NOT RECOMMENDED FOR PUBLICATION File Name: 25a0400n.06
Case No. 24-5988
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Aug 14, 2025 UNITED STATES OF AMERICA, ) KELLY L. STEPHENS, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF ASHLEY GRAYSON, ) TENNESSEE Defendant-Appellant. ) ) OPINION
Before: THAPAR, NALBANDIAN, and READLER, Circuit Judges.
READLER, Circuit Judge. Ashley Grayson hired a husband-and-wife duo—Olivia
Johnson and Brandon Thomas—to kill three people. But, unknown to Grayson, Johnson recorded
a video call in which Grayson discussed the murders and turned those recordings over to the
authorities. Based on this evidence, a federal jury convicted Grayson of conspiring to use interstate
commerce facilities in the commission of murder-for-hire in violation of 18 U.S.C. § 1958. She
now appeals, challenging her conviction on several grounds. We affirm.
I.
Ashley Grayson met Olivia Johnson the way many people do in the internet age: online.
In this instance, Grayson reached out to Johnson on Facebook. At the time, Grayson was a social
media influencer in Dallas who made her name helping people repair their credit. She believed
that Johnson, a Memphis resident, might help her expand her influencer realm into the Memphis No. 24-5988, United States v. Grayson
market. So she messaged Johnson, offering her credit repair services in return for Johnson
promoting Grayson’s business on her social media. The exchange proved mutually beneficial,
resulting in an uptick in both Grayson’s business and Johnson’s credit score.
The two remained in contact in the ensuing years, even meeting in person when Grayson
visited Memphis. At a later point, Grayson reached out to Johnson to express her desire to buy a
house for a single mother needing help. Johnson suggested some possible beneficiaries of
Grayson’s goodwill, one of whom was Johnson’s mother. And when Grayson eventually selected
a recipient, it was Johnson’s mother, with Grayson purportedly purchasing her a new home.
Why purportedly? Johnson was under the impression that the home would be “100
percent” her “mother’s house.” Trial Tr., Mar. 26, 2024, R. 144, PageID 1211. In reality, however,
Grayson’s name remained on the deed. While Johnson’s mother lived in the home rent-free, she
had no legal claim to the property. Eventually, the situation became a point of contention between
Johnson and Grayson, a dispute that spilled over onto social media. Around the same time,
numerous other social media users began accusing Grayson of scamming her clients and being an
untrustworthy individual.
A few months later, Grayson invited Johnson and her husband, Brandon Thomas, to visit
her in Fort Worth, agreeing to pay the pair’s travel expenses. Johnson was under the impression
that the reason for the trip was to resolve the issues with her mother’s housing arrangement.
Grayson, however, had other topics in mind. While Johnson was in the Lone State Star, Grayson
drove her from Fort Worth to Dallas (Thomas rode separately with Grayson’s husband). During
the drive, Grayson raised the growing social media attacks against her and her business, expressing
her displeasure with the situation. And she offered a purported solution—a request that Johnson
2 No. 24-5988, United States v. Grayson
kill three people: Sherell Hodge, who utilized the TikTok platform to criticize Grayson; Patrick
Tate, Grayson’s ex-boyfriend who had been threatening to release sensitive information about her;
and Derricka Harwell, who, according to Grayson, had created fake social media accounts to
spread negative information about Grayson’s business and had released Grayson’s home address
to her followers. Grayson indicated that she had cash with her to make a payment towards the
murders.
When the group arrived in Dallas, Grayson reiterated her desire to have Johnson and
Thomas carry out the murders. Grayson offered the duo $20,000 to kill Hodge, $30,000 to kill
Tate, and another $30,000 for the murder of Harwell. Johnson and Thomas told Grayson they
would carry out the plot. Johnson also told Grayson that future conversations should take place
over FaceTime, a video communication platform accessible through a cell phone, because,
according to Johnson, FaceTime calls are not traceable, meaning the group could speak “without
anyone knowing what [they were] talking about.” Trial Tr., Mar. 27, 2024, R. 145, PageID 1257.
