s3.amazonaws.comNos. 13-2500, 14-1120 In the United States Court of Appeals for the Sixth Circuit...
Transcript of s3.amazonaws.comNos. 13-2500, 14-1120 In the United States Court of Appeals for the Sixth Circuit...
Nos. 13-2500, 14-1120
In the United States Court of Appeals for the Sixth Circuit
United States of America, Plaintiff-Appellee,
v.
Kwame Kilpatrick, Bobby Ferguson,
Defendants-Appellants.
On Appeal from the United States District Court for the Eastern District of Michigan
No. 2:10-cr-20403 (Hon. Nancy G. Edmunds)
Brief for the United States Barbara L. McQuade
United States Attorney Andrew Goetz
Assistant United States Attorney 211 West Fort Street, Suite 2001 Detroit, MI 48226 Phone: (313) 226-9522 Email: [email protected]
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Table of Contents Table of Authorities ................................................................................... iv
Request for Oral Argument ....................................................................... ix
Introduction ................................................................................................ 1
Issues Presented ......................................................................................... 3
Statement of the Case ................................................................................ 4
1. A New Source of Cash ....................................................................... 4
2. Mail and Wire Fraud at the Civic Fund (Counts 18–26, 28, and 30) ............................................................................................... 5
3. Extortion at DWSD (Counts 2–5, 7–9) ............................................. 8
a. Extortion of Inland ................................................................. 10
i. Count 2: Sewer-Lining Contract (CS-1368) ................. 10
ii. Count 3: Sinkhole Repairs (Amendment 4) ................. 12
b. Extortion of Lakeshore .......................................................... 15
i. Counts 7 and 8: Outfalls Contract (DWS-849) and Asbestos Abatement Contract ...................................... 16
ii. Count 9: Water-Main Contract (CM-2014) .................. 19
c. Extortion and Attempted Extortion of Walbridge ................ 21
i. Count 4: Baby Creek and Patton Park (PC-748) ......... 21
ii. Count 5: Oakwood Pump Station (PC-755) ................. 24
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4. More to the RICO Conspiracy (Count 1) ........................................ 25
a. Misappropriating the State Arts Grant ................................ 25
b. Threats on CM-2012 .............................................................. 26
c. Bid-Rigging at Heilmann ....................................................... 27
d. Bribery .................................................................................... 27
5. Jury’s Verdict ................................................................................... 29
Summary of the Argument ...................................................................... 30
Argument .................................................................................................. 32
I. Kilpatrick cannot establish an actual conflict, much less the Strickland prejudice that Mickens now requires. .......................... 32
A. Background............................................................................. 32
B. Kilpatrick cannot satisfy either requirement for demonstrating an actual conflict under the Sixth Amendment. ........................................................................... 35
1. Kilpatrick cannot show that his defense team suffered from divided loyalties. .................................... 35
2. Kilpatrick cannot demonstrate that any conflict adversely affected his attorneys’ performance. ........... 40
C. Kilpatrick also cannot establish that any conflict prejudiced him—as he must under Mickens. ........................ 43
II. The case agents’ testimony was properly admitted, and any mistakes were harmless. ................................................................. 45
A. The challenged testimony was proper—mostly for reasons unrelated to Freeman. .............................................. 47
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B. Any errors would be harmless as uncontroverted or cumulative testimony in the face of overwhelming evidence. ................................................................................. 58
1. Mail and Wire Fraud at the Civic Fund (Counts 18–26, 28, and 30). ........................................................ 60
2. Extortion of Inland (Counts 2 and 3) ........................... 61
3. Extortion of Lakeshore (Counts 7, 8, and 9) ................ 62
4. Extortion of Walbridge (Counts 4 and 5) ..................... 63
5. RICO Conspiracy (Count 1) .......................................... 64
III. The district court did not abuse its discretion in admitting non-hearsay evidence of the extortion victims’ fear. ..................... 67
A. The extortion testimony was properly admitted under Williams and Collins. ............................................................. 68
B. Any errors would be harmless given the victims’ firsthand testimony and other trial evidence. ...................... 72
IV. The restitution amounts were not an abuse of discretion. ............ 73
Conclusion ................................................................................................. 74
Certificate of Compliance with Rule 32(a) .............................................. 75
Certificate of Service ................................................................................ 76
Relevant District Court Documents ........................................................ 77
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Table of Authorities
Cases
Brown v. United States, 411 U.S. 223 (1973) .................................... 58, 72
Burger v. Kemp, 483 U.S. 776 (1987) ....................................................... 35
Cuyler v. Sullivan, 446 U.S. 335 (1980) ............................................ 30, 40
Gillard v. Mitchell, 445 F.3d 883 (6th Cir. 2006) .................................... 44
Harrison v. Motley, 478 F.3d 750 (6th Cir. 2007) ................................... 42
Hempstead Video, Inc. v. Valley Stream, 409 F.3d 127 (2d Cir. 2005) ................................................ 36, 37, 39, 40 Holloway v. Arkansas, 435 U.S. 475 (1978) ................................ 30, 42, 43
Mickens v. Taylor, 535 U.S. 162 (2002) ........................................... passim
Moore v. Mitchell, 708 F.3d 760 (6th Cir. 2013) .......................... 35, 40, 41
Moss v. United States, 323 F.3d 445 (6th Cir. 2003) ............................... 44
Powell v. Bordenkircher, 789 F.2d 425 (6th Cir. 1986) ........................... 45
Rodriguez v. Chandler, 382 F.3d 670 (7th Cir. 2004) ............................. 37
Sanborn v. Parker, 629 F.3d 554 (6th Cir. 2010) .................................... 67
Strickland v. Washington, 466 U.S. 668 (1984) .............................. passim
United States v. Aguwa, 123 F.3d 418 (6th Cir. 1997) ........................... 47
United States v. Albertelli, 687 F.3d 439 (1st Cir. 2012) .................. 55, 57
United States v. Batson, 608 F.3d 630 (9th Cir. 2010) ........................... 73
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United States v. Blau, 159 F.3d 68 (2d Cir. 1998) .................................. 43
United States v. Boring, 557 F.3d 707 (6th Cir. 2009) ............................ 73
United States v. Burns, 526 F.3d 852 (5th Cir. 2008) ............................. 37
United States v. Childs, 539 F.3d 552 (6th Cir. 2008) ............................ 58
United States v. Collins, 78 F.3d 1021 (6th Cir. 1996) ................... passim
United States v. Diaz-Lopez, 625 F.3d 1198 (9th Cir. 2010) ................... 53
United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011) ...................... 55
United States v. Faulkenberry, 614 F.3d 573 (6th Cir. 2010) ................. 51
United States v. Fowler, 535 F.3d 408 (6th Cir. 2008) ............................ 65
United States v. Freeman, 730 F.3d 590 (6th Cir. 2013) ................ passim
United States v. Gadson, 763 F.3d 1189 (9th Cir. 2014) ............ 50, 55, 63
United States v. Garcia, 413 F.3d 201 (2d Cir. 2005) ............................. 59
United States v. Garcia, 994 F.2d 1499 (10th Cir. 1993) ........................ 55
United States v. Goosby, 523 F.3d 632 (6th Cir. 2008) ........................... 45
United States v. Hall, 434 F.3d 42 (1st Cir. 2006) .................................. 50
United States v. Holbrook, 1994 WL 419585 (6th Cir. 1994) ................. 50
United States v. Horton, 847 F.2d 313 (6th Cir. 1988) ........................... 67
United States v. Hyde, 448 F.2d 815 (5th Cir. 1971) .............................. 68
United States v. Johnson, 440 F.3d 832 (6th Cir. 2006) ................... 55, 65
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United States v. Johnson, 581 F.3d 320 (6th Cir. 2009) ......................... 72
United States v. Johnson, 831 F.2d 124 (6th Cir. 1987) ......................... 63
