RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0195p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KURT L. MALLORY (17-3500); MARGARET L.

MCKNIGHT (17-3537); SUSAN M. PIOCH (17-3538),

Defendants-Appellants.

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Nos. 17-3500/3537/3538

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 3:14-cr-00403-3—James G. Carr, District Judge.

Argued: August 2, 2018

Decided and Filed: August 30, 2018

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

_________________

COUNSEL

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.

>
Nos. 17-3500/3537/3538 United States v. Mallory, et al. Page 2

_________________

OPINION

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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 
Nos. 17-3500/3537/3538 United States v. Mallory, et al. Page 3

$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 
Nos. 17-3500/3537/3538 United States v. Mallory, et al. Page 4

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 (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, 
Nos. 17-3500/3537/3538 United States v. Mallory, et al. Page 5

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 not have a meaningful opportunity 

to cross-examine Gary at his deposition. The Confrontation Clause mandates such an 

opportunity, but not one that is “effective in whatever way, and to whatever extent, the defense 

may wish.” United States v. Owens, 484 U.S. 554, 559 (1988) (quoting Kentucky v. Stincer, 

482 U.S. 730, 739 (1987)). And while cross-examination before trial may not be as searching as 
Nos. 17-3500/3537/3538 United States v. Mallory, et al. Page 6

cross-examination at trial, prior testimony is nevertheless admissible so long as the defendant 

was not “significantly limited” in his cross-examination. California v. Green, 399 U.S. 149, 166 

(1970); see also Crawford, 541 U.S. at 68 (confirming admissibility of prior testimony subject to 

the declarant’s unavailability and “a prior opportunity for cross-examination”). Since Kurt 

raised his meaningful-opportunity argument in a motion for a new trial under Federal Rule of 

Criminal Procedure 33, we review the district court’s decision to deny him a new trial for abuse 

of discretion.1 United States v. Munoz, 605 F.3d 359, 366 (6th Cir. 2010); see United States v. 

Stewart, 5 F. App’x 402, 407 (6th Cir. 2001) (per curiam).

Kurt cites four reasons why he could not meaningfully cross-examine Gary at the 

deposition. First, he maintains that the two-month period that counsel had to prepare for the 

deposition was insufficient in light of voluminous discovery. But he fails to identify what he 

wishes counsel could have reviewed but did not. This indicates that counsel’s preparation, even 

if hurried, was not so rushed as to significantly limit his ability to cross-examine Gary, let alone 

compel a new trial. See Green, 399 U.S. at 166; United States v. Casamento, 887 F.2d 1141, 

1173 (2d Cir. 1989) (holding that eleven days’ notice of declarant’s deposition was sufficient, 

even though “defense counsel understandably would have preferred more time to prepare for 

[the] deposition”). 

Second, Mallory asserts that he received discovery after the deposition that he could have 

used to impeach Gary’s testimony. The only discovery he points to, however, is forensic testing 

of the forged will. And while Kurt claims he was not privy to the results of the forensic tests 

before the deposition, he does not explain what additional cross-examination he would have 

performed with the results of those tests. See Mechler v. Procunier, 754 F.2d 1294, 1299 (5th 

Cir. 1985) (rejecting Confrontation Clause claim premised on autopsy and ballistics report 

 

1There is tension in our case law as to the proper standard of review for this type of Confrontation 

Clause claim where defendants object at trial. Some of our cases, including the earliest of which we are 

aware, hold that any such claim is reviewed for abuse of discretion. Dorsey v. Parke, 872 F.2d 163, 166 

(6th Cir. 1989); accord United States v. Ford, 761 F.3d 641, 651 (6th Cir. 2014). A number of other 

cases, however, exercise de novo review. E.g., United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 

2010). But see Darrah v. City of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001) (“[W]hen a later decision 

of this court conflicts with one of our prior published decisions, we are still bound by the holding of the 

earlier case.”). Since Kurt’s claim arose in a motion for a new trial, however, we need not resolve that 

tension here. 
Nos. 17-3500/3537/3538 United States v. Mallory, et al. Page 7

unavailable before preliminary hearing since “counsel ha[d] not demonstrated how additional 

questioning on the subject would have aided” cross-examination conducted at the hearing). 

