United States v. Mallory

• Decision Date: 30 August 2018
• Docket Number: Nos. 17-3500,17-3537,17-3538,s. 17-3500
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kurt L. MALLORY (17-3500); Margaret L. McKnight (17-3537); Susan M. Pioch (17-3538), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

902 F.3d 584

UNITED STATES of America, Plaintiff-Appellee,

v.Kurt L. MALLORY (17-3500); Margaret L. McKnight (17-3537); Susan M. Pioch (17-3538), Defendants-Appellants.

Nos. 17-3500

17-3537

17-3538

United States Court of Appeals, Sixth Circuit.

Argued: August 2, 2018

Decided and Filed: August 30, 2018

ARGUED: Catherine J. Adinaro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant in 17-3500. Michael J. Benza, Chagrin Falls, Ohio, for Appellant in 17-3537. John F. Potts, Toledo, Ohio, for Appellant in 17-3538. Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Catherine J. Adinaro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant in 17-3500. Michael J. Benza, Chagrin Falls, Ohio, for Appellant in 17-3537. John F. Potts, Toledo, Ohio, for Appellant in 17-3538. Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

Before: MOORE, THAPAR, and NALBANDIAN, Circuit Judges.

THAPAR, Circuit Judge.

A jury convicted Kurt Mallory, Margaret McKnight, and Susan Pioch on various charges arising from a scheme to pilfer Martin Fewlas’s sizeable estate. The Defendants appeal their convictions, and Mallory and Pioch further challenge their sentences. We AFFIRM in part, REVERSE in part, VACATE Mallory’s and Pioch’s sentences in part, and REMAND for further proceedings consistent with this opinion.

I.

Martin Fewlas looked the part of a bar-dweller. Most days, he frequented various neighborhood establishments, drinking beer. At one such locale, he befriended Margaret McKnight. McKnight’s mother worked as a bartender, and McKnight often came by after school. Eventually, McKnight became a bartender too. She developed a close friendship with Fewlas—so much so that Fewlas invited McKnight to rent the upstairs apartment in his duplex.

For seventeen years, McKnight lived in this upstairs apartment with her boyfriend, Kurt Mallory. Kurt’s estranged father, Gary, later joined the couple during the summers in an attempt to reconcile with his son. Over the years, Margaret fed and cleaned Fewlas when he came home from the bars. Perhaps Fewlas saw McKnight as the daughter he never had. But, as any family knows, sometimes familiarity breeds contempt, and Fewlas and McKnight did not always get along. In particular, Fewlas disliked and distrusted Kurt. And at one point, Fewlas wanted to evict the couple because they had fallen behind on rent.

Eventually, Fewlas passed away. But as it turns out, there was more to him than met the eye. Fewlas had amassed a fortune of over $2.2 million. And in his will, he left it all to McKnight.

McKnight immediately went on a spending spree. She withdrew over $600,000 and made numerous purchases, including a new duplex and a used car dealership. To make these purchases, McKnight took out the money in 171 different transactions—all in amounts less than $10,000. Unsurprisingly, this suspicious conduct got the Internal Revenue Service’s attention. And when the IRS delved into the case, they started to suspect that Fewlas had not left his estate to McKnight after all.

The plot soon unraveled. The IRS interviewed Gary Mallory, and he confessed that he had forged Fewlas’s signature on the will. According to Gary, attorney Susan Pioch had prepared the fake will, and Kurt asked him to sign Fewlas’s name, offering him a cut in return. Gary agreed. But when Gary asked for more money, his co-conspirators spurned his request. So Gary, aggrieved that no honor exists among thieves, tried contacting the probate court to alert them about the fraud and stop McKnight from getting Fewlas’s money. For whatever reason, the court brushed off his phone call. When the IRS later got involved, however, Gary cooperated and pled guilty to his involvement in the scheme. His confession set off a chain reaction that resulted in a fifty-nine-count indictment and subsequent convictions across the board.

Kurt Mallory, McKnight, and Pioch now appeal.

II.

Kurt Mallory first claims the district court erred by allowing the government to play the videotaped deposition of Gary Mallory. About six months after the defendants were indicted, the government deposed Gary. At the time, Gary was seventy-six years old and in poor health. He was suffering from a number of debilitating conditions, including lumbar disc disease, diabetes, and recurring bladder cancer. The pain in his back—where two vertebrae were "disintegrating"—was severe. R. 307, Pg. ID 3773–74. So the government, concerned that Gary might not live until trial, sought to preserve his testimony by deposing him. Kurt objected to the deposition, claiming an insufficient time to prepare. But the district court let it go forward anyway. Since Gary could not travel, the deposition took place at a federal courthouse in Arizona, where Gary resided.

