[00:00:07] Speaker 00:
United States of America versus Benjamin Brandon Gray, Appellant.

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Mr. Axum for the Appellant, Mr. Howland for the Appellate.

[00:00:16] Speaker 04:
May it please the Court, Council.

[00:00:18] Speaker 04:
Tony Axum on behalf of Appellant Benjamin Gray, and I'd like to reserve three minutes for rebuttal.

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Appellant Benjamin Gray seeks reversal of his convictions based on introduction of inadmissible evidence that prejudiced him.

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Specifically, the government introduced evidence of a superior court civil judgment for conduct that also formed the basis of some of the charges here.

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The government also introduced evidence of

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other crimes, specifically about a bad check unrelated to the case here that Mr. Gray passed at a Nissan dealership.

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And the government introduced evidence of the impact of Mr. Gray's actions on his purported victims.

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To address the civil judgment first,

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Hector Williams testified that he sued Mr. Gray in Superior Court and got a judgment in the amount of $35,000 approximately, the same amount that Mr. Gray was alleged to have defrauded

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Mr. Williams and the bank in this case.

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Counsel for Mr. Gray did not object to that, so it is reviewed for plain error, but the judgment itself, or testimony about the judgment and the amount were hearsay, and it was admitted without any exception to the hearsay rule, so it plainly should not have been admitted.

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Was the judgment itself entered into evidence or just the testimony about it?

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Just the testimony about it.

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And there was no objection, so that's on plain error review, correct?

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That's correct.

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And that judgment, obviously, Hector Williams was the first witness, but that judgment obviously prejudiced Mr. Gray throughout the trial because it confirmed for the jury at a very early stage in the trial that

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another tribunal had already found him liable for the same acts, same money, same allegation of fraud that this jury was to decide.

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There was no mitigation of this in any way.

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There was no limiting instruction, and it infected every other witness that came after Mr. Williams.

[00:02:54] Speaker 05:
How do you make the plein air, I mean, I agree it was clearly wrong, but how do you make the plein air argument?

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If the court is referring to the prejudice from the plain error, I think the prejudice when you admit a judgment is inherent, as other courts have found.

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Judicial findings in particular have great weight for juries.

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They were not told much about this, but they were told that there was another judgment for what Hector Williams was testifying about in another court.

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And frankly, that's all they needed to know.

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It's inherently prejudicial because from the outset, the jury

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has confirmed, the witness has confirmed for the jury that there was wrongdoing and the jury shouldn't be approaching it with a bias that there was already wrongdoing.

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The jury should be approaching it with an open mind and to determine for themselves whether there was wrongdoing.

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When you say it was inherently prejudicial, do you mean it was inherently prejudicial in that it was damaging or do you mean it was inherently prejudicial in that any time a judgment is entered, it's per se plain error?

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No, it was damaging.

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I don't think that it would necessarily always be prejudicial.

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But in this case, in these circumstances, when there's not much daylight between what the witness is testifying and the judgment that he says he got for the actions that he's testifying about,

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It was damaging for Mr. Gray in this specific case.

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So in that sense, it was impossible to separate out the prejudice from any other analysis of the evidence in the case.

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Mr. Gray was also prejudiced by the other crimes evidence, specifically that he presented a check at a Nissan dealership that had insufficient funds to purchase a car at the dealership.

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And this evidence was

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was irrelevant to the charged offenses.

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It was not a separate scheme, but it was just an act of bad character, an act of dishonesty, if you credit it fully, or if you assume that Mr. Gray knew that the check that he wrote was on an account that had insufficient funds.

[00:05:35] Speaker 04:
The government did not prove that.

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But that was the implication of the testimony.

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There was no allegation of Mr. Gray passing a bad check here or trying to get something by passing a bad check here.

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It was the exact opposite.

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Mr. Gray was offering to sell cars and taking money, and the allegation was that he was not then providing the cars.

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So the passing of a bad check in a completely separate incident... Wasn't it the same bank account, the plant?

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It was...

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It was the same bank account he used in other cases, right?

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It was his business bank account.