United States v. Krzyske, 836 F.2d 1013 (6th Cir. 1988) ........................ 42
United States v. Lanzar, 69 F. App’x 224 (6th Cir. 2003) ....................... 52
United States v. Mack, 1998 WL 773996 (6th Cir. 1998) ....................... 56
United States v. Madison, 226 F. App’x 535 (6th Cir. 2007) .................. 51
United States v. Martinez, 630 F.2d 361 (5th Cir. 1980) ........................ 44
United States v. May, 568 F.3d 597 (6th Cir. 2009) ................................ 73
United States v. Mendez-Ortiz, 810 F.2d 76 (6th Cir. 1986) ................... 59
United States v. Neuroth, 809 F.2d 339 (6th Cir. 1987) ......................... 58
United States v. Novaton, 271 F.3d 968 (11th Cir. 2001) ....................... 41
United States v. Olano, 507 U.S. 725 (1993) ..................................... 45, 58
United States v. Pugh, 404 F. App’x 21 (6th Cir. 2010) .......................... 50
United States v. Robinson, 290 F. App’x 769 (6th Cir. 2008) ................. 37
United States v. Saccoccia, 58 F.3d 754 (1st Cir. 1995) .................... 37, 41
United States v. Scales, 594 F.2d 558 (6th Cir. 1979) ............................. 53
United States v. Smith, 601 F.3d 530 (6th Cir. 2010) ............................. 50
United States v. Spikes, 158 F.3d 913 (6th Cir. 1998) ............................ 54
United States v. Street, 614 F.3d 228 (6th Cir. 2010) ............................. 55
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United States v. Tasis, 696 F.3d 623 (6th Cir. 2012) .............................. 54
United States v. Tragas, 727 F.3d 610 (6th Cir. 2013) ..................... 48, 49
United States v. Walker, 615 F.3d 728 (6th Cir. 2010) ........................... 70
United States v. Williams, 952 F.2d 1504 (6th Cir. 1991) ...... 2, 31, 67, 68
United States v. Wright, 745 F.3d 1231 (D.C. Cir. 2014) ........................ 37
Statutes
18 U.S.C. § 2 ............................................................................................. 29
18 U.S.C. § 1341........................................................................................ 29
18 U.S.C. § 1343........................................................................................ 29
18 U.S.C. § 1951........................................................................................ 29
18 U.S.C. § 1962(d) ................................................................................... 29
18 U.S.C. § 3563(b)(2) ............................................................................... 73
18 U.S.C. § 3583(d) ................................................................................... 73
18 U.S.C. § 666(a) ..................................................................................... 29
26 U.S.C. § 7201........................................................................................ 29
26 U.S.C. § 7206........................................................................................ 29
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Rules
Federal Rule of Evidence 1006............................................... 31, 50, 51, 52
Federal Rule of Evidence 611(a) ............................................ 31, 45, 49, 50
Federal Rule of Evidence 701 ...................................................... 30, 46, 47
Federal Rule of Evidence 803(3) .............................................................. 68
Other Authorities
1 Mallen et al., Legal Malpractice § 5:7 (2014 ed.) ................................. 39
4 Mueller & Kirkpatrick, Federal Evidence § 8:71 (4th ed.) ...... 69, 70, 71
5 Weinstein’s Federal Evidence § 801.11[5][c] ........................................ 68
6 Weinstein’s Federal Evidence § 1006.05[2] .......................................... 50
McCormick on Evidence § 234 (2013) ...................................................... 52
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Request for Oral Argument
The defendants are appealing their convictions following a six-month
public corruption trial. The issues on appeal are straightforward, but
the record is massive: approximately 10,000 pages of trial testimony,
with almost 100 witnesses and over 700 exhibits. Because oral
argument would assist the Court in sorting through that record, the
government concurs with the defendants in requesting oral argument.
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Introduction
During the seven years before he resigned, Kwame Kilpatrick turned
the Detroit mayor’s office into a criminal enterprise. Together with his
codefendant, Bobby Ferguson, Kilpatrick extorted city contractors at
the Detroit Water and Sewerage Department, delaying millions in
DWSD contracts until firms hired or paid off Ferguson. He used his
nonprofit, the Kilpatrick Civic Fund, for personal luxuries and his
mayoral campaign, after promising donors that it would support
Detroit’s neighborhoods, city youth, and crime prevention. He shook
down other businesses too—compromising city government with a “pay-
to-play” system where bribery was not just commonplace, but required.
And when the dust cleared, Kilpatrick’s bank records alone showed over
half a million dollars in unexplained cash.
After a six-month trial, a jury convicted Kilpatrick and Ferguson of a
RICO conspiracy, several counts of extortion, and bribery. The jury also
convicted Kilpatrick of mail and wire fraud at the Civic Fund, along
with several tax charges.
Those convictions should be affirmed. First, Kilpatrick’s conflict-of-
interest claim runs headlong into the Sixth Amendment’s “actual
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conflict” standard. The district court investigated and resolved the
alleged conflict, and Kilpatrick cannot show any adverse effect on his
representation. Nor can Kilpatrick show Strickland prejudice—as he
must, under Mickens v. Taylor, 535 U.S. 162, 174–76 (2002). Second,
most of the agents’ testimony in the defendants’ briefs was admissible
for reasons unrelated to this Court’s intervening decision in United
States v. Freeman, 730 F.3d 590 (6th Cir. 2013). And the convictions
here did not rest on agents’ interpretations of text messages. Third, the
testimony quoted in the defendants’ remaining evidentiary argument
was non-hearsay evidence of the extortion victims’ fear. It was therefore
properly admitted. United States v. Collins, 78 F.3d 1021, 1036 (6th Cir.
1996); United States v. Williams, 952 F.2d 1504, 1518 (6th Cir. 1991).
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Issues Presented
I. Alleged Conflict. To prevail on a Sixth Amendment conflict claim,
a defendant must show an “actual conflict”—divided loyalties that
affected his representation. A defendant raising the type of conflict in
this case must also show Strickland prejudice. Here, Kilpatrick’s
retained attorneys walled themselves off from any conflict, the district
court appointed independent counsel as another safeguard, and
Kilpatrick does not specify any effect on either his representation or the
outcome of trial. Can he establish a Sixth Amendment violation?
II. Case Agents’ Testimony. United States v. Freeman, 730 F.3d 590
(6th Cir. 2013), prohibits case agents from broadly interpreting wiretap
recordings to narrate the government’s case. Freeman does not swallow
every other established rule of evidence relating to agent testimony, and
most of the testimony here was admissible under those other rules. The
remaining testimony was proper under Freeman or, at worst,
cumulative of other evidence. Can the defendants demonstrate
reversible error?
III. Extortion Victims’ Fear. Contemporaneous statements to or by an
extortion victim are relevant—and admissible—evidence that the victim
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feared the defendants. Did the district court abuse its discretion in
admitting those statements in this extortion case?
IV. Restitution. Were the restitution amounts an abuse of discretion?
Statement of the Case
For almost seven years, Kwame Kilpatrick was the mayor of Detroit.
During that time, he abused his position as a public servant—using a
nonprofit to fund personal expenses, extorting city contractors, and
pocketing public money and bribes at every opportunity.
1. A New Source of Cash
Before Kilpatrick became mayor, his banking habits were
unremarkable: a direct-deposited salary, with regular checks and cash
withdrawals for ordinary household expenses. (R.302: Tr., 4788–91,
4796–97). After he took office, those habits changed. (Id., 4768–88). He
stopped withdrawing cash and started depositing it—cash deposits into
his bank accounts, cash payments on his credit card, even cash
purchases of cashier’s checks. (Id.; Ex. KKF-12, App’x 354–55).
Over seven years, those cash deposits totaled over $531,000. (R.302:
Tr., 4791–92; Ex. KKF-12, App’x 354–55). That amount did not include
Kilpatrick’s salary. (R.302: Tr., 4792). It also only included money that
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investigators could identify from bank records—not any cash that
Kilpatrick spent directly. (R.396: Tr., 13536–37). Nor did Kilpatrick
disclose the cash on his tax returns. (Id., 13525). And Kilpatrick’s bank
records alone showed him spending $840,000 more than he earned from
his salary. (Id., 13541–49; Ex. KKF-29, App’x 357).
