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United States v. Grey

United States Court of Appeals, District of Columbia Circuit

June 8, 2018

United States of America, Appellee
v.
Benjamin Brandon Grey, Appellant

          Argued April 3, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:13-cr-00031-1)

          Tony Axam Jr., Assistant Federal Public Defender, argued the cause for appellant. With him on the briefs were A.J. Kramer, Federal Public Defender, and Rosanna M. Taormina, Assistant Federal Public Defender.

          Christopher R. Howland, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman and Jonathan P. Hooks, Assistant U.S. Attorneys.

          Before: Tatel, Srinivasan, and Millett, Circuit Judges.

          TATEL, CIRCUIT JUDGE.

         Want to buy a luxury car at a great price? Appellant Benjamin Brandon Grey had a deal for you: go to a bank, take out a loan (or several), hand him the money, and you get your car. But Grey's offer had a serious hitch: he kept the money and you never got a car, for which a jury convicted him of twenty-one counts of bank fraud and other offenses. On appeal, Grey challenges the district court's admission of (1) evidence of a judgment in a related civil case, (2) evidence of uncharged acts under Federal Rule of Evidence 404(b), and (3) evidence of the financial damage that Grey's scheme inflicted on his would-be customers. Grey also argues that his trial counsel's representation was ineffective. For the reasons that follow, we affirm his conviction and deny his ineffective-assistance claim.

         I.

         At Grey's four-day jury trial, the government offered the following evidence:

Hector Williams Jr. testified that Grey, whom he had met through a mutual acquaintance, claimed to be a car dealer able to buy luxury cars at low prices, and that he could get Williams a good deal on a BMW. Following several weeks of discussion, Grey claimed to have purchased a BMW and gave Williams a buyer's order for the car. Order in hand, Williams took out a $35, 000 loan from his credit union, and gave Grey the money, which Grey deposited in his bank account. Grey never delivered a car. After repeatedly contacting Grey, who offered a variety of excuses, Williams filed a police report and sued Grey in D.C. Superior Court. Grey failed to appear, and the court entered a default judgment. Williams testified that because he was unable to make payments on his loan, his credit union "end[ed] up suing [him]" and "won." Trial Tr. 267 (Sept. 16, 2013); see id. at 219-67.

         Another witness, Jennifer Bertelsen, testified that Grey, with whom she was romantically involved, claimed to own Planet Cars, a business through which he bought cars and resold them at a profit. He urged her to take out loans, which he would use to buy cars to resell, and then split the profits with her. Though "skeptical, " Bertelsen testified that she was "in love so [she] trusted him" and took out three loans from three different banks for some $30, 000 each and then signed the three checks over to Grey. Trial Tr. 116 (Sept. 17, 2013). Grey deposited the money in his bank account and gave Bertelsen buyer's orders describing the vehicles she was ostensibly purchasing through Planet Cars. Bertelsen's relationship with Grey ended, and she never received any money. At trial, Bertelsen testified that she was forced into bankruptcy due to her inability to repay the loans. See id. at 102-70.

         Ronny Fernandez, a high school friend of Grey's, testified that Grey told him about Planet Cars, offered to sell him a BMW, and gave him a document purporting to be the car's title and listing Planet Cars as the owner. In response to Fernandez's "concern[]" about the transaction, which would involve taking out a loan from a credit union, Grey explained that "because it's a federal credit union . . . if he didn't give [Fernandez] the car or [the] money . . . it would be a federal offense." Trial Tr. 104-05 (Sept. 18, 2013). Reassured, Fernandez took out a $30, 000 loan and gave the money to Grey, who deposited it in his bank account. Grey neither delivered a car nor refunded the money. Fernandez sued Grey, but dropped the suit when Grey warned that "if [Fernandez] take[s] him to court, it's a federal offense and [Grey will] be in jail and then he won't be able to give [Fernandez] [his] money back." Id. at 116. Grey then offered Fernandez a second deal: if he allowed Grey to list him as a founder of GreyMaxx, another company through which Grey was seeking to buy and sell cars, he would return the money. Fernandez agreed, but Grey neither involved him in GreyMaxx nor repaid the money. Fernandez attempted to pay off his loan to preserve his credit but was ultimately unable to do so, leading his bank to increase the interest rate. Fernandez testified that his debt "put [him] on edge" and that he "ended up losing [his] job being so stressed out." Id. at 118; see id. at 93-120.

         William Hill, who had met Grey through a mutual friend, testified that Grey also offered him an opportunity to invest in GreyMaxx. Hill agreed and gave Grey $34, 000, after which communications with Grey tapered off and ultimately ended. Grey never returned the money. See id. at 193-216.

         The government called seven employees of the banks and credit unions where the relevant transactions occurred. They described each of the loans and the corresponding deposits in Grey's bank accounts. Together with this testimony, the government introduced into evidence the associated loan applications, security agreements, checks, deposit slips, and ...


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