United States v. Gray

24 F. App'x 358
Court of Appeals for the Sixth Circuit·Decided November 19, 2001·No. No. 00-5952·Published·Cited by 3 cases

Opinion

DAUGHTREY, Circuit Judge.

Following a trial in which the jury convicted the defendant, Glover Gray, of four counts of bank fraud and six counts of possession of counterfeit securities, the district court sentenced Gray to concurrent 37-month prison terms and to five years of supervised release, and ordered restitution in the amount of $10,000. In reaching his sentencing determination, the district judge concluded that the defendant had intended to cause a monetary loss in excess of $4 million. Gray now insists that such a finding was improper and that the district court also erred both in excluding from evidence a tape recording of a threatening telephone call to the defendant and in allowing the prosecution to introduce certain rebuttal testimony. We conclude that the district court correctly calculated the loss intended by Gray and did not commit reversible error in its evidentiary determinations. We therefore affirm the judgment of conviction and the sentence imposed.

FACTUAL AND PROCEDURAL BACKGROUND

Late in the afternoon on May 22, 1997, Gray entered a Memphis branch of Union Planters Bank where he had an account in his name, doing business as Oaktree International. At that time, he presented for deposit into his account a cashier’s check for $4 million from Fairfield Savings Bank near Chicago. The teller assisting Gray refused to accept the check, however, because it had not been signed by the maker of the instrument.

The following morning, Gray again appeared at the Union Planters branch and again offered the check, this time signed by the purported maker, for deposit into the defendant’s own account. After telephoning Fairfield Savings Bank and receiving verification that the check was theirs, the Memphis bank accepted the deposit and allowed Gray to withdraw $10,000 from his account in a combination of cash and traveler’s checks. Throughout the remainder of that morning, Gray continued to telephone the bank to request the release of the remaining funds from the deposited check. Specifically, the defendant asked Union Planters to wire the money to a bank in New York for eventual transfer to an account in the Cayman Islands. The employees of the Memphis bank consistently informed Gray that a hold had been placed on the remaining funds, pending further verification, because of the unusually large amount of the check. Later that same day, the defendant personally returned to the bank in a purple Dodge Stratus and asked to speak with the branch manager regarding the release of the money. The funds were never cleared for release, however, because a final phone call to the Fairfield Savings Bank revealed that the $4 million check was not in fact valid and had not [360] been prepared using Fairfield’s automatic imprint machine.

A little over a year later, Gray again began depositing counterfeit checks in his accounts, this time at Nations Bank branches in Memphis. As he had done earlier, he withdrew cash amounts allowed by the bank pending verification of the deposited funds. Finally, however, Secret Service agents were alerted to the defendant’s activities, confronted him, and requested that Gray follow them to their office for an interview. The defendant did so, and during the course of the discussion, consented to a search of his vehicle where the agents recovered cash Gray had withdrawn earlier from one Nations Bank branch. A subsequent search of the defendant’s apartment conducted under the authority of a warrant furthermore revealed equipment useful in printing counterfeit checks and two such negotiable instruments.

At trial, Gray testified in his own defense and, while not denying his wrongdoing, claimed that he performed any illegal activities only under duress. He explained that, on a previous trip to Africa, his passport had been stolen by a criminal ring operating on that continent. Then, Gray said, upon his return to the United States he was contacted by members of the ring and forced to pass the counterfeit checks for them or risk harm to his family and friends.

After considering the evidence presented to it, the jury discredited Gray’s explanation for his actions and found the defendant guilty of all charges made against him. At sentencing, the district court then concluded that, although the unrecovered monetary loss of the victims of the defendant’s crimes was only $10,097, the “intended loss” included the additional amounts of the deposited checks that Gray was unable to access from his accounts at the times he attempted to do so. Considering those amounts, and the fact that more than minimal planning was involved in the perpetration of the offenses, the court sentenced Gray as a criminal history category I, offense level 21 offender to 37 months in prison. From that sentencing determination, and from certain evidentiary rulings made during trial, Gray now appeals.

DISCUSSION

I. Exclusion of Tape Recording of Threatening Telephone Call

Gray’s defense to the charges against him required that he establish, to the satisfaction of the jury, that he committed the illegal acts listed in the indictment only because he genuinely believed he and his family would be harmed by members of a crime syndicate if he did not comply with their alleged demands upon him. In an attempt to satisfy that evidentiary burden, the defendant sought to introduce into evidence a tape recording of a telephone conversation with an unidentified individual who allegedly threatened Gray with harm shortly before the trial in this matter. The district judge denied that request, however, ruling that the taped conversation was unauthenticated, was “far removed” from the criminal acts in question, was so difficult to understand as to be unreliable, and constituted inadmissible hearsay.

Such a decision on whether to admit tape recordings into evidence rests within the sound discretion of the trial court. See United States v. Robinson, 707 F.2d 872, 876 (6th Cir.1983). In this case, we find no abuse of discretion.

First, defense counsel did not, and indeed could not, dispute the fact that a telephone call in April 2000 was of limited relevance to the defendant’s state of mind [361] in the summers of 1997 and 1998. Second, Gray’s failure to contest the prosecution’s representation of the difficulty in identifying speakers and in understanding the recorded conversation supports the district judge’s evidentiary ruling. Finally, and most convincingly, the court did allow the defendant himself to testify concerning the threats made against him and his family.

Gray nevertheless insists that he was prejudiced by the district court decision because hearing an actual threat delivered by an irate third party would have solidified in the minds of the jurors the duress under which the defendant operated. While it is indeed likely that corroboration of Gray’s allegations may have had some effect upon the jury, the remaining concerns of the court about the authenticity, relevance, and quality of the recording were not addressed satisfactorily by the defendant. Absent any indication that the challenged tape recording met minimal standards for admissibility, no reversible error was committed by the district court in refusing to allow the jury to hear the tape recording.1

II. Admission of Rebuttal Evidence

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United States v. Gray, 24 F. App'x 358 (6th Cir. 2001).

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