2. Mail and Wire Fraud at the Civic Fund (Counts 18–26, 28, and 30)
One of Kilpatrick’s schemes involved the Kilpatrick Civic Fund, a
nonprofit that he created two years before becoming mayor. (R.336: Tr.,
6260–64; Ex. KCF-2, App’x 129–68). Kilpatrick promised donors that
the Civic Fund would improve Detroit neighborhoods, contribute to city
youth, and support crime prevention and economic empowerment. (Exs.
KCF-2, -90, -92 to -95, -97, -99, App’x 129–68, 329–53). Donors relied on
that promise—and would not have contributed money if they had
known Kilpatrick would use the Civic Fund for his personal or
campaign expenses. (R.340: Tr., 6846–51, 6856–66, 6884–89, 6897–901;
R.341: Tr., 7034–40, 7064–73, 7089–95; R.342: Tr., 7147–57).
The Civic Fund served as Kilpatrick’s second checkbook, paying over
$152,000 of his personal expenses. (R.396: Tr., 13550–57; Ex. KKF-31,
App’x 358–59). Kilpatrick used the Civic Fund to pay for vacations in
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Vail and California. (R.338: Tr., 6557–81; R.385: Tr., 12082–88; Exs.
KCF-14 to -24, App’x 256–303). The Civic Fund paid for a down
payment on his new Cadillac. (R.394: Tr., 13304–09; Ex. KKF-23F,
App’x 356). It paid for his private yoga lessons and new golf clubs.
(R.338: Tr., 6523–36; R.340: Tr., 6946–55; R.385: Tr., 12088–91; Exs.
KCF-10, -11, App’x 252–55). It paid for summer camp for his children.
(R.339: Tr., 6717–21; Exs. KCF-62 to -64, App’x 311–20). Kilpatrick
even used the Civic Fund to buy counter-surveillance equipment to
sweep the mayor’s office for bugs. (R.337: Tr., 6477–502; Exs. KCF-8
to -9E, App’x 245–51).
In addition, Kilpatrick required the Civic Fund’s lead fundraiser,
Emma Bell, to pay him cash kickbacks. (R.335: Tr., 6081–122). The
Civic Fund paid Bell on commission: 10% of whatever she raised. (Id.,
6100). Whenever Bell received a commission check over $5,000,
Kilpatrick required her to split it with him. (Id., 6101–22, 6209–10).
Bell took her commission checks to the bank, withdrew up to $10,000 in
cash each time, and hand-delivered the money to Kilpatrick in a private
room abutting the mayor’s office. (Id.; R.334: Tr., 5970–83; R.381: Tr.,
11457; R.385: Tr., 12094; Exs. EB-2, -3, -6, App’x 47–53). In total, Bell
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paid Kilpatrick over $200,000 in cash. (R.335: Tr., 6116, 6203). Some of
it came from the Civic Fund; the rest, from Kilpatrick’s mayoral
campaign and inaugural committee—where he and Bell had the same
arrangement. (Id., 6101–22; Ex. EB-6, App’x 49–53).
Kilpatrick also used the Civic Fund to funnel money to his mayoral
campaign. In the Civic Fund’s solicitations, he promised donors: “No
funds of the Civic Fund are donated to any political campaign.” (Exs.
KCF-90, -92 to -95, -97, -99, App’x 329–53). He said the same thing on
camera: “We haven’t used one penny, one penny of the Civic Fund in
this campaign because it’s not allowed by law.” (Ex. KCF-1A (video
exhibit, on file with the clerk’s office)).
In reality, the Civic Fund paid approximately $150,000 of the
campaign’s expenses. (Exs. KCF-3 to -7, -31, -35, -36, App’x 169–244). It
paid for the mayoral campaign’s polling. (R.336: Tr., 6308–25; R.337:
Tr., 6433–44; R.385: Tr., 12053–59, 12080–83; Exs. KCF-3, -35, -36,
App’x 169–204, 239–44). It paid for the campaign’s focus groups. (R.336:
Tr., 6325–33; R.385: Tr., 12059–61; Ex. KCF-4, App’x 205–24). It paid
for the campaign’s public relations strategists. (R.337: Tr., 6374–82,
6411–19; Exs. KCF-5 to -7, App’x 225–34).
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As Kilpatrick came closer to resigning as mayor, he drained the Civic
Fund further. When the local news media began covering one of his
scandals, Kilpatrick spent almost $100,000 of Civic Fund money to hire
a nationally known crisis manager. (R.340: Tr., 6915–24; Ex. KCF-54,
App’x 306–08). He sent $50,000 to his father. (R.339: Tr., 6721–24; Ex.
KCF-55, App’x 309–10). He sent another $110,000 to his former chief of
staff. (R.339: Tr., 6700–03; Ex. KCF-47, App’x 304–05). And after
Kilpatrick resigned, he used the Civic Fund to pay his moving costs,
along with his rent and security deposit at a new apartment. (R.339:
Tr., 6746–60; R.341: Tr., 7047–56; Exs. KCF-78, -80, -81, -85, App’x
321–28).
3. Extortion at DWSD (Counts 2–5, 7–9)
The Detroit Water and Sewerage Department is the third-largest
water and sewer department in the country, servicing virtually all of
southeast Michigan. (R.348: Tr., 7485–88). Because of a longstanding
dispute with the EPA, DWSD spent decades under court supervision.
(Id., 7487–88). As part of that supervision, a federal judge named
Kilpatrick “special administrator,” permitting Kilpatrick to approve
DWSD contracts without scrutiny from the Detroit city council. (Id.,
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7490–91, 7508; Ex. IN1-1, App’x 69–71). And with an annual budget of
$1.2 billion, DWSD provided a wealth of opportunities. (R.348: Tr.,
7583).
Ferguson was a DWSD contractor—and Kilpatrick’s best friend.
(R.385: Tr., 12136–43). Early on, Kilpatrick instructed his top-ranking
cabinet officials to “help Bobby” get city business “at every opportunity.”
(Id., 12143–44). To further help his cause, Kilpatrick hand-picked Victor
Mercado as DWSD’s new director. (R.374: Tr., 10464–67; Exs.
IN1-1, -1B, App’x 69–82). Mercado served at Kilpatrick’s discretion,
oversaw all of DWSD’s contracts, and later pleaded guilty to
participating in an extortion conspiracy. (Ex. IN1-1B, App’x 72–82;
R.247: Plea Agreement, 1831–38).
With Kilpatrick’s backing, Ferguson secured over $83 million in
DWSD contracts. (Ex. BFF-5, App’x 7–11). At the same time, Ferguson
withdrew over $2.5 million in cash from his bank accounts. (R.399: Tr.,
13865–74; Ex. BFF-8, App’x 12–24). Investigators found more than $1
million in cash and cashier’s checks stuffed in Ferguson’s safes. (R.399:
Tr., 13835–51; Exs. BFF-10H, -11D, App’x 25–26). Ferguson and
Kilpatrick described where other cash went:
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Ferguson: . . . i am famous now.just need to get some money.
Kilpatrick: Lol! Right. Let’s get you some.
Ferguson: Us
(Ex. BCD-9, App’x 1–2). In other text messages, they said the same
thing—referring to “loot” and “cash” that Ferguson had ready for
Kilpatrick. (Exs. BFF-13 to -15, App’x 27–31). And like Emma Bell,
Ferguson regularly disappeared with Kilpatrick into the private room
next to the mayor’s office. (R.385: Tr., 12137).
a. Extortion of Inland
One of Kilpatrick’s and Ferguson’s first victims was Inland Waters, a
Detroit-based water and sewer contractor. (R.370: Tr., 10027–30). For
years, DWSD had contracted with Inland to re-line the city’s aging
sewer system. (R.360: Tr., 9184–85). Before that contract expired,
Inland bid on a successor contract called CS-1368. (Id., 9184–85, 9198–
202).
i. Count 2: Sewer-Lining Contract (CS-1368)
CS-1368 was a $50 million contract. (R.370: Tr., 10031–32). Inland
was awarded the contract, received DWSD approval, and executed the
documents. (R.360: Tr., 9198–202, 9213–14; R.382: Tr., 11639–40). All
Inland needed was a “start work” letter. (R.370: Tr., 10034–35).
