PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4990 JOSEPHINE VIRGINIA GRAY, a/k/a

Josephine Stribbling, a/k/a

Josephine Mills,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Deborah K. Chasanow, District Judge.

(CR-01-566)

Argued: February 4, 2005

Decided: April 29, 2005

Before WIDENER and SHEDD, Circuit Judges, and

James C. CACHERIS, Senior United States District Judge

for the Eastern District of Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion.

Judge Shedd wrote the opinion, in which Judge Widener and Judge

Cacheris joined. 

COUNSEL

ARGUED: Denise Charlotte Barrett, Assistant Federal Public

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Bal-
timore, Maryland, for Appellant. Sandra Wilkinson, Assistant United

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Thomas M.

DiBiagio, United States Attorney, James M. Trusty, Assistant United

States Attorney, Greenbelt, Maryland, for Appellee.

OPINION

SHEDD, Circuit Judge: 

A grand jury indicted Josephine Gray on five counts of mail fraud

and three counts of wire fraud relating to her receipt of insurance proceeds following the deaths of her second husband and a former paramour. Gray was convicted on all counts, and the district court

sentenced her to 40 years’ imprisonment, three years of supervised

release, restitution in the amount of $170,000, and a special assessment of $800. Gray now challenges her conviction, arguing that the

evidence was insufficient to prove the elements of the charged

offenses; the district court improperly permitted the Government to

reopen its case to prove the alleged mailings; and the district court

improperly admitted "other crimes" and hearsay evidence against

Gray. We find no reversible error on these grounds and affirm Gray’s

conviction. We vacate Gray’s sentence, however, and remand this

case for resentencing consistent with the Supreme Court’s recent

decision in United States v. Booker, 125 S. Ct. 738 (2005). 

I.

Wilma Jean Wilson met Gray in the late summer of 2000, and the

two became friends.1 They spoke over the telephone, and Wilson

sometimes visited Gray’s house. During one of those visits, Gray was

busy cleaning a cluttered room and Wilson offered to help. As they

1Because Gray challenges the sufficiency of the evidence to support

her conviction, we view the evidence adduced at trial in the light most

favorable to the Government. See United States v. Glasser, 315 U.S. 60,

80 (1942). 

2 UNITED STATES v. GRAY
were talking, Gray stopped cleaning and left the room briefly; when

she returned, she brought newspaper articles describing her prior

arrests. In fact, those articles reported that Gray had killed her former

husbands. Wilson asked if the reports were true, and Gray replied that

she was going to tell Wilson something she had never told anyone

before and she did not want Wilson to say anything about it. In an

emotionless, matter-of-fact manner, Gray then told Wilson that "she

had killed both her husbands and another gentleman." J.A. 144. 

Gray told Wilson that she had killed her first husband, Norman

Stribbling, because she was tired of being abused by him. According

to Wilson, "[s]he told me that they had gone out for a ride and that

she had shot him. . . . [S]he left the body over on River Road, and

it was set up to look like it was a robbery." J.A. 145. Gray then confessed to Wilson that she had also killed her second husband, William

"Robert" Gray. Although Gray said she was alone with Stribbling

when she killed him, "she had help" killing Robert Gray. J.A. 146.

The help came from Clarence Goode, Gray’s cousin and boyfriend.

Gray explained to Wilson that Goode "had tried to blackmail her,"

demanding money in exchange for his silence about the murder of

Robert Gray, so "she had to get rid of him too." J.A. 147. 

A.

Gray’s first husband, Stribbling, maintained a life insurance policy

through John Hancock Mutual Life Insurance Company and named

Gray as the beneficiary. In the early morning of March 3, 1974, Stribbling was found dead in his parked car on River Road, near his home

in Montgomery County, Maryland. An autopsy revealed that Stribbling died from a single gunshot wound to the head. Shortly after

Stribbling’s death, Gray made a claim for insurance benefits and later

received a check in the amount of $16,000. 

B.

Gray had been having an affair with Robert Gray while she was

still married to Stribbling. In August 1975, the couple bought a house

in Gaithersburg, Maryland — using most of the proceeds from Stribbling’s insurance policy as a down payment — and three months later

they married. Robert Gray maintained an insurance policy through

UNITED STATES v. GRAY 3
Minnesota Mutual Life Insurance Company ("Minnesota Mutual")

that provided for payment of the mortgage on the Grays’ house in

Gaithersburg in the event of his death, with any excess going to his

spouse. Robert Gray also maintained an accidental death insurance

policy through Life Insurance Company of North America ("LINA")

and designated Gray as his beneficiary. 

Robert Gray left the Gaithersburg house in August 1990, telling

family members that his wife was trying to kill him and that she was

having an affair with Goode, who had been living with the Grays. So

convinced was Robert Gray that his wife intended him harm that he

removed her as his beneficiary under two other insurance policies. He

asked relatives and friends for help in avoiding a possible assault by

Gray or Goode. 

In late August 1990, Robert Gray brought criminal charges against

Gray, alleging that Gray had assaulted him at his workplace by swinging at him with a club and lunging at him with a knife. Robert Gray

also brought charges against Goode, alleging that Goode had threatened him with a 9-millimeter handgun. Robert Gray appeared in court

on October 5, 1990, but the case against Gray and Goode was continued. Later that same day, Robert Gray was driving home when he

noticed his wife’s car behind him. She was flashing her lights and signaling her husband to pull over. When Robert Gray did not pull over,

Gray drove her car alongside her husband’s car. As Robert Gray

turned to look toward his wife, Goode sat up (from a reclined position) in the front passenger seat and pointed a gun at him. Robert

Gray reported this incident to police, and a warrant was issued for the

arrests of Gray and Goode. One week before the November 16, 1990

trial date, Robert Gray was discovered dead in his new apartment,

shot once in the chest and once in the neck with a .45 caliber handgun. 

