the district court
properly permits the Government to reopen its case-in-chief, see
United States v. Abbas, 74 F.3d 506, 510 (4th Cir.1996), it cannot
be said that the Government “closes its evidence” before the
conclusion of its reopened case.5
Likewise, the district court cannot be said to reserve decision
under Rule 29 until that time, when a decision would otherwise be
appropriate. Under Rule 29(b), the district court would be
permitted to consider all of the evidence presented in the
Government's case-in-chief-before and after the district court
permitted reopening-when it ultimately rules on the Rule 29
The district court permitted the Government to
reopen its case for the limited purpose of presenting testimony
from Kudel establishing that he mailed the pleadings specified in
Counts Seven and Eight. The Government initially intended to
present this testimony-Kudel was on the Government's witness
list-but inadvertently rested without putting him on the witness
stand. Kudel's testimony was plainly relevant, admissible, and
helpful to the jury, and Gray had ample opportunity to
cross-examine him. There was no unfair surprise and no risk of
distorting the importance of Kudel's testimony. Accordingly, the
district court did not abuse its discretion in permitting the
Government to reopen its case-in-chief to present this evidence,
see Abbas, 74 F.3d at 511 (describing the factors to be considered
in ruling on a motion to reopen), and it was entirely appropriate
for the district court to consider Kudel's testimony in denying
Gray's Rule 29 motion.
Gray seeks a new trial based upon the district
court's admission of testimony concerning (1) her involvement in
Stribbling's murder and (2) Robert Gray's fear for his safety.
We review the district court's evidentiary rulings for abuse of
discretion. See United States v. Queen, 132 F.3d 991, 995 (4th
Over Gray's objection, the district court
admitted certain testimony concerning the 1974 murder of
Stribbling, Gray's first husband. The jury heard testimony
describing the crime scene and the autopsy results, as well as
testimony from two men who claimed that Gray had solicited them
(unsuccessfully) to kill Stribbling for money. Another witness
testified that Gray had offered her money to provide Gray an alibi
for the time of the murder. Finally, the jury heard testimony
from one witness (in addition to Wilma Jean Wilson) who said that
Gray had admitted shooting Stribbling. The district court
instructed the jury that the evidence concerning the Stribbling
murder was admitted only “as it may relate to the defendant's
motivation with regard to the conduct alleged in this case
relating to William Robert Gray. You may not consider it for any
other purpose.” J.A. 649.
Gray contends that this evidence should have
been excluded under Fed.R.Evid. 404(b), which provides as follows:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
We have noted that “Rule 404(b) is viewed as an
inclusive rule, admitting all evidence of other crimes or acts
except that which tends to prove only criminal disposition.”
United States v. Young, 248 F.3d 260, 270-71 (4th Cir.2001)
(internal quotations omitted).
Evidence of “other crimes” is admissible under
Rules 404(b) and 403 if four conditions are satisfied. First,
“[t]he evidence must be relevant to an issue, such as an element
of an offense, and must not be offered to establish the general
character of the defendant. In this regard, the more similar the
prior act is (in terms of physical similarity or mental state) to
the act being proved, the more relevant it becomes.” Queen, 132
F.3d at 997. Second, “[t]he act must be necessary in the sense
that it is probative of an essential claim or an element of the
offense.” Id. Third, “[t]he evidence must be reliable.” Id.
Finally, “the evidence's probative value must not be substantially
outweighed by confusion or unfair prejudice in the sense that it
tends to subordinate reason to emotion in the factfinding
All four conditions are satisfied here. The
Government was required to prove that Gray intentionally killed
Robert Gray and then intentionally concealed her crime from
Minnesota Mutual and LINA. The defense argued at trial, however,
that Gray was merely a passive beneficiary of Robert Gray's death;
she was not involved in his murder in any way; and the fact that
she collected insurance proceeds under Robert Gray's policies was
entirely coincidental. In light of the evidence proving that
Gray killed Robert Gray, the evidence concerning the Stribbling
murder was “useful as reducing the possibility that the [killing
of Robert Gray] was done with innocent intent.” Queen, 132 F.3d
at 995 (internal quotations omitted). Thus, this evidence was
Because a conviction of mail fraud requires
proof that the defendant intended to defraud the victim, see Dan
River, Inc. v. Icahn, 701 F.2d 278, 291 (4th Cir.1983), the
evidence concerning the Stribbling murder was also necessary.
This evidence proved that Gray participated in the murder of her
first husband with the assistance of Robert Gray and later
collected insurance proceeds under her husband's policy. She
later killed Robert Gray in order to eliminate the only witness to
the Stribbling murder and to collect even more insurance proceeds.