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But then—at Kilpatrick’s direction—his chief administrative officer,
Derrick Miller, told Inland’s executives that they needed to hire
Ferguson. (R.386: Tr., 12204–06). Inland’s executives refused, because
Inland had already lined up its subcontractors. (Id., 12206). The
contract stopped moving. (R.370: Tr., 10034–35).
Inland’s executives soon heard that the contract was held up in the
mayor’s office. (Id.; R.372: Tr., 10282–83, 10290–91). Anthony Soave,
the owner of Inland’s parent corporation, arranged a meeting with
Kilpatrick. (R.370: Tr., 10035; Ex. IN1-3, App’x 83). Kilpatrick told
Soave that Inland “had the wrong subcontractor,” and needed to use
Ferguson. (R.370: Tr., 10035–36). Faced with losing a $50 million
contract, Soave caved—agreeing to substitute Ferguson for Inland’s
existing minority subcontractor. (Id., 10036–39).
But Inland’s negotiations with Ferguson proved difficult. (R.372: Tr.,
10294–313). He refused to accept any financial risk and demanded a
guaranteed profit margin. (Id.). Inland’s executives, however, knew that
they were “essentially in a forced marriage”—and that Ferguson “had
been chosen by Mayor Kilpatrick as [Inland’s] subcontractor.” (Id.,
10299). With that “constant threat” lurking in the background, they
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came to terms with Ferguson and added him as a subcontractor. (Id.,
10315, 10320; Ex. IN1-19, App’x 86).
But Ferguson’s work was so poor that DWSD sent Inland a “stop-
work” order, demanding that Ferguson stop working until he fixed his
deficiencies. (R.372: Tr., 10315–18; Ex. IN1-31, App’x 87–88). Confused
by DWSD’s order, Soave went back to see Kilpatrick. (R.372: Tr.,
10322). He asked, “Is Bobby still your guy?” (Id., 10258). Kilpatrick
confirmed, “Yes, he’s still my guy.” (Id.). So Inland kept working with
him. (R.370: Tr., 10049).
Ferguson, however, did not like being blamed for his bad work.
(R.372: Tr., 10318). He complained about being “disrespected”—that
Inland’s executives “did not give him the credit that he deserved for
[Inland] having the contract.” (Id., 10319). And whenever Inland
rebuked Ferguson—or considered cutting him off—he fired back with
threats, emphasizing to Inland’s executives “that the risk of losing the
work . . . was hanging over [their] heads.” (Id., 10320).
ii. Count 3: Sinkhole Repairs (Amendment 4)
In August 2004, a sewer line collapsed in Sterling Heights, forming a
massive sinkhole in the middle of 15 Mile Road. (R.391: Tr., 12873; Ex.
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IN1-32A, App’x 89). After meeting with Victor Mercado, Kilpatrick
immediately texted Ferguson about their new opportunity: “You got to
get with Victor on this Sterling hts job.” (Exs. IN1-33, -34A, App’x 90–
93). Ferguson, Kilpatrick, and Mercado then coordinated on how
Ferguson could move in. (R.374: Tr., 10433–34; Exs. IN1-34, -39, -68,
App’x 94–98). And shortly after Ferguson arrived at the sinkhole to
start working, Kilpatrick signed a special administrative order to add
the sinkhole repairs to Inland’s (and Ferguson’s) existing contract, CS-
1368. (R.360: Tr., 9239; R.391: Tr., 12879–85).
The repairs lasted over a year. (R.360: Tr., 9242). Finally, in August
2005, DWSD prepared a $12 million amendment to CS-1368—known as
Amendment 4. (Ex. IN1-46, App’x 99–109). DWSD then sent
Amendment 4 to the mayor’s office. (Ex. IN1-52, App’x 113–14).
Kilpatrick refused to sign it. (R.379: Tr., 11149; R.386: Tr., 12209–
10). He explained to Miller that “Inland hadn’t paid Bobby”—so
Amendment 4 “was not going to move forward until he received his
payment.” (R.386: Tr., 12209–10). When Inland and another
subcontractor, Insituform, contacted the mayor’s office, the answer was
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the same: “You need to talk to Bobby.” (R.379: Tr., 11154–57; R.372: Tr.,
10325–27; R.386: Tr., 12211–14; Exs. IN1-47, -50, -66, App’x 110–12).
Ferguson told Inland’s and Insituform’s executives that “the
amendment wouldn’t move” unless they increased his fees. (R.379: Tr.,
11153–54; R.386: Tr., 12209–10). He stated that Inland had been
chosen for the sinkhole repairs “only because of him,” that “he had not
been given appropriate credit for getting Inland its work,” and that
Inland had “some things to fix.” (R.372: Tr., 10319, 10328–29). And at
another meeting, Miller stopped by during negotiations to remind
Inland of Ferguson’s special status. (R.386: Tr., 12215–16).
Finally, with “this sword dangling over their head[s],” Inland and
Insituform succumbed to Ferguson’s terms. (R.372: Tr., 10329–31;
R.379: Tr., 11167–68; R.380: Tr., 11302–07). Kilpatrick then signed a
special administrative order, authorizing Amendment 4. (Ex. IN1-46,
App’x 99–109). In total, Ferguson received over $20 million on CS-1368,
with approximately $3 million coming from the sinkhole repairs. (Exs.
BFF-5, IN2-12, App’x 7–11, 115).
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b. Extortion of Lakeshore
In 2002, with Ferguson as its subcontractor, Inland bid on a $10
million sewer-repair contract, CS-1361. (R.356: Tr., 8676, 8686).
Another contractor, Lakeshore Engineering, also submitted a bid.
(R.361: Tr., 9277; Ex. LS1-9B, App’x 368–73). Lakeshore won the
bidding. (R.361: Tr., 9277–81; Exs. LS1-9, -9A, -10, App’x 360–67).
Ferguson then paid a visit to Tom Hardiman, one of Lakeshore’s
executives, and demanded 25% of the contract. (R.352: Tr., 8088–92).
Hardiman said no—Lakeshore already had its team together. (Id.,
8092). Ferguson replied, “It still has to go across the mayor’s desk.”
(R.354: Tr., 8352; R.352: Tr., 8093–94).
Kilpatrick ordered Mercado to hold up the contract. (R.386: Tr.,
12222–24; Ex. LS1-11, App’x 374). Concerned about the delay,
Lakeshore’s executives flooded city hall with calls and emails—and
were met with silence. (R.352: Tr., 8095–98; R.356: Tr., 8690–93; Exs.
LS1-13, -17, -19, App’x 375–77). When Hardiman finally met with
Miller, Kilpatrick instructed Miller “to listen and be vague.” (Ex.
LS1-16, App’x 378; R.386: Tr., 12226–29). All the while, Ferguson and
Kilpatrick considered the best approach to benefit Ferguson—such as
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adding CS-1361 to Inland’s and Ferguson’s existing contract, CS-1368.
(Exs. IN1-15, LS1-12, App’x 84–85).
Finally, at Ferguson’s request, Kilpatrick canceled CS-1361. (R.386:
Tr., 12229–31). DWSD then gave that same sewer-repair work to Inland
and Ferguson under CS-1368. (R.360: Tr., 9228–31; R.361: Tr., 9295–
97).
i. Counts 7 and 8: Outfalls Contract (DWS-849) and Asbestos Abatement Contract
Lakeshore’s executives had learned their lesson from the cancelation
of CS-1361. (R.352: Tr., 8139; R.356: Tr., 8696–701). They decided that
next time, Lakeshore would team up with Ferguson. (R.352: Tr., 8127–
28).
