Petition for Writ of Certiorari — Ashley Grayson, Petitioner v. United States

APPENDIX

TABLE OF CONTENTS

Appendix A

Court of appeals opinion,

August 14, 2025 ....................... 1a

Appendix B

District court order denying

defendants’ motions in limine,

February 15, 2024 ................. 22a

Appendix C

Court of appeals order denying

petition for rehearing en banc,

September 15, 2025 ............... 38a

Appendix D

18 U.S.C. § 2511(1), (2)(d) ..... 40a

Appendix E

18 U.S.C. § 2515 .................... 43a

1a

APPENDIX A

NOT RECOMMENDED FOR PUBLICATION

File Name: 25a0400n.06

Case No. 24-5988

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF )

AMERICA,

) ON APPEAL FROM

) THE UNITED STATES

Plaintiff-Appellee,

) DISTRICT

COURT

) FOR THE WESTERN

v.

) DISTRICT OF TEN) NESSEE

ASHLEY GRAYSON,

)

Defendant-Appellant. )

OPINION

Before: THAPAR, NALBANDIAN, and READLER,

Circuit Judges.

READLER, Circuit Judge. Ashley Grayson

hired a husband-and-wife duo—Olivia Johnson and

Brandon Thomas—to kill three people. But, unknown

to Grayson, Johnson recorded a video call in which

Grayson discussed the murders and turned those

recordings over to the authorities. Based on this

evidence, a federal jury convicted Grayson of

conspiring to use interstate commerce facilities in the

commission of murder-for-hire in violation of 18

2a

U.S.C. § 1958. She now appeals, challenging her

conviction on several grounds. We affirm.

I.

Ashley Grayson met Olivia Johnson the way many

people do in the internet age: online. In this instance,

Grayson reached out to Johnson on Facebook. At the

time, Grayson was a social media influencer in Dallas

who made her name helping people repair their credit.

She believed that Johnson, a Memphis resident,

might help her expand her influencer realm into the

Memphis market. So she messaged Johnson, offering

her credit repair services in return for Johnson

promoting Grayson’s business on her social media.

The exchange proved mutually beneficial, resulting in

an uptick in both Grayson’s business and Johnson’s

credit score.

The two remained in contact in the ensuing years,

even meeting in person when Grayson visited

Memphis. At a later point, Grayson reached out to

Johnson to express her desire to buy a house for a

single mother needing help. Johnson suggested some

possible beneficiaries of Grayson’s goodwill, one of

whom was Johnson’s mother. And when Grayson

eventually selected a recipient, it was Johnson’s

mother, with Grayson purportedly purchasing her a

new home.

Why purportedly? Johnson was under the

impression that the home would be “100 percent” her

“mother’s house.” Trial Tr., Mar. 26, 2024, R. 144,

PageID 1211. In reality, however, Grayson’s name

remained on the deed. While Johnson’s mother lived

in the home rent-free, she had no legal claim to the

property. Eventually, the situation became a point of

3a

contention between Johnson and Grayson, a dispute

that spilled over onto social media. Around the same

time, numerous other social media users began

accusing Grayson of scamming her clients and being

an untrustworthy individual.

A few months later, Grayson invited Johnson and

her husband, Brandon Thomas, to visit her in Fort

Worth, agreeing to pay the pair’s travel expenses.

Johnson was under the impression that the reason for

the trip was to resolve the issues with her mother’s

housing arrangement. Grayson, however, had other

topics in mind. While Johnson was in the Lone State

Star, Grayson drove her from Fort Worth to Dallas

(Thomas rode separately with Grayson’s husband).

During the drive, Grayson raised the growing social

media attacks against her and her business,

expressing her displeasure with the situation. And

she offered a purported solution—a request that

Johnson kill three people: Sherell Hodge, who utilized

the TikTok platform to criticize Grayson; Patrick

Tate, Grayson’s ex-boyfriend who had been

threatening to release sensitive information about

her; and Derricka Harwell, who, according to

Grayson, had created fake social media accounts to

spread negative information about Grayson’s business

and had released Grayson’s home address to her

followers. Grayson indicated that she had cash with

her to make a payment towards the murders.

When the group arrived in Dallas, Grayson

reiterated her desire to have Johnson and Thomas

carry out the murders. Grayson offered the duo

$20,000 to kill Hodge, $30,000 to kill Tate, and

another $30,000 for the murder of Harwell. Johnson

and Thomas told Grayson they would carry out the

4a

plot. Johnson also told Grayson that future

conversations should take place over FaceTime, a

video communication platform accessible through a

cell phone, because, according to Johnson, FaceTime

calls are not traceable, meaning the group could speak

“without anyone knowing what [they were] talking

about.” Trial Tr., Mar. 27, 2024, R. 145, PageID 1257.

Unknown to Grayson, the pair had no intention to

follow through. Rather, Johnson and Thomas planned

to “play along” while collecting evidence of the crime.

Id. at PageID 1253. Once they had proof of Grayson’s

scheme, the two agreed, they would “[t]urn it over” to

authorities to ensure their own safety. Id.

Additionally,

Johnson hoped to

make an

incriminating video of Grayson so that she could sell

it to TMZ, a gossip website, or use it as leverage to get

Grayson to sign over the deed to the home.

Once back in Memphis, Johnson followed up with

Grayson via text. Johnson reiterated that she and

Thomas were committed to the plan but asked for

assurance from Grayson in the form of a deposit.

Grayson was hesitant to discuss the “business plan”

over text. Id. at PageID 1258. Eventually, the two

women FaceTimed to discuss the details. Unknown to

Grayson, Johnson was using Thomas’s phone to

secretly record the call. During the call, Johnson told

Grayson that she and Thomas had already been to

Harwell’s home and that it would be “real easy to get

her.” Tr. Ex. 11, Video Clip 1, at 00:18–00:22. Grayson

again indicated that she wanted Harwell killed as

soon as possible.

The call ended with Johnson telling Grayson to

“[b]e looking out for us tonight,” as she and Thomas

planned on going to Harwell’s home that evening. Id.,

5a

Video Clip 2, at 01:45–02:02; see also Trial Tr., Mar.

27, 2024, R. 145, PageID 1270. After hanging up,

Johnson later used Thomas’s phone to send herself

the recording. In the process, however, the 5-minute

recording was split into two separate clips, with

approximately 26 seconds of footage lost. Johnson

then deleted the original recording from Thomas’s

phone.

The two did not attempt to kill Harwell. Instead,

they FaceTimed Grayson from an unrelated crime

scene. Against a backdrop of lights and sirens,

Johnson claimed that she and Thomas had “shot . . .

up” Harwell’s home. Trial Tr., Mar. 27, 2024, R. 145,

PageID 1273. When Johnson asked Grayson for

payment, Grayson agreed to pay them $10,000.

Johnson and Thomas immediately traveled to Texas

to collect.

Not long thereafter, however, Johnson and

Grayson’s relationship broke down. Permanently so,

it seems, when Johnson sent Grayson a clip of the

recorded FaceTime call. Grayson accused Johnson of

threatening her. Grayson later contacted the FBI,

informing them of Johnson’s alleged extortion.

Grayson then sent Johnson a voicemail of an FBI

agent following up on her complaint.

At this point, Johnson involved her attorney. On

his advice, she provided federal agents with the

recorded FaceTime call as well as text messages

between her and Grayson. Based on the information

Johnson provided, Grayson was indicted for

conspiring to commit murder-for-hire of Harwell, in

violation of 18 U.S.C. § 1958.