Unknown to Grayson, the pair had no intention to follow through. Rather, Johnson and
Thomas planned to “play along” while collecting evidence of the crime. Id. at PageID 1253. Once
they had proof of Grayson’s scheme, the two agreed, they would “[t]urn it over” to authorities to
ensure their own safety. Id. Additionally, Johnson hoped to make an incriminating video of
Grayson so that she could sell it to TMZ, a gossip website, or use it as leverage to get Grayson to
sign over the deed to the home.
Once back in Memphis, Johnson followed up with Grayson via text. Johnson reiterated
that she and Thomas were committed to the plan but asked for assurance from Grayson in the form
of a deposit. Grayson was hesitant to discuss the “business plan” over text. Id. at PageID 1258.
3 No. 24-5988, United States v. Grayson
Eventually, the two women FaceTimed to discuss the details. Unknown to Grayson, Johnson was
using Thomas’s phone to secretly record the call. During the call, Johnson told Grayson that she
and Thomas had already been to Harwell’s home and that it would be “real easy to get her.” Tr.
Ex. 11, Video Clip 1, at 00:18–00:22. Grayson again indicated that she wanted Harwell killed as
soon as possible.
The call ended with Johnson telling Grayson to “[b]e looking out for us tonight,” as she
and Thomas planned on going to Harwell’s home that evening. Id., Video Clip 2, at 01:45–02:02;
see also Trial Tr., Mar. 27, 2024, R. 145, PageID 1270. After hanging up, Johnson later used
Thomas’s phone to send herself the recording. In the process, however, the 5-minute recording
was split into two separate clips, with approximately 26 seconds of footage lost. Johnson then
deleted the original recording from Thomas’s phone.
The two did not attempt to kill Harwell. Instead, they FaceTimed Grayson from an
unrelated crime scene. Against a backdrop of lights and sirens, Johnson claimed that she and
Thomas had “shot . . . up” Harwell’s home. Trial Tr., Mar. 27, 2024, R. 145, PageID 1273. When
Johnson asked Grayson for payment, Grayson agreed to pay them $10,000. Johnson and Thomas
immediately traveled to Texas to collect.
Not long thereafter, however, Johnson and Grayson’s relationship broke down.
Permanently so, it seems, when Johnson sent Grayson a clip of the recorded FaceTime call.
Grayson accused Johnson of threatening her. Grayson later contacted the FBI, informing them of
Johnson’s alleged extortion. Grayson then sent Johnson a voicemail of an FBI agent following up
on her complaint.
4 No. 24-5988, United States v. Grayson
At this point, Johnson involved her attorney. On his advice, she provided federal agents
with the recorded FaceTime call as well as text messages between her and Grayson. Based on the
information Johnson provided, Grayson was indicted for conspiring to commit murder-for-hire of
Harwell, in violation of 18 U.S.C. § 1958.
In the lead up to trial, Grayson raised a host of challenges to the admissibility of the
FaceTime recording. She argued that the video was obtained in violation of the Federal Wiretap
Act and therefore inadmissible. She also asserted that because the video was split into two
segments and missing content, it was no longer an original copy and could not be used as evidence.
The district court rejected both challenges, concluding that, because the government was not
involved in the making of the recording, a “clean hands exception” applied to the Federal Wiretap
Act and, further, that the video segments were admissible as duplicates of the original call.
At trial, Grayson again objected to the admission of the recording, this time on the basis
that the two clips were not properly authenticated. Again, the district court overruled her objection,
and a disk containing both portions of the FaceTime recording was received into evidence. She
likewise unsuccessfully challenged an assortment of the court’s jury instructions. In the end, the
jury convicted Grayson. She now appeals.
II.
A. Grayson leads off with a host of challenges to the admission of the FaceTime recording.
Among them, that the recording’s admission was barred both by the evidentiary rules as well as
the Federal Wiretap Act. We review the district court’s ultimate decision to admit the footage for
abuse of discretion. United States v. Morales, 687 F.3d. 697, 701 (6th Cir. 2012). Of course,
5 No. 24-5988, United States v. Grayson
underlying legal questions—like what the Federal Wiretap Act requires—get de novo review.
