United States v. Kevin Dye

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 13a0803n.06

No. 11-3934

FILED

Sep 03, 2013

UNITED STATES COURT OF APPEALS

DEBORAH S. HUNT, Clerk

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED

) STATES DISTRICT COURT FOR THE

v. ) NORTHERN DISTRICT OF OHIO

)

KEVIN DYE, )

) OPINION

Defendant-Appellant. )

Before: KETHLEDGE, WHITE, and STRANCH, Circuit Judges.

JANE B. STRANCH, Circuit Judge. In August 2009, a bar in Mansfield, Ohio was set on

fire. Four months later, the courthouse in the Mansfield City Hall building was firebombed.

Defendant Kevin Dye became a suspect in each fire. Following a search of one of his residences,

where a number of incriminating items were found, Dye was arrested and eventually charged in a

three-count indictment for violations of 18 U.S.C. §§ 844(i), 924(c)(1)(A), and 924(c)(1)(B)(ii). Dye

was found guilty on all three counts and sentenced to an effective term of 60 years. He appeals,

raising seven issues. For the following reasons, we AFFIRM Dye’s convictions, his sentence, and

the rulings of the district court challenged here.

BACKGROUND

This case arises out of two fires that occurred in Mansfield, Ohio in 2009: the first at

Belcher’s House of Rock and the second at the Mansfield City Hall, where courtrooms on the second

United States v. Dye

No. 11-3934

floor were targeted. Dye was charged with violating 18 U.S.C. § 844(i) for the fire at Belcher’s

(Count 1); violating 18 U.S.C. § 844(i) for the fire at the courthouse (Count 2); and violating 18

U.S.C. § 924(c)(1)(A) and (c)(1)(B)(ii) based on the devices used to start the fire in the courthouse

(Count 3). The salient facts adduced at trial are as follows.

Thomas Belcher, the bar’s owner, testified that Dye was involved in an altercation on August

1, 2009. Belcher asked Dye to leave, called the police, and informed Dye that he was no longer

welcome at the bar, to which he replied “I will see this bar closed.” Seven days later, Belcher’s was

set on fire. Gasoline and oil had been poured onto the floor to ignite the blaze. Julie Brown, Dye’s

girlfriend who lived with him at 827 Delph Avenue in Mansfield, stated that on the night of the fire

she had plans to meet a friend at Belcher’s, but Dye instructed her not to go. When Dye returned

home around 5:00 a.m., he smelled of gasoline and claimed that he had been working on a car. A

car mat left outside the house also emitted a strong odor of gasoline.

Brown testified that Dye “sort of got obsessed with” the fire and asked her to go to Belcher’s

each day to find out whether there was a suspect. When she informed Dye that a police officer asked

her to get information from him because he was a suspect, he smirked and laughed. Brown claimed

that Dye also acted suspiciously upon viewing an article in the newspaper about the fire. At some

point after the fire, Dye asked Brown to retrieve a red gas can and a pair of white Nike shoes from

one of his other houses and asked her to hide the gas can. Dye burned the shoes in a bonfire.

On December 14, the Mansfield City Hall building, which contained the mayor’s office, the

Mansfield Police Department, courtrooms, and the city attorney’s office, was firebombed. The

second floor which housed the courtrooms was targeted, and the fire itself occurred in the office

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of Judge Payton’s bailiff. Judge Payton was scheduled to hear several cases involving Dye,

including one arising out of the Belcher’s altercation.

Four plastic one-gallon jugs were found in the office, one with a “Tigger” hand towel stuffed

into the cap. Investigators determined that the fire was set by igniting a wick on a gasoline-soaked

rag and throwing the devices into the building. The jugs exhibited signs of having been on fire, and

some had pieces of melted duct tape on them. An explosives expert from the Bureau of Alcohol,

Tobacco, and Firearms testified that gasoline was used in the “rudimentary” but “very effective”

devices. Samples taken from inside the courthouse tested positively for gasoline.

Brown testified that on December 13, Dye asked her to bring empty milk jugs and gasoline

to his house on Delph. When Dye arrived at her niece’s home around 1:00 a.m., Brown stated that

he smelled of gas and again claimed to have been working on a car. Dye left later that same

morning, and Brown suspected that Laurie Butler, with whom Dye was also involved, picked him

up. Brown sent Dye several text messages expressing her anger about that relationship.

Brown testified that Dye asked her to drive by his various properties, including the house on

Fairlawn, where Butler lived, “to see what was going on.” She was pulled over by the police near

the Fairlawn house and told that they were looking for Dye. When Brown informed Dye, he told her

“not to say anything.” Later than night, Dye asked Brown to drive him to Bucyrus; she declined, but

allowed him to borrow her car.

