David Brend v. United States

Petitioner David Brend was tried on a single count of conspiracy to commit wire fraud arising from his promotion of IcomTech, a purported cryptocurrency multi-level marketing business that proved to be a Ponzi scheme. The existence of the fraud was conceded. The only contested element at trial was whether Mr. Brend knew of it. On that lone contested element, the district court permitted the government to introduce evidence that Mr. Brend had promoted several other cryptocurrency schemes that turned out to be fraudulent, as proof of his intent and absence of mistake. At the same time, the district court barred Mr. Brend from introducing evidence that, during the same period, he participated in multi-level marketing businesses that were lawful, offered to negate that same intent. The Second Circuit affirmed in an unpublished summary order, disposing of the issue in a single sentence, five weeks after it reversed a conviction in another case because a trial court excluded defense other-acts evidence bearing on intent. The questions presented are:

1. Whether a trial court violates a criminal defendant's Fifth and Sixth Amendment right to a meaningful opportunity to present a 2 of 29 complete defense when it admits the government's other-acts evidence to prove the defendant's fraudulent intent while excluding the defendant's contemporaneous lawful conduct offered to negate the same intent.

2. Whether Federal Rule of Evidence 404(b) imposes the same standard of admissibility on a defendant who offers other-acts evidence in his defense as it imposes on the government offering such evidence against him, a question that has divided the courts of appeals. 3 of 29