United States Court of Appeals

for the Fifth Circuit ____________

No. 22-30089

____________

United States of America, 

Plaintiff—Appellee,

versus

Steven Marcus Kelley, 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 3:20-CR-294-1

______________________________

Before Richman, Chief Judge, and Haynes and Graves, Circuit 

Judges.

Per Curiam:*

Steven Marcus Kelley argues that the district court made two key 

evidentiary errors in his murder-for-hire trial. He contends that the district 

court erred in determining that certain evidence was hearsay. He did not, 

however, properly preserve this issue for appeal. He also contends that the 

district court erred by disallowing him to bring in evidence from a previous 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

May 19, 2023

Lyle W. Cayce

Clerk

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No. 22-30089

2

criminal charge. That evidence’s probative value was substantially 

outweighed by a danger of confusing the jury. We AFFIRM.

Factual Background

Kelley was incarcerated in the Ouachita Correctional Center (OCC) 

awaiting trial in state court for the alleged sexual abuse of his former 

stepdaughters. While incarcerated, Kelley wrote and mailed a murder-forhire letter, which described his ex-wife, Jeannie, provided specific

instructions on how to kill her, and offered money for her murder. Kelley was 

indicted for use of a facility of interstate commerce in the commission of 

murder-for-hire under 18 U.S.C. § 1958.

The murder-for-hire plan was discovered when Odyssey Straughter, 

a former inmate at OCC, turned over to law enforcement a letter soliciting 

the murder of Jeannie. The letter described Jeannie’s physical 

characteristics, her vehicle, her workplace, and her usual work schedule. It 

insisted that the murder “look like a robbery” with “2 in the chest, 2 in the 

head” and that the perpetrator “[m]ake sure it counts.” It included a map to 

assist in finding Jeannie’s workplace and leaving without being captured on 

surveillance cameras. The letter offered “$10K for the job.”

The letter had been mailed from OCC in December 2019, and it was 

addressed to “Dillon Jackson” with “Ty Neathery” named for the return 

addressee. Straughter had been incarcerated in OCC for approximately eight

days in 2017, but he did not know Dillon Jackson or Ty Neathery. Straughter 

did recall providing his address to his cellmate at OCC, who was later 

identified as Nicholas Emanuel. Investigators found Straughter’s address 

written on a piece of paper when they searched Emanuel’s bunk. Neathery, 

Emanuel, and Kelley had been incarcerated together at OCC. Surveillance 

videos from OCC showed Kelley writing a letter, going to Emanuel’s cell to 

fill out an envelope, Neathery entering that cell and talking to Kelley, and 

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Kelley giving Emanuel a “fist bump.” Kelley gave the envelope to another 

inmate who then gave it to a deputy for mailing. Kelley entered into a 

stipulation providing that he wrote the letter and gave it to another inmate 

for mailing.

Kelley’s defense at trial was that he wrote and mailed the letter under 

duress and lacked the requisite intent to be found guilty. He claimed that 

Emanuel had forced him to write the letter by threatening to tell his attorney

that Kelley had confessed to molesting his former stepdaughters. He further 

claimed that Emanuel told him what details to include in the letter and that 

Emanuel would hold it over his head in order to extort money from Kelley.

Discussion

1. Kelley Failed to Follow Federal Rule of Evidence 103(a)(2)

At trial, Kelley attempted to testify about Emanuel’s threats and 

directions regarding the letter, but the Government objected to this 

testimony, arguing it was hearsay. The district court sustained the 

Government’s objections repeatedly while Kelley was on the stand.

Federal Rule of Evidence 103(a)(2) provides that, in order to preserve 

an evidentiary ruling excluding evidence, the party must “inform[] the court 

of [the evidence’s] substance by an offer of proof, unless the substance was 

apparent from the context.” In interpreting Rule 103(a)(2), the Fifth Circuit 

has explained that “[w]hile some circuits have apparently taken a more 

lenient approach, this circuit will not even consider the propriety of the 

decision to exclude the evidence at issue, if no offer of proof was made at 

trial.” United States v. Winkle, 587 F.2d 705, 710 (5th Cir. 1979) (internal 

citation omitted).

The government frequently objected to Kelley’s trial testimony on 

hearsay grounds. After one Government objection, the district court 

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pointedly asked Kelley’s trial counsel if he had “any exception to the hearsay 

rule on that you’re asserting?”. 1 Counsel failed to provide an exception. 