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That's correct.

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So it wasn't completely unrelated, right?

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Doesn't it show intent to use that bank account, at least?

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Well, it certainly shows his intent to use that bank account, but that's exactly why it's so prejudicial, because what does it show about his use of that bank account?

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That every time he uses that bank account, it's fraud?

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That he's a person that is a fraudster?

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Well, that's propensity evidence.

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That's precisely the purpose for which this type of testimony is forbidden.

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That's what 404B prohibits.

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This evidence, just like the evidence of the civil judgment, should have been excluded.

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It should have been excluded under 404B.

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I think the district court's initial impulses in the pretrial hearing were to exclude it and to only let in 404B that was

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of similar acts by Mr. Gray.

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But the district court ultimately allowed the government, and I'd submit that by allowing the government to choose which of the five other crimes it had submitted was an arbitrary act and just demonstrates that this was an abuse of discretion to allow this particular other act in as evidence.

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How is it prejudicial given all the other evidence in the case?

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I'd say that it's prejudicial in the same way that the civil judgment.

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Although Mr. Gray didn't testify, this tarnished his character.

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And if the jury was to have any doubt about the evidence that the government had presented,

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this removed any qualm about finding?

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Well, maybe not, because as you said, it wasn't that closely related.

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And people write checks that bounce.

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They shouldn't.

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It's against the law.

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But it's a more common type of infraction than the type of stuff he was being charged with.

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It is a more common infraction.

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So I don't know.

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Would it actually be all that prejudicial?

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It could be wrong, but it has to be prejudicial as well.

[00:08:31] Speaker 04:
Well, I'd say the first thing I'd say is that under Rule 403, there's a balancing.

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And you're weighing the probativeness, which is almost zero in this case.

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I'm just saying, assuming it was aired to be admitted, so assume the district court aired.

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either under 404 or the 403 balancing, whichever way you want to look at it.

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How is it prejudicial given all the other evidence in this case?

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Well, just as the court noted, people shouldn't write checks that are going to balance.

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And the purpose of this was to tarnish Mr. Gray.

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And the jury sitting there

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would logically, there may be many innocent explanations.

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No innocent explanation was offered by the defense, and the government didn't elaborate in order to offer, in order to allow for an inference of an innocent explanation.

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The only explanation, the only inference to be drawn from this testimony was negative.

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So the jury also got an instruction on, a limiting instruction with this evidence, right?

[00:09:36] Speaker 04:
Yes.

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But I'd submit that the limiting instruction

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did not do much to aid the jury because this evidence didn't actually go to knowledge, intent, or absence of mistake.

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So to the extent they got a limiting instruction that said you are only to use it for this purpose and this evidence didn't prove any of those things, the instruction had no effect on them.

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and the natural impulse again, this is why 404B is so damaging, the natural impulse would be to assume that because Mr. Gray was a fraudster or in the government's words, a con man, they should believe that any actions he took in this case were fraudulent.

[00:10:30] Speaker 04:
Okay, anything else?

[00:10:32] Speaker 05:
No.

[00:10:32] Speaker 05:
Okay, thank you.

[00:10:56] Speaker 03:
Good morning, and may it please, or I guess good afternoon, and may it please the court, Christopher Howland for the United States.

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The trial court did not abuse its discretion in any of the evidentiary rulings that are challenged on appeal by appellant.

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Taking up the, going in reverse order from appellant's presentation, the issue with Mr., with the dealership, I'll call it the Chevy Chase dealership, we disagree that it was not probative.

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If you read the way that it came out, Mr. Coley has testified that the, essentially, our argument on that point is that he ignores, saying that it's not probative, ignores the record.

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What Brown says is that there has to be a substantive and a temporal connection in order for it to be, to meet the threshold level of similarity.

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We posit that the testimony meets that test in this case.

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It was the same exact, as the court pointed out, the same exact entity that was at issue with the charged counts and the indictment.

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It was the same time frame, so it was both substantive and temporally related.