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After Dye became a suspect, the authorities obtained a search warrant for 363 Fairlawn

Avenue, where it appeared both a male and female resided.1 A key taken from Dye at the time of

his arrest fit one of the locks there. There was a strong odor of gasoline in the home, and the

washing machine contained clothing that smelled of gasoline and later tested positive for it. White

tennis shoes also tested positive for gasoline. Duct tape, a gas can, an empty one-gallon plastic jug,

a cap for a gallon jug with a hole cut out of it, and a Tigger towel were found. The duct tape found

on the jugs at the bailiff’s office and the tape found at Dye’s home were made by the same

manufacturer and used the same manufacturing process.

A gasoline container was found in a black Nissan Altima belonging to Butler, and its floor

mats tested positive for gasoline. A number of latex gloves were found in the glove compartment,

and no usable fingerprints were lifted from the vehicle. A business card for Claire Shaw Goines,

Judge Payton’s bailiff, was also located inside the car, and a sketch of the court, along with a print-

out of Judge Payton’s docket, was found in the house. A sledgehammer and shoes taken from the

residence contained glass fragments. The glass matched samples taken from the bailiff’s office

windows.

At the close of the Government’s case, the defense unsuccessfully moved for dismissal

pursuant to Federal Rule of Criminal Procedure 29. The defense then called Scott Stephens as a

witness, who testified that Dye arrived at Stephens’s girlfriend’s home in Bucyrus and stayed there

1

One of Butler’s neighbors testified that Butler and her boyfriend, whom he knew as Kevin

Dye, lived at the residence, and that he had witnessed Dye driving Butler’s vehicles. The neighbor

testified that the day before the police searched Butler’s home, he saw Dye coming and going from

her house in all four of their vehicles.

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on the evening of the courthouse fire. Because Stephens previously claimed that he had not spoken

with Dye after his arrest, during cross-examination the Government played a phone conversation

between Dye and Stephens that occurred when Dye was in jail. The conversation indicated that Dye

attempted to convince Stephens and his girlfriend to serve as alibi witnesses.

The jury found Dye guilty on all three counts. Although his counsel did not renew the

motion for judgment of acquittal at the close of proof, Dye filed a pro se motion, which was denied

because he was represented by counsel.

Dye’s presentence report (PSR), which provided for a base offense level of 24 on Counts 1

and 2 (and which grouped these counts), suggested a two-point adjustment for obstruction of justice

pursuant to USSG § 3C1.1 and a 12-point adjustment pursuant to USSG § 3A1.4 because Count 2

involved a federal crime of terrorism. The conviction on Count 3 for use of a destructive device

during a crime of violence carried a sentence of not less than 30 years, to be served consecutively

to any other term of imprisonment. Following a hearing, the district court imposed a sentence of 180

months on Counts 1 and 2 and a sentence of 360 months on Count 3, to be served consecutively, for

a total sentence of 720 months. Dye was also required to pay substantial restitution to Belcher’s, the

City of Mansfield, and their respective insurers. This appeal followed.

ANALYSIS

I. Sufficiency of the Evidence

In reviewing a challenge to the sufficiency of the evidence, “the relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” United States v.

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Semrau, 693 F.3d 510, 524 (6th Cir. 2012) (internal quotation marks omitted). However, when a

motion for judgment of acquittal is not renewed at the close of all the evidence, this court reviews

the sufficiency of the evidence challenge under “the ‘manifest miscarriage of justice’ standard,”

United States v. Kolley, 330 F.3d 753, 756 (6th Cir. 2003), which this court has interpreted to mean

that “the record is ‘devoid of evidence pointing to guilt.’” United States v. Price, 134 F.3d 340, 350

(6th Cir. 1998) (quoting United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir. 1989)).

The Government argues that the more stringent “manifest miscarriage of justice” standard

should apply because Dye was represented by counsel when he filed his pro se motion for judgment

of acquittal. Dye contends that because the district court permitted “hybrid representation,” the

issues raised in his post-verdict motion were properly preserved. We find it unnecessary to resolve

this dispute. Even if reviewed under the less stringent standard, we conclude that Dye’s challenge

to the sufficiency of the evidence cannot succeed.

A. 18 U.S.C. § 844(i) (Counts 1 & 2)

Dye argues that the evidence is insufficient to support his convictions for violating 18 U.S.C.