6a

In the lead up to trial, Grayson raised a host of

challenges to the admissibility of the FaceTime

recording. She argued that the video was obtained in

violation of the Federal Wiretap Act and therefore

inadmissible. She also asserted that because the video

was split into two segments and missing content, it

was no longer an original copy and could not be used

as evidence. The district court rejected both

challenges, concluding that, because the government

was not involved in the making of the recording, a

“clean hands exception” applied to the Federal

Wiretap Act and, further, that the video segments

were admissible as duplicates of the original call.

At trial, Grayson again objected to the admission

of the recording, this time on the basis that the two

clips were not properly authenticated. Again, the

district court overruled her objection, and a disk

containing both portions of the FaceTime recording

was received into evidence.

She

likewise

unsuccessfully challenged an assortment of the court’s

jury instructions. In the end, the jury convicted

Grayson. She now appeals.

II.

A. Grayson leads off with a host of challenges to

the admission of the FaceTime recording. Among

them, that the recording’s admission was barred both

by the evidentiary rules as well as the Federal

Wiretap Act. We review the district court’s ultimate

decision to admit the footage for abuse of discretion.

United States v. Morales, 687 F.3d. 697, 701 (6th Cir.

2012). Of course, underlying legal questions—like

what the Federal Wiretap Act requires—get de novo

review. E.g., United States v. Murdock, 63 F.3d 1391,

1393 (6th Cir. 1995).

7a

Rule 901 and Authentication. Grayson first

contends that the FaceTime conversation recording

was improperly authenticated. Turn, then, to Federal

Rule of Evidence 901, which addresses the means for

authenticating evidence for purposes of making it

admissible at trial. To properly authenticate a piece of

evidence “the proponent must produce evidence

sufficient to support a finding that the item is what

the proponent claims it is.” Fed. R. Evid. 901(a). The

authentication requirement “represent[s] a special

aspect of relevancy.” Fed. R. Evid. 901(a) Advisory

Committee Note (1972). Authentication, however, is a

“relatively low[] hurdle.” United States v. Farrad, 895

F.3d 859, 878 (6th Cir. 2018). One way to clear this

modest bar is by offering testimony of a witness with

knowledge “that an item is what it is claimed to be.”

Fed. R. Evid. 901(b)(1).

Measured by these standards, the recordings were

properly authenticated. At trial, the government

called Johnson to testify about the FaceTime call. She

told the jury that while in Dallas, she and Grayson

discussed using FaceTime as an “[un]traceable”

method of communication to discuss the murder-forhire plot. Trial Tr., Mar. 27, 2024, R. 145, PageID

1257. Johnson recounted her plan to record the calls

to collect evidence and hopefully, make money. She

told Grayson, “FaceTime me when you can,” with the

purpose of discussing “the murder for hire plan.” Id.

at PageID 1264. Johnson said she used her phone to

make the call and her husband’s phone to record the

conversation, later texting the footage to herself. She

further told jurors that she had reviewed the disk

containing the portions of the recording, confirmed it

contained the call, and had initialed it after reviewing

its contents. Id. at PageID 1265. To be sure, as

8a

Grayson notes, the government, while authenticating

the video, was not as precise as it could have been. For

example, the government could have put each clip on

its own disk and had Johnson testify that each portion

of the recording was taken from her FaceTime call

with Grayson. But Johnson later explained that when

she sent the video to herself, the recording split into

two clips, losing a bit of footage in the process,

allowing the jury to take this into account when it

weighed the evidence. Id. at PageID 1271–72. Taken

together, Johnson’s testimony provided a sufficient

basis for the jury to find that the footage is what

Johnson claimed it was—segments of the recorded

call.

Seeing things otherwise, Grayson claims that the

recording could not be authenticated due to the

omitted 26 seconds. Appellant Br. 24. With footage

missing, she says, the disk is incomplete and

therefore, an inauthentic record of the call. This

argument seems to miss the point. “The key question

under Federal Rule of Evidence 901 is whether ‘the

matter in question is what its proponent claims.’”

United States v. Damrah, 412 F.3d 618, 628 (6th Cir.

2005). The government established the evidence was

indeed portions of the recorded call through Johnson’s

testimony. If Grayson believed the video was

“distorted in some significant way, or was edited and

therefore misleading,” that objection would better be

“resolved pursuant to Federal Rule 403.” 2

McCormick on Evidence § 216 (Robert M. Mosteller,

ed., 9th ed. 2025) (footnote omitted); see Fed. R. Evid.

403 (allowing for the exclusion of “relevant evidence if

its probative value is outweighed by a danger of . . .

unfair prejudice”). In the end, satisfying Rule 901

merely renders the recordings admissible; whether

9a

the evidence has persuasive value, and, in particular,

whether it leaves out critical information that

undermines its evidentiary value, are issues left for

the jury. See United States v. Jones, 107 F.3d 1147,

1150 n.1 (6th Cir. 1997).

Nor, in any event, does the missing footage call

into question the recording’s authenticity. Grayson,

we note, “does not question the fact that [she] and

[her] words [were] depicted in the videotapes.”

Damrah, 412 F.3d at 628. Nor does she provide any

basis for us to conclude that the missing footage posed

any real problem or contained particularly salient

information. In fact, she admitted to the FBI that she

“initially fell for the ruse,” told agents that the

incriminating FaceTime video of her existed, and later

“renounced her recorded statements.” Appellant Br.

15. At bottom, then, there is no dispute that the video

is what it purports to be—segments from the

FaceTime call between Johnson and Grayson. See

Asociación de Periodistas de Puerto Rico v. Mueller,

680 F.3d 70, 79–80 (1st Cir. 2012) (holding there was

“no serious basis for disputing the authenticity of”

contested evidence where the plaintiffs claimed that

the videos were “incomplete” and “extensively edited”

but did not “say that the videos do not show actual

footage of the incident in question”). Rule 901, in

short, was no bar to the video’s admission.

Admission of a Duplicate and the Best Evidence

Rule. Grayson likewise believes the recording was

inadmissible because it was a duplicate, not the

original. Her challenge implicates the so-called “best

evidence rule,” which provides that “an original . . .

recording” is generally needed “to prove” the

recording’s “content.” Fed. R. Evid. 1002. But a

10a

duplicate is “admissible to the same extent as the

original unless a genuine question is raised about the

original’s authenticity or the circumstances make it

unfair to admit the duplicate.” Fed. R. Evid. 1003. A

duplicate may also come into evidence when the

original has been either lost or destroyed by a

proponent not acting in bad faith. Fed. R. Evid. 1004.

In this case, both parties agree that the clips of the

FaceTime recordings are duplicates for the purposes

of these rules. See Appellant Reply Br. 10; Appellee

Br. 24.

The district court did not abuse its discretion in

finding the video clips were admissible. As discussed,

Johnson’s testimony provided an adequate basis for

the jury to conclude that the footage “was an authentic

‘duplicate’ of the excerpted portions of” the FaceTime

recording; the footage “was therefore admissible

under Rule 1003’s exception” allowing duplicates.

United States v. Ehmer, 87 F.4th 1073, 1124 (9th Cir.

2023).

Grayson counters that the omitted footage makes

it “unfair to admit the duplicate.” Fed R. Evid. 1003.

In her view, that part of the full call was missing from

the video suggests that Johnson edited the video and

removed content, material Grayson claims was

exculpatory. But this assertion alone does not affect

the video’s admissibility. As a leading evidence

treatise explains, when a duplicate is challenged “on

the ground that the original has been altered after

copying, it would seem absurd to read Federal Rule of

Evidence 1003 to bar admission of the duplicate.” 2

McCormick on Evidence, supra, § 236. Rather, in that

instance, we may permissibly treat the “altered

original as ‘destroyed’ within the meaning of Federal

11a

Rule 1004.” Id. at n.21; see also Ehmer, 87 F.4th at

1124 (holding that a duplicate, which defendant

claimed was altered, was still admissible under Rule

1004 because the original had been destroyed); cf.