Frequently when the Government objected, Kelley’s trial counsel would 

reword the question to avoid any potential hearsay issue. Kelley consistently

failed to show why the evidence was admissible. 

Kelley needed to explain (1) what he intended to show by the evidence 

and (2) why the evidence was admissible. United States v. Ballis, 28 F.3d 1399, 

1406 (5th Cir. 1994). “Generally, however, excluded evidence is sufficiently 

preserved for review when the trial court has been informed as to what 

counsel intends to show by the evidence and why it should be admitted, and 

this court has a record upon which we may adequately examine the propriety 

and harmfulness of the ruling.” Id. The substance of the evidence Kelley 

sought to admit was not apparent from the context, and the trial counsel did 

not explain the grounds for admissibility. Therefore, the district court was 

not able to consider the arguments now advanced on appeal.

“Because an adequate offer of proof was not made, we ‘may not’ find 

error under Rule 103, as interpreted in this circuit.” Winkle, 587 F.2d at 710; 

see also United States v. Ramirez-Lopez, 630 F. App’x 352, 352–53 (5th Cir. 

2016) (“Because Ramirez–Lopez’s counsel failed to inform the court that he 

was offering the statements for a permissible, non-hearsay purpose, 

Ramirez–Lopez did not preserve the issue for review.”). Since Kelley waived 

this issue for review, we AFFIRM the district court on its hearsay rulings.

_____________________

1 Kelley also argues that what he was seeking to admit was not an “exception” to 

the hearsay rule, but rather it was not hearsay because it did not rely on the truth of the 

matter asserted. But his attorney never explained that contention to the district judge. 

Indeed, the attorney kept advising Kelley not to say what Emanuel told him, so he seemed 

to agree with the hearsay ruling.

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2. The District Court Did Not Err in Excluding Kelley’s 

Evidence Relating to the Merits of the State Sexual Abuse 

Charges

“A district court’s determination under Rule 403 with respect to 

whether the probative value of evidence is substantially outweighed by the 

danger of unfair prejudice is reviewed under an abuse of discretion standard 

but, at least generally, with ‘an especially high level of deference to’ the 

district court, with reversal called for only []‘rarely’ and only when there has 

been ‘a clear abuse of discretion.’” United States v. Dillon, 532 F.3d 379, 387 

(5th Cir. 2008) (quoting United States v. Fields, 483 F.3d 313, 354 (5th Cir. 

2007)).

Before trial, the Government sought an order from the district court 

“(1) permitting at trial limited evidence to establish the defendant was under 

state indictment for sex crimes at the time of the murder-for-hire alleged in 

the . . . indictment and (2) precluding the defense from introducing evidence 

that amounts to a mini trial on the merits of the pending state sex crimes 

case.” In response, Kelley conceded that “evidence of the sex crimes was 

admissible as intrinsic evidence,” but he argued that limiting his ability to 

present evidence about the factual allegations underlying the alleged sex 

crimes would deprive him of his constitutional right to a fair trial.

The district court granted the Government’s motion, allowing 

evidence of the charges but disallowing Kelley to conduct a “mini trial of the 

state sex abuse charges.” The court determined that the evidence of the 

existence of the sex crimes was admissible both as intrinsic evidence and 

extrinsic evidence under Rule 404(b). As to Kelley’s evidence, the court 

reasoned that “conducting a minitrial of the state sex abuse charges would be 

confusing to the jury and is not relevant or necessary.”

This was not an abuse of discretion. The probative value of Kelley’s

proffered evidence—direct testimony from an investigator and the victims, 

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as well as documents from the investigation—was low. That evidence would 

not show definitively that the charges were meritless; the jury would have 

needed to weigh the credibility of those witnesses, assess the evidence, and 

consider the elements of the underlying state charges. At the same time, the 

danger of confusing the issues and misleading the jury with this evidence was 

high. See, e.g., United States v. Ramos, 537 F.3d 439, 456 (5th Cir. 2008) 

(“Disputes relating to a completely different scenario involving another 

drug-trafficking episode—and the evidentiary disputes accompanying it—

would assuredly have diverted the attention of the jury, confused the issues 

actually to be decided, and unfairly prejudiced the conduct of the trial. . . . 

The district court therefore did not abuse its discretion in excluding the 

evidence under Fed. R. Evid. 403.”). It was not an abuse of discretion for the 

district court to hold that presenting such evidence would confuse the jury as 

to the evidence it needed to weigh and the issues it needed to decide.

Conclusion

The judgment of the district court is AFFIRMED.

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