§ 844(i), which prohibits “maliciously damag[ing] . . . by means of fire or an explosive, any

building” that is used in interstate commerce or in any activity affecting interstate commerce.2 As

2

“Maliciously,” which is not defined in the statute, has been interpreted by our sister circuit(s)

to mean that “the defendant acted intentionally or with willful disregard of the likelihood that

damage or injury would result from his or her acts.” United States v. Gullett, 75 F.3d 941, 948 (4th

Cir. 1996); see also United States v. Monroe, 178 F.3d 304, 307 (5th Cir. 1999). This is the

definition that was used at common law; “[b]ecause Congress did not define the term . . . we must

assume that [it] adopted” this definition. United States v. Minerd, 112 F. App’x 841, 845 (3d Cir.

2004); see also United States v. Wiktor, 146 F.3d 815, 818 (10th Cir. 1998).

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to Count 1, Dye argues that the evidence is insufficient to support his conviction because there was

no direct testimony or evidence connecting him to the Belcher’s fire. However, “‘[c]ircumstantial

evidence by itself can support a defendant’s conviction.’” United States v. Bailey, 553 F.3d 940, 953

(6th Cir. 2009) (quoting United States v. Copeland, 321 F.3d 582, 600 (6th Cir. 2003)). The

following evidence provided sufficient circumstantial connections between Dye and the Belcher’s

fire to support his conviction: (1) Dye stated that he would see that Belcher’s closed a week before

the fire; (2) he warned Brown not to go to Belcher’s the night of the fire; (3) he arrived at Brown’s

house shortly after the fire smelling of gasoline; (4) after the fire, Dye asked Brown to retrieve tennis

shoes from his residence, which he burned; and (5) Brown testified that Dye became “obsessed” with

the fire. A rational trier of fact could find that this evidence established beyond a reasonable doubt

that Dye was responsible for maliciously damaging Belcher’s by starting a fire there.

Dye’s arguments as to Count 2 are essentially the same: he argues that the Government failed

to connect the evidence found at the Fairlawn residence either to him or to the evidence found at the

courthouse. The circumstantial evidence supporting this count, however, is even stronger. Butler’s

neighbor testified, and evidence at the home indicated, that Dye resided with Butler. Empty milk

jugs, a cap with a hole cut in it, and a Tigger towel were found at the Fairlawn residence and in the

bailiff’s office. A map of the courthouse and a print-out of Judge Payton’s docket were found during

the search. Glass fragments matching the glass in the office’s windows were found in a

sledgehammer and shoes retrieved from the Fairlawn residence. The washing machine contained

clothes that smelled of gas, Butler’s Altima which Dye used smelled of gas, and there was a gas

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can in the trunk. Brown also testified that Dye smelled of gas upon returning home during the early

morning hours of December 14.

Although Dye argues that the evidence found at the Fairlawn residence could have been

found in any house in Mansfield, we must view the evidence in the light most favorable to the

Government: we accept the inferences connecting Dye with the Fairlawn residence and the

inferences connecting the items found there with those retrieved from the scene of the courthouse

fire. Succeeding on a challenge to the sufficiency of the evidence at this point “is a very heavy

burden for the convicted defendant to meet.” Semrau, 693 F.3d at 524 (internal quotation marks

omitted). Dye has not met that burden. The Government presented more than enough evidence to

allow a rational trier of fact to find, beyond a reasonable doubt, that Dye was responsible for the

courthouse fire.3

B. 18 U.S.C. § 924

18 U.S.C. § 924(c)(1)(A) provides particular punishments for the use of a firearm “during

and in relation to any crime of violence.” 18 U.S.C. § 924(c)(1)(B)(ii) specifies that “[i]f the firearm

possessed by a person convicted of a violation of this subsection . . . is a . . .destructive device . . .,

the person shall be sentenced to a term of imprisonment of not less than 30 years.” “Destructive

3

Dye also argues, without much analysis, that the evidence fails to establish that the

courthouse was used in interstate commerce. The Government contends that, although lacking merit,

this argument was waived because it was not raised in the Rule 29 motion. See United States v.

Dandy, 998 F.2d 1344, 1356-57 (6th Cir. 1993). Even assuming the argument was preserved, we

agree that it is without merit. We have previously held that a local fire station was used in an activity

that affected interstate commerce for purposes of 18 U.S.C. § 844(i). See United States v. Laton, 352

F.3d 286, 302 (6th Cir. 2003). There was ample evidence at trial that the courthouse met this

standard.