Gray told police investigators that she was not involved in her husband’s death and that she did not own a .45 caliber handgun. Other

witnesses testified, however, that they had seen Gray in possession of

a .45 caliber handgun, and police investigators retrieved a .45 caliber

bullet from her purse. Gray also offered an alibi that other witnesses

at trial discredited. 

4 UNITED STATES v. GRAY
As a result of Robert Gray’s death, Minnesota Mutual paid approximately $51,625 to Perpetual Savings Bank — the named beneficiary

— to cover the mortgage on the Gaithersburg house. Once the mortgage was satisfied, Gray sold the house for a significant profit. The

total benefit under Robert Gray’s policy exceeded the mortgage payoff amount, so Minnesota Mutual expected to pay the excess benefit

to Robert Gray’s spouse. Because Gray’s whereabouts were unknown

to Minnesota Mutual, that benefit was not processed for about ten

years. 

In 2001, federal law enforcement officers provided Minnesota

Mutual a current address for Gray, and the company mailed Gray a

form letter notifying her of the availability of the excess benefit and

enclosing an application. Having received this information, Gray telephoned Minnesota Mutual and asked whether the policy had a double

indemnity benefit if Robert Gray’s death was accidental; it did not.

Gray then completed the claim application and mailed it to Minnesota

Mutual. The next week, Gray telephoned Minnesota Mutual to monitor the status of her claim. Minnesota Mutual eventually mailed Gray

a check for more than $2,400.

Gray made a claim for benefits under the LINA policy in May

1991. LINA did not initially pay any benefit because it knew that

Gray was a suspect in Robert Gray’s murder. After learning that Gray

had been indicted, LINA asked Gray to disclaim her interest in the

benefits under its policy. She refused, so LINA filed an interpleader

action to determine the proper beneficiary under Robert Gray’s policy

and Maryland law. Gray counterclaimed against LINA, seeking the

full benefit under the policy plus attorneys’ fees. LINA bore the costs

of this litigation, which far exceeded the value of the policy. LINA

ultimately paid Gray $2,000 when the other beneficiaries abandoned

their claims to the benefits.

Consistent with Maryland law, both Minnesota Mutual and LINA

refused to pay benefits to named beneficiaries who wrongfully caused

the death of the insured. Both Minnesota Mutual and LINA relied

upon local law enforcement investigators to determine whether Gray

was involved in Robert Gray’s death. 

UNITED STATES v. GRAY 5
C.

Gray told Wilson that she "had to get rid of" Goode because he was

blackmailing her. Goode had conspired with Gray in Robert Gray’s

murder, and he was demanding "part of the insurance money that she

received" from Robert Gray’s death in return for his silence. J.A. 147.

On June 21, 1996, Baltimore City Police officers found Goode’s body

in the trunk of his car; he had been shot in the back with a 9-

millimeter handgun. Goode had told his sister that he was going to

visit Gray at her house, where police later found 9-millimeter bullets

and a large blood stain on the floor of the garage. 

Goode maintained a life insurance policy through Interstate Assurance Company ("Interstate Assurance") and named Gray as his beneficiary under the policy. Shortly after an incident in which Gray

pointed a knife at him, Goode closed the bank account from which the

premiums for this policy were paid. Interstate Assurance advised

Goode by letter in June 1996 that he had a 60-day grace period before

the policy would be cancelled for non-payment. Goode’s mail was

sent to Gray’s address, however, and Gray killed Goode shortly after

learning that the policy might be cancelled. Gray filed a claim for

benefits in September 1996, but Interstate Assurance refused to pay

because it suspected that Gray was involved in Goode’s death. When

Gray had not been arrested after two years, Interstate Assurance filed

an interpleader action to determine the proper beneficiary under

Goode’s policy. In the course of that litigation, Gray filed pleadings,

by mail, in which she flatly denied any involvement in Goode’s death.

Because Gray’s guilt could not be proved at that time, the parties settled the interpleader action and Interstate Assurance paid Gray

$99,990 in benefits under Goode’s policy. 

D.

Shortly after Goode’s murder, Gray showed her new boyfriend,

Andre Savoy, a copy of Goode’s insurance policy and told him that

she planned to buy him a new Mustang GT with the proceeds. Gray

never bought Savoy that car, but she did make inquiries about obtaining life insurance on him. According to Wilson, Gray asked her for

help in obtaining insurance on Savoy through a Virginia company.

When federal agents contacted Wilson in February 2002, she immedi6 UNITED STATES v. GRAY
ately asked about Savoy. She thought Gray might have tried to kill

him too. 

E.

Counts One through Four of the indictment charged Gray with executing a scheme to defraud Minnesota Mutual and LINA of life insurance benefits they paid Gray as a result of Robert Gray’s death.

Counts Five through Eight charged Gray with executing a scheme to

defraud Interstate Assurance of the benefits it paid Gray as the result

of Goode’s death. The indictment alleged that Gray "intentionally

caused the death[s]" of both Robert Gray and Goode and then fraudulently concealed her role in their murders from the insurance companies. As she submitted claims for benefits and telephoned the

insurance companies to monitor her claims, and in papers filed in

legal proceedings concerning the insurance policies, Gray consistently

denied having any involvement in the murders.

II.

Gray challenges her conviction on several grounds. First, she

argues that the evidence was insufficient to support a conviction on

all counts of the indictment because the insurance companies — the

victims identified in the indictment — had no interest in the benefits

paid under the policies. Second, Gray argues that the evidence was

insufficient to support a conviction on Counts One through Four

because it did not prove that she intended to defraud Minnesota

Mutual by her conduct. Third, Gray challenges the district court’s

denial of her motion for judgment of acquittal on Counts Seven and

Eight because the Government failed to prove the alleged mailings in

its case-in-chief. Finally, Gray argues that she is entitled to a new trial

because the district court erroneously admitted into evidence "other

crimes" evidence related to the Stribbling murder and hearsay testimony from Robert Gray.