E.g., United States v. Murdock, 63 F.3d 1391, 1393 (6th Cir. 1995).
Rule 901 and Authentication. Grayson first contends that the FaceTime conversation
recording was improperly authenticated. Turn, then, to Federal Rule of Evidence 901, which
addresses the means for authenticating evidence for purposes of making it admissible at trial. To
properly authenticate a piece of evidence “the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a). The
authentication requirement “represent[s] a special aspect of relevancy.” Fed. R. Evid. 901(a)
Advisory Committee Note (1972). Authentication, however, is a “relatively low[] hurdle.” United
States v. Farrad, 895 F.3d 859, 878 (6th Cir. 2018). One way to clear this modest bar is by offering
testimony of a witness with knowledge “that an item is what it is claimed to be.” Fed. R. Evid.
901(b)(1).
Measured by these standards, the recordings were properly authenticated. At trial, the
government called Johnson to testify about the FaceTime call. She told the jury that while in
Dallas, she and Grayson discussed using FaceTime as an “[un]traceable” method of
communication to discuss the murder-for-hire plot. Trial Tr., Mar. 27, 2024, R. 145, PageID 1257.
Johnson recounted her plan to record the calls to collect evidence and hopefully, make money.
She told Grayson, “FaceTime me when you can,” with the purpose of discussing “the murder for
hire plan.” Id. at PageID 1264. Johnson said she used her phone to make the call and her husband’s
phone to record the conversation, later texting the footage to herself. She further told jurors that
she had reviewed the disk containing the portions of the recording, confirmed it contained the call,
and had initialed it after reviewing its contents. Id. at PageID 1265. To be sure, as Grayson notes,
the government, while authenticating the video, was not as precise as it could have been.
6 No. 24-5988, United States v. Grayson
For example, the government could have put each clip on its own disk and had Johnson testify that
each portion of the recording was taken from her FaceTime call with Grayson. But Johnson later
explained that when she sent the video to herself, the recording split into two clips, losing a bit of
footage in the process, allowing the jury to take this into account when it weighed the evidence.
Id. at PageID 1271–72. Taken together, Johnson’s testimony provided a sufficient basis for the
jury to find that the footage is what Johnson claimed it was—segments of the recorded call.
Seeing things otherwise, Grayson claims that the recording could not be authenticated due
to the omitted 26 seconds. Appellant Br. 24. With footage missing, she says, the disk is incomplete
and therefore, an inauthentic record of the call. This argument seems to miss the point. “The key
question under Federal Rule of Evidence 901 is whether ‘the matter in question is what its
proponent claims.’” United States v. Damrah, 412 F.3d 618, 628 (6th Cir. 2005). The government
established the evidence was indeed portions of the recorded call through Johnson’s testimony. If
Grayson believed the video was “distorted in some significant way, or was edited and therefore
misleading,” that objection would better be “resolved pursuant to Federal Rule 403.” 2
McCormick on Evidence § 216 (Robert M. Mosteller, ed., 9th ed. 2025) (footnote omitted); see
Fed. R. Evid. 403 (allowing for the exclusion of “relevant evidence if its probative value is
outweighed by a danger of . . . unfair prejudice”). In the end, satisfying Rule 901 merely renders
the recordings admissible; whether the evidence has persuasive value, and, in particular, whether
it leaves out critical information that undermines its evidentiary value, are issues left for the jury.
See United States v. Jones, 107 F.3d 1147, 1150 n.1 (6th Cir. 1997).
Nor, in any event, does the missing footage call into question the recording’s authenticity.
