                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0085n.06

                                        Case No. 15-5364
                                                                                         FILED
                          UNITED STATES COURT OF APPEALS                           Feb 09, 2016
                               FOR THE SIXTH CIRCUIT                           DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE UNITED
v.                                                   )       STATES DISTRICT COURT FOR
                                                     )       THE WESTERN DISTRICT OF
DEBRA KESSINGER,                                     )       KENTUCKY
                                                     )
       Defendant-Appellant.                          )
                                                     )
                                                     )


BEFORE: CLAY and ROGERS, Circuit Judges; THAPAR, District Judge.

       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)(1); (4) the district court abused its discretion in admitting, as res gestae,


       
       The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.


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United States of America v. Debra Kessinger

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.

       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 breakroom. 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.



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       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 Hardyville 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. Kessinger stated that she

then carried with her a sealed cash deposit envelope and placed it under some paper in the

breakroom. As she was standing in the breakroom, 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 shrinkage1 of close to $100,000. An inventory of the store would have

likely triggered an investigation that could have led to Kessinger’s being terminated.

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




       1
         Shrinkage is when a store has a loss of inventory or fixed assets. (R. 62, Jury Trial
Transcript, Volume 3, PageID# 1070-71.)


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                                           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 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 Kessinger 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 evidentiary 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 [their] 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,

       2
         While the government agrees with Kessinger that review is ordinarily de novo, it argues
that because Kessinger did not object to the district court’s ruling during this discussion, plain
error review applies. As we read the record, however, Kessinger did in fact object, albeit
couched in slightly different terms. See, e.g., United States v. Grissom, 525 F.3d 691, 695 (9th
Cir. 2008) (finding the government’s general objection sufficient to preserve a claim because the
government “consistently advanced its view” throughout the sentencing hearing and the record
indicates that “the district court was indeed fully aware of the government’s position”).
Therefore, de novo review applies.


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547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (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.           Exclusion of evidence is

“unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty

interest of the accused.” United States v. Scheffer, 523 U.S. 303, 308 (1998) (citation omitted).

Thus, “erroneous evidentiary rulings rarely constitute a violation of a defendant’s right to present

a defense.” United States v. Hardy, 586 F.3d 1040, 1044 (6th Cir. 2009) (citation omitted).

       Under the circumstances presented here, we have little difficulty concluding that the

district court’s ruling did not violate Kessinger’s right to present a defense. Kessinger essentially

argues that the district court should have prevented the government from introducing rebuttal

evidence. “The proper function of rebuttal evidence is to contradict, impeach or defuse the

impact of the evidence offered by an adverse party.” United States v. Papia, 560 F.2d 827, 848

(7th Cir. 1977) (citation omitted). “Determining the use and scope of rebuttal evidence lies

within the broad discretion of the district court.” United States v. Levy, 904 F.2d 1026, 1031 (6th

Cir. 1990).

       The government’s position at trial was that it should be allowed to present evidence

contradicting any theory that it delayed seeking an indictment for the reason that it doubted its

case against Kessinger. Kessinger points to no rule, and no rule can be found, that allows a

defendant to preempt a prosecutor’s right to present rebuttal evidence.          More importantly,



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though, the district court’s evidentiary ruling did not cause Kessinger constitutional injury

because it did not prevent her from raising a defense that the government had doubts about its

case. A variety of avenues were available to Kessinger to present this defense. The district court

never ruled that Kessinger could not present her evidence or argue this theory.                   It was

Kessinger’s strategic decision, rather than the district court’s evidentiary ruling, that caused her

not to present this defense. We therefore find no error in this ruling.

 II.     Admission of the Footage from the Store’s Surveillance System

         At trial, the government called Joseph Wagner, an employee of Integrated Security

Solutions,3 to testify about the Dollar General store’s surveillance security system. Through

Wagner, the government introduced into evidence surveillance footage from the store’s security

cameras. The footage was burned onto DVDs. Kessinger objected to the introduction of the

DVDs on the ground that they were not properly authenticated. Specifically, she argued that the

government did not lay a foundation for the date and time shown on the DVDs. The district

court then instructed the government to ask Wagner whether the date and time shown on the

DVDs was accurate, and if so, how he knew. The government asked Wagner to explain how the

date and time are displayed on the DVDs. Wagner gave the following explanation:

         Q [government]:         And as far as the security footage that [the DVR system]
                                 captures, does it collect a time and date of the video footage
                                 that it collects?