A.

Gray first contends that her convictions on all counts of the indictment should be vacated because the evidence failed to establish that

UNITED STATES v. GRAY 7
the insurance companies had any property interest in the benefits paid

under the relevant insurance policies. Gray’s conviction must be

upheld if "there is substantial evidence, taking the view most favorable to the Government," to support it. Glasser, 315 U.S. at 80.

"[S]ubstantial evidence is evidence that a reasonable finder of fact

could accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). 

Both the mail fraud and wire fraud statutes criminalize "devis[ing]

or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." 18 U.S.C. §§ 1341, 1343. It is essential to

a conviction under these statutes that the victim of the alleged fraud

actually have an interest in the money or property obtained by the

defendant. United States v. Adler, 186 F.3d 574, 576 (4th Cir. 1999).

Gray contends that although she obtained more than $150,000 in

insurance proceeds from Minnesota Mutual, LINA, and Interstate

Assurance, that money never actually belonged to the insurance companies. 

The Supreme Court has made it clear that the federal fraud statutes

should be "interpreted broadly insofar as property rights are concerned." McNally v. United States, 483 U.S. 350, 356 (1987); see also

United States v. Mancuso, 42 F.3d 836, 845 (4th Cir. 1994) (stating

that "the scope of property interests protected is to be construed fairly

widely"). The Government need not prove that the victim suffered a

monetary loss as a result of the alleged fraud; it is sufficient that the

victim was deprived of some right over its property. Carpenter v.

United States, 484 U.S. 19, 26-27 (1987). In the analogous context of

the federal bank fraud statute, we have stated that property is anything

in which a person has a "right that could be assigned, traded, bought,

and otherwise disposed of." Mancuso, 42 F.3d at 845. 

A property owner has an intangible right to control the disposition

of its assets. See Crane v. Commissioner, 331 U.S. 1, 6 (1947). The

Supreme Court noted in McNally that the defendant’s mail fraud conviction might have been affirmed had the jury been "charged that to

convict it must find that the Commonwealth was deprived of control

over how its money was spent." 483 U.S. at 360. Since McNally was

8 UNITED STATES v. GRAY
decided, several other circuits have concluded that the mail fraud and

wire fraud statutes cover fraudulent schemes to deprive victims of

their rights to control the disposition of their own assets. See United

States v. Welch, 327 F.3d 1081, 1108 (10th Cir. 2003); United States

v. Dinome, 86 F.3d 277, 283-84 (2d Cir. 1996); United States v.

Madeoy, 912 F.2d 1486, 1492 (D.C. Cir. 1990); United States v.

Shyres, 898 F.2d 647, 652 (8th Cir. 1990); United States v. Kerkman,

866 F.2d 877, 880 (6th Cir. 1989); United States v. Fagan, 821 F.2d

1002, 1011 n.6 (5th Cir. 1987); cf. United States v. Catalfo, 64 F.3d

1070, 1077 (7th Cir. 1995) (concluding that the victim had a property

interest in "the right to control its risk of loss"). 

In this case, the insurance companies did, in fact, suffer monetary

losses as the result of Gray’s fraud. The money that Gray received

was money that belonged to the insurance companies: They wrote the

checks, and those checks were backed by the insurance companies’

assets. Payment of benefits to Gray represented a loss to the insurance

companies and no one else. Moreover, Minnesota Mutual and Interstate Assurance had a property interest in controlling the disposition

of their assets, i.e., paying out benefits in accordance with policy

terms and applicable law. By killing Robert Gray and Goode, Gray

manufactured the occurrences that gave rise to the insurance companies’ payment obligations. By submitting claims for benefits under

the policies, without acknowledging her culpability in the insureds’

deaths, Gray sought to obtain money from the insurance companies

under false pretenses and to interfere with their ability to dispose of

their own assets in the proper manner.2

2Other courts have affirmed fraud convictions where the defendant,

like Gray, created the circumstances giving rise to a claim and then made

a claim for benefits under the policy. See, e.g., United States v. Hartmann, 958 F.2d 774, 780-81 (7th Cir. 1992) (affirming convictions for

mail fraud and wire fraud where the defendant participated in the murder

of her husband in order to obtain benefits under life and mortgage insurance policies); United States v. Duncan, 919 F.2d 981, 990-92 (5th Cir.

1990) (affirming a mail fraud conviction where the defendant participated in staged car accidents in order to obtain benefits under hospitalization insurance policies); United States v. Candoli, 870 F.2d 496, 511

(9th Cir. 1989) (affirming a mail fraud conviction where the defendant

participated in a conspiracy to commit arson and then made claims for

insurance benefits); United States v. Lundy, 809 F.2d 392, 397 (7th Cir.

1987) (same). 

UNITED STATES v. GRAY 9
Gray contends that the insurance companies were merely disinterested third parties that held the insureds’ money for the named beneficiaries. Thus, the only true victims of Gray’s fraud were the rightful

beneficiaries under the policies, not the insurance companies.

Whether or not the insurance companies paid the proper parties at the

end of the day, they would not have been required to pay anyone had

Gray not killed their insureds. In other words, the insurance companies were deprived of the use of their assets by Gray’s accelerating

the necessity to pay benefits.3 Taken in the light most favorable to the

Government, the evidence supports the jury’s finding that Gray

intended to deprive the insurance companies of their "money" and

"property" by means of a fraudulent scheme. 

