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United States v. Brewington

United States Court of Appeals, Tenth Circuit

December 17, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
KENNETH BREWINGTON, Defendant-Appellant.

         Submitted on the briefs [*]:

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CR-00073-PAB-1)

          Virginia L. Grady, Federal Public Defender, and Josh Lee, Assistant Public Defender, on behalf of the Defendant-Appellant.

          Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner. Deputy Assistant Attorney General, Anna G. Kaminska, Acting Assistant Chief, Kyle C. Hankey, Trial Attorney, and John-Alex Romano, Trial Attorney, U.S. Department of Justice, on behalf of the Plaintiff-Appellee.

          Before BACHARACH, KELLY, and CARSON, Circuit Judges.

          BACHARACH, CIRCUIT JUDGE

         This criminal case stems from Mr. Kenneth Brewington's efforts to recruit investors. For this recruiting, Mr. Brewington told potential investors that he owned or controlled billions in assets that didn't exist. At trial, Mr. Brewington acknowledged that much of what he had said was untrue. But he argued to the jury that he had been duped.

         The jury was apparently unimpressed and found him guilty on eleven counts of (1) conspiracy to commit mail and wire fraud, (2) mail fraud, (3) wire fraud, (4) conspiracy to commit money laundering, (5) money laundering, and (6) monetary transactions in property derived from specified unlawful activity. These convictions led to a prison sentence of 70 months.[1] Mr. Brewington appeals both the convictions and the sentence.

         Mr. Brewington appeals the convictions based on the district court's (1) exclusion of emails that he had sent and received and (2) restriction of testimony by another person duped by the same man who had allegedly duped Mr. Brewington.

         We reject these challenges to the convictions. Mr. Brewington never offered some of the emails into evidence, so the court never had an opportunity to consider their admissibility. The district court did exclude three other emails. But if the court did err in these rulings, the errors would have been harmless because (1) the court ultimately allowed Mr. Brewington to testify about the emails and (2) the evidence of his guilt was overwhelming. We also conclude that the district court didn't err in restricting testimony of a woman who had been conned. The court allowed the woman to testify and had the discretion to exclude the details of how she had been conned. We thus affirm the convictions.

         Mr. Brewington also appeals his sentence, arguing that the court improperly relied on a current version of the sentencing guidelines rather than the version in effect when the offenses took place. The government concedes that the district court erred, and we agree. We thus reverse the sentence and remand for resentencing.

         I. The district court did not commit reversible error in excluding evidence.

         Mr. Brewington challenges the exclusion of emails and restriction of testimony. We reject these challenges.

         A. Mr. Brewington failed to offer the Johnsons' emails into evidence.

         Mr. Brewington argues that the district court should have allowed him to introduce emails from Mr. Shannon Johnson and his wife. Mr. Johnson's emails transmitted documents purporting to confirm a bank account of 500 million euros, and Ms. Johnson emailed a proposed contract for the supposed account. Mr. Brewington contends that these emails show that he (1) didn't create the fake documents and (2) relied on the Johnsons.

         For the sake of argument, let's assume that Mr. Brewington is right. Even if he is, the district court didn't exclude these emails-they were never offered into evidence.

         Mr. Brewington points out that he listed these emails in the final pretrial report. But a party must still offer trial exhibits into evidence, and Mr. Brewington never asked the district court to admit the Johnson emails. So Mr. Brewington never gave the district court an opportunity to decide the emails' admissibility. His appellate argument is thus waived. See United States v. Yousef, 327 F.3d 56, 129 (2d Cir. 2003) ("By failing to offer these reports into evidence at trial, [the appellant] has waived any right to argue before us that they should have been admitted."); United States v. Clements, 73 F.3d 1330, 1336 (5th Cir. 1996) (declining to consider the admissibility of letters because the appellant had not offered them into evidence); United States v. Harvey, 959 F.2d 1371, 1374 (7th Cir. 1992) ("[The appellant] cannot complain about the district court's 'decision' to refuse to admit evidence that he never moved to admit, or even attempted to describe.").

         Mr. Brewington counters that offering the documents into evidence would have been futile because the district court had "sustained an objection that the entire 'e-mail family' of exhibits was hearsay." Defendant's Reply Br. at 2. We disagree. Mr. Brewington's contention refers to a discussion between the attorneys and the court when the court was considering an objection to a different email (D50). The government stated that it was asserting the "same objection as the last e-mail family." R., vol. IV, at 1679. The court then sustained the objection to the single document being offered (D50) rather than an entire category (or "family" of emails). Id. ("Sustained as to the e-mail.").

         Because hearsay objections are fact-specific, the district court appropriately analyzed the admissibility of each exhibit as it was offered. See, e.g., United States v. Rosario Fuentez, 231 F.3d 700, 708 (10th Cir. 2000) (referring to the "fact specific nature of hearsay objections"). Indeed, just ten pages earlier, the district court had allowed defense counsel to introduce another email that Mr. Brewington had received. R., vol. IV, at 1668. Given this ruling and the fact-specific nature of hearsay rulings, we cannot assume that the government would have objected or that the court would have sustained the objection. We thus decline to consider the merits of Mr. Brewington's argument on the admissibility of the Johnsons' emails.

         B. If the three other emails had been erroneously excluded, the errors would have been harmless.

         Mr. Brewington did try to introduce three emails involving his receipt of fabricated documents and his efforts to verify their authenticity. According to Mr. Brewington, these three emails would have shown that he hadn't realized that the documents were fabricated.

         Two of the documents referenced in the emails showed that Mr. Brewington had control over non-existent accounts at an Amsterdam bank, one for 500 million euros and another for 1 billion euros. Though neither account actually existed, Mr. Brewington insists that (1) he thought that they did and (2) he had been duped. The district court excluded the three emails as hearsay, and Mr. Brewington challenges these rulings.

         We may assume, for the sake of argument, that the district court erred in excluding each email. Even if the court had erred, however, we would regard the errors as harmless unless they substantially influenced the outcome or left us in "grave doubt" about the potential for substantial influence. United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990). Under this standard, any possible error would have been harmless because

. the district court allowed Mr. Brewington to testify about the content of the emails and
. the evidence of his guilt was overwhelming.

         Mr. Brewington received the first email regarding documentation of an account for 1 billion euros. This email consisted of only three words: "See attached documents." Appellant's Supp. App'x at 1276.

         (Image Omitted)

         The second excluded email was directed to an associate and asked the worth of a particular bond. ...


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