United States v. Gray

71 F. App'x 485
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 29, 2003
DocketNo. 00-6309
StatusPublished
Cited by3 cases

This text of 71 F. App'x 485 (United States v. Gray) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gray, 71 F. App'x 485 (6th Cir. 2003).

Opinion

RYAN, Circuit Judge.

A jury convicted the defendant, Christopher Gray, of aiding and abetting the interstate transportation of falsely made or forged securities, in violation of 18 U.S.C. § 2314, and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). The district court sentenced [487]*487Gray to a term of 52 months’ imprisonment, which included a sentence enhancement for obstruction of justice pursuant to section 3C1.1 of the United States Sentencing Guidelines. Gray appeals his conviction and sentence, claiming that the district court erred by admitting portions of his ex-wife’s testimony and by increasing his sentence for obstruction of justice. For the reasons discussed below, we affirm Gray’s conviction and sentence.

I.

On February 23, 2000, a grand jury indicted Christopher Gray; his mother, Brenda Gray; and his wife at the time, Shannon Gray (now known as Shannon Bolden) on charges related to a false check-cashing scheme. The events leading to the indictment began in March 1998, when Brenda Gray worked at the accounting firm Chitwood and Chitwood. Pursuant to her responsibilities at Chitwood, Brenda Gray had authority to write checks drawn upon the accounts of the firm’s clients. Near the end of March 1998, Shannon Gray told her mother-in-law, Brenda Gray, that she and Christopher needed financial help.

Brenda Gray began writing unauthorized checks from a client’s account, made out to “AMG,” which represented the initials of her daughter. Brenda Gray deposited these checks into her daughter’s account, then withdrew the money she deposited and gave it to Christopher and Shannon Gray. The unauthorized checks written to “AMG” totaled approximately $42,500. Brenda Gray next wrote unauthorized checks to “CSG,” which represented a combination of the initials of Christopher and Shannon Gray. Brenda Gray gave some of these checks, written for amounts ranging from $5,000 to $9,000, directly to Christopher or Shannon Gray. Christopher Gray frequently visited his mother’s office to pick up the checks, which he then cashed or deposited.

Eventually the bank at which Christopher and Shannon Gray had been cashing the checks informed them that it would no longer cash checks bearing only initials. Thereafter, Christopher and Brenda Gray concluded it would be best to issue the checks to “S. Bearden.” They used the last name “Bearden” because it was Shannon Gray’s maiden name. Christopher Gray endorsed and cashed “S. Bearden” checks totaling more than $75,000. The checks to “CSG” and “S. Bearden” totaled approximately $113,000.

Brenda Gray pleaded guilty to charges related to the fraudulent checks. Prior to Christopher Gray’s trial, he and Shannon Gray divorced. She remarried and became known as Shannon Bolden. She pleaded guilty to charges related to the scheme and testified for the government at Christopher Gray’s trial. At his trial, Christopher Gray testified that he never knew the money he received from his mother had been stolen from Chitwood’s clients. Brenda Gray testified that she did not want her son to discover that she had obtained the money illegally, so she told her son the checks were “loans” from Chit-wood. Bolden provided crucial testimony for the government. She testified about specific conversations she had with Christopher, while she was still married to him, in which he admitted that he knew his mother was stealing the money. The jury convicted Christopher Gray of aiding and abetting the transportation of forged securities “knowing the same to have been stolen,” 18 U.S.C. § 2314, and conspiracy to commit money laundering “knowing that the property involved ... represents ... some form of unlawful activity,” 18 U.S.C. § 1956(a)(1) & (h).

Based on his convictions, Christopher Gray had an offense level of 21. Pursuant [488]*488to section 3C1.1 of the sentencing guidelines, the district court included a two-level increase for obstruction of justice based on its conclusion that Christopher Gray committed perjury at his trial. Using an offense level of 23, the district court sentenced Christopher Gray to 52 months’ imprisonment, three years of supervised release, and $113,000 in restitution. Christopher Gray now appeals his conviction and sentence.

II.

The primary issue in this appeal is whether the district court erred when it allowed the defendant’s former wife, Shannon Bolden, to testify about conversations she had with the defendant while they were married. We review this claim for plain error because the defendant did not object to the testimony at trial. See United States v. Fortson, 194 F.3d 730, 736 (6th Cir.1999). To establish plain error, the defendant must show that (1) an error occurred in the district court, (2) the error was plain, ie., obvious or clear, (3) the error affected his substantial rights, and (4) this adverse impact seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998).

The defendant argues that the district court should have excluded portions of his ex-wife’s testimony because, according to him, she testified about confidential marital communications, and as such, her testimony was privileged. The government contends that the testimony was properly admitted under the “joint participants” exception to the privilege for confidential marital communications. The government also argues that even if the district court erred when it admitted the testimony, it did not commit plain error.

In a federal criminal trial, testimonial privileges “shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” Fed.R.Evid. 501. The Supreme Court has held, pursuant to the common law, that “marital communications are presumptively confidential.” Blau v. United States, 340 U.S. 332, 333, 71 S.Ct. 301, 95 L.Ed. 306 (1951). Such confidential communications between spouses are privileged and thus may be excluded as evidence. Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). The defendant spouse may assert the marital communications privilege to exclude the testimony of the witness spouse concerning confidential marital communications. United States v. Sims, 755 F.2d 1239, 1241 (6th Cir.1985).

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Bluebook (online)
71 F. App'x 485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gray-ca6-2003.