B.

Gray next contends that her conviction on Counts One through

Four — the counts relating to the Minnesota Mutual policy on Robert

Gray — should be vacated because the evidence was not sufficient to

prove that she lied to police about her involvement in Robert Gray’s

death with the intent to defraud Minnesota Mutual. Again, we must

affirm Gray’s conviction on these counts if the evidence was "adequate and sufficient to support a conclusion of [her] guilt beyond a

reasonable doubt." Burgos, 94 F.3d at 862.

"Even in the absence of a fiduciary, statutory, or other independent

legal duty to disclose material information, common-law fraud

includes acts taken to conceal, create a false impression, mislead, or

otherwise deceive in order to prevent the other party from acquiring

material information." United States v. Colton, 231 F.3d 890, 898 (4th

Cir. 2000). Although simple nondisclosure generally is not sufficient

3As Gray herself notes, Interstate Assurance disclaimed its interest in

the benefits payable under its policy when it filed its interpleader action,

a step that was necessary because Interstate Assurance held an interest

in those funds before that point, i.e., the time when Gray was executing

her fraudulent scheme. Moreover, Gray’s contention that the insurance

companies merely held the insured’s funds for eventual payment to the

rightful beneficiaries is refuted by the fact that both Minnesota Mutual

and Interstate Assurance paid out much more in benefits than they had

received in premiums paid by their insureds. 

10 UNITED STATES v. GRAY
to constitute fraud, the Supreme Court has noted that "mere silence

is quite different from concealment," and in some cases "a suppression of the truth may amount to a suggestion of falsehood." Stewart

v. Wyoming Cattle Ranche Co., 128 U.S. 383, 388 (1888). Thus, we

have stated that "deceptive acts or contrivances intended to hide information, mislead, avoid suspicion, or prevent further inquiry into a

material matter" may constitute fraud. Colton, 231 F.3d at 899. 

The evidence showed that Gray killed Robert Gray, at least in part,

in order to obtain life insurance benefits under his Minnesota Mutual

policy. During the police investigation of Robert Gray’s murder, Gray

did not remain silent. Rather, she falsely denied any involvement in

the murder, falsely denied owning a gun matching the description of

the murder weapon, and even offered a false alibi. Gray’s conduct

helped keep police investigators — and Minnesota Mutual, which

relied upon the police investigation — from determining that she was

involved in Robert Gray’s death.

By 2001, when Gray learned that the excess benefit was available,

Gray had already been made aware that insurance companies could

not pay benefits to their insureds’ murderers. LINA and Interstate

Assurance had resisted paying benefits to Gray specifically because

they suspected that she was involved in the murders of Robert Gray

and Goode, and Gray confronted the issue directly in the Interstate

Assurance interpleader action. In light of this experience with other

insurance companies, Gray responded to the news that the excess benefit was available by calling Minnesota Mutual to inquire whether she

would be entitled to a double-indemnity benefit if Robert Gray’s

death was accidental. Of course, Gray knew that his death was not

accidental. When she ultimately submitted her claim for the excess

benefit, Gray made no mention of her involvement in the murder and

did not correct any of the false information she had earlier given to

the police. Thus, from the time of Robert Gray’s murder, Gray

actively concealed information that was critical to Minnesota Mutual’s payment obligations.4

 Taken in the light most favorable to the

4Gray argues that the evidence fails to show that she defrauded Minnesota Mutual with respect to the mortgage payoff to Perpetual Savings

Bank in 1991. Although the evidence concerning the mortgage payoff to

UNITED STATES v. GRAY 11
Government, the evidence was sufficient to prove that Gray intended

to defraud Minnesota Mutual and thus sufficient to support Gray’s

conviction on Counts One through Four.

C.

Gray argues that her conviction on Counts Seven and Eight — the

mail fraud counts relating to the pleadings she filed in the Interstate

Assurance interpleader action — should be vacated because the district court relied on evidence presented after she moved for a judgment of acquittal under Fed. R. Crim. P. 29 and the district court

reserved ruling on that motion. We review de novo the district court’s

denial of a motion for judgment of acquittal. United States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). 

In order to obtain a conviction under the mail fraud statute, the

Government must prove that the defendant caused the United States

mails to be used in furtherance of a fraudulent scheme. 18 U.S.C.

§ 1341. Counts Seven and Eight of the indictment alleged that Gray

caused two specific pleadings to be mailed "from Rockville, Maryland to the Circuit Court of Baltimore City, Maryland in Baltimore,

Maryland." J.A. 31-32. 

At the hearing on Gray’s Rule 29 motion, Gray’s counsel argued

that the Government’s evidence failed to prove that these pleadings

Perpetual Savings Bank was important to describe the context of the

fraud on Minnesota Mutual, it was not necessary for conviction on

Counts One through Four. Those counts charged Gray with making specific telephone calls and causing specific mailings in April and May

2001 in connection with her claim for the excess benefit, not the mortgage payoff. The evidence established that the excess benefit would not

have been available at all but for Gray’s killing Robert Gray in 1991.

Other evidence proved that Gray intended to profit by the murder, and

that was sufficient to prove a scheme to defraud Minnesota Mutual of

insurance benefits. The fact that Gray did not make a claim for the mortgage payoff — she could not make such a claim under the policy — in

no way diminishes the evidence establishing that she killed Robert Gray

in order to make available the claim for insurance benefits that she later

invoked. 

12 UNITED STATES v. GRAY
had been mailed to the courthouse. The Government replied that it

was relying upon three pieces of circumstantial evidence: (1) the certificates of service showing that the person responsible for the pleadings mailed them to opposing counsel, (2) the date stamps on the filestamped copies of the pleadings, indicating that the pleadings were

received by the court several days after the date shown on the certificates of service, and (3) the law firm that represented Gray was

located in Rockville, Maryland, while the court was located in Baltimore. 