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And it demonstrated that, or it was a reasonable inference for the jury to make, that if this account had been closed a year before, that he knew that it was closed and he knew that the planet cars, which was the fake entity,

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was not a legitimate business.

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And so it made it more likely that in the other instances, the use of the same fake entity to perpetrate these frauds against these individuals, it made it more likely that he specifically intended to commit those crimes.

[00:12:45] Speaker 01:
I just don't understand that argument.

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So in the Williams and Berthelsen situations, he used an open

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planet cars account.

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Both of those involved open planet cars accounts and there was testimony from BB&T that he had two accounts.

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So I just don't understand your argument that the fact that he was using a closed account somehow shows that those planet cars things

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was a fraud.

[00:13:10] Speaker 01:
It was shown to be a fraud through other means, but it was involved open planet cars bank accounts.

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So I don't understand.

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I just don't understand that argument on the merits of whether it was relevant.

[00:13:24] Speaker 03:
Sure, I guess I would have a couple of responses.

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First is that if it's the same business entity that he was using, and he used it in one circumstance and it was open, but he used it in a fraudulent manner.

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If he used it in the second one and he used it in a fraudulent manner, or if there was a reasonable inference that he was using it in a fraudulent manner that the jury can make, I think it makes it more likely that he

[00:13:49] Speaker 03:
He knew that the Planet Cars was not a legitimate business entity and so it sort of is neither here nor there that the account was closed versus the account was open.

[00:14:01] Speaker 03:
The issue about it being closed for a year just demonstrates that he knew when he wrote the check that Planet Cars was not a valid business entity.

[00:14:11] Speaker 01:
That isn't connected to this case which involved the use of open Planet Cars accounts and I had understood the argument in district court to be the fact that

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This had a closed account and showed that Planet Cars was a fraudulent entity and that just didn't make sense in light of the evidence that was put into the case as to the other frauds.

[00:14:30] Speaker 03:
Well, I mean, again, I think I would go back and say that it made it more likely than not that Mr. Gray was willing to use this Planet Cars entity as a fraudulent business entity.

[00:14:44] Speaker 01:
So is your position that if he used a Planet Cars account for any other type of fraud, anything that would qualify as common law fraud, it automatically could come in just because it shows he does bad things with that account?

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I think if it showed that he was willing to portray himself as a car dealer using this specific car dealership.

[00:15:08] Speaker 01:
He was a car purchaser in the Chevy Chase case.

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He wasn't trying to sell cars or acquire cars for someone else.

[00:15:14] Speaker 01:
So it was actually quite a different, it was just buying a car without the money to pay for it, which is quite different from what the type of fraud is that was going on with all the other individuals in this case.

[00:15:26] Speaker 03:
Well, so again, I would just point out that Brown, the threshold for similarity is fairly low.

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This court and others have made clear that when it comes to these kinds of crimes, these fraud crimes, proving intent, the difficulty of proving intent means that under 404B there's a low threshold.

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I think they call it a liberal policy.

[00:15:49] Speaker 01:
And it's our position that... Well, it's got to be more than... Low or not, it's got to be enough to make sure that we're not just showing that this person's a fraudster with bank accounts.

[00:16:01] Speaker 01:
And it seems to me that's closer to what was going on in this case.

[00:16:05] Speaker 03:
Well, even assuming that there was an error under 404B, it's the government's position that it was harmless in any event.

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As we point out in our brief, virtually every aspect of the government's evidence was undisputed.

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It was, as Your Honor pointed out, overwhelming.

[00:16:25] Speaker 03:
The court issued, as Judge Srinivasan pointed out, four, not one, but four strong and emphatic limiting instructions about the use of this 404-V evidence.

[00:16:35] Speaker 01:
There was never any objection to those limiting instructions, right?

[00:16:39] Speaker 01:
There was never any what?

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Defendants never objected to the limiting instructions as not being rigorous enough?

[00:16:44] Speaker 03:
Uh, yeah, no, that's right.

[00:16:45] Speaker 03:
There was no, you know, there was no, um, you know, we think that you should use a stronger or a better limiting instruction.