Grayson, we note, “does not question the fact that [she] and [her] words [were] depicted in the
videotapes.” Damrah, 412 F.3d at 628. Nor does she provide any basis for us to conclude that the
7 No. 24-5988, United States v. Grayson
missing footage posed any real problem or contained particularly salient information. In fact, she
admitted to the FBI that she “initially fell for the ruse,” told agents that the incriminating FaceTime
video of her existed, and later “renounced her recorded statements.” Appellant Br. 15. At bottom,
then, there is no dispute that the video is what it purports to be—segments from the FaceTime call
between Johnson and Grayson. See Asociación de Periodistas de Puerto Rico v. Mueller, 680 F.3d
70, 79–80 (1st Cir. 2012) (holding there was “no serious basis for disputing the authenticity of”
contested evidence where the plaintiffs claimed that the videos were “incomplete” and
“extensively edited” but did not “say that the videos do not show actual footage of the incident in
question”). Rule 901, in short, was no bar to the video’s admission.
Admission of a Duplicate and the Best Evidence Rule. Grayson likewise believes the
recording was inadmissible because it was a duplicate, not the original. Her challenge implicates
the so-called “best evidence rule,” which provides that “an original . . . recording” is generally
needed “to prove” the recording’s “content.” Fed. R. Evid. 1002. But a duplicate is “admissible
to the same extent as the original unless a genuine question is raised about the original’s
authenticity or the circumstances make it unfair to admit the duplicate.” Fed. R. Evid. 1003. A
duplicate may also come into evidence when the original has been either lost or destroyed by a
proponent not acting in bad faith. Fed. R. Evid. 1004. In this case, both parties agree that the clips
of the FaceTime recordings are duplicates for the purposes of these rules. See Appellant Reply
Br. 10; Appellee Br. 24.
The district court did not abuse its discretion in finding the video clips were admissible.
As discussed, Johnson’s testimony provided an adequate basis for the jury to conclude that the
footage “was an authentic ‘duplicate’ of the excerpted portions of” the FaceTime recording;
8 No. 24-5988, United States v. Grayson
the footage “was therefore admissible under Rule 1003’s exception” allowing duplicates. United
States v. Ehmer, 87 F.4th 1073, 1124 (9th Cir. 2023).
Grayson counters that the omitted footage makes it “unfair to admit the duplicate.” Fed R.
Evid. 1003. In her view, that part of the full call was missing from the video suggests that Johnson
edited the video and removed content, material Grayson claims was exculpatory. But this assertion
alone does not affect the video’s admissibility. As a leading evidence treatise explains, when a
duplicate is challenged “on the ground that the original has been altered after copying, it would
seem absurd to read Federal Rule of Evidence 1003 to bar admission of the duplicate.” 2
McCormick on Evidence, supra, § 236. Rather, in that instance, we may permissibly treat the
“altered original as ‘destroyed’ within the meaning of Federal Rule 1004.” Id. at n.21; see also
Ehmer, 87 F.4th at 1124 (holding that a duplicate, which defendant claimed was altered, was still
admissible under Rule 1004 because the original had been destroyed); cf. Asociación de
Periodistas de Puerto Rico, 680 F.3d at 80 (rejecting similar best evidence challenge where
defendant claimed that video footage was an altered duplicate). Under this exception to the best
evidence rule, if “all the originals are lost or destroyed, and not by a proponent”—here, the
government—“acting in bad faith,” an original is not required, and other evidence may be used to
prove the content of the recording. Fed. R. Evid. 1004(a). Given Johnson’s explanation that she
deleted the video after sending herself a copy, and that the video split into two clips simply due to
it being sent, the district court had ample grounds to conclude that the original recording was lost
through no fault of the government. Ehmer, 87 F.4th at 1124; 2 McCormick on Evidence, supra,
§ 231, text accompanying n.2. It was then up to the jury to decide if the disk “accurately reflect[ed]
the content” of the call. Fed. R. Evid. 1008(c). The district court did not abuse its discretion in
admitting the disk and reserving the question of accuracy for the jury.
9 No. 24-5988, United States v. Grayson
The Federal Wiretap Act. Grayson raises one final challenge to the admission of the
FaceTime call: it was an illegally intercepted electronic communication and thus inadmissible.