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device” is defined as any explosive, incendiary bomb, or device similar to any of the devices

described in this statutory provision. 18 U.S.C. § 921(a)(4)(A)(i), (vi). Dye argues that there is

insufficient evidence to demonstrate that an “incendiary device” was used in the courthouse fire

because nothing shows that the milk jugs were capable of explosively spreading gas and they were

meltable rather than breakable like a traditional Molotov cocktail which he deems dispositive.

It does not appear that we have addressed the specific type of device at issue.4 In United

States v. Graziano, 616 F. Supp. 2d 350, 360 (E.D.N.Y. 2008), aff’d 391 F. App’x 965 (2d Cir.

2010), a district court concluded that a device strikingly similar to those used here “qualifie[d] as an

‘incendiary bomb’ and, thus, as a ‘destructive device.’” Like Dye, the defendant in Graziano

attempted to distinguish the plastic container devices used from traditional Molotov cocktails. Id.

at 362. The court found that the device fell within the definition of a destructive device, explaining:

Most of the characteristics of a Molotov cocktail still existed with [the defendant’s]

device namely, when one lights an open container of gasoline and throws it,

droplets of fuel are expelled in the air during flight and ignited . . . potentially

covering a large area and, when the container eventually hits the ground, the droplets

of gas disperse further out of the open mouth of the container, again scattering the gas

over a large area. In other words, a Molotov cocktail is designed to release gasoline

quickly over a large area which vaporizes and burns, which was the same purpose of

the device in this case. The use of a plastic rather than glass container does not

eliminate this impact; rather, it simply makes it potentially less potent and effective

than it otherwise might be.

Id. (internal citation omitted). As noted in Graziano, see id., other circuits have ruled that devices

using plastic containers qualify as destructive devices under the statute. See, e.g., United States v.

4

We have, however, concluded that more traditional Molotov cocktails constitute destructive

devices. See, e.g., United States v. Cruz, 270 F. App’x 393, 395-96 (6th Cir. 2008) (per curiam);

United States v. Rowan, 518 F.2d 685, 688-89 (6th Cir. 1975).

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Hedgcorth, 873 F.2d 1307, 1310-12 (9th Cir. 1989) (holding that firebombs constructed from plastic

water jugs filled with gasoline, motor oil, and soap constituted destructive devices).

This authority provides ample support for concluding that the devices used by Dye

constituted “destructive devices” for purposes of 18 U.S.C. § 924. Accordingly, we find that the

evidence was sufficient to establish the relevant statutory requirements beyond a reasonable doubt.

II. Cross-examination of Brown

Dye argues that the district court abused its discretion by prohibiting him from questioning

Brown about whether her involvement with children’s services informed her decision to testify

against him.

Although the Confrontation Clause of the Sixth Amendment’s “main and essential purpose”

is to provide the defendant with the opportunity for cross-examination, Delaware v. Van Arsdall, 475

U.S. 673, 678 (1986) (internal quotation marks omitted), “[t]he district court retains ‘wide latitude

. . . to impose reasonable limits on such cross-examination based on concerns about, among other

things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is

repetitive or only marginally relevant.’” United States v. Reid, 625 F.3d 977, 986 (6th Cir. 2010)

(quoting Van Arsdall, 475 U.S. at 679). A district court’s decision to limit the scope of cross-

examination, which is reviewed under the abuse of discretion standard, “assess[es] . . .

whether[, despite the limitation of cross-examination,] the jury was otherwise in possession of

sufficient information . . .to make a discriminating appraisal of a witness’ motives and bias.” United

States v. Kone, 307 F.3d 430, 436 (6th Cir. 2002) (internal quotation marks omitted and second

alteration in original).

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On direct examination, Brown testified that she initially thought she and Dye were exclusive,

but later found out that he was seeing other women. She also explained that she did not tell police

during her first interview that she was with Dye the night of the fire because he instructed her not

to say anything and she was afraid. She later contacted the police, however, because she had

children to care for and did “not want to get in trouble for any of this.” The jury also heard about

Brown’s text messages to Dye expressing her disdain for Butler. On cross-examination, defense

counsel asked Brown whether, at the time of her interview with the authorities, she was involved

with children’s services. Upon the Government’s objection, defense counsel argued that Brown’s

answer would go to bias, and noted that during Laurie Butler’s interview, an officer stated that she

should be fearful of the police because “we can have your son taken away from you.” Defense

counsel was not allowed to explore this issue because there was nothing indicating that police made

a similar threat to Brown during her interview.