Asociación de Periodistas de Puerto Rico, 680 F.3d at

80 (rejecting similar best evidence challenge where

defendant claimed that video footage was an altered

duplicate). Under this exception to the best evidence

rule, if “all the originals are lost or destroyed, and not

by a proponent”—here, the government—“acting in

bad faith,” an original is not required, and other

evidence may be used to prove the content of the

recording. Fed. R. Evid. 1004(a). Given Johnson’s

explanation that she deleted the video after sending

herself a copy, and that the video split into two clips

simply due to it being sent, the district court had

ample grounds to conclude that the original recording

was lost through no fault of the government. Ehmer,

87 F.4th at 1124; 2 McCormick on Evidence, supra,

§ 231, text accompanying n.2. It was then up to the

jury to decide if the disk “accurately reflect[ed] the

content” of the call. Fed. R. Evid. 1008(c). The district

court did not abuse its discretion in admitting the disk

and reserving the question of accuracy for the jury.

The Federal Wiretap Act. Grayson raises one final

challenge to the admission of the FaceTime call: it was

an illegally intercepted electronic communication and

thus inadmissible.

Some background helps set the stage. Title III of

the Omnibus Crime Control and Safe Streets Act of

1968, see Pub. L. No. 90-351, tit. III, 82 Stat. 197, 211–

25, commonly known as the Federal Wiretap Act,

makes it unlawful to “intentionally intercept . . . any

wire, oral, or electronic communication,” 18 U.S.C.

12a

§ 2511(1)(a). To “intercept” means to “acqui[re] . . . the

contents of [the] communication through the use of

any electronic . . . device.” Id. § 2510(4). Relevant here

is the fact that when communications are illegally

intercepted, they may not be used as evidence in a

subsequent trial or hearing. Id. § 2515.

The Act, however, carves out a number of

exceptions to the bar on intercepting communications.

One is the so-called “one-party consent” rule. When

the “person” who “intercept[s]” the communication is

also a party to the communication, or when one of the

parties “has given prior consent” to interception, the

interception is not unlawful. Id. § 2511(2)(d). But

there is an exception to the exception: When the

“communication is intercepted for the purpose of

committing any criminal or tortious act,” the carveout does not apply. Id.

According to Grayson, this latter carve-out

addresses Johnson’s conduct—using her husband’s

phone to record her call with Grayson for the purpose

of extorting Grayson into giving Johnson’s mother her

home’s deed. Appellant Br. 43. It follows, says

Grayson, that Johnson’s recording “intercept[ed]”

their “electronic communication” “for the purpose of

committing” the “criminal . . . act” of extortion,

meaning Johnson violated the Act, and that the

footage could not be used at trial as a result. 18 U.S.C.

§ 2511(1)(a), (2)(d).

While Grayson may be correct in some respects,

ultimately, the legality of the recording has no bearing

on its admissibility. That is because the clips of the

recorded call are covered by the “clean hands”

exception established by United States v. Murdock, 63

F.3d 1391 (6th Cir. 1995). There, Murdock’s wife,

13a

having become suspicious of her husband’s business

activity, decided to record telephone calls made on the

family’s home phone. Id. at 1392–93. The recordings

revealed that Murdock, the President of the Detroit

School Board, had been accepting bribes from a local

business and, in return, was providing the company

with a lucrative contract. Id. Copies of the taped calls

eventually made their way to authorities, who

indicted Murdock on charges of tax evasion. Id.

Relying on § 2515’s exclusionary rule, Murdock moved

to have the tapes suppressed. Id. We rejected this

argument. Despite the fact that the recordings were

illegally intercepted, we held that suppression is not

warranted in a criminal prosecution where the

“government played no part in the unlawful

interception.” Id. at 1404.

So too here. The government neither made nor

encouraged the FaceTime recording. Rather, Johnson,

a private party, gathered this evidence for her own

ends, only later turning the video over to federal

agents. Our precedent thus commands that Grayson,

like Murdock, “does not enjoy the . . . right to

suppression.” Id. (She may separately have the right

to bring a civil suit against Johnson, see id.).

Resisting this conclusion, Grayson counters that

Murdock should be overruled because it cannot be

squared with the plain text of § 2515. Appellant Br 44;

Reply Br. 9. Specifically, she says, § 2515

unambiguously prohibits the use of any improperly

intercepted communications as evidence, without

regard to whether the government was involved in the

procurement. Appellant Br. 44; 18 U.S.C § 2515

(explaining that when “any . . . communication” has

been illegally intercepted “no part of the contents of

14a

such communication . . . may be received in evidence”).

On this basis, several of our sister circuits, she notes,

have refused to read a clean hands exception into the

statute. See United States v. Crabtree, 565 F.3d 887,

889 (4th Cir. 2009); Chandler v. U.S. Army, 125 F.3d

1296, 1302 (9th Cir. 1997); In re Grand Jury, 111 F.3d

1066, 1079 (3d Cir. 1997); United States v. Vest, 813

F.2d 477, 481 (1st Cir. 1987). We do not discount

Grayson’s textual analysis, the touchstone for modern

day statutory interpretation. See Niz-Chavez v.

Garland, 593 U.S. 155, 160 (2021) (explaining that we

interpret statutes by first exhausting “all the textual

and structural clues bearing on [its] meaning”

(citation modified)). Nor would we likely consider the

statute’s legislative history in interpreting that text in

the way Murdock chose to do. See Murdock, 63 F.3d at

1404 (“[I]t is appropriate under the legislative

history . . . to apply a ‘clean hands’ exception to Section

2515”); but see Conroy v. Aniskoff, 507 U.S. 511, 519

(1993) (Scalia, J., concurring) (noting that legislative

history is “illegitimate” as “[w]e are governed by laws,

not by the intentions of legislators”). Indeed, the use

of legislative history was particularly unusual in

Murdock, where the panel relied on the fact that, to

its mind, “nothing in the legislative history” spoke

against the “clean hands” exception. Murdock, 63 F.3d

at 1403. But for today’s purposes, we are bound by

Murdock, which, as Grayson acknowledges, forecloses

a panel of three from holding otherwise. See, e.g.,

United States v. Ferguson, 868 F.3d 514, 515 (6th Cir.

2017) (“One panel of this court may not overrule the

decision of another panel; only the en banc court or the

United States Supreme Court may overrule the prior

panel.”); see also Reply Br. 9 (“Appellant

15a

acknowledges Murdock binds this panel . . . .”). Right

or wrong, in other words, Murdock controls.

B. Grayson also raises two challenges to the jury

instructions.

Preliminary Instructions. Grayson believes that

the district court, in delivering its preliminary

instructions to the jury, improperly commented on the

evidence, and later erred in denying her a mistrial on

that basis. We review the district court’s denial of

Grayson’s motion for a mistrial for an abuse of

discretion. United States v. Howard, 621 F.3d 433, 458

(6th Cir. 2010).

Begin with the relevant factual background.

Before evidence was presented in this case, the

district court gave the jurors preliminary instructions.

One instruction addressed proving a defendant’s state

of mind. The district court told jurors that

“[o]rdinarily, there is no way that a defendant’s state

of mind can be proved directly.” Trial Tr., Mar. 26,

2024, R. 144, PageID 1116. But, the court added, “if

[the government] could have a recording that says, I’m

going to kill somebody, that might be important.” Id.