Moreover, since Kurt did not mention this issue in his motion for a new trial, the district court 

did not have an opportunity to consider it. 

Third, Kurt notes that he did not know of Gary’s dementia diagnosis at the time of the 

deposition, and he would have liked to cross-examine Gary with that information. Yet Gary’s 

medical records from before his deposition indicate that he suffered from “weakness and 

episodes of confusion.” R. 102-2, Pg. ID 640. In fact, Pioch’s counsel asked Gary at his 

deposition whether he had been tested for Alzheimer’s, a line of questioning Kurt’s counsel 

evidently chose not to pursue. See United States v. Richardson, 781 F.3d 237, 245 (5th Cir. 

2015) (denying Confrontation Clause claim where proposed additional questioning did not 

present “a ‘new and significantly material line of cross examination that was not at least touched 

upon’” in prior testimony (quoting Mancusi v. Stubbs, 408 U.S. 204, 215 (1972))). More 

tellingly, the court offered Kurt the opportunity to impeach Gary’s deposition testimony at 

trial—if not with a medical expert, then at least with the mere fact of his dementia. But for 

whatever reason, Kurt did not do so, even though Gary, being absent, could not have responded. 

So here again, Kurt’s actions belie an unmet need to confront Gary about his dementia. And if 

Kurt felt it unnecessary to present the jury with Gary’s dementia at his first trial, the “interest of 

justice” does not demand a second. Fed. R. Crim. P. 33(a). 

Fourth, Kurt claims that he learned of conflicting stories about the will signing from 

Gary’s daughters only after the deposition, and thus did not have the information to impeach 

Gary’s account of what went on. But Kurt interviewed the daughters before the deposition and 

even asked Gary about the “several different versions” of the will signing that he had told one of 

his daughters. R. 307, Pg. ID 3828–29. This indicates that Kurt had a meaningful opportunity to 

cross-examine Gary about the conflicting stories. 

Kurt thus fails to identify a basis for concluding that his opportunity to confront Gary was 

not meaningful—much less one that would compel the district court to grant a new trial. 

Therefore, his Confrontation Clause claim falls short.
Nos. 17-3500/3537/3538 United States v. Mallory, et al. Page 8

III.

Next, we turn to McKnight’s and Pioch’s objections to the court’s admission of testimony 

by a government handwriting expert. The expert, Larry Olson, testified that the signature on the 

forged will was “probably” not Fewlas’s, but instead a “simulation” performed by someone else. 

R. 308, Pg. ID 4052. McKnight and Pioch concede that Olson was qualified to offer this 

opinion, but dispute its reliability. 

District courts are the “gatekeep[ers]” of expert testimony. Daubert v. Merrell Dow 

Pharm., Inc., 509 U.S. 579, 597 (1993). Federal Rule of Evidence 702 tasks them with 

determining whether an expert’s “scientific, technical, or other specialized knowledge” will 

assist the trier of fact in doing its job, and whether the expert’s testimony “is the product of 

reliable principles and methods.” Fed. R. Evid. 702(a), (c). To perform this inquiry, district 

courts often consider whether an expert’s theory has been tested, is the subject of peer review 

and publication, has a permissible error rate, follows established standards, and receives “general 

acceptance” within a “relevant scientific community.” Daubert, 509 U.S. at 593–94. These socalled Daubert factors, while perhaps most apt in evaluating a purely scientific discipline, can 

also apply in evaluating non-scientific fields that are “technical” or “specialized” in nature. 

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149–53 (1999). But the factors are not 

mandatory in every case. Id. at 150–51. The questions of what factors to apply and what 

conclusion to draw about an expert’s reliability are entrusted to the district court’s discretion. Id.

at 152–53.

