on the briefs [*]:
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
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.
BACHARACH, KELLY, and CARSON, Circuit Judges.
BACHARACH, CIRCUIT JUDGE
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.
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. Mr. Brewington appeals both the
convictions and the sentence.
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.
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.
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.
The district court did not commit reversible error in
Brewington challenges the exclusion of emails and restriction
of testimony. We reject these challenges.
Mr. Brewington failed to offer the Johnsons' emails into
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
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.
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.").
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.").
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
If the three other emails had been erroneously excluded, the
errors would have been harmless.
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.
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
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
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.
second excluded email was directed to an associate and asked
the worth of a particular bond. ...