After the district court announced that it would reserve ruling on

the Rule 29 motion, the Government moved to reopen its case-inchief in order to present testimony from Gray’s former counsel concerning the manner in which he typically filed pleadings. The district

court granted the Government’s motion, and Gray’s former attorney,

John Kudel, testified that he mailed the pleadings at issue in Counts

Seven and Eight to the Circuit Court of Baltimore City. The district

court later denied Gray’s Rule 29 motion. 

Gray argues that the district court was not permitted to consider

Kudel’s testimony under Rule 29(b), which states that 

The court may reserve ruling on the motion, proceed with

the trial (where the motion is made before the close of all

the evidence), submit the case to the jury, and decide the

motion either before the jury returns a verdict or after it

returns a verdict of guilty or is discharged without having

returned a verdict. If the court reserves decision, it must

decide the motion on the basis of the evidence at the time

the ruling was reserved.

(Emphasis added.) The final sentence of the Rule was intended to

address the problem that arises "where the defense decides to present

evidence and run[s] the risk that such evidence will support the government’s case." Fed. R. Crim. P. 29(b) advisory committee note.

Thus, a district court may not reserve ruling on a defendant’s motion

for judgment of acquittal and then later penalize the defendant by

relying upon the defendant’s own evidence to deny the motion. See

United States v. Wahl, 290 F.3d 370, 375 (D.C. Cir. 2002) ("The district court in this case reserved Wahl’s motion at the close of the govUNITED STATES v. GRAY 13
ernment’s case. Any ruling on that motion, then, should have been

made solely on the evidence offered by the government."). 

The mailings alleged in Counts Seven and Eight were proved

solely by the Government’s evidence, not Gray’s. Nevertheless, Gray

contends that the district court improperly considered the evidence

presented by the Government after it initially rested. Under Gray’s

theory, a district court’s reserving its ruling on a defendant’s Rule 29

motion seals the evidentiary record completely for purposes of that

motion, even excluding the possibility that the Government may

reopen its case-in-chief. 

We disagree. Rule 29 provides that a district court may grant a

motion for judgment of acquittal only "[a]fter the government closes

its evidence or after the close of all the evidence." Fed. R. Crim. P.

29(a). Where the district court properly permits the Government to

reopen its case-in-chief, see United States v. Abbas, 74 F.3d 506, 510

(4th Cir. 1996), it cannot be said that the Government "closes its evidence" before the conclusion of its reopened case.5

 Likewise, the district court cannot be said to reserve decision under Rule 29 until that

time, when a decision would otherwise be appropriate. Under Rule

29(b), the district court would be permitted to consider all of the evidence presented in the Government’s case-in-chief — before and after

5A district court may allow the Government to reopen its case even

after the defendant makes a Rule 29 motion. See United States v. MojicaBaez, 229 F.3d 292, 299-300 (1st Cir. 2000) (affirming the district

court’s reopening the Government’s case to present a stipulation proving

a bank’s federally-insured status); United States v. Rouse, 111 F.3d 561,

573 (8th Cir. 1997) (affirming the district court’s reopening the Government’s case to present a stipulation establishing that the charged offenses

occurred on federal lands); United States v. Leslie, 103 F.3d 1093, 1104

(2d Cir. 1997) (affirming the defendant’s conviction where the Government presented evidence of a bank’s federally-insured status only after

the defendant moved for judgment of acquittal). As the Ninth Circuit has

noted, "[o]ne purpose of Rule 29 motions is to alert the court to omitted

proof so that, if it so chooses, it can allow the government to submit

additional evidence." United States v. Suarez-Rosario, 237 F.3d 1164,

1167 (9th Cir. 2001) (affirming the district court’s decision to allow the

Government to reopen its case to prove the defendant’s identity). 

14 UNITED STATES v. GRAY
the district court permitted reopening — when it ultimately rules on

the Rule 29 motion.6

The district court permitted the Government to reopen its case for

the limited purpose of presenting testimony from Kudel establishing

that he mailed the pleadings specified in Counts Seven and Eight. The

Government initially intended to present this testimony — Kudel was

on the Government’s witness list — but inadvertently rested without

putting him on the witness stand. Kudel’s testimony was plainly relevant, admissible, and helpful to the jury, and Gray had ample opportunity to cross-examine him. There was no unfair surprise and no risk

of distorting the importance of Kudel’s testimony. Accordingly, the

district court did not abuse its discretion in permitting the Government to reopen its case-in-chief to present this evidence, see Abbas,

74 F.3d at 511 (describing the factors to be considered in ruling on

a motion to reopen), and it was entirely appropriate for the district

court to consider Kudel’s testimony in denying Gray’s Rule 29

motion. 

D.

Gray seeks a new trial based upon the district court’s admission of

testimony concerning (1) her involvement in Stribbling’s murder and

(2) Robert Gray’s fear for his safety. We review the district court’s

evidentiary rulings for abuse of discretion. See United States v.

Queen, 132 F.3d 991, 995 (4th Cir. 1997). 

1.

Over Gray’s objection, the district court admitted certain testimony

concerning the 1974 murder of Stribbling, Gray’s first husband. The

jury heard testimony describing the crime scene and the autopsy

results, as well as testimony from two men who claimed that Gray

had solicited them (unsuccessfully) to kill Stribbling for money.

6So long as the district court acted within its discretion in permitting

the Government to reopen its case-in-chief, the defendant cannot complain that he has been deprived of the protection afforded by Rule 29(b).

In no event can the defendant’s evidence be used to deny his Rule 29

motion. 