         A [Wagner]:             Yes.

         Q [government]:         And how does it do that? Well, not technically, but it does
                                 that on the disks -- or on the footage that it’s capturing on
                                 the DVR?



         3
             Integrated Security Solutions provided video surveillance systems to the Dollar General
store.


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       A [Wagner]:            When the DVR is set up, you set a time and date within the
                              software.

       Q [government]:        Yes, sir.

       A [Wagner]:            And then it uses that time and date. As information’s
                              coming in -- as video is coming into the hard drive, it
                              marries the date and time together.

       Q [government]:        And based on the DVR coming from Central Time Zone,
                              what time would it have on those video footage that’s
                              collected?

       A [Wagner]:            The DVR would be set to Central Time Zone, so that would
                              be the time that it has.

(R. 31, Testimony of Joseph Wagner from Jury Trial, PageID# 192.)

       The court then overruled Kessinger’s objection and admitted the DVDs into evidence.

Now on appeal, Kessinger argues that this evidence was erroneously admitted because the DVDs

had not been authenticated under Federal Rule of Evidence 901. We disagree.

       When a defendant challenges a district court’s evidentiary ruling, we review that ruling

for abuse of discretion. United States v. Chalmers, 554 F. App’x 440, 449 (6th Cir. 2014). “We

will not reverse unless an error affects a substantial right—that is, if the error had a substantial

and injurious effect or influence on the jury’s verdict.” United States v. Shannon, 803 F.3d 778,

785 (6th Cir. 2015).

       Because the DVDs were properly authenticated by a witness with knowledge, as required

by Rule 901 of the Federal Rules of Evidence, there was no abuse of discretion in their

admission. The Federal Rules of Evidence allow parties to authenticate evidence in any way that

presents “evidence sufficient to support a finding that the matter in question is what its proponent

claims.” Fed. R. Evid. 901(a). A party may authenticate evidence through “[t]estimony [of a

witness with knowledge] that a matter is what it is claimed to be.” Fed. R. Evid. 901(b)(1). The



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Advisory Notes to Rule 901(b)(4), which provide that evidence may be authenticated by

distinctive characteristics, state: “The characteristics of the offered item itself, considered in the

light of circumstances, afford authentication techniques in great variety.”

       While the exact nature of Kessinger’s argument is difficult to ascertain, she seems to

contend that Wagner is not the proper foundation witness. However, we find otherwise. Wagner

identified the DVDs as a recording of the store’s surveillance system. He testified that the DVDs

were an accurate recording of the video footage and, based on his personal knowledge, explained

how the time and date are displayed. This was sufficient to authenticate the DVDs under Rule

901(b). See, e.g., Buziashvili v. Inman, 106 F.3d 709, 717 (6th Cir. 1997) (“[T]he W-2 forms

were sufficiently authenticated in that they appeared to be what they purported to be, and defense

counsel was not able to make any serious challenge to their authenticity.”); United States v.

Kandiel, 865 F.2d 967, 973-74 (8th Cir. 1989) (tape recordings were authenticated without

evidence of origin, method, or time of recording).

       Kessinger claims that this testimony is not sufficient because the person who installed the

surveillance system did not testify and that the date and time may be formatted incorrectly. This

argument, however, does not implicate the DVDs’ admissibility but instead goes to the weight

that should be attributed to them. United States v. Allen, 106 F.3d 695, 700 (6th Cir. 1997). The

district court therefore did not abuse its discretion in admitting the DVDs into evidence.

III.   Application of U.S.S.G. § 2K1.4(b)(1)

       At sentencing, Kessinger objected to a two-level enhancement pursuant to U.S.S.G.

§ 2K1.4(b)(1) for committing the arson to conceal another offense.               In support of this

enhancement, the government called to testify Phillip Bramlett, a regional loss prevention




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manager at Dollar General, and also Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”) Special Agent Kurt Meuris.

       Bramlett testified that in August 2010, he was notified of a $700 discrepancy in one of

Kessinger’s deposits. Dollar General then notified Kessinger that it was aware of the $700

shortage. Bramlett traveled to the Horse Cave store to investigate the shortage. When he met

with Kessinger, Kessinger immediately stated that she found the money in a ledger book she kept

in the office. Bramlett questioned Kessinger why she kept a separate ledger. Bramlett informed

Kessinger that keeping a second ledger was against company policy, as doing so made it easier

to cook the books, i.e., to use receipts from one day to cover money missing from another day.