Although the Government was not required to prove Gray's
particular motive for killing Robert Gray, this evidence was
probative of her intent to commit the murder and defraud the
The evidence was also reliable. The jury
heard testimony from Gray's friend Wilma Jean Wilson (to whom Gray
confessed killing her first husband), other witnesses whom Gray
solicited to kill Stribbling and to provide a false alibi for her,
police officers who described the Stribbling murder scene, and
insurance company representatives who explained how Gray
benefitted from Stribbling's death. These witnesses testified
under oath and were subject to cross-examination, such that Gray
had ample opportunity to challenge the reliability of their
Finally, the probative value of this evidence
was not substantially outweighed by its prejudicial impact, “in
the sense that it tend[ed] to subordinate reason to emotion in the
factfinding process.” Queen, 132 F.3d at 997. The district
court excluded other evidence concerning the Stribbling murder and
carefully limited the scope of the Government's case on this
issue. In addition, the district court specifically instructed
the jury that it could consider evidence concerning the Stribbling
murder only in connection with the murder of Robert Gray and not
for any other purpose. This evidence was probative, and although
it was harmful to Gray, it was not unduly prejudicial. In sum,
the district court did not abuse its discretion in admitting
testimony concerning Gray's involvement in the Stribbling murder.
The district court also admitted into evidence
several out-of-court statements made by Robert Gray during the
three months preceding his murder:
Robert Gray's criminal complaint alleging that
Goode had tossed a 9-millimeter handgun on the table at his house
to provoke an argument;
Robert Gray's criminal complaint alleging that
Gray had tried to stab him with a knife and attack him with a
Statements made by Robert Gray to Darnell Gray
and a police detective, claiming that Gray and Goode had assaulted
him in October 1990; and
Statements made by Robert Gray to Rodney Gray
claiming that Goode had pulled a gun on him outside a restaurant
in September or October 1990.
Although out-of-court statements ordinarily may
not be admitted to prove the truth of the matters asserted, the
doctrine of forfeiture by wrongdoing allows such statements to be
admitted where the defendant's own misconduct rendered the
declarant unavailable as a witness at trial. The Supreme Court
applied this doctrine in Reynolds v. United States, 98 U.S. 145,
25 L.Ed. 244 (1878), stating that“[t]he Constitution gives the
accused the right to a trial at which he should be confronted with
the witnesses against him; but if a witness is absent by [the
accused's] own wrongful procurement, he cannot complain if
competent evidence is admitted to supply the place of that which
he has kept away.” Id. at 158. By 1996, every circuit to
address the issue had recognized this doctrine. See United
States v. Houlihan, 92 F.3d 1271, 1280 (1st Cir.1996); United
States v. Mastrangelo, 693 F.2d 269, 273-74 (2d Cir.1982); Steele
v. Taylor, 684 F.2d 1193, 1202 (6th Cir.1982); United States v.
Thevis, 665 F.2d 616, 631 (5th Cir.1982); United States v.
Balano, 618 F.2d 624, 629 (10th Cir.1979); United States v.
Carlson, 547 F.2d 1346, 1357 (8th Cir.1976).7
Fed.R.Evid. 804(b)(6), which took effect in
1997, codifies the common-law doctrine of forfeiture by wrongdoing
as an exception to the general rule barring admission of hearsay
evidence. Fed.R.Evid. 804(b)(6) advisory committee note. Under
Rule 804(b)(6), “[a] statement offered against a party that has
engaged or acquiesced in wrong-doing that was intended to, and did
procure the unavailability of the declarant as a witness” is
admissible at trial. In order to apply the
forfeiture-by-wrongdoing exception, the district court must find,
by the preponderance of the evidence, see United States v. Scott,
284 F.3d 758, 762 (7th Cir.2002),8
that (1) the defendant engaged or acquiesced in wrongdoing (2)
that was intended to render the declarant unavailable as a witness
and (3) that did, in fact, render the declarant unavailable as a
witness. The district court need not hold an independent
evidentiary hearing if the requisite findings may be made based
upon evidence presented in the course of the trial. United States
v. Johnson, 219 F.3d 349, 356 (4th Cir.2000).
Gray contends that Rule 804(b)(6) should not
apply in this case because she did not intend to procure Robert
Gray's unavailability as a witness at this trial. “Because the
Federal Rules of Evidence are a legislative enactment, we turn to
the traditional tools of statutory construction in order to
construe their provisions. We begin with the language itself.”
Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163, 109 S.Ct. 439,
102 L.Ed.2d 445 (1988). The text of Rule 804(b)(6) requires only
that the defendant intend to render the declarant unavailable “as
a witness.” The text does not require that the declarant would
otherwise be a witness at any particular trial, nor does it limit
the subject matter of admissible statements to events distinct
from the events at issue in the trial in which the statements are
offered. Thus, we conclude that Rule 804(b)(6) applies whenever
the defendant's wrongdoing was intended to, and did, render the
declarant unavailable as a witness against the defendant, without
regard to the nature of the charges at the trial in which the
declarant's statements are offered. Accord Dhinsa, 243 F.3d at
652-53; Emery, 186 F.3d at 926; 4 C. Mueller & L. Kirkpatrick,
Federal Evidence § 507.1, at 268 (2d ed. Supp.2004) (“It seems
that there is no limit on the subject matter of statements that
can be admitted under this exception, which means that statements
in which the declarant implicates a defendant in a plot to kill
the declarant himself can fit the exception.”).
Our interpretation of Rule 804(b)(6) advances
the clear purpose of the forfeiture-by-wrongdoing exception. The
advisory committee noted its specific goal to implement a
“prophylactic rule to deal with abhorrent behavior which strikes
at the heart of the system of justice itself.” Fed.R.Evid.
804(b)(6) advisory committee note (internal quotations omitted);
see also United States v. Thompson, 286 F.3d 950, 962 (7th
Cir.2002) (stating that “the primary reasoning behind this rule”
is “to deter criminals from intimidating or ‘taking care of’
potential witnesses against them”). More generally, federal
courts have recognized that the forfeiture-by-wrongdoing exception
is necessary to prevent wrongdoers from profiting by their
misconduct. See Reynolds, 98 U.S. at 158-59 (holding that a
criminal defendant waives his right to confront a witness whose
absence his own misconduct procured and stating that this rule
“has its foundation in the maxim that no one shall be permitted to
take advantage of his own wrong”); Emery, 186 F.3d at 926
(stating that the Rule “establishes the general proposition that a
defendant may not benefit from his or her wrongful prevention of
future testimony from a witness or potential witness”); White,
116 F.3d at 911 (stating that “where the defendant has silenced a
witness through the use of threats, violence or murder, admission
of the victim's prior statements at least partially offsets the
perpetrator's rewards for his misconduct”); Houlihan, 92 F.3d at
1279 (applying the forfeiture-by-wrongdoing exception and noting
that “courts will not suffer a party to profit by his own
Federal courts have sought to effect the
purpose of the forfeiture-by-wrongdoing exception by construing
broadly the elements required for its application. See, e.g.,
Dhinsa, 243 F.3d at 652 (noting that the Rule may apply where the
declarant was only a potential witness, i.e., “there was no
ongoing proceeding in which the declarant was scheduled to
testify”); Cherry, 217 F.3d at 820 (holding that the declarant's
statements may be admitted against a person who participated in a
conspiracy to silence the declarant even if that person did not
himself engage in witness intimidation or other wrongdoing);
Steele, 684 F.2d at 1201 (stating that “any significant
interference” with the declarant's appearance as a witness,
including the exercise of “persuasion and control” or an
instruction to invoke the Fifth Amendment privilege, amounts to
wrongdoing that forfeits the defendant's right to confront the
declarant). Although the Rule requires that the wrongdoing was
intended to render the declarant unavailable as a witness, we have
held that a defendant need only intend “in part” to procure the
declarant's unavailability. Johnson, 219 F.3d at 356; accord
Dhinsa, 243 F.3d at 654; Houlihan, 92 F.3d at 1279.
Like these applications of the
forfeiture-by-wrongdoing exception, our interpretation of Rule
804(b)(6) ensures that a defendant will not be permitted to avoid
the evidentiary impact of statements made by his victim, whether
or not he suspected that the victim would be a witness at the
trial in which the evidence is offered against him. A defendant
who wrongfully and intentionally renders a declarant unavailable
as a witness in any proceeding forfeits the right to exclude, on
hearsay grounds, the declarant's statements at that proceeding and
any subsequent proceeding. See United States v. Aguiar, 975 F.2d
45, 47 (2d Cir.1992) (affirming the district court's admission of
hearsay testimony to prove witness tampering as well as an
underlying drug conspiracy, and stating that “[a] defendant who
procures a witness's absence waives the right of confrontation for
all purposes with regard to that witness”).9
Having rejected Gray's interpretation of Rule
804(b)(6), we need only determine whether the district court
properly applied the Rule in admitting Robert Gray's out-of-court
statements. Those statements were admissible only if the
district court properly found, by a preponderance of the evidence,
that (1) Gray engaged in some wrongdoing (2) that was intended to
procure Robert Gray's unavailability as a witness and (3) that
did, in fact, procure his unavailability as a witness. The
district court in this case found that Robert Gray “was killed
prior to the court date on November 15 and 16, and after the
defendant was well aware of his status as a witness, justifies the
inference that ․ the killing was motivated ․ to prevent [Robert
Gray] from being available ․ at court proceedings.” J.A. 205.