UNITED STATES v. GRAY 15
Another witness testified that Gray had offered her money to provide

Gray an alibi for the time of the murder. Finally, the jury heard testimony from one witness (in addition to Wilma Jean Wilson) who said

that Gray had admitted shooting Stribbling. The district court

instructed the jury that the evidence concerning the Stribbling murder

was admitted only "as it may relate to the defendant’s motivation with

regard to the conduct alleged in this case relating to William Robert

Gray. You may not consider it for any other purpose." J.A. 649. 

Gray contends that this evidence should have been excluded under

Fed. R. Evid. 404(b), which provides as follows: 

Evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action

in conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident . . . . 

We have noted that "Rule 404(b) is viewed as an inclusive rule,

admitting all evidence of other crimes or acts except that which tends

to prove only criminal disposition." United States v. Young, 248 F.3d

260, 270-71 (4th Cir. 2001) (internal quotations omitted). 

Evidence of "other crimes" is admissible under Rules 404(b) and

403 if four conditions are satisfied. First, "[t]he evidence must be relevant to an issue, such as an element of an offense, and must not be

offered to establish the general character of the defendant. In this

regard, the more similar the prior act is (in terms of physical similarity or mental state) to the act being proved, the more relevant it

becomes." Queen, 132 F.3d at 997. Second, "[t]he act must be necessary in the sense that it is probative of an essential claim or an element of the offense." Id. Third, "[t]he evidence must be reliable." Id.

Finally, "the evidence’s probative value must not be substantially outweighed by confusion or unfair prejudice in the sense that it tends to

subordinate reason to emotion in the factfinding process." Id.

All four conditions are satisfied here. The Government was

required to prove that Gray intentionally killed Robert Gray and then

intentionally concealed her crime from Minnesota Mutual and LINA.

16 UNITED STATES v. GRAY
The defense argued at trial, however, that Gray was merely a passive

beneficiary of Robert Gray’s death; she was not involved in his murder in any way; and the fact that she collected insurance proceeds

under Robert Gray’s policies was entirely coincidental. In light of the

evidence proving that Gray killed Robert Gray, the evidence concerning the Stribbling murder was "useful as reducing the possibility that

the [killing of Robert Gray] was done with innocent intent." Queen,

132 F.3d at 995 (internal quotations omitted). Thus, this evidence was

relevant. 

Because a conviction of mail fraud requires proof that the defendant intended to defraud the victim, see Dan River, Inc. v. Icahn, 701

F.2d 278, 291 (4th Cir. 1983), the evidence concerning the Stribbling

murder was also necessary. This evidence proved that Gray participated in the murder of her first husband with the assistance of Robert

Gray and later collected insurance proceeds under her husband’s policy. She later killed Robert Gray in order to eliminate the only witness

to the Stribbling murder and to collect even more insurance proceeds.

Although the Government was not required to prove Gray’s particular

motive for killing Robert Gray, this evidence was probative of her

intent to commit the murder and defraud the insurance companies. 

The evidence was also reliable. The jury heard testimony from

Gray’s friend Wilma Jean Wilson (to whom Gray confessed killing

her first husband), other witnesses whom Gray solicited to kill Stribbling and to provide a false alibi for her, police officers who

described the Stribbling murder scene, and insurance company representatives who explained how Gray benefitted from Stribbling’s

death. These witnesses testified under oath and were subject to crossexamination, such that Gray had ample opportunity to challenge the

reliability of their accounts. 

Finally, the probative value of this evidence was not substantially

outweighed by its prejudicial impact, "in the sense that it tend[ed] to

subordinate reason to emotion in the factfinding process." Queen, 132

F.3d at 997. The district court excluded other evidence concerning the

Stribbling murder and carefully limited the scope of the Government’s case on this issue. In addition, the district court specifically

instructed the jury that it could consider evidence concerning the

Stribbling murder only in connection with the murder of Robert Gray

UNITED STATES v. GRAY 17
and not for any other purpose. This evidence was probative, and

although it was harmful to Gray, it was not unduly prejudicial. In

sum, the district court did not abuse its discretion in admitting testimony concerning Gray’s involvement in the Stribbling murder.

2.

The district court also admitted into evidence several out-of-court

statements made by Robert Gray during the three months preceding

his murder:

Robert Gray’s criminal complaint alleging that Goode had

tossed a 9-millimeter handgun on the table at his house to

provoke an argument;

Robert Gray’s criminal complaint alleging that Gray had

tried to stab him with a knife and attack him with a club;

Statements made by Robert Gray to Darnell Gray and a

police detective, claiming that Gray and Goode had

assaulted him in October 1990; and

Statements made by Robert Gray to Rodney Gray claiming

that Goode had pulled a gun on him outside a restaurant in

September or October 1990.

Although out-of-court statements ordinarily may not be admitted to

prove the truth of the matters asserted, the doctrine of forfeiture by

wrongdoing allows such statements to be admitted where the defendant’s own misconduct rendered the declarant unavailable as a witness at trial. The Supreme Court applied this doctrine in Reynolds v.

United States, 98 U.S. 145 (1878), stating that "[t]he Constitution

gives the accused the right to a trial at which he should be confronted

with the witnesses against him; but if a witness is absent by [the

accused’s] own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept

away." Id. at 158. By 1996, every circuit to address the issue had recognized this doctrine. See United States v. Houlihan, 92 F.3d 1271,

1280 (1st Cir. 1996); United States v. Mastrangelo, 693 F.2d 269,

18 UNITED STATES v. GRAY
273-74 (2d Cir. 1982); Steele v. Taylor, 684 F.2d 1193, 1202 (6th Cir.

1982); United States v. Thevis, 665 F.2d 616, 631 (5th Cir. 1982);

United States v. Balano, 618 F.2d 624, 629 (10th Cir. 1979); United

States v. Carlson, 547 F.2d 1346, 1357 (8th Cir. 1976).7

Fed. R. Evid. 804(b)(6), which took effect in 1997, codifies the

common-law doctrine of forfeiture by wrongdoing as an exception to

the general rule barring admission of hearsay evidence. Fed. R. Evid.