We agree with the district court’s decision. There is nothing indicating that the authorities

threatened Brown regarding the custody of her children in order to procure information about Dye,

and she testified that one of the reasons she cooperated with the authorities was because of her

children. More importantly, Brown testified about her relationship with Dye, which revealed that

she was angry because he was less than candid with her about their exclusivity. This matter spoke

to Brown’s bias and adequately allowed the jury “to make a ‘discriminating appraisal’ of [Brown’s]

motives and bias.” United States v. Lanham, 617 F.3d 873, 884 (6th Cir. 2010) (quoting Kone, 307

F.3d at 436).

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Even assuming that the limitation on cross-examination was improper, it would be harmless

error. See Van Arsdall, 475 U.S. at 684. For this analysis, a court looks to factors including: “the

importance of the witness’ testimony in the prosecution’s case, whether the testimony was

cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the

witness on material points, the extent of cross-examination otherwise permitted, and, of course, the

overall strength of the prosecution’s case.” Id. Brown’s testimony was undoubtedly important it

established that Dye appeared at her home shortly after each fire smelling of gas; outlined Dye’s

suspicious interest in the Belcher’s fire; placed him in Mansfield, not Bucyrus, the night of the

courthouse fire; and established that Dye was aware the authorities were looking for him. While her

testimony on certain points was not cumulative, Dye’s alibi witnesses were able to challenge her

testimony regarding Dye’s whereabouts on the night of the courthouse fire. Other than on the point

at issue, cross-examination of Brown was not restricted. Moreover, the circumstantial evidence

connecting Dye to the fires was strong; the Government’s case was not wholly dependent on

Brown’s testimony. See Hargrave v. McKee, 248 F. App’x 718, 727 (6th Cir. 2007) (“[W]here . . .

the Government’s case may stand or fall on the jury’s belief or disbelief of one witness, h[er]

credibility is subject to close scrutiny.” (internal quotation marks omitted)). Therefore, even if the

district court abused its discretion by limiting Dye’s cross-examination of Brown, it would have been

harmless error.

III. Introduction of Exhibits

Dye argues that certain exhibits from the Fairlawn residence photographs of the house’s

interior; liquid samples; clothing; duct tape; a police scanner; a red gas can; an empty milk jug; a

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brown cap with a missing piece and the corresponding piece cut out from it; men’s clothing found

in the bedroom; shoes; and a lock were erroneously admitted because they were not directly

connected to Dye or to the scene of the crime and thus were not relevant. A district court’s decision

regarding the introduction of exhibits is an evidentiary ruling reviewed for an abuse of discretion.

See Unites States v. Moses, 337 F. App’x 443, 447-48 (6th Cir. 2009). In doing so, we “must view

the evidence in the light most favorable to its proponent, giving the evidence its maximum

reasonable probative force and its minimum reasonable prejudicial value.” United States v.

Whittington, 455 F.3d 736, 739 (6th Cir. 2006) (internal quotation marks omitted).

“Rule 401 sets a low threshold for relevancy.” United States v. Worthington, 145 F.3d 1335,

1998 WL 279379, at *8 (6th Cir. 1998) (table decision). Evidence is relevant if “it has any tendency

to make a fact more or less probable than it would be without the evidence” and “the fact is of

consequence in determining the action.” Fed. R. Evid. 401(a) (b). Relevant evidence may be

excluded “if its probative value is substantially outweighed by a danger of . . . unfair prejudice.”

Fed. R. Evid. 403. “‘Unfair prejudice’ . . . means an undue tendency to suggest decision on an

improper basis, commonly, though not necessarily, an emotional one.” Fed. R. Evid. 403, advisory

committee’s note.

Although there was no direct connection between Dye, the items found at the Fairlawn

residence, and those from the crime scenes, such a high threshold is not required for relevance. The

testimony regarding Dye’s relationship with Butler and her neighbor’s belief that Dye lived with her

at the Fairlawn residence made it more likely that the items found there were connected to him. The

clothes (which were the size a man of Dye’s height and weight would likely wear) and the lock,

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which Dye’s key matched, strengthened the inference that Dye resided with Butler. The other items

found in the home similar to items found at the scene of the courthouse fire or reasonably related

to planning the fires strengthened the inference that Dye was connected with the crimes. There is

nothing about this evidence that would have caused the jury to find guilt on an improper basis. In

addition, defense counsel challenged these inferences through cross-examination. Because the items

were relevant to the question of guilt and their admission not unfairly prejudicial to Dye, we

conclude that the district court did not abuse its discretion in admitting them.

