United States v. Ronda Nixon
694 F.3d 623
| 6th Cir. | 2012Background
- Nixon, a bookkeeper for Pruitt & Thorner Law Offices, abused her access to firm accounts for personal expenses.
- She was charged with 11 wire-fraud counts, 2 bank-fraud counts, 3 aggravated-identity-theft counts, and 1 unauthorized-access-device count; convicted on all 17 counts and sentenced to 54 months.
- Evidence showed Nixon charged personal items to the firm’s American Express card via ProPay, including eight $350 and three $300 charges, none authorized by the firm.
- She also borrowed funds from a firm line of credit and forged checks in the owner’s name to conceal unauthorized use; the owner testified he did not authorize these actions.
- Prosecutors relied on FBI agent Egan and forensic accountant Rufus, who testified as fact and expert witnesses; trial included disputed expert testimony, business-records issues, and potential misalignment with the indictment.
- Count 17 (unauthorized-access-device) hinged on intent at obtaining the card, which the government failed to prove; the court remanded for resentencing on that count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert-opinion testimony by Egan and Rufus | Nixon contends they testified as experts without proper qualification. | Government claims qualifications were evident; objections failed to preserve on Rufus. | Plain-error review; admission not reversible error; weight of testimony matters. |
| Admission of Government Exhibit 19 (ProPay records) | Exhibit 19 was improperly admitted under business records rather than Rule 1006 summaries. | Exhibit 19 admissible as business records or as a data compilation under Rule 803(6). | Exhibit 19 properly admitted under Rule 803(6); not an obvious error. |
| Exclusion of Curtis’s testimony about Pruitt’s forgetfulness | Curtis’s testimony would show Pruitt’s memory lapse and help Nixon’s defense. | Forgetfulness not a character trait; Curtis’s testimony irrelevant. | District court's exclusion sustained; testimony irrelevant; no reversible error. |
| Constructive amendment or variance from the superseding indictment | Evidence about Community Trust Bank checks altered scope of charges beyond indictment. | Instructions and jury deliberations clarified scope; no effect on elements. | No constructive amendment or reversible variance; jury properly guided. |
| Count 17 Unauthorized access device—proof of intent to defraud at obtaining the card | Nixon argues intent to defraud at time of obtaining card was proven. | There was authorization to obtain card; improper to prove intent at issuance. | Reversed as to Count 17; remanded for resentencing on that count. |
Key Cases Cited
- United States v. White, 492 F.3d 380 (6th Cir. 2007) (lay opinion testimony cannot cloak expert analysis under Rule 701/702)
- United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006) (failure to give cautionary instruction on dual roles of witness constitutes plain error)
- United States v. Johnson, 488 F.3d 690 (6th Cir. 2007) (procedure for qualifying expert witnesses; objections to be raised and ruled on)
- United States v. Moon, 513 F.3d 527 (6th Cir. 2008) (electronic records admissible as business records; printouts may be records not summaries)
- United States v. Russo, 480 F.2d 1228 (6th Cir. 1973) (reliability of computer-input data; data compilations admissible)