He then threw Kessinger’s ledger in the trash.

       For his part, Agent Meuris testified that after the fire, several of Dollar General’s district

managers completed an inventory of the store’s safes. The inventory revealed that between

$1,700 and $2,200 was missing. Agent Meuris testified that evidence showed that Kessinger

was responsible for the cash being missing from the store. Namely, video surveillance footage

showed Kessinger putting money into a bank bag and concealing the bag under newspapers.

And while Kessinger told investigators that she left the bag behind in the breakroom,

investigators found no evidence of the bag or the money.

       The district court found that Bramlett’s and Agent Meuris’ testimony established, by a

preponderance of the evidence, that Kessinger had stolen money from the store during her tenure

as manager—namely, $700 in July 2010 and between $1,700 and $2,200 the night before the

fire. Based on this testimony, the court found that the evidence sufficiently established that

Kessinger committed the arson to cover up prior thefts. The court summarized its ruling in this

way:



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       Well, it’s a preponderance standard and I think that all of these -- this evidence,
       [defense counsel], you know, the $700, and the existence of the ledger, and her
       use of the ledger all allows a reasonable fact finder to draw inferences. And this
       is certainly one of those cases where inferences can be drawn reasonably, the lack
       of a recovery of bank bag zipper, whatever.

       I certainly think that this is not the only reason that she burnt the store down, but I
       think it’s part of the reason. I think there’s sufficient evidence to believe that she
       was taking money, had taken money, was trying to cover up the fact that she was
       taking money from the store, and that this was part of the reason that she
       committed this offense. So I think that the two-level enhancement does apply.

(R. 68, Sentencing Hearing, PageID# 1538-39).

       After applying the two-level enhancement under U.S.S.G. § 2K1.4(b)(1), which resulted

in a sentencing range of sixty-three to seventy-eight months, the court sentenced Kessinger to

seventy-two months of imprisonment, plus restitution. Kessinger now challenges that sentence,

arguing that the evidence failed to show that she committed the arson to cover up prior thefts.

       “We review a sentence imposed by the district court for reasonableness.” United States

v. Webb, 616 F.3d 605, 608-09 (6th Cir. 2010) (citing United States v. Richardson, 437 F.3d 550,

553 (6th Cir. 2006)). Generally, the reasonableness of a sentence is reviewed for abuse of

discretion. Id. at 609. But where the defendant challenges the application of a sentencing

enhancement, we review for clear error. United States v. Moore, 225 F.3d 637, 642 (6th Cir.

2000). A factual finding is clearly erroneous when, “though there is evidence to support that

finding, the reviewing court on the entire evidence is left with the definite and firm conviction

that a mistake has been committed.” United States v. Ables, 167 F.3d 1021, 1035 (6th Cir. 1999)

(internal citations and quotation marks omitted).

       The enhancement at issue, § 2K1.4(b)(1), provides for a two-level increase to a

defendant’s offense level for the offense of arson if “the offense was committed to conceal

another offense[.]” U.S.S.G. § 2K1.4(b)(1). The government bears the burden of proving by a



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preponderance of the evidence that the enhancement applies. United States v. Gibson, 985 F.2d

860, 866 (6th Cir. 1993).

       In light of the testimony at trial and at the sentencing hearing, the district court’s

determination that the two-level enhancement applied was not clearly erroneous. The district

court explicitly rejected Kessinger’s argument that there was not sufficient proof to establish the

fact that she stole cash from her store. The court specifically pointed to the fact that video

surveillance footage showed Kessinger putting money into a bank bag and concealing the bag

under newspapers. The court also pointed to the fact that Kessinger was implicated in an internal

investigation over a $700 discrepancy in one of her deposits. And the court took note of the fact

that Kessinger kept a separate ledger, which made it likely that she was using receipts from one

day to cover money missing from another day.

       All of this evidence—i.e., the evidence presented at trial and at sentencing—provided a

sufficient basis for the district court to find by a preponderance of the evidence that Kessinger set

fire to the store to cover up her prior thefts. After reviewing all of the evidence, we are not left

with a definite and firm conviction that the district court made a mistake. We therefore affirm

Kessinger’s sentence.

