This section contains the nature of the case and procedural background.

D was a financial advisor. His principal clients were three elderly widows: Mrs. Maurita Johnson, who entrusted him with $1,090,000; Mrs. Corrine Parker, who entrusted him with $800,000; and Mrs. Annie Hallford, who entrusted him with $70,000. D “invested” his investors' money in a luxurious personal residence. D never opened investment accounts in the names of either Mrs. Johnson or Mrs. Parker. D learned of the pending charges against him. During a search of D's home, the contents of his computer were examined and a failed e-mail transmission was discovered. That e-mail was addressed to a radio personality known as 'Delilah,' but it was returned as undeliverable because the wrong e-mail destination had been used. Over D’s objection grounded in Rule 403, the failed e-mail was admitted into evidence. Its message was: . . .I was successful in business earning in excess of $200K per year, but that never seemed good enough for her. . . . I built one of the biggest houses in Odessa for her. She wanted for nothing in material matters. . . . I am in the financial services industry and deal with large amounts of money. I misappropriated, (or as another listener of your show mentioned the same earlier, and you straightened him out to admit stole), a large amount of money. Nobody was hurt because of their resources, but that does not excuse, and I am not trying to justify my actions, what and why I did what I did. Delilah, today my attorney got a fax from the assistant attorney general of the United States. They are wanting me to admit what I did and face 3-4 years in a federal prison. I know I am guilty. I did a wrong thing because of the right reason . . . love. The jury heard the entire e-mail and portions were reproduced on a large illustration placed within the jury's view. The trial judge issued a cautionary instruction, stating in relevant part that 'it is pretty clear that . . . this e-mail was written at a time when the Government was only considering . . . charges of bank fraud. It was not written at a time when the Government was considering a mail fraud charge.' D was convicted and appealed.

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