804(b)(6) advisory committee note. Under Rule 804(b)(6), "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did procure the unavailability of the

declarant as a witness" is admissible at trial. In order to apply the

forfeiture-by-wrongdoing exception, the district court must find, by

the preponderance of the evidence, see United States v. Scott, 284

F.3d 758, 762 (7th Cir. 2002),8 that (1) the defendant engaged or

acquiesced in wrongdoing (2) that was intended to render the declarant unavailable as a witness and (3) that did, in fact, render the declarant unavailable as a witness. The district court need not hold an

independent evidentiary hearing if the requisite findings may be made

based upon evidence presented in the course of the trial. United States

v. Johnson, 219 F.3d 349, 356 (4th Cir. 2000). 

Gray contends that Rule 804(b)(6) should not apply in this case

because she did not intend to procure Robert Gray’s unavailability as

a witness at this trial. "Because the Federal Rules of Evidence are a

legislative enactment, we turn to the traditional tools of statutory construction in order to construe their provisions. We begin with the language itself." Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163

(1988). The text of Rule 804(b)(6) requires only that the defendant

7The Supreme Court recently confirmed the continuing vitality of the

forfeiture-by-wrongdoing doctrine. See Crawford v. Washington, 124

S. Ct. 1354, 1370 (2004). 

8

In addition to Scott, see United States v. Zlatogur, 271 F.3d 1025,

1028 (11th Cir. 2001); United States v. Dhinsa, 243 F.3d 635, 653-54 (2d

Cir. 2001); United States v. Cherry, 217 F.3d 811, 815 (10th Cir. 2000);

United States v. Emery, 186 F.3d 921, 926-27 (8th Cir. 1999); United

States v. White, 116 F.3d 903, 912 (D.C. Cir. 1997); Houlihan, 92 F.3d

at 1280. The Fifth Circuit requires proof of the predicate facts by clear

and convincing evidence. Thevis, 665 F.2d at 631. 

UNITED STATES v. GRAY 19
intend to render the declarant unavailable "as a witness." The text

does not require that the declarant would otherwise be a witness at

any particular trial, nor does it limit the subject matter of admissible

statements to events distinct from the events at issue in the trial in

which the statements are offered. Thus, we conclude that Rule

804(b)(6) applies whenever the defendant’s wrongdoing was intended

to, and did, render the declarant unavailable as a witness against the

defendant, without regard to the nature of the charges at the trial in

which the declarant’s statements are offered. Accord Dhinsa, 243

F.3d at 652-53; Emery, 186 F.3d at 926; 4 C. Mueller & L. Kirkpatrick, Federal Evidence § 507.1, at 268 (2d ed. Supp. 2004) ("It seems

that there is no limit on the subject matter of statements that can be

admitted under this exception, which means that statements in which

the declarant implicates a defendant in a plot to kill the declarant himself can fit the exception."). 

Our interpretation of Rule 804(b)(6) advances the clear purpose of

the forfeiture-by-wrongdoing exception. The advisory committee

noted its specific goal to implement a "prophylactic rule to deal with

abhorrent behavior which strikes at the heart of the system of justice

itself." Fed. R. Evid. 804(b)(6) advisory committee note (internal quotations omitted); see also United States v. Thompson, 286 F.3d 950,

962 (7th Cir. 2002) (stating that "the primary reasoning behind this

rule" is "to deter criminals from intimidating or ‘taking care of’ potential witnesses against them"). More generally, federal courts have recognized that the forfeiture-by-wrongdoing exception is necessary to

prevent wrongdoers from profiting by their misconduct. See Reynolds,

98 U.S. at 158-59 (holding that a criminal defendant waives his right

to confront a witness whose absence his own misconduct procured

and stating that this rule "has its foundation in the maxim that no one

shall be permitted to take advantage of his own wrong"); Emery, 186

F.3d at 926 (stating that the Rule "establishes the general proposition

that a defendant may not benefit from his or her wrongful prevention

of future testimony from a witness or potential witness"); White, 116

F.3d at 911 (stating that "where the defendant has silenced a witness

through the use of threats, violence or murder, admission of the victim’s prior statements at least partially offsets the perpetrator’s

rewards for his misconduct"); Houlihan, 92 F.3d at 1279 (applying

the forfeiture-by-wrongdoing exception and noting that "courts will

not suffer a party to profit by his own wrongdoing"). 

20 UNITED STATES v. GRAY
Federal courts have sought to effect the purpose of the forfeitureby-wrongdoing exception by construing broadly the elements

required for its application. See, e.g., Dhinsa, 243 F.3d at 652 (noting

that the Rule may apply where the declarant was only a potential witness, i.e., "there was no ongoing proceeding in which the declarant

was scheduled to testify"); Cherry, 217 F.3d at 820 (holding that the

declarant’s statements may be admitted against a person who participated in a conspiracy to silence the declarant even if that person did

not himself engage in witness intimidation or other wrongdoing);

Steele, 684 F.2d at 1201 (stating that "any significant interference"

with the declarant’s appearance as a witness, including the exercise

of "persuasion and control" or an instruction to invoke the Fifth

Amendment privilege, amounts to wrongdoing that forfeits the defendant’s right to confront the declarant). Although the Rule requires that

the wrongdoing was intended to render the declarant unavailable as

a witness, we have held that a defendant need only intend "in part"

to procure the declarant’s unavailability. Johnson, 219 F.3d at 356;

accord Dhinsa, 243 F.3d at 654; Houlihan, 92 F.3d at 1279. 