The reliability of expert handwriting analysis has come before our court before. In 

United States v. Jones, our court upheld the admissibility of such testimony. 107 F.3d 1147, 

1161 (6th Cir. 1997). In so holding, Jones explained that handwriting analysis is not a science 

per se. Id. at 1157. Handwriting analysts “do not concentrate on ‘proposing and refining 

theoretical explanations about the world,’” as scientists do. Id. (quoting Daubert, 509 U.S. at 

590). Instead, handwriting analysts “use their knowledge and experience to answer the 

extremely practical question of whether a signature is genuine or forged.” Id. Handwriting 

analysts see things in handwriting that laypeople do not—both because of analysts’ training in 

the minutiae of loops, swoops, and dotted “i”s, and because of the volume of handwriting they 
Nos. 17-3500/3537/3538 United States v. Mallory, et al. Page 9

inspect—and therefore assist the trier of fact by bringing their training and experience to bear. 

See id. at 1159–61. Thus, while handwriting analysis may not boast the “empirical” support 

underpinning scientific disciplines, it is nevertheless “technical” or “specialized” knowledge that, 

subject to thorough gatekeeping, is a proper area of expertise. Id. at 1157–61; see Fed. R. Evid. 

702(a). 

Our court decided Jones without the benefit of Kumho Tire. In Kumho Tire, the Supreme 

Court clarified that the Daubert factors may also be useful in scrutinizing non-scientific 

expertise. 526 U.S. at 149. In doing so, however, the Court instructed that application of the 

Daubert factors should be flexible and that one or more factors may or may not apply depending 

on the type of expertise at hand. Id. at 150–51. In fact, the Court referenced handwriting 

analysis as an area where strict Daubert-type analysis might be less appropriate, indicating that 

“the relevant reliability concerns may focus upon personal knowledge or experience.” Id. at 150. 

Since Jones predated Kumho Tire, it did not apply the Daubert factors in evaluating the 

handwriting analysis at issue. Jones, 107 F.3d at 1158–59. Still, Jones’s focus on handwriting 

analysts’ experience-based expertise is consistent with Kumho Tire, even though Daubert-type 

inquiries may also be appropriate in evaluating such testimony. 

Here, the district court faithfully applied Daubert, Jones, and Kumho Tire in deeming 

Olson’s handwriting analysis admissible. The court conducted thorough voir dire to ascertain 

Olson’s experience and methodology. Olson testified to his thirty-one years’ experience as an 

ink chemist and forensic document examiner at the IRS National Forensic Laboratory, during 

which he has performed countless handwriting analyses and testified in court on multiple 

occasions. See Jones, 107 F.3d at 1160. He explained that his laboratory is accredited by an 

international organization that polices “general standards [practiced] throughout the discipline.” 

R. 307, Pg. ID 3692; see Daubert, 509 U.S. at 594. In addition, Olson walked through the 

principles and basic approach he used in performing his analysis. To perform the analysis, Olson 

studied approximately ninety-one known examples of Fewlas’s signature. From those samples, 

he discerned various unique characteristics, many of which he then found lacking in the 

signature on the forged will. As Olson explained, this approach embodies two precepts—no two 

people write exactly alike, and no one person writes exactly the same every time—which he 
Nos. 17-3500/3537/3538 United States v. Mallory, et al. Page 10

represented as having been tested in various studies and experiments. See United States v. 

Prime, 431 F.3d 1147, 1153 (9th Cir. 2005) (affirming admission of handwriting expert citing 

one of the same studies). Those studies and experiments, according to Olson, further establish 

that his mode of analysis is highly accurate. See id. (observing that admitted handwriting expert 

cited low error rate); accord United States v. Mooney, 315 F.3d 54, 62 (1st Cir. 2002). 

Moreover, Olson testified that his laboratory requires document examiners to review each other’s 

work, and that in this case, another document examiner not only reviewed his work but 

independently verified his opinion. See Prime, 431 F.3d at 1153 (highlighting similar review 

and verification); accord United States v. Crisp, 324 F.3d 261, 271 (4th Cir. 2003); Mooney, 

315 F.3d at 62. Based on this testimony, the district court did not abuse its discretion in deeming

Olson’s testimony reliable. Jones, 107 F.3d at 1161; see Prime, 431 F.3d at 1153–54 (affirming 

admission of handwriting expert offering similar testimony); accord, e.g., Crisp, 324 F.3d at 

270–71; Mooney, 315 F.3d at 62–63.