The court then reminded jurors that “you still have to

ask yourself at the end: Has the Government met that

burden . . . ?” Id. at PageID 1117. Grayson objected,

asserting that the court’s example amounted to an

improper comment on the evidence, and moved for a

mistrial. The court denied the motion for a mistrial

and instead gave the jury a curative instruction. The

court told jurors that the example it had used was “not

really appropriate,” and asked them to “disregard

[it].” Id. at PageID 1130, 1132. The court explained

that it was not “saying that [the aforementioned

example] is a basis or a sufficient basis to draw any

16a

conclusion about anything.” Id. at PageID 1132. And

it reminded jurors it was their job to draw inferences

from the evidence. Id. Following these clarifications,

Grayson again asked the court to declare a mistrial,

to no avail.

As a threshold matter, there is no per se bar on a

district court commenting on the evidence when

instructing the jury. Judges are “not limited to

instructions of an abstract sort.” United States v.

Blakeney, 942 F.2d 1001, 1013 (6th Cir. 1991)

(quotation omitted). Rather, a judge may “assist the

jury in arriving at a just conclusion by explaining and

commenting upon the evidence . . . provided [the

court] makes it clear to the jury that all matters of fact

are submitted to their determination.” Id. (quotation

omitted). But in so doing, the court must act “with

great care and may not unduly prejudice the jury.”

United States v. Martin, 740 F.2d 1352, 1357 (6th Cir.

1984). After all, while the court may “analyze and

dissect the evidence,” it may not “distort or add to it.”

Blakeney, 942 F.2d at 1013.

Defining the line between a permissible comment

and a prejudicial one is not always easy. But in close

cases, a curative instruction can help ensure that no

prejudice infected the jury’s consideration of the case.

Consider, on this point, United States v. Frederick,

406 F.3d 754 (6th Cir. 2005). There, the defendant was

charged with possessing a firearm in furtherance of a

drug trafficking crime in violation of 18 U.S.C.

§ 924(c). Id. at 758. While instructing the jurors on

this charge, the district court made comments

“suggest[ing] that some of the factors tending to

support conviction were undisputed.” Id. at 762. In

particular, the court stated that “we know the type of

17a

firearm that was involved,” indicated that the jury

knew the gun was “found in relation to the drug

activity that had occurred,” and told jurors that the

“drug proceeds” would be the “money” they had heard

testimony about. Id. (emphasis omitted) (internal

quotation marks omitted). Those comments prompted

an objection from the defendant, at which point the

court agreed to give a curative instruction, reminding

the jurors that they were the ultimate finders of fact,

free to believe or disregard any testimony. Id. On

appeal, after noting that “[i]n a close case, with no

curative instruction, such remarks might raise a

question,” we concluded that the “prompt and explicit

curative instruction . . . eliminate[d] any danger that

the jury might draw an improper conclusion from the

court’s prior remarks.” Id.

With Frederick as a guide, we cannot say that the

district court’s comments here unduly prejudiced the

jury. The court told jurors that a piece of evidence

“might be important” to determining intent. Trial Tr.,

Mar. 26, 2024, R. 144, PageID 1116 (emphasis added).

This comment expressed a less definitive view on the

evidence than the statements at issue in Frederick.

The district court’s use of conditional language here

made clear that the jury was the ultimate finder of

fact and that it was free to reject any video evidence

as relevant to intent. Blakeney, 942 F.2d at 1013.

What is more, much like Frederick, the court

acknowledged that its comments were inappropriate,

following them up with an explicit curative

instruction telling the jurors to disregard that

example and reminding them it was their job to draw

conclusions from the evidence. Considered as a whole,

the district court’s preliminary instructions do not

warrant reversal.

18a

Seeing things otherwise, Grayson attempts to

analogize the comments here to two cases in which the

district court’s comments were deemed “[t]ruly

serious errors” that “may automatically require

reversal.” Frederick, 406 F.3d at 762. But in each of

those cases, the district court in question commented

before the jury on the ultimate question of guilt—

unlike here, where the comments at issue at most

loosely indicated that some evidence may be

important to intent. In United States v. Martin, 740

F.2d 1352 (6th Cir. 1984), for example, the district

court, following the defendant’s testimony, remarked

to counsel that “he is guilty.” Id. at 1357. On that

record, we reached the sensible conclusion that if it

was discovered on remand that any jurors overheard

the judge opining on the ultimate question of guilt, the

conviction could not stand. Id. Similarly in United

States v. Yates, 553 F.2d 518 (6th Cir. 1977), the judge

remarked in front of the jury that the defendant’s

alleged confession made “clear” that he “did admit his

participation in this bank robbery.” Id. at 520 n.1. But

the defendant had claimed that the confession was

coerced. We held that this comment essentially

stripped Yates of his defense and therefore, was

improper. Id. at 521. Again, the district court’s

comments here were nowhere near as flagrant as

those in Martin and Yates.

2. Wharton’s Rule. Finally, Grayson argues that

the district court should have given a Wharton’s Rule

instruction regarding her conspiracy charge. As she

did not raise the issue in district court, we review only

for plain error. United States v. Aaron, 590 F.3d 405,

408 (6th Cir. 2009). Under this demanding standard,

Grayson must show (1) an error, (2) that is plain or

obvious, (3) that affected her substantial rights, and

19a

(4) that seriously affected the fairness, integrity, or

public reputation of the judicial proceedings. United

States v. Burrell, 114 F.4th 537, 554 (6th Cir. 2024).

She fails to do so.

To understand Grayson’s argument, begin with

the background principle of criminal law that a

conspiracy does not merge with the substantive

offense that is its goal. Iannelli v. United States, 420

U.S. 770, 782 (1975). In the drug crime setting, for

example, a defendant can be found guilty of both

distributing illegal drugs and for conspiring to do so.

21 U.S.C. §§ 846, 841; see also United States v. Sadler,

24 F.4th 515, 528 (6th Cir. 2022). Wharton’s Rule,

however, developed as an exception to this general

practice. If a substantive offense “necessarily

require[s] the participation of two persons for its

commission,” a defendant cannot be prosecuted for

conspiracy. Iannelli, 420 U.S. at 773 n.5. Put

differently, when a crime requires two parties to

commit the offense, there must be at three individuals

involved in a conspiracy to commit that crime. That is

so because, as the Rule’s logic goes, “two parties

cannot conspire to commit a substantive crime when

the crime itself requires two parties for its completion

(such as dueling or prostitution).” United States v.

Wheat, 988 F.3d 299, 307 (6th Cir. 2021). Supreme

Court precedent instructs that we presume Wharton’s

Rule applies to a conspiracy statute unless the text

suggests otherwise. Iannelli, 420 U.S. at 786.

But Wharton’s Rule’s merger principle has no

place here. The “Rule applies only to offenses that

require concerted criminal activity, a plurality of

criminal agents.” Iannelli, 420 U.S. at 785. And

precedent dictates that 18 U.S.C. § 1958, the offense

20a

Grayson was charged with committing, is not the type

of two-persons-needed substantive offense to which

the Rule applies. Rather, § 1958 can be violated by a

“sole perpetrator.” United States v. Ransbottom, 914

F.2d 743, 746 (6th Cir. 1990). As we explained in

Ransbottom, the statute is not “solely an anticonspiracy statute,” and holding otherwise would “do

violence to the statute’s plain meaning.” Id. To that

end, a single person can use a facility of instate

commerce for murder-for-hire alone by soliciting,

attempting to hire, or arranging the murder—even if

there is no actual second person who agrees to (or

commits) the murder. Id. (explaining that the statute

allows conviction if a single defendant uses interstate

commerce “with the intent that a contract murder be

committed”). And because the substantive offense—

using a facility of interstate commerce to plan a

murder-for-hire—does not require two parties for

completion, § 1958 is not the type of statute to which

Wharton’s Rule could apply. See United States v.