That next time was DWS-849, a $19.9 million contract to repair the
outfalls where overflow stormwater drains into the Detroit River. (Id.,
8123–24; R.355: Tr., 8553; R.356: Tr., 8649–52). One of the
subcontractors on Lakeshore’s bid was Lanzo—a company that
specialized in relining the interior of an outfall without excavating the
entire pipe. (R.352: Tr., 8124–27; R.356: Tr., 8652–64, 8704–07).
Ferguson became Lakeshore’s excavation contractor. (R.352: Tr.,
8125–26). Not because of his expertise; rather, Lakeshore did not want
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to lose another contract. (Id., 8127–31; R.355: Tr., 8576–77; R.356: Tr.,
8707–08). And when one of Lanzo’s executives complained about
Ferguson’s share of the work, Hardiman responded that there would be
no contract without Ferguson. (R.355: Tr., 8577–78). Ferguson gloated
about Hardiman’s statement—“no deal without me”—in a text message
to Miller:
Ferguson: Lanzo is pissed off about me being here about this job, and I mean pissed.
* * *
Only lanzo, tom is here saying the same thing you are saying and telling them no deal without me, he gotten smart, I am just sitting here listening.
(Ex. LS2-2, App’x 380).
Soon after Lakeshore won the contract, Ferguson demanded a
greater cut of it. (R.352: Tr., 8135–39; R.356: Tr., 8715–16). Lakeshore’s
executives did not want to risk losing the contract. (R.352: Tr., 8139). So
they paid Ferguson $1 million for doing no work. (Id., 8139–41; R.356:
Tr., 8716–20).
But that wasn’t enough. In September 2005, Lakeshore sought a $6–
$8 million amendment (or “change order”) to DWS-849 to rehabilitate
six additional outfalls. (R.352: Tr., 8143–46; R.356: Tr., 8721–22). At the
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same time, Lakeshore also sought a $1.5 million change order on an
existing asbestos abatement contract. (R.352: Tr., 8143–46; R.356: Tr.,
8721).
Ferguson had not done any work on either contract. (R.352: Tr.,
8144–47; R.357: Tr., 8761–63). Nevertheless, he demanded a 5%
payment for each change order, totaling approximately $450,000.
(R.352: Tr., 8146–47). And Lakeshore paid, because it “did not want any
of [its] work to be stopped.” (R.357: Tr., 8765–66; R.352: Tr., 8147–48).
To hide these “no show” payments, Ferguson submitted phony
invoices from Johnson Consultant Services, a company set up in his
wife’s name. (R.352: Tr., 8150–58; R.357: Tr., 8742; Ex. LS2-17, App’x
381). Lakeshore’s executives paid the invoices through Lakeshore’s real
estate affiliate, so that their employees would not start asking
questions. (R.352: Tr., 8158–61; R.356: Tr., 8723–35). In total,
Lakeshore paid Ferguson over $1.7 million—even though Ferguson
performed no work. (R.352: Tr., 8157–58; R.357: Tr., 8742–66).
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ii. Count 9: Water-Main Contract (CM-2014)
In 2006, DWSD approved two contracts for replacing water mains in
Detroit. (R.348: Tr., 7539–40). They were sibling contracts: CM-2015
covered the city’s west side; CM-2014, the east side. (R.357: Tr., 8766).
Lakeshore again wanted Ferguson on its bid, so that it would not
risk losing another contract. (Id., 8772–74). Ferguson, however, was
already bidding on the contracts as part of a joint venture called Detroit
Program Management (DPM). (Id.; R.348: Tr., 7541–44). He told
Lakeshore to add a subcontractor called E&T Trucking—a small
construction firm that was paying Ferguson a “fee.” (R.352: Tr., 8171–
73; R.357: Tr., 8772–77; R.379: Tr., 11238–39).
Neither DPM nor Lakeshore won the bidding. (R.348: Tr., 7544–50).
DPM finished third on both contracts; Lakeshore, fifth. (Id.; Exs. LS3-4,
-6, App’x 382–83). But without telling the bidders, Mercado ordered
DWSD’s employees to alter the methodology for ranking the bids—
adopting a new, average-cost methodology that DWSD rarely used and
made no sense for this type of contract. (R.348: Tr., 7558–62; R.359: Tr.,
9060–70). At the same time, Kilpatrick ordered a city official to revoke a
rival contractor’s certification as a Detroit-headquartered business,
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causing the contractor to lose points from its bid. (R.348: Tr., 7556–58;
R.361: Tr., 9358–80; R.367: Tr., 9538–47, 9584–96). With those changes,
DPM won CM-2015, and Lakeshore won CM-2014. (R.348: Tr., 7558–64;
R.359: Tr., 9054–55, 9087–91; Exs. LS3-13, -14,-16 to -18, -36, App’x
384–98).
Soon after the bid-rigging, Ferguson demanded that Lakeshore pay
him for “management services.” (R.352: Tr., 8177–78; R.357: Tr., 8778–
83). Rather than risk losing the contract, Lakeshore agreed. (R.352: Tr.,
8178–82; R.357: Tr., 8783–85). Ferguson did not provide any
management services. (R.352: Tr., 8182–89; R.357: Tr., 8785–94). But
Lakeshore still paid him over $700,000. (R.357: Tr., 8792–94).
Later, when a change order added millions in new work to CM-2014,
Ferguson demanded more. (R.352: Tr., 8189–93; R.357: Tr., 8794–98).
He threatened Lakeshore’s executives, saying, “I’ll get your contract
stopped,” and “I will shut down your job.” (R.352: Tr., 8192; R.357: Tr.,
8796). Once again, Lakeshore gave in. (R.352: Tr., 8189–98; R.357: Tr.,
8799–800; R.379: Tr., 11226–32). In total, Ferguson received over $4.1
million on CM-2014. (Ex. BFF-5, App’x 7–11).
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c. Extortion and Attempted Extortion of Walbridge
Ferguson and Kilpatrick also targeted a Detroit-based general
contractor called Walbridge Aldinger. (R.379: Tr., 11168–205). In
August 2002, Walbridge hired a politically connected consultant,
Bernard Parker, as its director of business development. (Id., 11139–
40). When Ferguson found out, he texted Kilpatrick: “Bernard parker
work for walbridge now . . . we can use this to our advantage.” (Ex.
WA1-1, App’x 502).
i. Count 4: Baby Creek and Patton Park (PC-748)
That advantage arrived only weeks later, when DWSD advertised a
$75 million contract, PC-748, to rebuild the sewers at Baby Creek and
renovate the recreation center at Patton Park. (R.379: Tr., 11169–75).
Ferguson informed Kilpatrick and Miller that he wanted to be part of it.
(R.386: Tr., 12242–43). But when he bid to be one of Walbridge’s
subcontractors, he lost out. (R.390: Tr., 12824–25; Ex. WA1-3, App’x
504–06). He texted Kilpatrick: “Walbridge is not playing ball . . . .
[They] need to be made believers that they are not in control.” (Ex.
WA1-2, App’x 503).
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On February 6, 2003, Walbridge submitted its bid—and the bids
were very close. (R.379: Tr., 11172–73; R.380: Tr., 11370–75).
Walbridge’s executives were confident that Walbridge would win the
contract once DWSD equalized the bids and credited Walbridge for
being headquartered in Detroit. (R.380: Tr., 11370–75; see generally
R.348: Tr., 7492–500). But soon, they became concerned that DWSD
would not equalize the bids correctly. (R.379: Tr., 11180–82).
Parker hurried to the mayor’s office to speak with Miller. (Id., 11182,
11185–86). At Kilpatrick’s direction, Miller asked Parker, “Well, is
Bobby in on the deal?” (Id., 11182–83; R.386: Tr., 12240–43). Miller
then suggested that Walbridge hire Ferguson to renovate Patton Park.
(R.386: Tr., 12240–43). Parker responded that Walbridge already had
its team together. (R.379: Tr., 11182–83; R.386: Tr., 12242). Miller
replied, “Well, see if you can put him in on the deal.” (R.379: Tr., 11183–
84).
Parker relayed Miller’s comments to Walbridge. (Id., 11185–86).