Some background helps set the stage. Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, see Pub. L. No. 90-351, tit. III, 82 Stat. 197, 211–25, commonly known as the
Federal Wiretap Act, makes it unlawful to “intentionally intercept . . . any wire, oral, or electronic
communication,” 18 U.S.C. § 2511(1)(a). To “intercept” means to “acqui[re] . . . the contents of
[the] communication through the use of any electronic . . . device.” Id. § 2510(4). Relevant here
is the fact that when communications are illegally intercepted, they may not be used as evidence
in a subsequent trial or hearing. Id. § 2515.
The Act, however, carves out a number of exceptions to the bar on intercepting
communications. One is the so-called “one-party consent” rule. When the “person” who
“intercept[s]” the communication is also a party to the communication, or when one of the parties
“has given prior consent” to interception, the interception is not unlawful. Id. § 2511(2)(d). But
there is an exception to the exception: When the “communication is intercepted for the purpose
of committing any criminal or tortious act,” the carve-out does not apply. Id.
According to Grayson, this latter carve-out addresses Johnson’s conduct—using her
husband’s phone to record her call with Grayson for the purpose of extorting Grayson into giving
Johnson’s mother her home’s deed. Appellant Br. 43. It follows, says Grayson, that Johnson’s
recording “intercept[ed]” their “electronic communication” “for the purpose of committing” the
“criminal . . . act” of extortion, meaning Johnson violated the Act, and that the footage could not
be used at trial as a result. 18 U.S.C. § 2511(1)(a), (2)(d).
10 No. 24-5988, United States v. Grayson
While Grayson may be correct in some respects, ultimately, the legality of the recording
has no bearing on its admissibility. That is because the clips of the recorded call are covered by
the “clean hands” exception established by United States v. Murdock, 63 F.3d 1391 (6th Cir. 1995).
There, Murdock’s wife, having become suspicious of her husband’s business activity, decided to
record telephone calls made on the family’s home phone. Id. at 1392–93. The recordings revealed
that Murdock, the President of the Detroit School Board, had been accepting bribes from a local
business and, in return, was providing the company with a lucrative contract. Id. Copies of the
taped calls eventually made their way to authorities, who indicted Murdock on charges of tax
evasion. Id. Relying on § 2515’s exclusionary rule, Murdock moved to have the tapes suppressed.
Id. We rejected this argument. Despite the fact that the recordings were illegally intercepted, we
held that suppression is not warranted in a criminal prosecution where the “government played no
part in the unlawful interception.” Id. at 1404.
So too here. The government neither made nor encouraged the FaceTime recording.
Rather, Johnson, a private party, gathered this evidence for her own ends, only later turning the
video over to federal agents. Our precedent thus commands that Grayson, like Murdock, “does
not enjoy the . . . right to suppression.” Id. (She may separately have the right to bring a civil suit
against Johnson, see id.).
Resisting this conclusion, Grayson counters that Murdock should be overruled because it
cannot be squared with the plain text of § 2515. Appellant Br 44; Reply Br. 9. Specifically, she
says, § 2515 unambiguously prohibits the use of any improperly intercepted communications as
evidence, without regard to whether the government was involved in the procurement. Appellant
Br. 44; 18 U.S.C § 2515 (explaining that when “any . . . communication” has been illegally
intercepted “no part of the contents of such communication . . . may be received in evidence”).
11 No. 24-5988, United States v. Grayson
On this basis, several of our sister circuits, she notes, have refused to read a clean hands exception
into the statute. See United States v. Crabtree, 565 F.3d 887, 889 (4th Cir. 2009); Chandler v.
U.S. Army, 125 F.3d 1296, 1302 (9th Cir. 1997); In re Grand Jury, 111 F.3d 1066, 1079 (3d Cir.
1997); United States v. Vest, 813 F.2d 477, 481 (1st Cir. 1987). We do not discount Grayson’s
textual analysis, the touchstone for modern day statutory interpretation. See Niz-Chavez v.