[00:16:52] Speaker 03:
Um, the, we, it's our position that the, uh, it was brief.

[00:16:57] Speaker 03:
This was a, you know, this witness, Mr. Coleus, you know, was fairly brief in terms of

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the overall presentation of the evidence in the case.

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It wasn't a focus of the opening and the closing.

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It wasn't so dramatic as to rivet the jury's attention.

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Those are all the sort of phrases that you think of whenever you think of harmless.

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I also just want to very quickly point out that with regard to this 404B evidence, this notion that the trial court was arbitrary in saying,

[00:17:28] Speaker 03:
If you read the transcript of the motions hearing, I think that's belied by the record.

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The court was clearly trying to figure out the way that these additional pieces of evidence, for example, the Chevy Chase dealership, how did it fit into what was the relevance?

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And I think the court said, okay, well, now that I understand the relevance, I'm worried about there being too much 404B, so pick two.

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I just wanted to point that out.

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I did want to respond briefly to this issue about the default judgment, even assuming that there was some impropriety about admitting the default judgment.

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As the court pointed out, this is a plain error standard of review.

[00:18:15] Speaker 05:
And I just want to— Counsel made a pretty strong argument, though, about why it was just inherently prejudicial, didn't you think?

[00:18:22] Speaker 03:
Actually, I was going to just read the three lines of transcript that came out.

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There were three lines, basically, and this is from the transcript of the 16th, line 266 to 67.

[00:18:35] Speaker 03:
So when you sue the defendant, what happened to that lawsuit?

[00:18:38] Speaker 03:
I received a judgment.

[00:18:40] Speaker 03:
Question.

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Did the defendant come to court?

[00:18:42] Speaker 03:
No.

[00:18:43] Speaker 03:
And how much was that judgment, if you remember?

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Approximately $35,000 and some interest or something like that.

[00:18:49] Speaker 03:
That's it.

[00:18:50] Speaker 05:
There were three pieces of evidence over the course of a four- The jury just conclude from that that, you know,

[00:18:57] Speaker 05:
He didn't come to court because he was guilty, and he got a judgment of $30,000.

[00:19:01] Speaker 05:
Well, I think, you know, one of the arguments... I mean, actually, you know, the shorter it is, the more effect it could have on the jury, because it's just three crisp sentences.

[00:19:15] Speaker 03:
Well, I think that, you know, because we're under a plein air standard of review, first of all, this court, as far as I'm aware, has never held that civil judgments are per se incorrect or improper.

[00:19:27] Speaker 01:
Well, it was also mentioned in the opening by the prosecutor, so we can't just look at those sentences.

[00:19:33] Speaker 01:
The majority was introduced to this case and was defended with, by the way, another court has already found him responsible for the same fraud against Mr. Williams.

[00:19:44] Speaker 03:
Well, I'm not sure that you can make that inference.

[00:19:47] Speaker 03:
I think that, you know, appellant's brief tries to hem on both sides of the line, which is to say that both found, you know, necessarily that the superior court found that he was guilty of the civil fraud, but also, you know, there was no instruction to say what a default judgment was.

[00:20:05] Speaker 03:
And so therefore, it was improper for the jury to speculate.

[00:20:10] Speaker 01:
I don't have speculation it is to say that there's a judgment against them.

[00:20:13] Speaker 01:
And the opening was, if you have a problem, I suggest you take it up in a court of law.

[00:20:19] Speaker 01:
Mr. Williams does exactly that.

[00:20:20] Speaker 01:
He sues the defendant in D.C.

[00:20:21] Speaker 01:
Superior Court for $35,444.

[00:20:23] Speaker 01:
The defendant never shows up to court.

[00:20:26] Speaker 01:
Mr. Williams gets a default judgment against the defendant.

[00:20:28] Speaker 01:
That's what was said at openings.

[00:20:30] Speaker 01:
We have to add that in.

[00:20:31] Speaker 01:
That's setting up the whole cases.

[00:20:33] Speaker 01:
Someone had a problem with this, took them to court, and they got a judgment against them for the exact amount you're going to hear about later.