Walbridge’s executives were upset. (Id., 11186–87). But they decided to
include Ferguson because they were worried about losing the contract.
(Id., 11193).
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They began negotiating with Ferguson. (Id., 11194; R.386: Tr.,
12243–49; Exs. WA1-6, -8, App’x 507–09). Meanwhile, DWSD
tentatively awarded the contract to Walbridge, despite pending bid
protests from the other firms. (R.380: 11376–78; R.386: Tr., 12249–50;
Ex. WA1-9A, App’x 510–11). Mercado, however, delayed the final
results—ordering city officials “to hold off on sending out [the] response
to the bid protests until Mr. Mercado calls Mr. Miller in the Mayor’s
Office.” (Exs. WA1-10, -11, App’x 512–13; R.386: Tr., 12250–53).
The next day, Walbridge yielded—agreeing to a $12.7 million
subcontract with Ferguson. (Ex. WA1-14, App’x 514; R.379: Tr., 11194–
98). The contract was only one page long. (Ex. WA1-14, App’x 514). It
was handwritten—an “unusual” characteristic for a $12.7 million
construction contract. (R.379: Tr., 11197; Ex. WA1-14, App’x 514). It
also covered the $10 million of work at Patton Park, the same work that
Miller had previously suggested. (R.386: Tr., 12253–54; Ex. WA1-14,
App’x 514). In another “unusual” step, Ferguson was not required to
post a performance bond. (R.379: Tr., 11196; Ex. WA1-14, App’x 514).
A week later, Mercado recommended that Walbridge win the
contract. (Ex. WA1-16, App’x 515). Kilpatrick then approved the
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contract in his role as special administrator. (Ex. WA1-18, App’x 517–
18). Ultimately, Ferguson received almost $13.5 million on the project.
(Ex. BFF-5, App’x 7–11).
ii. Count 5: Oakwood Pump Station (PC-755)
The Oakwood Pump Station was a $150 million contract. (R.379: Tr.,
11205–06). Ferguson demanded that Walbridge bid on it with him in a
joint venture. (Id., 11206–07). He told Walbridge’s executives that he
wanted 30–35% of the deal, but without obtaining a performance bond
or assuming any risk. (Id., 11206–10). Walbridge’s executives refused,
because they would have been forced to bond the whole project and
assume all of the risk. (Id.).
Ferguson told Walbridge’s executives that Mercado would be calling
and instructing them to partner with Ferguson. (Id., 11210–12). To
increase the pressure on Walbridge, Ferguson also set up a meeting
between Kilpatrick and Walbridge’s CEO at the mayor’s mansion so
they could discuss the contract. (R.379: Tr., 11213–15; Ex. WA2-1A,
App’x 516). And Ferguson arranged for DWSD to delay the bid date, so
Mercado would have time to speak with one of Walbridge’s executives.
(R.379: Tr., 11215–17).
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Still, Walbridge refused to accept Ferguson’s terms. (Id., 11217).
Ferguson told Parker that he was looking at other contractors and
would get work from whichever contractor won the project. (Id., 11217–
18). Walbridge and Ferguson never reached a deal. (Id.).
4. More to the RICO Conspiracy (Count 1)
Kilpatrick did not stop with the Civic Fund or DWSD. From the very
beginning of his term as mayor (and even before it), Kilpatrick teamed
up with Ferguson to line their pockets—misappropriating state grant
money, threatening contractors, and rigging bids. All the while,
Kilpatrick pocketed bribe after bribe from city vendors.
a. Misappropriating the State Arts Grant
Even before he became mayor, Kilpatrick funneled public money to
Ferguson. As state representative, Kilpatrick procured a $500,000
community grant for “Detroit 3D”—a nonprofit set up by Ferguson’s
wife. (R.330: Tr., 5396–401, 5424–30; R.331: Tr., 5557–65; R.385: Tr.,
12039–41; Exs. SG-7, -11, App’x 431–35). Detroit 3D promised to fund
“academic assistance” for young people and “meals and assistance” for
seniors. (Ex. SG-11, App’x 432–35). Instead, when Ferguson received
the first half of the grant, he wired $100,000 to a corporation set up by
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Kilpatrick’s wife. (R.331: Tr., 5576–79; R.332: Tr., 5794–95, R.334: Tr.,
5967–70; Exs. SG-8A, -17, -32, App’x 436–76). He used the rest of the
money to renovate his offices and buy a house. (R.332: Tr., 5677–730,
5766–88; Exs. SG-24A to -25B, -32, -34A to -34D, App’x 474–501). And
when state budget officials asked questions, Ferguson sent back
falsified invoices. (R.332: Tr., 5677–730; Exs. SG-17, -24A to -25B, -32,
-34A to -34D, App’x 443–501).
b. Threats on CM-2012
Early in Kilpatrick’s administration, a firm called DLZ won a
contract, CM-2012, to oversee water-main replacement in downtown
Detroit. (R.348: Tr., 7509–14). When DLZ collected bids from other
contractors, Ferguson finished ninth out of ten bidders. (Id., 7517–20;
Ex. DLZ-10, App’x 43–46). But DLZ still agreed to give Ferguson work,
because Mercado told them that it “would be well received by the
mayor.” (R.350: Tr., 7759–61). Ferguson, though, was DLZ’s most
difficult contractor. (Id., 7761–62). When DLZ complained to Mercado,
Ferguson threatened: “Don’t worry about the director”—“you need to
worry about me.” (Id., 7762–64).
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c. Bid-Rigging at Heilmann
Johnson Akinwusi was a contractor who bought Kilpatrick $4,800 in
suits in the hope of winning city contracts. (R.376: Tr., 10703–08). Soon
after, Ferguson’s company offered to partner with Akinwusi on a bid for
renovating the Heilmann Recreation Center. (Id., 10708–14). Their
team finished fourth out of five bidders. (R.377: Tr., 10914–32; Ex.
HLM-8, App’x 54–55). Because Kilpatrick’s chief of staff, Christine
Beatty, controlled the decision, they won anyway. (R.377: Tr., 10985–
11003; R.378: Tr., 11086–97; Exs. HLM-9, -12 to -15, App’x 56–67).
Ferguson’s company then received $161,000 on the contract, even
though his staff performed very little work. (R.376: Tr., 10719–21; Exs.
BFF-5, HLM-32, App’x 7–11, 68). And when the city project manager
questioned how Ferguson’s employees could work 40-hour weeks at
Heilmann and 40-hour weeks at another site simultaneously, Ferguson
threatened her job. (R.377: Tr., 10934–50).
d. Bribery
Kilpatrick also took bribes from city vendors. Jon Rutherford gave
Kilpatrick thousands in cash, $10,000 worth of suits from Dubai, and
championship boxing tickets in Vegas—all in exchange for Kilpatrick’s
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support to develop and finance a casino. (R.342: Tr., 7225–51, 7268–77;
R.347: Tr., 7321–28; Exs. RUTH-15, -16, -19, -20, App’x 416–29). Karl
Kado, a contractor at the city’s convention center, paid Kilpatrick
thousands in cash bribes to protect his cleaning and electrical contracts.
(R.368: Tr., 9661–87; R.385: Tr., 12110–24; Exs. COBO-12, -14, App’x
33–34). Derrick Miller passed along thousands more to Kilpatrick in
cash bribes from the city’s property-management contractor. (R.386: Tr.,
12125–33). Miller also slipped Kilpatrick $10,000 in the men’s room at
an Asian restaurant—a cash kickback for the restaurant’s financing
from the city’s pension funds. (R.387: Tr., 12309–22). And Anthony
Soave gave Kilpatrick an expensive watch, tickets to the 2004 NBA
Finals, and almost $400,000 worth of free flights on Soave’s private jet,
all to avoid risking Inland’s contracts. (R.370: Tr., 10054–74; Ex. JET-3,
App’x 124–28).