IV. Double Jeopardy

Prior to trial, Dye argued that Counts 2 and 3 of the superceding indictment were

multiplicitous because the destructive devices in both counts were the same and involved the same

course of conduct. The district court rejected Dye’s arguments after determining that Congress

clearly intended separate punishments under 18 U.S.C. §§ 844(i) and 924(c). We review this

decision de novo. See United States v. Mardis, 600 F.3d 693, 696 (6th Cir. 2010).

Supreme Court precedent holds that “[w]here . . . a legislature specifically authorizes

cumulative punishment under two statutes, regardless of whether those two statutes proscribe the

‘same’ conduct,” cumulative punishment may be imposed following a single trial. Missouri v.

Hunter, 459 U.S. 359, 368-69 (1983). This circuit and others5 have held that cumulative punishment

5

See United States v. Holdridge, 30 F.3d 134, 1994 WL 399526, at *1-3 (6th Cir. 1994) (table

decision); see also United States v. Eddington, 416 F. App’x 258, 263-64 (4th Cir. 2011) (per

curiam); United States v. Smith, 502 F.3d 680, 691 (7th Cir. 2007); United States v. Strickland, 261

F.3d 1271, 1274 (11th Cir. 2001); United States v. Nguyen, 117 F.3d 796, 797 (5th Cir. 1997) (per

curiam); United States v. Collins, 109 F.3d 1413, 1419-20 (9th Cir. 1997); United States v. Swapp,

934 F.2d 326, 1990 WL 299279, at *15-16 (10th Cir. 1990).

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under the circumstances presented here is appropriate. We have specifically observed that the

language of § 924(c) and its legislative history demonstrate that Congress intended cumulative

punishment for violation of that provision and certain other predicate offenses, even if the

convictions stem from the same course of conduct. See United States v. Holdridge, 30 F.3d 134,

1994 WL 399526, at *1-3 (6th Cir. 1994) (table decision). Although, as Dye points out, the Supreme

Court has not explicitly ruled on this issue, it is clear under the applicable legal principles and the

weight of authority that the imposition of cumulative punishment for Counts 2 and 3 was

appropriate.

V. Flight Instruction

Although conceding that his trial counsel failed to object to the jury instructions on flight,

Dye argues they were plainly erroneous because the evidence showed that he failed to turn himself

in, not that he engaged in flight. The Government contends that there was no error, and even if error

occurred, the jury was given the choice of considering the evidence of flight and, moreover, the

additional evidence implicating Dye was overwhelming.

In order to obtain relief under these circumstances, Dye must establish that “(1) an error

occurred; (2) the error was plain, i.e., obvious or clear; (3) the error affected his substantial rights;

and (4) the error seriously affected the fairness, integrity or public reputation of the judicial

proceedings.” United States v. Lucas, 640 F.3d 168, 173-74 (6th Cir. 2011). “In the context of

challenges to jury instructions, [p]lain error requires a finding that, taken as a whole, the jury

instructions were so clearly erroneous as to likely produce a grave miscarriage of justice.” United

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States v. Castano, 543 F.3d 826, 833 (6th Cir. 2008) (alteration in original) (internal quotation marks

omitted).

Evidence of flight that has probative value is admissible as evidence of guilt, and the jury

may decide how much weight to give it. United States v. Dillon, 870 F.2d 1125, 1126 (6th Cir.

1989). This court has adopted a four-step analysis to determine the probative value of such evidence,

which

depends upon the degree of confidence with which four inferences can be drawn: (1)

from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3)

from consciousness of guilt to consciousness of guilt concerning the crime charged;

and (4) from consciousness of guilt concerning the crime charged to actual guilt of

the crime charged.

Id. at 1127 (quoting United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977)). A district court’s

decision to instruct the jury on flight is reviewed for an abuse of discretion. See id. at 1126.

We conclude that the district court did not err in instructing the jury on flight, as the evidence

fairly supported it. First, Dye consciously sought to avoid his properties and then borrowed Brown’s

car in order to leave Mansfield for Bucyrus shortly after the courthouse fire. “A ‘flight’ instruction

is not improper when a defendant leaves the community where the crime was committed within a

reasonably short period of the crime.” United States v. Rowan, 518 F.2d 685, 691 (6th Cir. 1975).