Hernandez, 141 F.3d 1042, 1052 (6th Cir. 1998)

(explaining that the substantive offense of murderfor-hire is a “separate and distinct crime[]” from the

conspiracy to commit murder-for-hire).

Resisting this conclusion, Grayson urges us to

look beyond the text of the statue. In her view, “the

statute” was in effect “modified by the indictment.”

Appellant Br. 53. How? As she explains things, to

convict her of conspiracy, the jury had to find she

“hired someone to commit a murder and entered into

a conspiracy with another to facilitate the murder.”

Id. Thus, she claims, the offense with which she was

charged could not have been committed by a “sole

perpetrator.” Id. For support she points to language in

the jury instructions where the district court,

21a

summarizing the indictment, told jurors that Grayson

and her husband were accused of “conspiring with

each other and with others known and unknown.” Id.

(emphasis omitted) (quoting Jury Instrs., R. 123,

PageID 480). Tallying this up, Grayson concludes that

the indictment contemplated at least three people (a

person who hired another to commit murder, a person

hired for the offense, and a separate conspirator)

committing the crime—thus, in her view, implicating

Wharton’s Rule. Id.

But this is not how the inquiry works. We “focus[]

on the statutory requirements of the substantive

offense rather than the evidence offered to prove those

elements at trial.” Iannelli, 420 U.S. at 780. The mere

fact that an indictment charges multiple people with

committing an offense together, in other words, does

not mean that “the crime itself requires two [or more]

parties for its completion.” Wheat, 988 F.3d at 307.

That is a question of “legislative intent,” Ianelli, 420

U.S. at 782, as evidenced by “the statute’s plain

meaning,” Ransbottom, 914 F.2d at 746. And on that

front, as Grayson admits, our precedent instructs that

murder-for-hire can involve a single perpetrator.

Appellant Br. 53 (citing Ransbottom, 914 F.3d at 746).

In short, the district court did not err in failing to give

a Wharton’s Rule instruction.

*****

We affirm.

22a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

TENNESSEE WESTERN DIVISION

UNITED STATES OF )

AMERICA,

)

)

Plaintiff,

)

) Case No. 2:23-cr-20121v.

) JPM-1

)

ASHLEY GRAYSON

)

AND JOSHUA GRAY- )

SON,

)

Defendants.

)

ORDER DENYING DEFENDANTS’

MOTIONS IN LIMINE

Before the Court are Defendant Ashley Grayson’s

(“Ms. Grayson’s”) Amended Motion in Limine and

Memorandum in Support, Defendants Ashley Grayson and Joshua Grayson’s (“Mr. Grayson’s”)

(collectively, “Defendants’”) “Motion to Exclude Evidence and Memorandum of Law in Support[,]” the

Governments Response in Opposition, and Ms. Grayson’s Reply to the Government’s Response. (ECF Nos.

62-63, 75, 78; see also ECF No. 77 (granting Mr.

23a

Grayson’s Motion to Join Ms. Grayson’s Motion to Exclude).)

I.

LEGAL STANDARD

Granting motions in limine excluding evidence is

appropriate “only when that evidence is clearly inadmissible on all potential grounds.” Palmer v. Allen,

2017 U.S. Dist. LEXIS 7336, 2017 WL 218077 at *1

(E.D. Mich. Jan. 19, 2017) (quoting Ind. Ins. Co. v. GE,

326 F.Supp.2d 844, 846 (N.D. Ohio 2004)). When the

moving party does not show that evidence is clearly

inadmissible, “evidentiary rulings should be deferred

until trial so that questions of foundation, relevance,

and potential prejudice may be resolved in a proper

context.” Id.

II. ANALYSIS

a. Prior Acts Evidence

Ms. Grayson’s First Motion in Limine requests an

order “instructing the Assistant United States Attorney ([“]AUSA[“]) his representatives, and witnesses to

refrain from making any direct or indirect reference

to any extraneous crimes of misconduct by the accused

or other defense witnesses other than those specifically set out in the indictment until a hearing has

been held outside the presence of the jury[,]” citing

Federal Rules of Evidence 403 and 404(b).1 (ECF No.

62 at PageID 150.) While Ms. Grayson argues that

“[t]his Motion in Limine is specifically tailored to prevent” reference to five specific incidents or allegations,

1 Defendant cites to “Federal Rule of Criminal Procedure”

404(b). Because the Federal Rules of Criminal Procedure, as

amended December 1, 2023 only comprise Rules 1-62, we read

Defendants argument to refer to the Federal Rules of Evidence.

24a

Ms. Grayson’s Motion only includes analysis regarding the application of 404(b) to exclude two statements

she is recorded making on video. (ECF No. 62 at

PageID 150-51.) Ms. Grayson also fails to discuss any

specific application of Rule 403. Instead, Ms. Grayson’s Motion in Limine urges the Court to hold a pretrial hearing on any and all potential wrongs, acts, or

crimes that the Government could allege, and to bar

any mention of all potential wrongs, acts, or crimes

without a pretrial determination that they fit within

an exception to 404(b).

Ms. Grayson attempts here to use Motions in

Limine to determine the context-specific outcomes of

evidentiary objections in advance of trial. Ms. Grayson’s argument that 104(c) mandates a hearing on

preliminary matters is supported by words cherrypicked without their associated limiting phrases from

the Federal Rules of Evidence and mischaracterized

without supportive citation to authority. Ms. Grayson’s Motion states that 104(c) mandates “‘[H]earings

on . . . preliminary matters’” at the request of the Defendant. (ECF No. 62 at PageID 148 (citing FED. R.

EVID. 104(c)(1-3) (alternation in original)). The rule

quoted, however, states that “[t]he court must conduct

any hearing on a preliminary question so that the jury

cannot hear it” if, among other factors, “a defendant

in a criminal case is a witness and so requests.” The

Notes of the Advisory Committee on Proposed Rules

clearly show that 104(c) understands these hearings

not to be mandatory pretrial matters,2 but rather sidebars or hearings which occur contemporaneously with

2 This is, as noted in the Notes of the Advisory Committee,

with the exception of preliminary hearings on the admissibility

of confessions. See Jackson v. Denno, 378 U.S. 368 (1964).

25a

trial. The advisory committee writes that, with the exception of hearings on the admissibility of confessions:

Detailed treatment of when preliminary matters should be heard outside the hearing of the

jury is not feasible. The procedure is time consuming. Not infrequently the same evidence

which is relevant to the issue of establishment

of fulfillment of a condition of a condition precedent to admissibility is also relevant to

weight or credibility, and time is saved by taking foundation proof in the presence of the

jury. Much evidence on preliminary questions,

thought not relevant to jury issues, may be

heard by the jury with no adverse effect. A

great deal must be left to the discretion of the

judge who will act as the interests of justice

require.

Advisory Committee’s Notes on Fed. Rule. Evid.

104(c). The generally accepted procedure for addressing the evidentiary issues discussed in Ms. Grayson’s

motion in limine are objections at trial. Further, Ms.

Grayson’s proposed hearings would require not only

duplication of foundation proof offered at trial, but

would likely waste time. Take, for example, the two

statements that Ms. Grayson argues should be excluded under 404(b).3 To be sure, neither statement

would be permissible as “evidence of any other crime,

wrong, or act” if offered to show Ms. Grayson’s character to show that on the occasion of the crimes

3 The statements are: “I’m going to let my ex live for a little

bit though. [unintelligible 00:00:07] . . . I might wait a year for

him[]” and “Well, it’s just too many eyes on that girl right now . . .

