780 F.3d 458 (1st Cir. 2015)
In the late summer of 2000 Wilma Jean Wilson met Josephine Gray and the two became friends.1 During one visit Gray showed Wilson newspaper articles about her prior arrests and then confessed in an emotionless manner that she had killed both her husbands and another gentleman.2 Gray explained that she shot her first husband Norman Stribbling during a ride and left the body on River Road to look like a robbery.3 She also stated that she and her cousin Clarence Goode killed her second husband William Robert Gray and that she later killed Goode because he was blackmailing her for a share of the insurance money.4
Stribbling maintained a life insurance policy with John Hancock Mutual Life Insurance Company naming Gray as beneficiary; he was found dead from a gunshot wound on March 3 1974 and Gray received a $16,000 check.5 Gray married Robert Gray in 1975 after an affair while still married to Stribbling.6 Robert Gray maintained policies with Minnesota Mutual Life Insurance Company that paid the mortgage on their Gaithersburg house and with Life Insurance Company of North America naming Gray as beneficiary.7
In 1990 Robert Gray left the Gaithersburg house fearing for his life.8 He removed Gray as beneficiary on other policies and brought criminal charges against Gray and Goode. One week before the November 16 1990 trial date Robert Gray was found dead from two .45 caliber gunshot wounds.9
Minnesota Mutual paid Perpetual Savings Bank approximately $51,625 to satisfy the mortgage.10 Minnesota Mutual later mailed Gray a check for more than $2,400 in excess benefits after she submitted a claim in 2001.11 LINA paid Gray $2,000 after an interpleader action.12 Goode maintained a policy with Interstate Assurance naming Gray as beneficiary.13 He was found shot in the trunk of his car on June 21 1996.14 Interstate Assurance ultimately paid Gray $99,990 after an interpleader action in which Gray filed pleadings denying involvement.15
A federal grand jury indicted Gray on five counts of mail fraud and three counts of wire fraud relating to the insurance proceeds from Robert Gray's and Goode's deaths.16 At trial the government introduced Gray's confession to Wilson testimony about the Stribbling murder and out-of-court statements by Robert Gray.17 The district court permitted the government to reopen its case to present testimony from Gray's former counsel establishing that he mailed the pleadings alleged in two counts.18 The jury convicted Gray on all counts and the district court sentenced her to 40 years imprisonment three years supervised release $170,000 restitution and an $800 special assessment.19
Gray appealed her convictions and sentence.20 Because she did not object to the sentence in the district court the court of appeals reviewed the Booker issue for plain error.21
Whether the evidence was sufficient to prove that the insurance companies had a property interest in the benefits paid under the policies?22
The mail and wire fraud statutes require proof that the victim had an interest in the money or property obtained by the defendant.23 The statutes protect property rights broadly, including the intangible right to control the disposition of assets, and the government need not prove that the victim suffered a monetary loss.24
Yes. The insurance companies wrote the checks from their own assets and thereby suffered monetary losses when Gray obtained the proceeds.25 Gray interfered with their right to control the disposition of those assets by killing the insureds and then concealing her involvement when she submitted claims and participated in interpleader litigation.26 Minnesota Mutual and Interstate Assurance therefore possessed a property interest in paying benefits only in accordance with policy terms and applicable law that barred payments to murderers.27
The evidence was sufficient to prove that the insurance companies had a property interest in the benefits paid under the policies.28
Whether the evidence was sufficient to prove that Gray intended to defraud Minnesota Mutual?29
Mail and wire fraud require proof of a scheme to defraud that includes deceptive acts or contrivances intended to hide information, mislead, or prevent inquiry into a material matter.30 Active concealment of facts critical to the victim's payment obligations satisfies the intent element even in the absence of an independent duty to disclose.31
Yes. Gray killed Robert Gray at least in part to obtain insurance benefits.32 She then repeatedly lied to police about her involvement and her possession of a matching firearm while offering a false alibi.33 She later inquired about double-indemnity benefits and submitted her claim without correcting the false information previously given to investigators, thereby actively concealing facts that Minnesota Mutual relied upon to determine its payment obligations under the policy.34
The evidence was sufficient to prove that Gray intended to defraud Minnesota Mutual.35
Whether the district court erred in permitting the Government to reopen its case-in-chief to prove the alleged mailings?36
A district court may permit the government to reopen its case-in-chief after a Rule 29 motion when the additional evidence is relevant, admissible, and helpful, the defendant has an opportunity to cross-examine, and there is no unfair surprise.37 Rule 29(b) does not bar consideration of properly reopened government evidence when the court ultimately rules on the motion.38
No. The district court permitted the government to reopen solely to present testimony from Gray's former counsel establishing that he mailed the two pleadings charged in Counts Seven and Eight.39 That testimony was relevant and admissible. Gray had a full opportunity to cross-examine. The evidence came from the government's own witness list rather than from any defense evidence.40 The court therefore properly considered the reopened testimony when denying the Rule 29 motion.41
The district court did not err in permitting the Government to reopen its case-in-chief to prove the alleged mailings.42
Whether the district court erred in admitting evidence of Gray's involvement in the 1974 murder of her first husband?43
No. The Stribbling murder evidence was relevant and necessary to prove Gray's intent to kill Robert Gray and then defraud the insurance companies.4647 It showed a pattern in which Gray participated in a murder with Robert Gray's assistance and later collected insurance proceeds.48 The evidence was reliable because multiple witnesses testified under oath and subject to cross-examination.49 The district court gave a limiting instruction that the evidence could be considered only on the issue of motive regarding Robert Gray's murder.50
The probative value was not substantially outweighed by unfair prejudice.51
The district court did not err in admitting evidence of Gray's involvement in the 1974 murder of her first husband.52
Whether the district court erred in admitting out-of-court statements made by Robert Gray under the forfeiture-by-wrongdoing doctrine?53
Federal Rule of Evidence 804(b)(6) permits admission of a statement against a party that engaged in wrongdoing intended to, and that did, procure the declarant's unavailability as a witness.54 The rule applies whenever the wrongdoing was intended to render the declarant unavailable as a witness, without regard to whether the declarant would have testified at any particular trial.55
No. The district court found by a preponderance of the evidence that Gray killed Robert Gray after he had brought criminal charges against her and after she was aware of his status as a witness.56 This justified the inference that the killing was intended at least in part to prevent him from testifying.57 Those findings are supported by the record and satisfy the elements of Rule 804(b)(6).58 The rule therefore authorized admission of Robert Gray's out-of-court statements.59
The district court did not err in admitting out-of-court statements made by Robert Gray under the forfeiture-by-wrongdoing doctrine.60
Whether Gray's sentence must be vacated and remanded in light of United States v. Booker?61
When a defendant is sentenced under mandatory Guidelines based on facts not found by the jury, the sentence constitutes plain error that affects substantial rights and seriously affects the fairness of judicial proceedings.62 The proper remedy is to vacate the sentence and remand for resentencing under advisory Guidelines.63
Yes. 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. Because Gray did not object below review is for plain error.64 The error was plain and affected Gray's substantial rights by increasing her sentence.65 It also seriously affects the fairness of the proceedings.66 The sentence must therefore be vacated and the case remanded for resentencing.67
Gray's sentence must be vacated and remanded in light of United States v. Booker.68