In addition, Dye sent Brown to his properties and to Belcher’s to find out what was happening, rather

than go himself. Sending another person to investigate whether a police investigation is occurring

at one’s property or at the scene of a crime is suggestive of a guilty conscience, the inference being

that the person sought to avoid an encounter with the authorities. The second and third inferences,

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which are somewhat interrelated, involve looking at the immediacy of the flight “and the defendant’s

knowledge that he is in trouble with the law.” Dillon, 870 F.2d at 1128. Dye knew that the

authorities were searching for him he was informed by Brown and engaged in evasive acts after

the courthouse fire occurred. As to the fourth inference, there was substantial evidence found at the

Fairlawn residence connecting Dye with the crimes at issue. This record does not establish an abuse

of discretion.

Even if we assume error, there was an abundance of evidence connecting Dye to the arsons,

and the instruction cautioned the jury that Dye’s “conduct may indicate that he thought he was guilty

and was trying to avoid punishment. On the other hand, sometimes an innocent person may commit

this same action for some other reason.” Even if a flight instruction was erroneous, it does not affect

a defendant’s substantial rights where there was “overwhelming evidence against him” and the

district court instructs that “evidence of flight is not dispositive of guilt.” United States v. Atchley,

474 F.3d 840, 854 (6th Cir. 2007); cf. also United States v. Wilson, 385 F. App’x 497, 501 (6th Cir.

2010) (observing that “the limiting instructions in the jury charge minimized the potential for

prejudice to” the defendant). We find the same to be the case here and conclude that there was no

error, much less plain error.

VI. USSG § 3A1.4

Dye received an offense level increase of 12 pursuant to USSG § 3A1.4. Such an increase

is appropriate “[i]f the offense is a felony that involved, or was intended to promote, a federal crime

of terrorism.” The application notes instruct that “‘federal crime of terrorism’ has the meaning given

that term in 18 U.S.C. 2332b(g)(5).” USSG § 3A1.4 comment. (n.1). A “federal crime of terrorism”

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is “an offense that . . . (A) is calculated to influence or affect the conduct of government by

intimidation or coercion, or to retaliate against government conduct[] and (B) is a violation of . . .

[18 U.S.C. §]844(i).” 18 U.S.C. § 2332b(g)(5)(A) (B)(i). Dye contends that the record does not

support a finding that the firebombing of the courthouse was calculated to influence or affect the

conduct of government by intimidation or coercion, or to retaliate against government conduct.

The district court found that the following facts established, by a preponderance of the

evidence,6 the applicability of USSG § 3A1.4:

[T]he firebombing location was not random, based upon the evidence [that] the four

windows in this particular building that . . . served the judge’s chambers and the

bailiff’s office area were broken; the fact . . . [that] case files for that particular court

and judge were kept in the office; the sketch that was found; . . . the business card of

the bailiff that was found in . . . the defendant’s car or car driven by [him]; [and] the

six pending cases, two of which had imminent trial dates.

The court found that it was “reasonable to draw the inference[] that . . . the attack was . . . targeted

and that there was no other reason but to affect the operations of the [c]ourt, or perhaps even . . .

retaliation because of the pending cases.” We review the district court’s application of a sentencing

guideline de novo and its factual findings for clear error. United States v. Graham, 275 F.3d 490,

513-14 (6th Cir. 2001). “A finding is clearly erroneous when, although there is evidence to support

it, the reviewing court on the entire evidence is left with the definite and firm conviction that a

mistake has been committed.” United States v. Tocco, 306 F.3d 279, 284 (6th Cir. 2002) (internal

quotation marks omitted).

6

“[T]he government bears the burden to ‘prove, by a preponderance of the evidence, that a

particular sentencing enhancement applies.’” United States v. Stubblefield, 682 F.3d 502, 510 (6th

Cir. 2012) (quoting United States v. Dupree, 323 F.3d 480, 491 (6th Cir. 2003)).

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We agree with the district court a natural inference from the above-listed facts is that Dye

sought to disrupt the functions of the court he was to appear before or to retaliate against the

institution for the charges pending against him. Dye argues, however, that there was no testimony

from him indicating his motivation. He contends that his case is distinguishable from United States

v. Harris, 434 F.3d 767, 774 (5th Cir. 2005), upon which the Government relies, because there, the

defendant pled guilty and testified that his intent in throwing Molotov cocktails into a municipal

building “was to destroy evidence that related to his father’s arrest.” That Dye’s case did not include

his admission of intent does not render the district court’s determination clearly erroneous Dye’s

intention to intimidate or retaliate through firebombing the courthouse could appropriately be

established through circumstantial evidence. Cf. Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir.