[00:20:39] Speaker 03:
Right.

[00:20:40] Speaker 03:
So, but I would say a couple of things.

[00:20:44] Speaker 01:
That doesn't require much speculation by the jury.

[00:20:47] Speaker 03:
Well, I mean, if a person doesn't show up, you know, it's, I think that you could, there's another reasonable inference that the person just didn't show up and it's not a judgment on the merits.

[00:21:00] Speaker 05:
I think a default judgment, that's why- That's a pretty sophisticated point for a jury.

[00:21:03] Speaker 05:
There was no instruction on that at all.

[00:21:05] Speaker 05:
All the jury knew is that William sued him and got a judgment in the full amount.

[00:21:12] Speaker 05:
That's all the jury knew.

[00:21:15] Speaker 05:
I mean, maybe a jury said, well, wait a minute.

[00:21:17] Speaker 05:
It says at the fall judgment he didn't show up.

[00:21:20] Speaker 05:
Maybe that's a lot to assume a jury would understand without any instruction at all.

[00:21:28] Speaker 03:
Well, I think that Your Honor's point makes one of our points is that there was no instruction because there was no objection.

[00:21:35] Speaker 05:
Well, that's why, of course, there wasn't an objection.

[00:21:37] Speaker 05:
I mean, if there had been an objection, we wouldn't be talking about plain error.

[00:21:40] Speaker 03:
Right.

[00:21:40] Speaker 03:
So if the court is, I mean, it's our position that it was not improper for this evidence to come out.

[00:21:49] Speaker 03:
But if the court is inclined to think that it was error, despite the cases that we cite,

[00:21:54] Speaker 03:
It's our position that it can't be a plain error.

[00:21:56] Speaker 03:
This court, as I said, has never made that kind of a ruling.

[00:22:00] Speaker 03:
There was no request for an instruction or an explanation.

[00:22:03] Speaker 03:
It wasn't even mentioned in closing.

[00:22:06] Speaker 03:
I understand that it was mentioned in opening, but lawyers' arguments are not evidence for the jury to consider, and I believe that there was the standard instruction that the jury was informed about that point, and jurors are presumed to follow those instructions.

[00:22:22] Speaker 03:
And again, this wasn't dramatic or inflammatory.

[00:22:25] Speaker 03:
As I read just a moment ago, this was three lines of testimony.

[00:22:29] Speaker 03:
It wasn't mentioned again in the closing at all.

[00:22:33] Speaker 03:
And so it's hard to say that that would rise to the level of affecting someone's substantial rights or, you know, infected the integrity or the fairness of the trial, the overall proceeding.

[00:22:44] Speaker 03:
So it's our position that he can't meet plain error standard or the plain error review either.

[00:22:50] Speaker 05:
The court has no other questions we could ask.

[00:22:52] Speaker 05:
We have no other questions, thank you.

[00:22:54] Speaker 05:
Let's see, Mr. Axelman's out of time, right?

[00:22:55] Speaker 05:
Mr. Axelman's out of time.

[00:22:57] Speaker 05:
Okay, you can take two minutes.

[00:23:03] Speaker 05:
And would you start by explaining how we can rule for you on the default judgment issue without essentially adopting a per se rule that evidence like that is always plain error?

[00:23:26] Speaker 05:
I guess I'll just... Or do you think it should be a per se rule?

[00:23:29] Speaker 05:
Let me ask you that.

[00:23:31] Speaker 05:
Should it be a per se rule and it's not?

[00:23:32] Speaker 04:
The reason I have hesitation is because evidence that another court has ruled on an issue that the jury is supposed to rule on is very powerful.

[00:23:43] Speaker 04:
I actually can't think of anything more powerful.

[00:23:46] Speaker 05:
So you want us to adopt a per se rule?

[00:23:49] Speaker 04:
I don't think that it's necessary to adopt a per se rule.

[00:23:53] Speaker 05:
How would we decide this case in your favor and still leave open the possibility that other cases might not be plain error?

[00:24:02] Speaker 05:
What would we say is so unique about this case?

