641 F. App'x 500
6th Cir.2016Background
- Kessinger, the manager of a Dollar General in Horse Cave, KY, set fire to the store on June 27, 2011 using fireworks and charcoal; she had disabled lights and the DVR the prior evening and left the store overnight.
- Surveillance and post-fire excavation found fireworks cores and charcoal; no sealed cash deposit or purse was recovered though video showed Kessinger placing money in a bank bag and concealing it.
- The store had substantial inventory shrinkage (~$100,000) under Kessinger’s management and an internal discrepancy ($700) had been investigated months earlier.
- Kessinger claimed the government delayed indictment because it doubted its case and offered an innocent explanation for leaving the breakroom; she was convicted by a jury of arson under 18 U.S.C. § 844(i).
- At sentencing the court applied a two-level enhancement under U.S.S.G. § 2K1.4(b)(1) for committing arson to conceal another offense (theft), producing a 72-month prison term plus restitution.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Kessinger) | Held |
|---|---|---|---|
| Whether court erred in allowing rebuttal evidence if Kessinger argued prosecution delayed indictment because of weak case | Rebuttal evidence explaining the delay (that Kessinger was under other investigations) is proper to contradict defense theory | Ruling curtailed her right to present a defense by permitting rebuttal that prejudiced her theory | Court: No constitutional violation; allowing rebuttal was proper and did not bar defense; affirmed (de novo review) |
| Admissibility/authentication of store surveillance DVDs under Fed. R. Evid. 901 | DVDs authenticated by security-system employee with knowledge of how DVR timestamps are set; admissible | DVDs not properly authenticated; installer did not testify and timestamp could be wrong | Court: No abuse of discretion; witness testimony was sufficient to authenticate DVDs; admission affirmed |
| Applicability of U.S.S.G. § 2K1.4(b)(1) enhancement (arson to conceal another offense) | Enhancement supported by preponderance: prior $700 discrepancy, video showing concealment of cash, and missing funds after fire | Insufficient evidence that arson was done to conceal thefts | Court: Review for clear error; district court’s finding supported by record and not clearly erroneous; enhancement affirmed |
| Admission of evidence of prior thefts and store inventory losses as res gestae (background/intrinsic evidence) | Evidence was intrinsic/res gestae, probative of motive (to avoid inventory that would expose shrinkage); not barred by Rule 404(b) | Evidence constituted improper prior-bad-acts impeachment and was unduly prejudicial | Court: Properly admitted as res gestae/intrinsic; probative value outweighed prejudice; Rule 404(b) not applicable (or alternatively admissible under Rule 403) |
| Failure to dismiss two prospective jurors for cause (Jurors 8 and 14) | N/A (government defended court’s handling) | Court should have struck jurors for cause; forcing use of peremptories impaired Sixth Amendment rights | Court: Even assuming error, Martinez-Salazar controls — defendant’s use of peremptories to remove them forecloses constitutional claim; claim foreclosed and preserved only for Supreme Court review |
Key Cases Cited
- Holmes v. South Carolina, 547 U.S. 319 (2006) (defendant has right to present meaningful defense but evidentiary rules may limit admissible proof)
- Crane v. Kentucky, 476 U.S. 683 (1986) (limits on excluding defense evidence implicate due process)
- Scheffer v. United States, 523 U.S. 303 (1998) (erroneous evidentiary rulings rarely infringe weighty defense interests)
- United States v. Martinez-Salazar, 528 U.S. 304 (2000) (use of peremptory challenges to remove jurors who arguably should have been excused for cause does not violate defendant’s rights)
- United States v. Reichert, 747 F.3d 445 (6th Cir. 2014) (standard for review of constitutional evidentiary rulings)
- United States v. Hardy, 586 F.3d 1040 (6th Cir. 2009) (erroneous evidentiary rulings rarely constitute a constitutional violation)
- United States v. Vincent, 681 F.2d 462 (6th Cir. 1982) (res gestae/background evidence admissible when closely related in time and nature to charged crime)