McKnight and Pioch make two primary arguments otherwise. First, they take issue with 

the district court’s characterization of handwriting analysis as a “science,” pointing to certain 

studies and district court decisions that have questioned its scientific underpinnings. See, e.g., 

United States v. Saelee, 162 F. Supp. 2d 1097, 1101 (D. Alaska 2001). But this argument misses 

the mark. Handwriting analysis, of course, is not a science—Jones makes that much clear. 107 

F.3d at 1157. The district court’s loose language in describing handwriting analysis as a science, 

however, was more of an afterthought to otherwise thorough gatekeeping. The court’s voir dire

demonstrates that, rather than viewing handwriting analysis as a science, it sought to ascertain 

whether Olson’s experience-based expertise was reliable. Plus, the district court immediately 

conditioned its “science” misnomer by noting that handwriting analysis does not involve 

“beakers and computers and yardsticks.” R. 307, Pg. ID 3765. This statement reflects the 

district court’s proper understanding of the true nature of handwriting expertise. 

Moreover, while McKnight and Pioch are correct to point out that some have called 

handwriting analysis’s scientific underpinnings into question, that debate does not mean the 

district court abused its discretion here. For one thing, McKnight and Pioch did little to impugn 

the studies and experiments validating handwriting analysis on which Olson relied, offering no 
Nos. 17-3500/3537/3538 United States v. Mallory, et al. Page 11

argument about testing, peer review, or error rate after voir dire. For another, focusing 

exclusively on the scientific shortcomings of handwriting analysis—a nonscientific area of 

expertise—ignores its foundations in “personal knowledge [and] experience.” See Kumho Tire, 

526 U.S. at 151–52; Jones, 107 F.3d at 1158–61. And in the end, even if some have called 

handwriting analysis into question, an expertise need not be perfect to be admissible. Mooney, 

315 F.3d at 63 (noting that Daubert does not require that expert testimony be “unassailable”). 

As Jones teaches, expert testimony that satisfies Rule 702 remains subject to cross-examination 

on reliability grounds. 107 F.3d at 1161. McKnight and Pioch were free to expose handwriting 

analysis’s purported failings to the jury by attacking the weight of Olson’s testimony, but elected 

not to do so. Thus, McKnight’s and Pioch’s challenges to the “science” of handwriting analysis 

are unavailing.

Second, McKnight and Pioch argue that Olson failed to properly account for Fewlas’s 

alcohol use and other factors that might impact his handwriting. But in both voir dire and before 

the jury, Olson testified that he considered whether these factors might have impacted Fewlas’s 

writing and concluded that any impact did not change his opinion. McKnight and Pioch provide 

no support for the notion that this aspect of Olson’s opinion, even if flawed, rendered his 

testimony so unreliable as to be inadmissible. Rather, their argument bears on the proper weight

to give his testimony. See id. at 1161. And McKnight and Pioch each cross-examined him on 

this point. McKnight and Pioch are obviously disappointed with the weight the jury gave 

Olson’s testimony, but that does not render his testimony inadmissible.

Accordingly, the district court did not abuse its discretion in admitting Olson’s 

handwriting analysis in this case. 

IV.

The Defendants raise two additional challenges to their convictions. Neither has merit.

Exhibit. Pioch and Kurt Mallory call into question one of the government’s exhibits at 

trial: an unexecuted power of attorney that Pioch allegedly fabricated. In their view, the 

government failed to authenticate the document as Pioch’s work. To authenticate a document, 

the proponent must provide evidence sufficient for the factfinder to conclude that the document 
Nos. 17-3500/3537/3538 United States v. Mallory, et al. Page 12

is what it is claimed to be. Fed. R. Evid. 901(a); United States v. Farrad, 895 F.3d 859, 876 (6th 

Cir. 2018). That evidence can come from witnesses with personal knowledge about the 

document or from “distinctive characteristics of the item, taken together with all the 

circumstances.” Fed. R. Evid. 901(b)(1), (4). Here, the government provided sufficient evidence 

to authenticate the document as Pioch’s creation. First, the government obtained the document 

from Pioch’s proposed trial exhibits. See United States v. Crosgrove, 637 F.3d 646, 658 (6th Cir. 