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5. Jury’s Verdict
After a six-month trial, the jury convicted Kilpatrick of 24 counts:
Count Description Statute 1 RICO Conspiracy 18 U.S.C. § 1962(d) 2 Extortion of Inland on the Sewer-
Lining Contract (CS-1368 ) 18 U.S.C. §§ 1951 and 2
3 Extortion of Inland on Amendment 4 (CS-1368)
4 Extortion of Walbridge on the Baby Creek Contract (PC-748)
5 Attempted Extortion of Walbridge on the Oakwood Pump Station (PC-755)
9 Extortion of Lakeshore on the Water-Main Contract (CM-2014)
17 Bribery 18 U.S.C. §§ 666(a) and 2
18–26, 28, 30
Mail and Wire Fraud at the Civic Fund 18 U.S.C. §§ 1341 and 1343
31–35 False Tax Returns 26 U.S.C. § 7206 36 Tax Evasion 26 U.S.C. § 7201 (R.277: Verdict Form, 2213–34). The jury convicted Ferguson of nine
counts—seven that mirrored Kilpatrick’s verdict (counts 1-5, 9, and 17),
plus two other extortion counts:
Count Description Statute 7 Extortion of Lakeshore on the Outfalls
Contract (DWS-849) 18 U.S.C. §§ 1951 and 2 8 Extortion of Lakeshore on the Asbestos
Abatement Contract (Id.). Both defendants timely appealed.
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Summary of the Argument
First, Kilpatrick cannot demonstrate an actual conflict from his
attorneys’ “of counsel” affiliation with a law firm that was suing him in
a separate civil case. The attorneys carefully erected an ethical wall to
prevent any exchange of confidential information or division of loyalties.
The district court also appointed independent counsel to safeguard
Kilpatrick’s interests further. And Kilpatrick does not specify how the
“of counsel” affiliation adversely affected his representation here, as he
must to prevail. Nor does he show Strickland prejudice, as he must
under Mickens v. Taylor, 535 U.S. 162, 174–76 (2002). Instead, he
invokes Holloway’s automatic reversal rule and Cuyler’s presumption of
prejudice—neither of which applies to conflicts other than joint
representation of codefendants. Mickens, 535 U.S. at 168, 174–76.
Second, the defendants’ primary evidentiary argument does not
demonstrate reversible error. This Court’s recent decision in United
States v. Freeman, 730 F.3d 590 (6th Cir. 2013), only prohibited certain
agent interpretations of wiretap recordings under Federal Rule of
Evidence 701. It did not prohibit all agent testimony. And here, most of
the testimony in the defendants’ briefs was admissible under other
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rules of evidence. That testimony included background evidence;
publishing exhibits; short references to previously admitted evidence
under Rule 611(a); summaries of voluminous documents or recordings
under Rule 1006; testimony about omissions from records, also under
Rule 1006; and objections that the defendants outright waived. The
remaining testimony was also admissible, even after Freeman. That
testimony primarily involved uncontroverted names or nicknames, the
very type of lay opinion testimony that courts routinely allow—and that
the defendants here agreed was proper. And any errors were harmless:
uncontested or tangential drops in a bucket of damning evidence.
Third, the testimony in the defendants’ remaining argument consists
only of contemporaneous statements to or by extortion victims. Those
non-hearsay statements demonstrated the victims’ fear of the
defendants—a “highly relevant” fact in an extortion case. United States
v. Collins, 78 F.3d 1021, 1036 (6th Cir. 1996); United States v. Williams,
952 F.2d 1504, 1518 (6th Cir. 1991). The district court therefore did not
abuse its discretion in admitting that testimony.
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Argument
I. Kilpatrick cannot establish an actual conflict, much less the Strickland prejudice that Mickens now requires.
A. Background
In 2008, Kilpatrick retained James Thomas and Michael Naughton
to represent him in the many civil and criminal cases that threatened
his grip on the mayor’s office. (R.203: Thomas Conflict Memo., 1580–
83). Two years later, when Kilpatrick was first indicted in federal court,
he claimed indigency and asked the district court to appoint Thomas
and Naughton as his defense attorneys. (R.4: Thomas Appearance, 37;
R.10: CJA Motion, 44–47). The district court agreed. (R.12: CJA Order,
51). And for over two years, Kilpatrick had no complaints.
Then, the day before 400 potential jurors arrived at the courthouse to
fill out questionnaires, Kilpatrick suddenly demanded that the district
court replace Thomas and Naughton with new lawyers. (R.206: Tr.,
1670–96). Kilpatrick’s sole reason was that Thomas had once
represented Gasper Fiore, a towing contractor who was one of the
alleged extortion victims. (Id.; R.74: Fourth Superseding Indictment,
445–46, 459). To resolve Kilpatrick’s complaint and avoid delaying trial,
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the government agreed to dismiss any Fiore-related allegations from
the indictment. (R.204: Gov’t Conflict Br., 1650–53).
But meanwhile, the Detroit Free Press reported that Thomas and
Naughton had established an “of counsel” affiliation with O’Reilly
Rancilio, P.C. (R.204: Gov’t Conflict Br., 1654). O’Reilly Rancilio
represented a plaintiff who was suing Kilpatrick (and others) in a civil
case. (E.D. Mich. No. 11-13101, R.1: Complaint, 1–19). The allegations
in the civil complaint tracked some of the allegations from Kilpatrick’s
criminal indictment related to the sinkhole repairs. (Id.). After reading
the Free Press article, the district court ordered the parties to brief any
conflict arising from the “of counsel” affiliation. (R.204: Gov’t Conflict
Br., 1654).
Thomas and Naughton explained that they had become “of counsel”
to O’Reilly Rancilio four months earlier. (R.203: Thomas Conflict
Memo., 1581). Cognizant of the pending civil case, they had erected an
ethical wall between their work on the criminal case and O’Reilly
Rancilio’s work on the civil case. (Id., 1581, 1584). They had at all times
kept their client files—including Kilpatrick’s—at their own office in
Detroit, apart from O’Reilly Rancilio’s office in the suburbs. (Id., 1581).
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They had maintained their electronic files on a separate, password-
protected server that no one from O’Reilly Rancilio could access. (Id.).
They had refrained from any substantive discussions with anyone from
O’Reilly Rancilio. (Id., 1584). And they had carefully avoided any
financial connection with the civil case. (Id.).
At a hearing, Thomas again confirmed that he and O’Reilly Rancilio
had “instituted [a] Chinese wall” to forestall any conflict. (R.362: Tr.,
9394). He again confirmed that he and O’Reilly Rancilio did “not share
information,” that their offices and computers were separate, and that
they had not exchanged any confidential information. (Id., 9394–95). He
again confirmed that he had “no financial interest in that case.” (Id.,
9394). O’Reilly Rancilio soon verified that same information in the civil
case, confirming that Thomas and Naughton “d[id] not have a financial
interest” in the firm—and, indeed, only “share[d] revenue” with O’Reilly
Rancilio “on individual files on which they work[ed] together.” (R.463:
Rule 33 Order, 15669).
Given those precautions, the district court denied Kilpatrick’s motion
to replace Thomas and Naughton. (R.199: Conflicts Order, 1560–75).
The district court found the attorneys’ safeguards sufficient to avoid any
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imputed disqualification from the “of counsel” affiliation. (Id., 1563–66).
And “[t]o further protect against any potential conflict,” the district
court appointed independent counsel, Harold Gurewitz, “to cross-
examine all government witnesses connected to” the civil case. (Id.,
1567; R.207: CJA Appointment, 1698).
B. Kilpatrick cannot satisfy either requirement for demonstrating an actual conflict under the Sixth Amendment.
A defense attorney’s conflict of interest can, in some circumstances,
violate a defendant’s Sixth Amendment right to counsel. Mickens v.
Taylor, 535 U.S. 162, 166 (2002). But there are no “per se conflicts”—
only “actual conflicts.” Moore v. Mitchell, 708 F.3d 760, 777 (6th Cir.
2013). To demonstrate an actual conflict, a defendant must establish
both that (1) his counsel “actively represented conflicting interests,” and
(2) the alleged conflict “adversely affected his lawyer’s performance.”