Garland, 593 U.S. 155, 160 (2021) (explaining that we interpret statutes by first exhausting “all
the textual and structural clues bearing on [its] meaning” (citation modified)). Nor would we likely
consider the statute’s legislative history in interpreting that text in the way Murdock chose to do.
See Murdock, 63 F.3d at 1404 (“[I]t is appropriate under the legislative history . . . to apply a ‘clean
hands’ exception to Section 2515”); but see Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia,
J., concurring) (noting that legislative history is “illegitimate” as “[w]e are governed by laws, not
by the intentions of legislators”). Indeed, the use of legislative history was particularly unusual in
Murdock, where the panel relied on the fact that, to its mind, “nothing in the legislative history”
spoke against the “clean hands” exception. Murdock, 63 F.3d at 1403. But for today’s purposes,
we are bound by Murdock, which, as Grayson acknowledges, forecloses a panel of three from
holding otherwise. See, e.g., United States v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017) (“One
panel of this court may not overrule the decision of another panel; only the en banc court or the
United States Supreme Court may overrule the prior panel.”); see also Reply Br. 9 (“Appellant
acknowledges Murdock binds this panel . . . .”). Right or wrong, in other words, Murdock controls.
B. Grayson also raises two challenges to the jury instructions.
Preliminary Instructions. Grayson believes that the district court, in delivering its
preliminary instructions to the jury, improperly commented on the evidence, and later erred in
12 No. 24-5988, United States v. Grayson
denying her a mistrial on that basis. We review the district court’s denial of Grayson’s motion for
a mistrial for an abuse of discretion. United States v. Howard, 621 F.3d 433, 458 (6th Cir. 2010).
Begin with the relevant factual background. Before evidence was presented in this case,
the district court gave the jurors preliminary instructions. One instruction addressed proving a
defendant’s state of mind. The district court told jurors that “[o]rdinarily, there is no way that a
defendant’s state of mind can be proved directly.” Trial Tr., Mar. 26, 2024, R. 144, PageID 1116.
But, the court added, “if [the government] could have a recording that says, I’m going to kill
somebody, that might be important.” Id. The court then reminded jurors that “you still have to
ask yourself at the end: Has the Government met that burden . . . ?” Id. at PageID 1117. Grayson
objected, asserting that the court’s example amounted to an improper comment on the evidence,
and moved for a mistrial. The court denied the motion for a mistrial and instead gave the jury a
curative instruction. The court told jurors that the example it had used was “not really appropriate,”
and asked them to “disregard [it].” Id. at PageID 1130, 1132. The court explained that it was not
“saying that [the aforementioned example] is a basis or a sufficient basis to draw any conclusion
about anything.” Id. at PageID 1132. And it reminded jurors it was their job to draw inferences
from the evidence. Id. Following these clarifications, Grayson again asked the court to declare a
mistrial, to no avail.
As a threshold matter, there is no per se bar on a district court commenting on the evidence
when instructing the jury. Judges are “not limited to instructions of an abstract sort.” United States
v. Blakeney, 942 F.2d 1001, 1013 (6th Cir. 1991) (quotation omitted). Rather, a judge may “assist
the jury in arriving at a just conclusion by explaining and commenting upon the evidence . . .
provided [the court] makes it clear to the jury that all matters of fact are submitted to their
determination.” Id. (quotation omitted). But in so doing, the court must act “with great care and
13 No. 24-5988, United States v. Grayson
may not unduly prejudice the jury.” United States v. Martin, 740 F.2d 1352, 1357 (6th Cir. 1984).
After all, while the court may “analyze and dissect the evidence,” it may not “distort or add to it.”
Blakeney, 942 F.2d at 1013.
Defining the line between a permissible comment and a prejudicial one is not always easy.