2011) (relying in part on evidence of where a document originated in deeming the document 

properly authenticated). Second, Pioch testified that her secretary “could have” prepared the 

document. R. 312, Pg. ID 4876; see Crosgrove, 637 F.3d at 658. And third, the document bore 

Pioch’s signature line. See Jones, 107 F.3d at 1150 (observing that an individual’s signature on a 

letter, when combined with other distinctive evidence of authenticity, could demonstrate 

authorship). Together, this foundational evidence was sufficient to clear authentication’s 

“relatively low[] hurdle,” Farrad, 895 F.3d at 878, leaving to the jury whether Pioch in fact 

fabricated the document. 

Kurt further objects that the exhibit inflicted unfair prejudice that substantially 

outweighed its probative value, thus violating Federal Rule of Evidence 403. But the prejudice 

Kurt claims is simply the possibility that the jury believed the exhibit was in fact Pioch’s work. 

That “prejudice” is not what Rule 403 envisions. Old Chief v. United States, 519 U.S. 172, 180 

(1997) (explaining that unfair prejudice under Rule 403 “speaks to the capacity of some 

concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from 

proof specific to the offense charged” (emphasis added)); United States v. Bruce, 437 F. App’x 

357, 363 (6th Cir. 2011) (rejecting Rule 403 argument that jury may have failed to appreciate 

“discrepancies” in weighing properly authenticated exhibits). Rather, Kurt’s complaint of 

prejudice merely highlights the exhibit’s probative value in undermining Pioch’s credibility. His 

objection under Rule 403 therefore fails. 

Reid Technique. McKnight argues that a government investigator made improper use of 

the so-called Reid Technique, an interrogation method used to elicit a confession. But despite 

the investigator’s purported use of the technique, McKnight never confessed, and she does not 

bring an involuntary-confession claim. Instead, she complains of “false investigation,” charging 
Nos. 17-3500/3537/3538 United States v. Mallory, et al. Page 13

that the investigator unfairly assumed her guilt and marshaled evidence to support his 

assumption. McKnight Opening Br. 13. But McKnight fails to identify any constitutional 

provision that bars an investigator from assuming guilt and trying to prove it. See Garner v. 

Harrod, 656 F. App’x 755, 760 (6th Cir. 2016) (“[T]here is no constitutionally protected right to 

the manner in which a criminal investigation is conducted.”). And while McKnight alludes to 

fabrication of evidence, she fails to specify any evidence the investigator fabricated. See id. at 

760–61. Absent that sort of misconduct, it is the Constitution’s various safeguards, including 

trial by an impartial jury, the requirement of proof beyond reasonable doubt, and confrontation of 

witnesses, that guard against unfounded charges of guilt. See U.S. Const. amend. VI; In re 

Winship, 397 U.S. 358, 363–64 (1970). McKnight received these guarantees and thoroughly 

cross-examined the government’s investigator. The Constitution requires nothing more. 

V.

After the jury handed down its verdict, Kurt Mallory sought a new trial under Federal 

Rule of Criminal Procedure 33, arguing in part that the verdict was against the manifest weight 

of the evidence. The district court rejected his request. Kurt argues that the district court applied 

the incorrect legal standard in denying his motion. 

Rule 33 permits a new trial if a verdict is against the “manifest weight” of the evidence. 

United States v. Hughes, 505 F.3d 578, 592 (6th Cir. 2007). Such a motion calls on the trial 

judge to take on the role of a thirteenth juror, weighing evidence and making credibility 

determinations firsthand to ensure there is not a miscarriage of justice. See id. at 593 (citing 

United States v. Lutz, 154 F.3d 581, 589 (6th Cir. 1998)). This differs from a motion under Rule 

29, which challenges the sufficiency of the evidence. Rule 29 asks whether “any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable doubt,” Jackson v. 