We don’t need to be involved in that.” (ECF No. 62 at PageID

151.)

26a

charged she acted in accordance with that character.

FED. R. EVID. 404(b). But Ms. Grayson’s Motion does

not allege that these statements will be offered to

show her character—instead, Ms. Grayson argues

that “the Defense anticipates the Government will argue that the relevanc[e] of [Ms. Grayson’s]

statement . . . is to show that she had “conflicts” with

other people not charged in the indictment.” (ECF No.

62 at PagelD 151.) The motion then continues to argue

that the statements “clearly show [Ms. Grayson’s] desire not to harm” those named in the statement, and

that these statements are not “acts” under 404(b). (Id.)

Ms. Grayson’s argument is self-contradictory and

takes too broad a reading of 404(b)’s specific prohibition on excluding prior crimes, acts, or wrongs offered

to prove propensity.

Ms. Grayson further argues, without support, that

“an ordinary objection during the course of trial-even

sustained with proper instructions to the jury-will not

remove the taint of [objectionable] testimony in view

of its highly prejudicial content.” (ECF No. 147 at

PagelD 147.) This argument conflicts with precedent

from the Supreme Court, the Sixth Circuit, and with

the structure of American criminal evidentiary law.

See, e.g., Samia v. United States, 599 U.S. 635, 647

(2023); Spencer v. Texas, 385 U.S. 544, 562 (1967);

United States v. Harvey, 653 F.3d 388 (6th Cir. 2011)

(“Jurors are presumed to follow instructions.”).

b. Co-Conspirator Hearsay Statements

Ms. Grayson also argues that “counsel anticipates

the Government will attempt to offer into evidence outof-court statements made by indicted or unindicted coconspirators at trial” and that “some or all of these outof-court statements either refer to Defendant, directly

27a

or indirectly, or otherwise would be used to incriminate

Defendant.” (ECF No. 62 at PagelD 152.) Ms. Grayson

writes that “[e]ven if the Court gives a curative instruction, the jury will have difficulty not considering

[prejudicial statements] in their deliberations [and] [a]

mistrial will likely result, and this will needlessly

waste the Court’s resources.” (ECF No. 62 at PageID

153.) Ms. Grayson’s slippery slope argument, unsupported by law, fact, or detail beyond bare recitation of

the rule, thinks too little of the jury. As discussed

above, jurors are presumed to follow instructions, and

the proper venue for these objections is at trial. Ms.

Grayson’s First Motion in Limine is therefore DENIED.

c. Video Recordings

Defendants’ Motion to Exclude Evidence offers

three grounds for exclusion of two segments of video

anticipated to be offered by the Government. (ECF No.

63 at PageID 155.) The video segments in question are

iPhone recordings made by Brandon Thomas (“Mr.

Thomas”) of segments of a FaceTime call between anticipated witness Olivia Johnson (“Ms. Johnson”) and

Defendant Ashley Grayson. (Id.) After the video was

taken, Ms. Johnson and Mr. Thomas allegedly sought

to extort Defendants using the video, then handed over

the video to the Government for use in prosecution pursuant to an alleged grant of immunity. (ECF No. 63 at

PageID 156.) The Court addresses each alleged basis

for exclusion in turn.

i. Federal Wiretap Act

Defendants argue that under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18

U.S.C.A. §§ 2510-2522 (“the Federal Wiretap Act”), use

28a

of the videos is impermissible. (ECF No. 63 at PageID

161 (citing 18 U.S.C. §§ 2511(2)(c-d), 2515,

2516(10)(a)(i-iii).) They then urge the Court to eschew

the Sixth Circuit’s clean hands exception from United

States v. Murdock, 63 F.3d 1391, 1403 (6th Cir. 1995),

arguing that criticism of the standard created there

from the Ninth Circuit, Fourth Circuit, and in Nix v.

O’Malley, 160 F.3d 343 (6th Cir. 1998) mandates its

reversal. (Id.) Defendants also argue that this case

should be distinguished from Murdock because the

videos here were made for the purpose of committing

a crime, and the Government only came into possession of the videos because Ms. Grayson reported that

crime to the FBI. (ECF No. 78 at PageID 225.)

The Government argues that Murdock is binding

on the Court, that the circuit split Defendants identify

“does not cut the Defendant’s way[,]” and that Defendants “attempt to ask this Court to abandon settled

Sixth Circuit case law.” (ECF No. 75 at PageID 212.)

The Federal Wiretap Act prohibits evidentiary

use of material acquired unlawfully, as where:

A person not acting under color of law . . . intercept[s] a wire, oral, or electronic

communication where such person is a party

to the communication or where one of the parties to the communication has given prior

consent to such interception unless such communication is intercepted for the purpose of

committing any criminal or tortious act in violation of the Constitution of the Untied

States or of any state.

18 U.S.C. § 2511(2)(c-d); see also 18 U.S.C. § 2515.

The Sixth Circuit, however, carves out an exception to

29a

this prohibition when the party seeking to introduce

the evidence was not involved in the wrongful conduct.

See Murdock, 63 F.3d at 1403. Murdock directly addressed the issue of suppression of criminal evidence

which the Government sought to use after a third party

obtained it via illegal wiretap, and found, based on the

Supreme Court’s holding in Alderman v. United

States, 394 U.S. 165, 175-76 (1969) and the legislative

history of the Federal Wiretap Act, that § 2515 was not

intended to “generally . . . press the scope of the suppression role beyond present search and seizure law.”

Id. at 1403 (quoting S.Rep. No. 1097, 90th Cong., 2d

Sess., 96 (1968)) (citing Alderman, 394 U.S. 175-76

(“Any lingering doubt is dispelled by the legislative history” as to whether Fourth Amendment law is involved

in the resolution of Title III suppression issues). The

Sixth Circuit in Murdock emphasized that “any privacy

interest which the defendant may have had is protected solely by his right to bring a civil action against

[the wiretapper].” Id. Ms. Johnson and Mr. Thomas,

the alleged interceptors, are not parties to the criminal

prosecution of the Defendants by the United States. “In

this case, the government played no part in the unlawful interception”

and,

as in Murdock,

“[s]uppression of the evidence would have no deterrent effect.” Id. at 1403-04.

Defendants are correct in noting the criticism of

Murdock from other circuits, but overstate the extent

of its erosion in the criminal context in this one. Nix

criticizes Murdock’s application in the civil context

but reaffirms Murdock’s central holding in criminal

cases. See Nix, 160 F.3d at 350-51. The critiques cited

by Defendant from Clements-Jeffrey v. City of Springfield, Ohio likewise arose from a civil case. 810

F.Supp.2d 857, 877 (S.D. Ohio 2011). While Doe v.

30a

S.E.C. was vacated by the Sixth Circuit after Petitioner was convicted of a separate crime between oral

argument and appeal, by the time it was reheard, the

question of Murdock’s application to a criminal procedure was moot, and therefore not addressed. See

Smith v. S.E.C., 129 F.3d 346, 363 (6th Cir. 1997). The

distinction between civil and criminal cases is significant: Sixth Circuit precedent confirms that balancing

privacy and truth-finding is done differently in civil

than criminal cases. United States v. Wuliger, 981

F.2d 1497, 1506 (1992) (rejecting an impeachment exception to § 2515 in civil cases but finding “[t]he

greater value to society to learn the truth in criminal

cases . . . may outweigh the individual rights to privacy.”).