IV.    Admission of Evidence Regarding Kessinger’s Stealing Money and Merchandise
       from the Store and the Store’s Inventory Losses during Kessinger’s Tenure as
       Manager

       In pretrial proceedings, the government attempted to introduce evidence regarding

Kessinger’s stealing money and merchandise from the store and the store’s inventory losses

during Kessinger’s tenure as manager. The government argued that this evidence was res gestae.

Kessinger opposed the evidence’s admission. The district court held that evidence of the store’s

inventory losses was res gestae and was admissible to show Kessinger’s motive for setting fire to



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the store. However, with regard to Kessinger’s thefts, the court limited the proof to only those

thefts close in time to the fire. Kessinger now argues that this ruling was an abuse of discretion.

       When a defendant challenges a district court’s evidentiary ruling, we review that ruling

for abuse of discretion. Chalmers, 554 F. App’x at 449. If evidence was erroneously admitted,

we ask whether the admission was harmless error or requires reversal of a conviction. United

States v. Martinez, 588 F.3d 301, 312 (6th Cir. 2009).

       “We have recognized the admissibility of res gestae, or background evidence, in limited

circumstances when the evidence includes conduct that is ‘inextricably intertwined’ with the

charged offense.” United States v. Clay, 667 F.3d 689, 697 (6th Cir. 2012) (citing United States

v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000)). “Proper background evidence has a causal,

temporal or spatial connection with the charged offense.” Hardy, 228 F.3d at 748. “[Such]

evidence may include evidence that is a prelude to the charged offense, is directly probative of

the charged offense, arises from the same events as the charged offense, forms an integral part of

the witness’s testimony, or completes the story of the charged offense.”          United States v.

Grooms, 566 F. App’x 485, 491 (6th Cir. 2014) (internal quotation marks omitted).

       Res gestae is often called “intrinsic evidence.”        “Intrinsic acts are those that are

inextricably intertwined with the criminal act charged or a part of the criminal activity as

opposed to extrinsic acts, which are those that occurred at different times and under different

circumstances from the offense charged.” United States v. Stafford, 198 F.3d 248, at *4 (6th Cir.

1999) (unpublished table opinion). We have “acknowledge[d] that the distinctions among res

gestae, inextricably intertwined evidence, intrinsic evidence, and background evidence [are] far

from clear.” United States v. Adams, 722 F.3d 788, 822 n.26 (6th Cir. 2013). However, we treat

these various concepts similarly. See id.



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       Res gestae does not implicate Federal Rule of Evidence 404(b), which prohibits evidence

of past acts to prove character, although there are some exceptions. Hardy, 228 F.3d at 748. For

example, “[w]e allow the trial court to admit evidence regarding a defendant’s unindicted

criminal activity when that activity is ‘intrinsic’ or ‘inextricably intertwined’ with charges named

in the indictment.” United States v. Potts, 173 F.3d 430, 1999 WL 96756 at *9 (6th Cir. 1999)

(unpublished). Even if evidence is res gestae, “[w]e must also find that the district court did not

abuse its discretion in concluding that the probative value of the evidence was not substantially

outweighed by the danger of unfair prejudice pursuant to Federal Rule of Evidence 403.” United

States v. Joseph, 270 F. App’x 399, 405 (6th Cir. 2008).

       While Kessinger objects to the district court’s admission of several pieces of evidence—

namely her stealing money from the store before the fire and the store’s inventory losses during

her tenure as manager—the district court properly admitted all of these facts as evidence of the

crime charged. The purpose for the introduction of this evidence was to establish motive. The

government had the right to argue that Kessinger set fire to the store because an inventory of the

store—which was supposed to take place just two days after the fire—would have likely

triggered an investigation that could have led to Kessinger’s being terminated. Indeed, under

Kessinger’s management, the store had inventory losses of close to $100,000.

       The government’s theory of the case was simple: Kessinger set fire to the store to cover

up the fact that under her management, the store had high inventory losses. This evidence was

res gestae because it was “closely related in both time and nature to the crime charged.” United

States v. Vincent, 681 F.2d 462, 465 (6th Cir. 1982) (internal quotation marks omitted). In ruling

that this evidence was admissible, the district court correctly concluded that the probative value

of the evidence was not outweighed by unfair prejudice.



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       Moreover, while Kessinger claims that the district court erred by admitting “prior bad

acts,” this argument likewise fails because the evidence was not within the scope of Fed. R. Evid.