2005) (observing, in the context of § 1983 claim, that “retaliation rarely can be supported with direct

evidence of intent” (internal quotation marks omitted)). In light of the evidence presented, we do

not have a “definite and firm conviction that a mistake has been committed.” Tocco, 306 F.3d at

284. Application of this enhancement factor was appropriate.

VII. USSG § 3C1.1

Dye argues that the district court’s application of the USSG § 3C1.1 enhancement for

obstruction of justice is not supported by the record.

USSG § 3C1.1 provides that a defendant’s offense level may be increased by two levels if

“(1) the defendant willfully . . . attempted to obstruct or impede[] the administration of justice with

respect to the . . . prosecution . . . of the instant offense of conviction, and (2) the obstructive conduct

related to . . . the defendant’s offense of conviction.” The guideline specifically mentions

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“committing, suborning, or attempting to suborn perjury” as conduct to which it applies. USSG

§ 3C1.1. comment. (n.4(B)). Perjury consists of “false testimony concerning a material matter with

the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty

memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993). A material matter is one that “if

believed, would tend to influence or affect the issue under determination.” USSG § 3C1.1 comment.

(n.6). Although this circuit has applied two different standards of review in evaluating a district

court’s application of the obstruction of justice enhancement a three-part standard7 and “a more

deferential standard that applies clear error review to the entire analysis” we have not definitively

endorsed either. United States v. Gauna, 485 F. App’x 70, 77-78 (6th Cir. 2012). Resolution of this

discrepancy is unnecessary here, as under either standard, we conclude that the district court did not

err.

Prior to trial, Dye served a notice of alibi pursuant to Federal Rule of Criminal Procedure

12.1, which listed, among others, Scott Stephens, who subsequently testified at trial on Dye’s behalf.

In its sentencing memorandum, the Government contended that Dye suborned perjury by presenting

Stephens as a witness. Stephens testified that Dye spent the night at Stephens’s girlfriend’s house

in Bucyrus, yet the Government noted that this assertion was flatly contradicted by Brown’s

testimony (and the supporting text message) that Dye stayed with her in Mansfield. The Government

also pointed out Dye’s phone call to Stephens in which he asked Stephens whether his girlfriend was

7

This standard of review (1) looks to whether the district court’s factual determinations were

clearly erroneous; (2) reviews the district court’s conclusion that the facts establish obstruction of

justice a mixed question of law and fact de novo; and (3) reviews application of the enhancement

de novo. United States v. Gauna, 485 F. App’x 70, 77 (6th Cir. 2012).

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No. 11-3934

on board with the alibi. In finding the enhancement applicable, the district court relied primarily on

the reasons articulated in the Government’s brief, but added that, in its estimation, Stephens was a

particularly incredible witness.

Dye contends that the findings of the district court were inadequate based on its reliance on

the Government’s brief. The Government’s reasoning that Dye sought out Stephens as an alibi

witness, but that contrary testimony at trial implied that Dye arranged for a false alibi adequately

establishes “that enhancement [was] appropriate on the basis of a finding of obstruction of justice

that encompasse[d] all the factual predicates of perjury.” United States v. Lawrence, 308 F.3d 623,

632 (6th Cir. 2002). The district court adopted the Government’s reasoning as part of its findings.

Application of the obstruction of justice enhancement in this scenario is appropriate. See United

States v. Bradberry, 466 F.3d 1249, 1254-55 (11th Cir. 2006) (per curiam) (holding the enhancement

applicable “when the defendant calls a witness to testify on his behalf knowing that the witness will

give perjured testimony”); cf. United States v. Jones, 612 F.3d 1040, 1046-47 (8th Cir. 2010)

(concluding that the evidence supported the district court’s application of the obstruction of justice

enhancement where the defendant “gave his brother, who testified before the grand jury, false

information” about where he was at the time of the crime, which was material to the offense

“because it provided [the defendant] with an alibi”).

Dye suggests that because the jury rejected Stephens’s testimony, it was not material, and

therefore the enhancement was inappropriately applied. However, materiality goes to the subject

matter of the testimony, not to the jury’s acceptance of it. And the “impediment to or obstruction

of justice” need not be effectuated, as the enhancement is applicable upon an attempt to accomplish

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these goals. See Dunnigan, 507 U.S. at 95. Moreover, Stephens’s testimony, which indicated that

Dye spent the entire night of the courthouse fire in Bucyrus, was a matter that “if believed, would

tend to influence or affect the issue under determination.” USSG § 3C1.1 comment. (n.6).

Accordingly, the district court’s application of this enhancement factor was not erroneous.

CONCLUSION

For the foregoing reasons, we AFFIRM Dye’s convictions, his sentence, and the challenged

rulings of the district court.

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