BURLINGTON — An appeals court says federal prosecutors are allowed to use evidence that a Randolph man charged with kidnapping and killing his 12-year-old niece in 2008 tried to shift the blame to a make-believe international sex ring.

The Monday decision by the 2nd U.S. Circuit Court of Appeals in New York overturns a Vermont-based judge who ruled the government violated the rights of Michael Jacques because he had no lawyer present when he discussed the plans with a friend who was working with the FBI.

In overruling federal Judge William Sessions, the appeals court found Jacques’ spoke freely.

Federal prosecutors are seeking the death penalty against Jacques in the death of Brooke Bennett.

Jacques has pleaded not guilty. A trial is set for 2013.