But in close cases, a curative instruction can help ensure that no prejudice infected the jury’s
consideration of the case. Consider, on this point, United States v. Frederick, 406 F.3d 754 (6th
Cir. 2005). There, the defendant was charged with possessing a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c). Id. at 758. While instructing the jurors on
this charge, the district court made comments “suggest[ing] that some of the factors tending to
support conviction were undisputed.” Id. at 762. In particular, the court stated that “we know the
type of firearm that was involved,” indicated that the jury knew the gun was “found in relation to
the drug activity that had occurred,” and told jurors that the “drug proceeds” would be the “money”
they had heard testimony about. Id. (emphasis omitted) (internal quotation marks omitted). Those
comments prompted an objection from the defendant, at which point the court agreed to give a
curative instruction, reminding the jurors that they were the ultimate finders of fact, free to believe
or disregard any testimony. Id. On appeal, after noting that “[i]n a close case, with no curative
instruction, such remarks might raise a question,” we concluded that the “prompt and explicit
curative instruction . . . eliminate[d] any danger that the jury might draw an improper conclusion
from the court’s prior remarks.” Id.
With Frederick as a guide, we cannot say that the district court’s comments here unduly
prejudiced the jury. The court told jurors that a piece of evidence “might be important” to
determining intent. Trial Tr., Mar. 26, 2024, R. 144, PageID 1116 (emphasis added). This
comment expressed a less definitive view on the evidence than the statements at issue in Frederick.
14 No. 24-5988, United States v. Grayson
The district court’s use of conditional language here made clear that the jury was the ultimate
finder of fact and that it was free to reject any video evidence as relevant to intent. Blakeney, 942
F.2d at 1013. What is more, much like Frederick, the court acknowledged that its comments were
inappropriate, following them up with an explicit curative instruction telling the jurors to disregard
that example and reminding them it was their job to draw conclusions from the evidence.
Considered as a whole, the district court’s preliminary instructions do not warrant reversal.
Seeing things otherwise, Grayson attempts to analogize the comments here to two cases in
which the district court’s comments were deemed “[t]ruly serious errors” that “may automatically
require reversal.” Frederick, 406 F.3d at 762. But in each of those cases, the district court in
question commented before the jury on the ultimate question of guilt—unlike here, where the
comments at issue at most loosely indicated that some evidence may be important to intent. In
United States v. Martin, 740 F.2d 1352 (6th Cir. 1984), for example, the district court, following
the defendant’s testimony, remarked to counsel that “he is guilty.” Id. at 1357. On that record,
we reached the sensible conclusion that if it was discovered on remand that any jurors overheard
the judge opining on the ultimate question of guilt, the conviction could not stand. Id. Similarly
in United States v. Yates, 553 F.2d 518 (6th Cir. 1977), the judge remarked in front of the jury that
the defendant’s alleged confession made “clear” that he “did admit his participation in this bank
robbery.” Id. at 520 n.1. But the defendant had claimed that the confession was coerced. We held
that this comment essentially stripped Yates of his defense and therefore, was improper. Id. at
521. Again, the district court’s comments here were nowhere near as flagrant as those in Martin
and Yates.
2. Wharton’s Rule. Finally, Grayson argues that the district court should have given a
Wharton’s Rule instruction regarding her conspiracy charge. As she did not raise the issue in
15 No. 24-5988, United States v. Grayson
district court, we review only for plain error. United States v. Aaron, 590 F.3d 405, 408 (6th Cir.
2009). Under this demanding standard, Grayson must show (1) an error, (2) that is plain or
obvious, (3) that affected her substantial rights, and (4) that seriously affected the fairness,
integrity, or public reputation of the judicial proceedings. United States v. Burrell, 114 F.4th 537,
554 (6th Cir. 2024). She fails to do so.