Here, the Court would exceed its role in reconsidering a clearly established Sixth Circuit exception to the

Federal Wiretap Act’s general prohibition on use of illegally obtained evidence. Nor would this case be an

appropriate vehicle for reconsideration: it is unclear

whether the use of one iPhone, held by a second individual, to record a FaceTime call on another iPhone

while in the same room meets the statutory definition

for interception. “Interception requires a transmission

of communication during or contemporaneous between

two points, with some interruption during or contemporaneous with that transmission.” Cobra Pipeline Co.,

Ltd. v. Gas Natural, Inc., 132 F.Supp.3d 945, 953 (N.D.

Ohio 2015). It is unclear whether use of one phone to

record a video call taking place on another constitutes

an “interruption” of that transmission. It is similarly

unclear whether Ms. Grayson had a protected privacy

interest in the FaceTime call with Ms. Johnson, given

the presence of a third party and the unique features

31a

of the FaceTime platform.4 The fact that Mr. Thomas’

phone was able to fully record Ms. Grayson’s FaceTime

call means that the sound and image from the call was

not exclusively relayed to Ms. Johnson, as would be the

case in phone calls which are the traditional subject in

wiretap cases. Further, the fact that Ms. Johnson took

a screenshot of a FaceTime call with Ms. Grayson an

hour earlier—an action that, in 2022, would have led

to Ms. Grayson immediately receiving a notification

that Ms. Johnson had done so—raises the question of

whether Ms. Grayson expected her calls with Ms. Johnson to be private. The Court needs not address these

questions, especially given the Supreme Court’s caution that “[t]he judiciary risks error by elaborating too

fully on the . . . implications of emerging technology before its role in society has become clear.” City of

Ontario v. Quan, 130 S.Ct. 2619, 2626-27 (2010).

Defendants’ argument distinguishing this case

from Murdock on policy grounds is also unpersuasive.

Defendants argue that violations of Title III by criminals would be encouraged by application of Murdock to

this case, because Murdock involved a non-criminal

wife recording her husband while he engaged in criminal acts, while this case involves alleged criminal

actors recording other individuals allegedly engaging

FaceTime is a video calling platform that uses a phone’s

camera, microphone, and external speakers. While users can

connect the audio output of a FaceTime call to headphones to

limit the ability of those in their immediate area, the default

setting—and the one that appears to have been used here—

broadcasts the audio output of the call as a phone call on

“speakerphone” would. Both users of FaceTime would understand by choosing the platform that those proximate to the

call could hear and see its contents.

4

32a

in criminal conduct. (ECF No. 78 at PageID 225.) Defendants argue that applying Murdock to these facts

would go against the aims of Murdock’s authors. (Id.)

Murdock’s analysis on the suppression issue, however,

focuses not on whether a judicially created exception

to Title III’s general prohibition would create incentives for wrongful actors to engage in wiretapping, but

whether suppression would deter wrongful conduct by

the Government. Murdock, 63 F.3d at 1402-03. Even if

criminals would be incentivized to engage in wiretapping by Murdock’s clean hands exception, the

incentive would only exist if their wiretap recorded

criminal actions serious enough to lead to a grant of

immunity on wiretapping charges. Therefore, the only

incentive created would be for criminal actors to engage in conduct that generates evidence against them

as well as other criminal actors and turn that evidence

over to the Government. Defendants’ attempt to distinguish Murdock on policy grounds therefore

mischaracterizes the deterrence analysis in Murdock,

and is logically flawed.

ii. Spoilation and Due Process

Defendants argue that the “videos should be excluded because law enforcement both spoliated the

digital evidence and violated Ms. Grayson’s due process rights by failing to preserve material exculpatory

digital evidence.” (ECF No. 63 at PageID 165.) Defendants argue that because the video was not

extracted from Ms. Johnson’s phone until forty-four

days after the video was initially proffered, and because law enforcement never sought a warrant for Mr.

Thomas’ phone, law enforcement’s “failure to preserve

time-sensitive forensic artefacts . . . prejudices Ms.

Grayson’s defense.” (ECF No. 63 at PageID 166.)

33a

Defendants’ due process argument is unavailing on

its face. Defendants argue that the failure to preserve

forensic copies “has deprived Ms. Grayson of her right

and ability to further investigate digital evidence”

which they allege to be exculpatory. (Id.) Law enforcement’s failure to preserve potentially relevant evidence

is not grounds for a due process argument unless the

petitioner can show bad faith. Arizona v. Youngblood,

488 U.S. 51, 57-58 (1988). Rule 17(c) of the Federal

Rules for Criminal Procedure provides criminal defendants the ability to subpoena relevant evidence not

otherwise procurable through due diligence prior to

trial. FED. R. CRIM. P. 17(c); see also U.S. v. LlanezGarcia, 735 F.3d 483, 493-94 (6th Cir. 2013); United

States v. Nixon, 418 U.S. 683, 899 (1974) (17(c) not

unlimited). While some exculpatory evidence may

have been lost through the passage of time, “the government does not possess or control all of the

materials potentially relevant to a defendant’s case[]

and is not obligated to acquire materials possessed or

controlled by others.” Llanez-Garcia, 735 F.3d at 494.

Similarly, the standard articulated in Monzo v. Edwards, 281 F.3d 56 (6th Cir. 2002) would not apply to

any failure to preserve in this case: there is no evidence of bad faith, no indication that the defendant

would be unable to obtain comparable evidence

through a subpoena under Fed. R. Crim. P. 17(c), and

the exculpatory value of the evidence was not apparent before its destruction. Defendant repeatedly

argues that the fact that the videos do not include the

totality of the FaceTime call is evidence that exculpatory material was removed, but this is not

34a

demonstrated by the present record.5 There is no due

process violation when destroyed evidence has only

speculative exculpatory value. United States v.

Jobson, 102 F.3d 214, 219 (6th Cir. 1996).

Defendants’ spoliation arguments are also unavailing. “Spoliation is defined as the intentional

destruction of evidence that is presumed to be unfavorable to the party responsible for its destruction.”

United States v. Boxley, 373 F.3d 759, 762 (6th Cir.

2004). Defendants cite Boxley to support exclusion,

but Boxley only discusses spoliation in relation to a curative jury instruction. Id.; See also FED. R. CIV. P. 37.

The Sixth Circuit in Boxley elaborated that intentional destruction was “not . . . knowing and willful

removal of evidence, but . . . removal with the purpose

of rendering it inaccessible or useless to the defendant

in preparing [his] case.” Id.

As in Boxley, there is nothing in the facts presented by the Defendants that shows bad faith by the

Government. After officers observed that the video

was incomplete, they sought a warrant for Ms. Johnson’s phone and extracted digital evidence. (ECF No.

63 at PageID 157.) Ms. Johnson’s phone was not in the

exclusive custody and control of the government until

they received a warrant for extraction, and Mr.

Thomas’ phone was never in the custody or control of

the government.6 Presuming fault here when the

5 Defendants repeatedly argue that the fact that the video

was edited is incontrovertible proof that it contained exculpatory

material, but do not discuss what this exculpatory material

would be.

6 The Defendants argue that

“bad faith rises to gaslighting[,]” citing what they contend are bad faith arguments in the

Government’s briefs. (ECF No. 78 at PageID 228.) Despite

35a

Government took the time to seek a warrant would

run afoul of the Supreme Court’s analysis of the balance between preservation of digital evidence and

privacy interests in cell phones in Riley v. California.

573 U.S. 373 (2014). In Riley, the Supreme Court held

that a warrant was required to seize a cell phone even

when that phone was seized incident to arrest and the

government was concerned there was a risk of purposeful data wiping or encryption. Id. at 389-91.