These findings are supported by the evidence and are sufficient to
warrant application of the Rule 804(b)(6). Accordingly, the
district court did not abuse its discretion in admitting testimony
concerning out-of-court statements made by Robert Gray.
In addition to challenging her conviction, Gray
argues in a supplemental brief that her sentence should be vacated
in light of the Supreme Court's recent decision in United States
v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Because Gray did not object to her sentence in the district court,
our review is for plain error. See United States v. Olano, 507
U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993);
Fed.R.Crim.P. 52(b). Under this standard of review, “[t]here
must be an error that is plain and that affects substantial
rights. Moreover, Rule 52(b) leaves the decision to correct the
forfeited error within the sound discretion of the court of
appeals, and the court should not exercise that discretion unless
the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Olano, 507 U.S. at 732, 113
S.Ct. 1770 (internal quotations omitted).
The district court calculated Gray's sentence
using two alternative methods. In the first calculation, the
district court applied a cross-reference to the first-degree
murder guideline, U.S.S.G. § 2A1.1. In order to apply this
guideline, the district court first had to find that Gray's
intentional murders of Gray and Goode were premeditated. Under
§ 2A1.1, Gray's base offense level was 43. In the second
calculation, the district court started with the base offense
level for mail fraud and then applied enhancements for two
specific offense characteristics-(1) the offense involved more
than one victim and (2) the offense involved possession of a
firearm. The court then departed upward under U.S.S.G. § 5K2.1
based upon a finding that Gray's schemes to defraud involved two
premeditated murders. The result of this second calculation was
an adjusted offense level of 43. Under either calculation,
Gray's sentence was increased based upon a factual finding-that
the murders of Robert Gray and Goode were premeditated-that the
jury was not required to make.
This case is similar to United States v.
Hughes, 401 F.3d 540, 2005 WL 628224 (4th Cir. Mar.16, 2005),
where we vacated a criminal sentence and remanded for resentencing
in accordance with Booker. As in Hughes, the district court here
imposed the sentence mandated by the Sentencing Guidelines, based
in part upon a fact that was not found by the jury. See id.
547-48, at *5 (concluding that application of sentencing
enhancements based on judge-found facts was “error” that was
“plain”). As in Hughes, the defendant here was sentenced to a
longer term of imprisonment than the Sentencing Guidelines would
have required had the district court not considered that fact.
See id. at 547-49, *5-*6 (concluding that imposition of a sentence
in excess of the maximum sentence permitted by the jury's verdict
affected the defendant's substantial rights). Consistent with
Hughes, we conclude that the district court committed an error
that was plain and that affects Gray's substantial rights, and we
exercise our discretion to notice the error. Accordingly, we
remand this case for resentencing in accordance with Booker.10
We affirm Gray's conviction for mail fraud and
wire fraud. The evidence was sufficient to prove all the
elements of each offense, and the district court's evidentiary
rulings were correct. We vacate the sentence, however, and
remand for resentencing in accordance with Booker.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
Gray challenges the sufficiency of the evidence to support her
conviction, we view the evidence adduced at trial in the light
most favorable to the Government. See Glasser v. United States,
315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
courts have affirmed fraud convictions where the defendant, like
Gray, created the circumstances giving rise to a claim and then
made a claim for benefits under the policy. See, e.g., United
States v. Hartmann, 958 F.2d 774, 780-81 (7th Cir.1992) (affirming
convictions for mail fraud and wire fraud where the defendant
participated in the murder of her husband in order to obtain
benefits under life and mortgage insurance policies); United
States v. Duncan, 919 F.2d 981, 990-92 (5th Cir.1990) (affirming a
mail fraud conviction where the defendant participated in staged
car accidents in order to obtain benefits under hospitalization
insurance policies); United States v. Candoli, 870 F.2d 496, 511
(9th Cir.1989) (affirming a mail fraud conviction where the
defendant participated in a conspiracy to commit arson and then
made claims for insurance benefits); United States v. Lundy, 809
F.2d 392, 397 (7th Cir.1987) (same).
Gray herself notes, Interstate Assurance disclaimed its interest
in the benefits payable under its policy when it filed its
interpleader action, a step that was necessary because Interstate
Assurance held an interest in those funds before that point, i.e.,
the time when Gray was executing her fraudulent scheme.