To understand Grayson’s argument, begin with the background principle of criminal law
that a conspiracy does not merge with the substantive offense that is its goal. Iannelli v. United
States, 420 U.S. 770, 782 (1975). In the drug crime setting, for example, a defendant can be found
guilty of both distributing illegal drugs and for conspiring to do so. 21 U.S.C. §§ 846, 841; see
also United States v. Sadler, 24 F.4th 515, 528 (6th Cir. 2022). Wharton’s Rule, however,
developed as an exception to this general practice. If a substantive offense “necessarily require[s]
the participation of two persons for its commission,” a defendant cannot be prosecuted for
conspiracy. Iannelli, 420 U.S. at 773 n.5. Put differently, when a crime requires two parties to
commit the offense, there must be at three individuals involved in a conspiracy to commit that
crime. That is so because, as the Rule’s logic goes, “two parties cannot conspire to commit a
substantive crime when the crime itself requires two parties for its completion (such as dueling or
prostitution).” United States v. Wheat, 988 F.3d 299, 307 (6th Cir. 2021). Supreme Court
precedent instructs that we presume Wharton’s Rule applies to a conspiracy statute unless the text
suggests otherwise. Iannelli, 420 U.S. at 786.
But Wharton’s Rule’s merger principle has no place here. The “Rule applies only to
offenses that require concerted criminal activity, a plurality of criminal agents.” Iannelli, 420 U.S.
at 785. And precedent dictates that 18 U.S.C. § 1958, the offense Grayson was charged with
committing, is not the type of two-persons-needed substantive offense to which the Rule applies.
16 No. 24-5988, United States v. Grayson
Rather, § 1958 can be violated by a “sole perpetrator.” United States v. Ransbottom, 914 F.2d 743,
746 (6th Cir. 1990). As we explained in Ransbottom, the statute is not “solely an anti-conspiracy
statute,” and holding otherwise would “do violence to the statute’s plain meaning.” Id. To that
end, a single person can use a facility of instate commerce for murder-for-hire alone by soliciting,
attempting to hire, or arranging the murder—even if there is no actual second person who agrees
to (or commits) the murder. Id. (explaining that the statute allows conviction if a single defendant
uses interstate commerce “with the intent that a contract murder be committed”). And because the
substantive offense—using a facility of interstate commerce to plan a murder-for-hire—does not
require two parties for completion, § 1958 is not the type of statute to which Wharton’s Rule could
apply. See United States v. Hernandez, 141 F.3d 1042, 1052 (6th Cir. 1998) (explaining that the
substantive offense of murder-for-hire is a “separate and distinct crime[]” from the conspiracy to
commit murder-for-hire).
Resisting this conclusion, Grayson urges us to look beyond the text of the statue. In her
view, “the statute” was in effect “modified by the indictment.” Appellant Br. 53. How? As she
explains things, to convict her of conspiracy, the jury had to find she “hired someone to commit a
murder and entered into a conspiracy with another to facilitate the murder.” Id. Thus, she claims,
the offense with which she was charged could not have been committed by a “sole perpetrator.”
Id. For support she points to language in the jury instructions where the district court, summarizing
the indictment, told jurors that Grayson and her husband were accused of “conspiring with each
other and with others known and unknown.” Id. (emphasis omitted) (quoting Jury Instrs., R. 123,
PageID 480). Tallying this up, Grayson concludes that the indictment contemplated at least three
people (a person who hired another to commit murder, a person hired for the offense, and a separate
conspirator) committing the crime—thus, in her view, implicating Wharton’s Rule. Id.
17 No. 24-5988, United States v. Grayson
But this is not how the inquiry works. We “focus[] on the statutory requirements of the
substantive offense rather than the evidence offered to prove those elements at trial.” Iannelli, 420
U.S. at 780. The mere fact that an indictment charges multiple people with committing an offense
together, in other words, does not mean that “the crime itself requires two [or more] parties for its
completion.” Wheat, 988 F.3d at 307. That is a question of “legislative intent,” Ianelli, 420 U.S.
at 782, as evidenced by “the statute’s plain meaning,” Ransbottom, 914 F.2d at 746. And on that
front, as Grayson admits, our precedent instructs that murder-for-hire can involve a single
perpetrator. Appellant Br. 53 (citing Ransbottom, 914 F.3d at 746). In short, the district court did
not err in failing to give a Wharton’s Rule instruction.
* * * * *
We affirm.