404(b). As discussed above, Rule 404(b) does not apply when “the challenged evidence is

‘inextricably intertwined’ with evidence of the crime charged,” United States v. Everett, 270

F.3d 986, 992 (6th Cir. 2001), or when the acts are “intrinsic” or “part of a continuing pattern of

illegal activity.” United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995). Because the

evidence directly addressed charges in the indictment with which Kessinger was found guilty,

Rule 404(b) does not apply.

       But even if Rule 404(b) should have been applied as Kessinger argues, the evidence of

“other bad acts” would still have been admissible because this evidence was relevant, used for a

proper purpose, and not “substantially more unfairly prejudicial than probative,” under Fed. R.

Evid. 403. United States v. Stout, 509 F.3d 796, 799 (6th Cir. 2007). For the reasons discussed

above, the evidence Kessinger disputes was highly relevant to this case and probative of her

intent. Kessinger makes no substantive argument that she was unfairly prejudiced as a result of

its admission. It is therefore unlikely that the jury was unfairly swayed or that it convicted

Kessinger on the basis of this evidence alone. See United States v. Henderson, 626 F.3d 326,

339 (6th Cir. 2010). Because the district court did not abuse its discretion in admitting the res

gestae evidence, reversal is unwarranted.

 V.    The District Court’s Failure to Dismiss Two Jurors for Cause

       During voir dire, one of the jurors, identified as Juror No. 8, announced that he knew one

of the potential witnesses, ATF Special Agent David Hayes. Juror No. 8 said that he “would

trust [Hayes’] word more than [he] would a stranger’s.” (R. 60, Jury Trial Transcript, Volume 1,

PageID# 505.) The following colloquy then took place:



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       Q [court]:      All right. So if it came down to it, it would mean more that you
                       know him than what he necessarily said?

       A [juror]:      You’d have to take both things together.

       Q [court]:      Right. Okay. So my question was: you do know him, you like
                       him, you trust him generally, but if he said something that made
                       you question whether he was right on the topic, could you, would
                       you question him?

       A [juror]:      Honestly, yes. Yeah, I could question him.

       Q [court]:      And you wouldn’t just automatically accept what he’s saying to
                       you just because you know him?

       A [juror]:      No.

(Id. at 505-06.)

       The district court denied Kessinger’s motion to strike Juror No. 8 for cause. Another

juror, identified as Juror No. 14, announced that he had been the victim of an unsolved burglary,

and as a result, questioned whether he could be fair because of his bitterness over the fact that no

one was ever prosecuted. The court asked a series of follow-up questions regarding why the

juror’s bitterness would have anything to do with Kessinger’s presumption of innocence. Juror

No. 14 ultimately agreed that Kessinger was innocent until proven guilty. Juror No. 14 then

informed the court that he needed to pick his daughter up from college the following Tuesday.

The district court denied Kessinger’s motion to strike Juror No. 14 for cause.

       Nonetheless, Kessinger used her peremptory challenges to excuse the prospective jurors

in question—i.e., Juror Nos. 8 and 14—so neither actually sat on her jury. She now argues on

appeal that the district court should have removed them for cause rather than force her to use up

two of her peremptory challenges.

       Even if we were to assume that the district court should have dismissed these jurors for

cause—a conclusion that is at odds with the record and applicable case law, see Miller v.


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Francis, 269 F.3d 609, 618-19 (6th Cir. 2001) (holding that “the trial court cannot be faulted for

not disqualifying for cause a juror who consistently says that she thinks she can be fair”)—there

is no legal basis for Kessinger’s impartial jury claim.

       Kessinger’s claim that the district court violated her constitutional rights is foreclosed by

United States v. Martinez-Salazar, 528 U.S. 304, 317 (2000), which held that “a defendant’s

exercise of peremptory challenges . . . is not denied or impaired when the defendant chooses to

use a peremptory challenge to remove a juror who should have been excused for cause.”

Kessinger, like Martinez-Salazar, “had the option of letting [each allegedly biased potential

juror] sit on the petit jury and, upon conviction, pursu[e] a Sixth Amendment challenge on

appeal.” Id. at 315. But instead, Kessinger, like Martinez-Salazar, elected to remove the two

jurors because she did not want them on the jury. See id.

       Kessinger concedes that her argument is foreclosed by Martinez-Salazar, and raised the

argument only to preserve it for further review by the Supreme Court. Martinez-Salazar, which

remains controlling law, does in fact foreclose Kessinger’s claim.

                                         CONCLUSION

       For the reasons stated above, we AFFIRM the district court’s judgment and sentence.




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