United States v. Baylor

39 F.4th 813

UNITED STATES of America, Appellee

v.Brynee BAYLOR, Appellant

No. 19-3075

United States Court of Appeals, District of Columbia Circuit.

Argued September 10, 2021

Decided July 12, 2022

Shawn Sukumar argued the cause for appellant. On the briefs was David Benowitz.

Mark S. Determan, Attorney, U.S. Department of Justice, argued the cause and filed the brief for appellee. Alexander P. Robbins, Assistant U.S. Attorney, entered an appearance.

Before: Srinivasan, Chief Judge, Pillard, Circuit Judge, and Randolph, Senior Circuit Judge.

Srinivasan, Chief Judge:

Appellant Brynee Baylor was convicted of conspiracy to commit securities fraud, securities fraud, and first-degree fraud for her participation in a fraudulent investment scheme. On appeal, she mounts a single challenge: the prosecution made improper comments during its rebuttal closing argument that substantially prejudiced her and denied her a fair trial. Baylor objected to most of the prosecution's statements in the district court, and the court sustained the objections. We find no reversible error in the district court's response to the prosecution's challenged statements, and we thus affirm Baylor's convictions.

I.

Beginning in 2010, Baylor, who was then a licensed attorney, joined forces with a Pennsylvania man to promote what they touted as a highly profitable trading program. They promised investors extraordinary returns in a short timeframe with false assurances about the venture's past successes. All told, they enticed more than a dozen individuals to deposit more than $2.4 million into Baylor's attorney trust account over the course of approximately one year.

Investors, however, never saw their money again. Baylor repurposed a majority of the deposited funds for her and others’ personal use. She did so notwithstanding her repeated promises that the funds would remain secured in the trust account. Baylor continued that pattern—namely, recruiting investors with false promises and siphoning off their contributions for unrelated uses often just days after receipt— long into the scheme's course, even as she exchanged scores of communications with unhappy investors attempting (unsuccessfully) to recoup their money, and even though investors had been paid nothing at all.

On October 6, 2016, a federal grand jury indicted Baylor on charges stemming from her participation in the investment scheme. Over the course of an eleven-day jury trial, the prosecution offered testimony from two government agents and ten former investors tending to show that Baylor knowingly engaged in a prolonged effort to defraud investors.

Baylor's defense involved an effort to demonstrate that she lacked awareness of the fraudulent nature of the enterprise. She attempted to point the finger at her business partner, whom she claimed had masterminded the scheme and had duped her along with the investors. As one component of her defense, Baylor introduced a joint stipulation of fact concerning testimony her mother had previously provided in a related civil proceeding. The stipulation, which defense counsel read to the jury, stated that Baylor's mother testified both that she "decided to invest" in the trading program and that she gave Baylor a check "expecting her to" deposit $15,000 for purposes of that investment. Apr. 18, 2019 P.M. Trial Tr. 24:7–22, App. 366. According to Baylor, the fact that her own mother invested in the scheme served to reinforce Baylor's lack of a culpable mental state at the time of the alleged offenses.

Although the vast majority of trial testimony focused on other issues, the prosecution briefly cross-examined Baylor about her mother's purported investment. The prosecution then suggested during closing argument that Baylor's mother in fact had not invested in the scheme at all. Defense counsel responded in closing arguments that the investment had occurred.

In the rebuttal closing argument, the prosecution then made four remarks on which Baylor grounds her challenge in this appeal: (i) "Now, certainly, [Baylor's mother] was trying to help her daughter get out of the trouble with the SEC" when she testified about the investment and she and Baylor "came up with" the idea of the investment; (ii) "Maybe [Baylor's mother] wrote [the check] to help [Baylor] make some mortgage payment"; (iii) "It's possible [the check] was to pay some other household expense"; and (iv) The jury "should not credit" the "self-serving" investment claim, which came "only after" Baylor faced legal jeopardy. Apr. 25, 2019 Trial Tr. 14:7–16:17, App. 425–27.

Defense counsel objected to the first three statements when each was made (but not the fourth). The district court sustained each of those objections. The court expressly struck the first statement from the record, observing that it was not "in evidence." Id. at 14:13–14, App. 425. And the court stated that the second and third comments were speculative. The court sustained the objections and noted its grounds for doing so in the presence of the jury. Baylor did not ask for any additional relief, neither seeking a curative instruction nor moving for a mistrial.

On April 29, 2019, the jury found Baylor guilty of conspiracy to commit securities fraud, securities fraud, and five counts of first-degree fraud. She soon filed a motion for a new trial. Among her arguments, she pointed to the three assertedly improper statements to which she had objected during the prosecution's rebuttal argument.

The district court denied the motion for a new trial. United States v. Baylor , No. 16-cr-180, 2019 WL 3533529 (D.D.C. Aug. 2, 2019). With regard to Baylor's reliance on the prosecution's statements, the court reasoned that, although the statements were arguably improper, they had not misstated the evidence, inflamed the jury, or featured prominently at closing. The court added that it had sufficiently mitigated any prejudice from the statements in the jury's presence and that the case in any event was not close. The complained-of comments, the court determined, thus "could not reasonably have affected the jury's verdict." Id. at *9 (brackets and citation omitted). Baylor now appeals.

II.

Baylor raises only one argument in her appeal: that the prosecution's statements during its rebuttal closing argument denied her a fair trial. The threshold question we face is, which standard of review should govern our resolution of Baylor's claim? According to Baylor, we should apply harmless-error review. If so, the burden would lie with the government to show that the ostensible error was harmless—i.e., did not substantially and injuriously affect the jury's determination of the verdict. See, e.g. , United States v. Johnson , 231 F.3d 43, 47 (D.C. Cir. 2000).

Harmless-error review is inapplicable in the circumstances of this case. Harmless-error analysis generally applies when a district court erroneously rejects a defendant's timely claim of an error. See, e.g. , United States v. Johnson , 519 F.3d 478, 483 (D.C. Cir. 2008). In that situation, the government can prevail on appeal, notwithstanding the error in the conduct of the trial proceedings, by demonstrating that the error was harmless.

Here, though, the district court did not erroneously reject Baylor's claim of an error. Indeed, the court did not reject any relevant claim of error at all. Baylor's claim involves the four allegedly improper statements made by the prosecution in the rebuttal closing argument. But Baylor raised no objection in the district court to the fourth of those statements, so there was no claim of any error at trial as to that one. And while Baylor did object to the other three statements, the district court did not erroneously overrule her objections. Rather, the court sustained her objections, striking the first statement from the record and noting for the jury that the other two statements were speculative. And Baylor made no argument at trial that the district court should have granted her additional relief beyond what it...