[00:24:08] Speaker 05:
How would we leave anything open?

[00:24:11] Speaker 04:
Well, as the government pointed out,

[00:24:17] Speaker 04:
the jury did not know much about the default judgment here, except that there was a judgment and that it went to the same amount that the government was alleging Mr. Gray defrauded Mr. Williams of in this case, where the facts are so closely related and the jury has basically been informed of the identical situation

[00:24:48] Speaker 04:
It becomes, it becomes, oh, it's very powerful.

[00:24:54] Speaker 04:
I wish that.

[00:24:55] Speaker 02:
But that, I mean, a percent rule would mean that it wouldn't even matter how much evidence there were of the charged conduct.

[00:25:01] Speaker 02:
That becomes, that means if you just have two lines of testimony introducing a default judgment, then no matter how much evidence there is of guilt,

[00:25:10] Speaker 02:
It still has got to be reversed, even if there's no objection.

[00:25:13] Speaker 02:
It's substantial injuries.

[00:25:16] Speaker 04:
I suppose the court could still do a more fact-based analysis in this case regarding whether the government met its burden of proof beyond a reasonable doubt separate from

[00:25:35] Speaker 04:
the civil judgment evidence.

[00:25:38] Speaker 04:
And in this case, we do know that Miss Bertelsen filled out three loan applications in the span of 30 days and behaved in a way that, or testified that she didn't really know what was going on and she had left it all in the defendant's hands.

[00:26:06] Speaker 04:
But there was a reason to doubt that because common sense tells us you don't fill out three loan applications at the same time.

[00:26:18] Speaker 04:
That when you sign your name on legal documents, you make sure that what you're saying is true and there were misstatements on those documents.

[00:26:28] Speaker 04:
Whether she

[00:26:29] Speaker 04:
I think that there was still some room for the jury to doubt there.

[00:26:39] Speaker 04:
But when the jury's told that Mr. Gray has already lost in very similar circumstances against another victim in civil court.

[00:26:50] Speaker 04:
that room to doubt what they've been told, specifically with regard to Ms.

[00:26:58] Speaker 04:
Bertelsen, vanishes.

[00:27:02] Speaker 04:
I don't want to say per se, but it is very difficult to overcome that

[00:27:16] Speaker 04:
that type of testimony that the defendant has already lost.

[00:27:21] Speaker 04:
Sure, it doesn't have to be long.

[00:27:23] Speaker 04:
You come in, you say he already lost, and therefore he should lose here too.

[00:27:28] Speaker 04:
And I think jurors become more comfortable, whereas if they had any reason to doubt before then, or they were approaching the evidence with an open mind,

[00:27:41] Speaker 05:
Well, maybe, maybe, maybe the per se rule should be that if it had gone, if there had been a judgment as opposed to a default judgment, that would be per se plain error.

[00:27:52] Speaker 05:
But here, I know this doesn't help your case, but here, you know, it's always possible, as counsel for the government said, that the jury

[00:28:01] Speaker 05:
you know, understood that, hey, this was just a default judgment.

[00:28:04] Speaker 05:
There was no judgment by the court that he did this.

[00:28:06] Speaker 04:
He just didn't show up.

[00:28:08] Speaker 04:
Just as the court pointed out, the jury could just as easily decide that... I realize I pointed it out.

[00:28:16] Speaker 04:
I was just asking you.

[00:28:17] Speaker 05:
You react.

[00:28:20] Speaker 04:
I mean, that's... Whether it's a default judgment or a judgment, you know, those niceties are probably lost on the jury.

[00:28:27] Speaker 04:
What they hear, what they translate is, he lost before in a court,

[00:28:31] Speaker 04:
then why should I give him the benefit of that one?

[00:28:34] Speaker 04:
Anything that he says or any challenge he makes to the evidence here.

[00:28:41] Speaker 04:
Thank you.

[00:28:42] Speaker 04:
Thank you, Your Honor.

[00:28:42] Speaker 05:
The case is submitted.

[00:28:43] Speaker 05:
Thank you both.