Like these applications of the forfeiture-by-wrongdoing exception,

our interpretation of Rule 804(b)(6) ensures that a defendant will not

be permitted to avoid the evidentiary impact of statements made by

his victim, whether or not he suspected that the victim would be a witness at the trial in which the evidence is offered against him. A defendant who wrongfully and intentionally renders a declarant unavailable

as a witness in any proceeding forfeits the right to exclude, on hearsay

grounds, the declarant’s statements at that proceeding and any subsequent proceeding. See United States v. Aguiar, 975 F.2d 45, 47 (2d

Cir. 1992) (affirming the district court’s admission of hearsay testimony to prove witness tampering as well as an underlying drug conspiracy, and stating that "[a] defendant who procures a witness’s

absence waives the right of confrontation for all purposes with regard

to that witness").9

9We emphasize that the intent requirement in Rule 804(b)(6) continues

to limit application of the forfeiture-by-wrongdoing exception to those

cases in which the defendant intended, at least in part, to render the

declarant unavailable as a witness against him. See Johnson, 219 F.3d at

356. Absent such intent, Rule 804(b)(6) has no application. 

UNITED STATES v. GRAY 21
Having rejected Gray’s interpretation of Rule 804(b)(6), we need

only determine whether the district court properly applied the Rule in

admitting Robert Gray’s out-of-court statements. Those statements

were admissible only if the district court properly found, by a preponderance of the evidence, that (1) Gray engaged in some wrongdoing

(2) that was intended to procure Robert Gray’s unavailability as a witness and (3) that did, in fact, procure his unavailability as a witness.

The district court in this case found that Robert Gray "was killed prior

to the court date on November 15 and 16, and after the defendant was

well aware of his status as a witness, justifies the inference that . . .

the killing was motivated . . . to prevent [Robert Gray] from being

available . . . at court proceedings." J.A. 205. These findings are supported by the evidence and are sufficient to warrant application of the

Rule 804(b)(6). Accordingly, the district court did not abuse its discretion in admitting testimony concerning out-of-court statements

made by Robert Gray. 

III.

In addition to challenging her conviction, Gray argues in a supplemental brief that her sentence should be vacated in light of the

Supreme Court’s recent decision in United States v. Booker, 125

S. Ct. 738 (2005). Because Gray did not object to her sentence in the

district court, our review is for plain error. See United States v. Olano,

507 U.S. 725, 731-32 (1993); Fed. R. Crim. P. 52(b). Under this standard of review, "[t]here must be an error that is plain and that affects

substantial rights. Moreover, Rule 52(b) leaves the decision to correct

the forfeited error within the sound discretion of the court of appeals,

and the court should not exercise that discretion unless the error seriously affects the fairness, integrity or public reputation of judicial

proceedings." Olano, 507 U.S. at 732 (internal quotations omitted). 

The district court calculated Gray’s sentence using two alternative

methods. In the first calculation, the district court applied a crossreference to the first-degree murder guideline, U.S.S.G. § 2A1.1. In

order to apply this guideline, the district court first had to find that

Gray’s intentional murders of Gray and Goode were premeditated.

Under § 2A1.1, Gray’s base offense level was 43. In the second calculation, the district court started with the base offense level for mail

fraud and then applied enhancements for two specific offense charac22 UNITED STATES v. GRAY
teristics — (1) the offense involved more than one victim and (2) the

offense involved possession of a firearm. The court then departed

upward under U.S.S.G. § 5K2.1 based upon a finding that Gray’s

schemes to defraud involved two premeditated murders. The result of

this second calculation was an adjusted offense level of 43. 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. 

This case is similar to United States v. Hughes, ___ F.3d ___, 2005

WL 628224 (4th Cir. Mar. 16, 2005), where we vacated a criminal

sentence and remanded for resentencing in accordance with Booker.

As in Hughes, the district court here imposed the sentence mandated

by the Sentencing Guidelines, based in part upon a fact that was not

found by the jury. See id. at *5 (concluding that application of sentencing enhancements based on judge-found facts was "error" that

was "plain"). As in Hughes, the defendant here was sentenced to a

longer term of imprisonment than the Sentencing Guidelines would

have required had the district court not considered that fact. See id.

at *5-*6 (concluding that imposition of a sentence in excess of the

maximum sentence permitted by the jury’s verdict affected the defendant’s substantial rights). Consistent with Hughes, we conclude that

the district court committed an error that was plain and that affects

Gray’s substantial rights, and we exercise our discretion to notice the

error. Accordingly, we remand this case for resentencing in accordance with Booker.

10

10Although the Sentencing Guidelines are no longer mandatory,

Booker makes clear that a sentencing court must still "consult [the]

Guidelines and take them into account when sentencing." 125 S. Ct. at

767. On remand, the district court should first determine the appropriate

sentencing range under the Guidelines, making all factual findings appropriate for that determination. Hughes, 2005 WL 628224, at *4. The court

should consider this sentencing range along with the other factors

described in 18 U.S.C. § 3553(a), and then impose a sentence. Id. If that

sentence falls outside the Guidelines range, the court should explain its

reasons for the departure, as required by 18 U.S.C. § 3553(c)(2). Id. The

sentence must be "within the statutorily prescribed range and . . . reasonable." Id.

UNITED STATES v. GRAY 23
IV.

We affirm Gray’s conviction for mail fraud and wire fraud. The

evidence was sufficient to prove all the elements of each offense, and

the district court’s evidentiary rulings were correct. We vacate the

sentence, however, and remand for resentencing in accordance with

Booker.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED

24 UNITED STATES v. GRAY