Here, Ms. Johnson and Mr. Thomas were not subject to the diminished privacy interests applicable to

arrestees, and there is no allegation that Ms. Johnson

and Mr. Thomas engaged in remote wiping or data encryption, merely that data was lost through the passage

of time and degradation of digital evidence subject to

automatic deletion in a cell phones’ default settings.

Adopting Defendants’ standard for fault applicable to a

spoliation inference would require seizure of any cell

phone on which material evidence was stored immediately after its proffer. Such a standard does not square

with Riley, would require extensive warrantless privacy violations against cooperating witnesses, and

would have a chilling effect on production of evidence.

Because the Government’s actions do not meet the

Boxley standard for spoilation, neither exclusion nor

a curative instruction on these grounds is appropriate.

Defendants’ rhetoric, the choice of arguments by the Government

in briefs is not evidence that law enforcement engaged in bad

faith destruction. Nor does it prove any substantive exculpatory

information was in the deleted material, or that that substantive

exculpatory information was apparent to law enforcement agents

at the time of the alleged failure to preserve.

36a

iii. Federal Rules of Evidence

Defendants finally argue that under Federal Rules

of Evidence 1001-1004, the video recordings should not

be admitted because they do not accurately reflect the

information of the original, and because Defendants contend that there is “demonstrable evidence that the

videos have been edited.” (ECF No. 63 at PagelD 156.)

The “demonstrable evidence” that they cite is, in relevant part: 1) that the two videos were located on, but not

created on, Ms. Johnson’s phone; 2) that the FaceTime

call was recorded as being five minutes long, but the two

videos’ combined total length is only four minutes and

thirty-four seconds; and 3) that the two videos’ metadata

reflects the same creation date, leading Defendants’ expert to believe that they were initially one video divided

into two components. (ECF No. 63 at PagelD 157-58.)

Federal Rule of Evidence 1008 states:

Ordinarily, the court determines whether the

proponent has satisfied the factual conditions

for admitting other evidence of the content of a

writing, recording, or photograph under Rule

1004 or 1005. But in a jury trial, the jury determines—in accordance with Rule 104(b)—any

issue about whether [] an asserted writing, recording, or photograph ever existed; []another

one produced at the trial or hearing is the original; or [] other evidence of content accurately

reflects the content.

FED. R. EVID. 1008. Here, Parties agree that the video

would be a permissible “duplicate” if it accurately reflects the contents of the original. (ECF No. 75 at

PagelD 213; ECF No. 63 at PagelD 168 (“[T]he video is

admissible if it accurately reflects the information—

37a

even if the video is a duplicate”); see also FED. R. EVID.

1001-1003. Defendants do not raise questions as to the

authenticity of the original, but rather whether the

duplicate accurately reflects its contents. (ECF No. 63

at PageID 168.) While the implication of their argument is that the circumstances here make it unfair to

admit the duplicate, Defendants have provided no evidence that there is substantive exculpatory content

in the omitted material. See supra note 5. Because the

question of the accuracy of the duplicate is explicitly

placed before the Jury by Fed. R. Evid. 1008, it is insufficient on its own to exclude the video from trial.

Further, as Defendants themselves point out, the lack

of “exculpatory” metadata as a challenge to the videos’

accuracy is well-within the understanding of the jury.

(ECF No. 78 at PageID 229 (“[M]ost civilians know

that data on [a] cell phone is constantly changing and

that there are limitations on how long data is preserved.”) Defendants’ challenges to the accuracy of the

video are therefore appropriate for cross-examination,

but do not justify exclusion under the Federal Rules of

Evidence. Defendants’ Motion is therefore DENIED.

III. CONCLUSION

For the reasons discussed above, Ms. Grayson’s

first Motion in Limine and Defendants’ Motion to Exclude are DENIED.

SO ORDERED, this 15th day of February, 2024.

/s/ Jon P. McCalla

JON P. McCALLA

UNITED STATES DISTRICT JUDGE

38a

APPENDIX C

No. 24-5988

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF )

AMERICA,

)

)

Plaintiff-Appellee,

)

)

v.

)

)

ASHLEY GRAYSON,

)

Defendant-Appellant. )

ORDER

Before: THAPAR, NALBANDIAN, and

READLER, Circuit Judges.

The court received a petition for rehearing en

banc. The original panel has reviewed the petition

for rehearing and concludes that the issues raised in

the petition were fully considered upon the original

submission and decision of the case. The petition

then was circulated to the full court.* No judge has

requested a vote on the suggestion for rehearing en

banc.

* Judge Ritz is recused in this case.

39a

Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

40a

APPENDIX D

18 U.S.C. § 2511(1), (2)(d). Interception and disclosure of wire, oral, or electronic

communications prohibited

(1) Except as otherwise specifically provided in

this chapter any person who—

(a) intentionally intercepts, endeavors to

intercept, or procures any other person to

intercept or endeavor to intercept, any wire, oral,

or electronic communication;

(b) intentionally uses, endeavors to use, or

procures any other person to use or endeavor to

use any electronic, mechanical, or other device to

intercept any oral communication when—

(i) such device is affixed to, or otherwise

transmits a signal through, a wire, cable, or

other like connection used in wire

communication; or

(ii) such device transmits communications

by radio, or interferes with the transmission

of such communication; or

(iii) such person knows, or has reason to

know, that such device or any component

thereof has been sent through the mail or

transported in interstate or foreign commerce;

or

(iv) such use or endeavor to use (A) takes

place on the premises of any business or other

commercial establishment the operations of

which affect interstate or foreign commerce;

or (B) obtains or is for the purpose of obtaining

information relating to the operations of any

41a

business or other commercial establishment

the operations of which affect interstate or

foreign commerce; or

(v) such person acts in the District of

Columbia, the Commonwealth of Puerto Rico,

or any territory or possession of the United

States;

(c) intentionally discloses, or endeavors to

disclose, to any other person the contents of any

wire, oral, or electronic communication, knowing

or having reason to know that the information

was obtained through the interception of a wire,

oral, or electronic communication in violation of

this subsection;

(d) intentionally uses, or endeavors to use, the

contents of any wire, oral, or electronic

communication, knowing or having reason to

know that the information was obtained through

the interception of a wire, oral, or electronic

communication in violation of this subsection; or

(e)(i) intentionally discloses, or endeavors to

disclose, to any other person the contents of any

wire, oral, or electronic communication,

intercepted by means authorized by sections

2511(2)(a)(ii), 2511(2)(b)–(c), 2511(2)(e), 2516, and

2518 of this chapter, (ii) knowing or having reason

to know that the information was obtained

through the interception of such a communication

in connection with a criminal investigation, (iii)

having obtained or received the information in

connection with a criminal investigation, and (iv)

with intent to improperly obstruct, impede, or

42a

interfere with

investigation,

a

duly

authorized

criminal

shall be punished as provided in subsection (4) or shall

be subject to suit as provided in subsection (5).

…

(2)(d) It shall not be unlawful under this chapter

for a person not acting under color of law to intercept

a wire, oral, or electronic communication where such

person is a party to the communication or where one

of the parties to the communication has given prior

consent to

such

interception unless such

communication is intercepted for the purpose of

committing any criminal or tortious act in violation of

the Constitution or laws of the United States or of any

State.

43a

APPENDIX E

18 U.S.C. § 2515. Prohibition of use as evidence

of intercepted wire or oral communications

Whenever any wire or oral communication has

been intercepted, no part of the contents of such

communication and no evidence derived therefrom

may be received in evidence in any trial, hearing, or

other proceeding in or before any court, grand jury,

department, officer, agency, regulatory body,

legislative committee, or other authority of the United

States, a State, or a political subdivision thereof if the

disclosure of that information would be in violation of

this chapter.