Virginia, 443 U.S. 307, 319 (1979)—not whether the trial judge himself believes the manifest 

weight of the evidence supports the verdict, see Hughes, 505 F.3d at 592–93. So while Rule 29 

requires the court to view the evidence in a light most favorable to the prosecution, id. at 592, 

Rule 33 does not. 
Nos. 17-3500/3537/3538 United States v. Mallory, et al. Page 14

Here, Kurt claims the district court conflated these rules. And he is right. The court 

repeatedly characterized its task as evaluating the sufficiency of the evidence, rather than 

weighing the evidence for itself. See, e.g., R. 369, Pg. ID 6053 (characterizing issue as 

“insufficiency of the evidence”); id., Pg. ID 6054 (criticizing “evidence-parsing arguments more 

suitable to closing to a jury than in new trial motions”); id., Pg. ID 6059 (reaching a conclusion 

as to “Sufficiency of the Evidence”). And the court “[v]iewed [the evidence] most favorably in 

support of the guilty verdict” and found it “clearly sufficient to support” Kurt’s conviction—thus 

applying Rule 29 and not Rule 33. Id., Pg. ID 6059. Confusingly, the court also made 

statements implicating Rule 33. It referenced the manifest-weight standard at one point and 

thoroughly analyzed Pioch’s credibility. Id., Pg. ID 6054, 6056–59. But these moments of 

clarity do not cure the court’s application of the wrong legal standard. When read as a whole, the 

court’s order demonstrates that it asked the wrong question in denying Kurt’s motion. 

In the end, the manifest weight of the evidence may support the verdict. But as an 

appellate court, this is not for us to say. The judge that saw the witnesses and sat with the 

evidence at trial must make that call. United States v. Ashworth, 836 F.2d 260, 266 (6th Cir. 

1988) (articulating “the appropriate standard for district courts to follow” in evaluating Rule 33 

motions and highlighting that “[t]he court of appeals . . . does not sit as a ‘thirteenth juror’ to 

judge the credibility of witnesses[ or] reweigh the evidence” (emphases omitted)). We therefore 

remand for the district court to apply the correct legal standard in considering Kurt’s motion.

VI.

At sentencing, the district court enhanced Kurt Mallory’s and Pioch’s sentencing ranges 

after concluding that they caused financial hardship to the putative beneficiary of Fewlas’s 

estate. See U.S. Sentencing Guidelines Manual § 2B1.1(b)(2)(A)(iii) (U.S. Sentencing Comm’n 

2016). But the Sentencing Guidelines did not contain the financial-hardship enhancement at the 

time of Kurt’s and Pioch’s misconduct. See U.S. Sentencing Guidelines Manual 

§ 2B1.1(b)(2)(A) (U.S. Sentencing Comm’n 2014). Thus, to apply it in their case violates the Ex 

Post Facto Clause. U.S. Const. art. I, § 9, cl. 3; Peugh v. United States, 569 U.S. 530, 544, 550 
Nos. 17-3500/3537/3538 United States v. Mallory, et al. Page 15

(2013). The government agrees and asks that we vacate those parts of their sentences affected by 

the error.2 We vacate their sentences accordingly and remand for resentencing. 

* * *

We AFFIRM McKnight’s and Pioch’s convictions, as well as Kurt Mallory’s conviction 

to the extent expressed in this opinion, REVERSE the district court’s denial of Kurt’s motion for 

a new trial, VACATE Kurt’s and Pioch’s sentences to the extent impacted by the financialhardship enhancement, and REMAND for further proceedings consistent with this opinion.

 

2 Mallory and Pioch each received a mandatory minimum consecutive sentence of twentyfour months based on their convictions for aggravated identity theft. See 18 U.S.C. § 1028A(a)(1), (b)(2). 

Since the district court issued those sentences independent of the financial-hardship enhancement, we 

affirm the district court’s sentences on those convictions.