Moreover, Gray's contention that the insurance companies merely
held the insured's funds for eventual payment to the rightful
beneficiaries is refuted by the fact that both Minnesota Mutual
and Interstate Assurance paid out much more in benefits than they
had received in premiums paid by their insureds.
argues that the evidence fails to show that she defrauded
Minnesota Mutual with respect to the mortgage payoff to Perpetual
Savings Bank in 1991. Although the evidence concerning the
mortgage payoff to Perpetual Savings Bank was important to
describe the context of the fraud on Minnesota Mutual, it was not
necessary for conviction on Counts One through Four. Those counts
charged Gray with making specific telephone calls and causing
specific mailings in April and May 2001 in connection with her
claim for the excess benefit, not the mortgage payoff. The
evidence established that the excess benefit would not have been
available at all but for Gray's killing Robert Gray in 1991.
Other evidence proved that Gray intended to profit by the murder,
and that was sufficient to prove a scheme to defraud Minnesota
Mutual of insurance benefits. The fact that Gray did not make a
claim for the mortgage payoff-she could not make such a claim
under the policy-in no way diminishes the evidence establishing
that she killed Robert Gray in order to make available the claim
for insurance benefits that she later invoked.
district court may allow the Government to reopen its case even
after the defendant makes a Rule 29 motion. See United States v.
Mojica-Baez, 229 F.3d 292, 299-300 (1st Cir.2000) (affirming the
district court's reopening the Government's case to present a
stipulation proving a bank's federally-insured status); United
States v. Rouse, 111 F.3d 561, 573 (8th Cir.1997) (affirming the
district court's reopening the Government's case to present a
stipulation establishing that the charged offenses occurred on
federal lands); United States v. Leslie, 103 F.3d 1093, 1104 (2d
Cir.1997) (affirming the defendant's conviction where the
Government presented evidence of a bank's federally-insured status
only after the defendant moved for judgment of acquittal). As
the Ninth Circuit has noted, “[o]ne purpose of Rule 29 motions is
to alert the court to omitted proof so that, if it so chooses, it
can allow the government to submit additional evidence.” United
States v. Suarez-Rosario, 237 F.3d 1164, 1167 (9th Cir.2001)
(affirming the district court's decision to allow the Government
to reopen its case to prove the defendant's identity).
long as the district court acted within its discretion in
permitting the Government to reopen its case-in-chief, the
defendant cannot complain that he has been deprived of the
protection afforded by Rule 29(b). In no event can the
defendant's evidence be used to deny his Rule 29 motion.
Supreme Court recently confirmed the continuing vitality of the
forfeiture-by-wrongdoing doctrine. See Crawford v. Washington,
541 U.S. 36, 124 S.Ct. 1354, 1370, 158 L.Ed.2d 177 (2004).
addition to Scott, see United States v. Zlatogur, 271 F.3d 1025,
1028 (11th Cir.2001); United States v. Dhinsa, 243 F.3d 635,
653-54 (2d Cir.2001); United States v. Cherry, 217 F.3d 811, 815
(10th Cir.2000); United States v. Emery, 186 F.3d 921, 926-27
(8th Cir.1999); United States v. White, 116 F.3d 903, 912
(D.C.Cir.1997); Houlihan, 92 F.3d at 1280. The Fifth Circuit
requires proof of the predicate facts by clear and convincing
evidence. Thevis, 665 F.2d at 631.
emphasize that the intent requirement in Rule 804(b)(6) continues
to limit application of the forfeiture-by-wrongdoing exception to
those cases in which the defendant intended, at least in part, to
render the declarant unavailable as a witness against him. See
Johnson, 219 F.3d at 356. Absent such intent, Rule 804(b)(6) has
the Sentencing Guidelines are no longer mandatory, Booker makes
clear that a sentencing court must still “consult [the] Guidelines
and take them into account when sentencing.” 125 S.Ct. at 767.
On remand, the district court should first determine the
appropriate sentencing range under the Guidelines, making all
factual findings appropriate for that determination. Hughes, 401
F.3d at 546, 2005 WL 628224, at *4. The court should consider this
sentencing range along with the other factors described in 18
U.S.C. § 3553(a), and then impose a sentence. Id. If that
sentence falls outside the Guidelines range, the court should
explain its reasons for the departure, as required by 18 U.S.C.
§ 3553(c)(2). Id. The sentence must be “within the statutorily
prescribed range and ․ reasonable.” Id.
SHEDD, Circuit Judge:
Affirmed in part, vacated in part, and remanded
by published opinion. Judge SHEDD wrote the opinion, in which
Judge WIDENER and Judge CACHERIS joined.