United States v. Debra Kessinger

641 F. App'x 500
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 9, 2016
Docket15-5364
StatusUnpublished
Cited by5 cases

This text of 641 F. App'x 500 (United States v. Debra Kessinger) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Debra Kessinger, 641 F. App'x 500 (6th Cir. 2016).

Opinion

CLAY, Circuit Judge.

Defendant Debra Kessinger (“Kessinger”) appeals from her conviction for one count of arson in violation of 18 U.S.C. § 844(i) for setting fire to a Dollar General store in Horse Cave, Kentucky. Following a jury trial, Kessinger was found guilty of the arson and sentenced to seventy-two months of imprisonment, plus restitution. On appeal, Kessinger asserts that (1) the district court erred when it ruled that the government would be able to present rebuttal evidence if she argued that the government delayed bringing an indictment against her because it doubted the strength of its case; (2) the district court abused its discretion when it admitted into evidence footage from the store’s surveillance system; (3) the district court erred in enhancing her-sentence for committing the arson to conceal another offense pursuant to U.S.S.G. § 2K1.4(b)(l); (4) the district court abused its discretion in admitting, as res gestae, evidence about the shortfalls in the store’s inventory and about her stealing money from the store before the fire; and (5) the district court was required to dismiss two jurors for cause. For the reasons that follow, we AFFIRM the district court’s judgment and sentence.

BACKGROUND

On Monday, June 27, 2011 at 7:05 a.m., Kessinger arrived at a Dollar General store in Horse Cave, Kentucky, a store which she managed. Sometime shortly thereafter, Kessinger set fire to the store using fireworks and charcoal. She then walked calmly out of the store through the back door at 7:16 a.m.

*502 The night before Kessinger set fire to the store, she had started putting her plan into action. When she arrived at the store at 6:49 p.m., Kessinger went to her desk in her office where she counted money from the cash register. She then placed the money inside a green bank bag and covered that bag with a newspaper. She also had one of her employees gather loose papers, place them in cardboard boxes, and place those boxes under a table in the store’s breakroom. And at some point during the evening, Kessinger grabbed handfuls of fireworks from the store’s display cases and brought them to the break-room. She also was seen pushing a cartful of charcoal towards the direction of the breakroom. Once inside the breakroom, Kessinger placed several bags of fireworks and charcoal into the totes — i.e., large containers for merchandise — that were already there. Kessinger placed these items into the totes in such a way that no one else could see them.

At 9:24 p.m. the same evening, Kessinger turned off the store lights. She then hit a switch which turned the store’s surveillance cameras off. At 10:57 p.m., Kessinger set the store’s alarm. No one entered the store between the time Kessinger left and the time she returned the next morning at 7:05 a.m.

The following day, Monday, June 27, 2011, two people reported the fire after seeing plumes of smoke coming from the store. Shortly after the fire was reported, the Horse Cave, Munfordville, and Hardy-ville fire departments arrived to help bring things under control. It took roughly twenty-three firefighters to extinguish the flames.

Kessinger would later tell investigators that on the morning of the fire, she was sitting in her office when she heard a noise coming from the back of the store. Kes-singer stated that she then carried with her a sealed cash deposit envelope and placed it under some paper in the break-room. As she was standing in the break-room, Kessinger claimed she saw a fireball headed in her direction and then left out the back door, leaving her purse and the cash behind. But the day after the fire, investigators excavated the breakroom and did not find any remains of Kessinger’s purse or the sealed deposit. They did, however, find cardboard cores from fireworks and charcoal briquettes.

Because of the fire, the June 29, 2011 scheduled store inventory never took place. On the day of the fire, the store’s district managers were scheduled to conduct a pre-inventory — i.e., they were planning to reconcile the store’s books, determine what the inventory should be, and count the money in the safe. The Horse Cave store was performing poorly under Kessinger’s management — it had shrinkage 1 of close to $100,000. An inventory of the store would have likely triggered an investigation that could have led to Kes-singer’s being terminated.

We discuss the remaining facts as they pertain to the particular issues on appeal.

DISCUSSION

I. Admission of the Government’s Rebuttal Evidence

A part of Kessinger’s defense was that the government delayed seeking an indictment against her because it doubted the strength of its case. The district court ruled that Kessinger could present this theory to the jury. But the court ruled *503 that if Kessinger argued this theory, the government would be allowed to rebut it with evidence of its reason for delaying seeking an indictment — i.e., because Kes-singer was under investigation for other crimes. Now on appeal, Kessinger argues that the district court’s ruling curtailed her right to present a defense.

Because Kessinger frames this first evi-dentiary issue as a violation of a constitutional right, we review it de novo. 2 United States v. Reichert, 747 F.3d 445, 453 (6th Cir.2014); see also United States v. Blackwell, 459 F.3d 739, 752 (6th Cir.2006) (noting that the abuse of discretion standard generally applicable to a district court’s evidentiary rulings is not at odds with de novo review of constitutional questions because district courts do “not have the discretion to rest [them] evidentiary decisions on incorrect interpretations of the Constitution”) (quotation omitted).

The district court properly ruled that Kessinger would open the door to the government’s explanation for waiting to seek an indictment against her if she argued that the reason for the delay was that the government doubted its case. While criminal defendants have a constitutional right to “ ‘a meaningful opportunity to present a complete defense,’ ” Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986)), this right is not unlimited. A defendant “does not have an unfettered right to offer evidence that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Blackwell, 459 F.3d at 753 (internal citations and quotation marks omitted). Unless the particular rule of evidence “serve[s] no legitimate purpose” or is “disproportionate to the ends that ... [it is] asserted to promote,” a district court’s application of the rule to exclude defense evidence will not offend the Constitution. Holmes, 547 U.S. at 326, 126 S.Ct. 1727.

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Bluebook (online)
641 F. App'x 500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-debra-kessinger-ca6-2016.