After the deposition, Gary’s health further deteriorated. He was admitted to the hospital twice—first for hematuria (blood in his urine), and second when he experienced "[a]cute renal failure" (serious kidney malfunction). R. 102-7, Pg. ID 679. He was also diagnosed with dementia. These and his other "chronic" conditions rendered him "homebound" and "unable to safely travel." R. 171-1, Pg. ID 1312; R. 102-5, Pg. ID 668. So when the time for trial approached, the government sought to play the videotape of Gary’s deposition in lieu of having him testify at trial. Kurt opposed the government’s request, arguing that Gary should have to testify by live video feed from the federal courthouse in Arizona. In light of Gary’s condition, however, the district court granted the government’s request to play the videotape of the deposition.

On appeal, Kurt contends that the playing of Gary’s deposition violated his right under the Sixth Amendment’s Confrontation Clause. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...."). Specifically, Kurt argues (1) that the district court erred in deeming Gary "unavailable" to testify, and (2) that he did not have a meaningful opportunity to cross-examine Gary at his deposition. We address each argument in turn.

Unavailability. Kurt maintains that Gary was not "unavailable" to testify at trial. In order for Gary’s deposition to be played at trial without running afoul of the Confrontation Clause, the government needed to show that he was unavailable. Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ; United States v. Quinn , 901 F.2d 522, 526 (6th Cir. 1990). Illness of an elderly witness can render him unavailable. United States v. Campbell , 845 F.2d 1374, 1377–78 (6th Cir. 1988) ; accord United States v. Porter , 886 F.3d 562, 567 (6th Cir. 2018) ; see Fed. R. Evid. 804(a)(4) ("A declarant is considered to be unavailable as a witness if the declarant ... cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness[.]"). To establish unavailability on account of illness, the government must show that the witness’s "specific symptoms" and "the duration and the severity of the illness" preclude the witness from testifying. Porter , 886 F.3d at 567 (quoting Burns v. Clusen , 798 F.2d 931, 937–38 (7th Cir. 1986) ); Stoner v. Sowders , 997 F.2d 209, 213 (6th Cir. 1993). We review the district court’s finding of unavailability for abuse of discretion. Porter , 886 F.3d at 567.

Kurt argues that the district court abused its discretion in two principal respects. First, he maintains that the government provided stale medical records that failed to establish that Gary’s condition was "significantly different" than it was at the time of his deposition. But if anything, Gary’s condition worsened after his deposition, particularly in light of his hospitalizations and dementia diagnosis. And while the government did not provide records detailing Gary’s condition for several months leading up to trial, the records it did provide characterized Gary’s condition as "chronic" and gave no indication that his condition would improve. R. 171-1, Pg. ID 1312. Our circuit does not require the government to disprove the possibility of "miraculous rejuvenation" in order to establish an elderly witness’s unavailability on account of illness. Campbell , 845 F.2d at 1378. And while Campbell involved a shorter records-gap, the same principle holds true here. See id. ; United States v. McGowan , 590 F.3d 446, 454 (7th Cir. 2009) (affirming a finding of unavailability based on "the consistency of the reports regarding [the witness’s] deteriorating health over time, including a report of her condition a few months before trial"); accord United States v. Bond , 362 F. App'x 18, 22 (11th Cir. 2010) (per curiam). The district court did not abuse its discretion by declining to require the government to provide more medical records confirming what everyone already knew.

Second, Kurt maintains that the district court should have required Gary to testify by live video feed from the Arizona courthouse. Kurt points out that, in the months leading up to trial, Gary attended his own sentencing hearing at that very courthouse. But Gary’s presence at his sentencing hearing did not compel the district court to mandate his live testimony at Kurt’s trial. As the district court noted, Gary was so ill that he could not leave his home—not even to see his doctor. So whatever the circumstances that permitted Gary to attend his sentencing hearing, the district court was not obligated to ignore Gary’s homebound status. This is especially true given that Gary’s sentencing hearing was fourteen minutes—hardly the pressure-filled hours Gary would likely endure in giving trial testimony. McGowan , 590 F.3d at 454 (noting the "rigors of testifying at trial"). Thus, the district court did not abuse its discretion in deeming Gary unavailable.

Meaningful Opportunity . Kurt also argues that he did...