Burger v. Kemp, 483 U.S. 776, 783 (1987) (citations omitted); see also
Mickens, 535 U.S. at 171–72 & n.5. Kilpatrick can do neither.
1. Kilpatrick cannot show that his defense team suffered from divided loyalties.
For three reasons, Kilpatrick cannot show that his attorneys
“actively represented conflicting interests.” Burger, 483 U.S. at 783.
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First, the district court correctly found that Thomas’s and Naugton’s
“of counsel” affiliation with O’Reilly Rancilio was “extremely
attenuated” and did not strain their loyalty to Kilpatrick. (R.362: Tr.,
9423–24). All of the evidence—both in writing and at the conflicts
hearing—demonstrated that Thomas and Naughton preserved their
duty of confidentiality. They kept Kilpatrick’s files at their own,
separate office; they used separate, password-protected computers; and
they avoided any substantive discussions with anyone from O’Reilly
Rancilio. (R.203: Thomas Conflict Memo., 1581, 1584; R.362: Tr., 9394–
95). They also preserved their duty of loyalty, taking no financial
interest in the civil case—or in O’Reilly Rancilio generally. (R.203:
Thomas Conflict Memo., 1584; R.362: Tr., 9394–95; R.463: Rule 33
Order, 15669).
Indeed, the facts here mirror those that the Second Circuit found
sufficient to avoid disqualification in Hempstead Video, Inc. v. Valley
Stream, 409 F.3d 127 (2d Cir. 2005). There, as here, an attorney became
“of counsel” to a law firm while that firm was suing one of his
longstanding clients in a separate lawsuit. Id. at 130. Like Thomas and
Naughton, the “of counsel” attorney “maintained separate files,” his
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new firm “did not have access to the files,” and neither side disclosed
any confidential information to the other. Id. at 136. And on those facts,
the Second Circuit found the “of counsel” affiliation “too attenuated” to
impute any conflict. Id. That reasoning applies just as strongly here.
Second, the district court here adopted an additional safeguard not
present in Hempstead Video—appointing independent counsel to join
Kilpatrick’s defense team. (R.199: Conflicts Order, 1567). This Court
has previously approved of using independent counsel in a similar
fashion. United States v. Robinson, 290 F. App’x 769, 774 (6th Cir.
2008). The Seventh Circuit has also endorsed it—lauding it as an “easy
solution” to “eliminate[] all risks.” Rodriguez v. Chandler, 382 F.3d 670,
673 (7th Cir. 2004). Other circuits have approved similar approaches.
E.g., United States v. Wright, 745 F.3d 1231, 1233–34 (D.C. Cir. 2014);
United States v. Burns, 526 F.3d 852, 857 (5th Cir. 2008); United States
v. Saccoccia, 58 F.3d 754, 772 & n.13 (1st Cir. 1995).
Independent counsel’s involvement at trial here was no mere
formality. He coordinated with Thomas and Naughton on defense
strategy. (See, e.g., R.353: Tr., 8217–18; R.370: Tr., 10042–43; R.372:
Tr., 10250; R.425: Tr., 15063–65; R.426: Tr., 15081). He sat at counsel
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table during large stretches of trial—even testimony unrelated to the
sinkhole. (E.g., R.301: Tr., 4641; R.353: Tr., 8212; R.356: Tr., 8603;
R.358: Tr., 8811; R.359: Tr., 8960; R.360: Tr., 9110; R.361: Tr., 9249;
R.368: Tr., 9652; R.369: Tr., 9785). He thoroughly cross-examined
Anthony Soave, the Inland witness who described Kilpatrick’s extortion
in the mayor’s office. (R.382: Tr., 11664–719; R.372: Tr., 10226–49,
10271–73). And throughout the six-month trial, independent counsel
never once suggested that he could not protect Kilpatrick’s interests or
that the remedy fashioned by the district court was inadequate.
Third, subsequent developments in the civil case rendered any
potential conflict even more remote. Before any witnesses testified here
about the sinkhole, O’Reilly Rancilio’s client voluntarily dismissed all
claims against Kilpatrick in the civil case. (E.D. Mich. No. 11-13101,
R.241: Response, 4316–18; E.D. Mich. No. 11-13101, R.251: Order,
4476). That dismissal meant that O’Reilly Rancilio could no longer
benefit from a guilty verdict under principles of res judicata or
collateral estoppel. So the only remote risk was that Thomas or
Naughton might somehow deliberately acquiesce in unfavorable
evidence, helping O’Reilly Rancilio—but not Thomas or Naughton—to
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someday benefit from that evidence to win its remaining claims against
unrelated parties in the civil case. Even assuming that were plausible
(itself quite an assumption), independent counsel was there to protect
against it.
None of Kilpatrick’s counterarguments change the analysis. His best
authorities are two advisory ethics opinions that adopt a one-size-fits-
all approach to “of counsel” affiliations. (Kilpatrick Br. 23–24). But as
the Second Circuit explained in distinguishing similar opinions, a court
“cannot paint with [the] broad strokes” of a “per se rule,” because it
“risks elevating the label assigned to a relationship over the substance
of that relationship.” Hempstead Video, 409 F.3d at 135; see also 1
Mallen et al., Legal Malpractice § 5:7 (2014 ed.) (“The mere designation
. . . of the lawyer as ‘of counsel’ should not suffice as the sole basis for
imputing conflicts of interest.”).
Further, Kilpatrick gets his causation backwards. He assumes that
Thomas and Naughton would only call themselves “of counsel” if their
connection to O’Reilly Rancilio was as intimate as the ethics opinions
assume. (Kilpatrick Br. 23–24). That is simply not true. Rather, as the
district court’s inquiry confirmed, the “of counsel” affiliation here
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echoed the type of “occasional collaborative efforts” that the ethics
opinions disclaim. ABA Formal Op. 90-357. That attenuated
relationship thus further supports the fact-specific approach to “of
counsel” affiliations that the Second Circuit adopted in Hempstead
Video, 409 F.3d at 135–36.
2. Kilpatrick cannot demonstrate that any conflict adversely affected his attorneys’ performance.
Kilpatrick also cannot show that the alleged conflict “actually
affected the adequacy of his representation.” Mickens, 535 U.S. at 171
(quoting Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980)). To satisfy his
burden, Kilpatrick must “point to specific instances in the record . . .
and demonstrate that the attorney[s] made a choice between possible
alternative courses of action, such as eliciting (or failing to elicit)
evidence helpful to one client but harmful to the other.” Moore, 708 F.3d
at 777.
Kilpatrick does not do so. His 17-page conflict argument includes
only a footnote on this point, vaguely hinting that Thomas should have
asked Miller more questions “about conversations with Kilpatrick
regarding contracts in this case.” (Kilpatrick Br. 21 n.7). Kilpatrick does
not specify:
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• What additional questions Thomas should have asked;
• What Miller might have said—beyond just repeating incriminating testimony;
• Why any reasonable attorney would have extended Miller’s three days of cross-examination; or
• How O’Reilly Rancilio’s client could have possibly benefitted from the absence of additional questioning.
Because Kilpatrick does not identify any specific actions or choices
affected by the “of counsel” affiliation, his claim must fail. Moore, 708
F.3d at 777.
Moreover, independent counsel was appointed exactly for this
reason: “to cross-examine all government witnesses connected to” the
civil case. (R.199: Conflicts Order, 1567 (emphasis added); accord R.200:
CJA Appointment, 1576). If independent counsel believed that Miller’s
testimony was “connected to” the civil case, he would have spoken up
and cross-examined him. “The presence of co-counsel unaffected by the
alleged conflict of interest makes it even less likely that [Kilpatrick’s]
representation was adversely affected by the alleged conflict.” United
States v. Novaton, 271 F.3d 968, 1012 n.11 (11th Cir. 2001); see also
Saccoccia, 58 F.3d at 772 & n.13.
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Nor can Kilpatrick circumvent the actual conflict standard by
invoking the “automatic reversal” rule from Holloway v. Arkansas, 435
U.S. 475 (1978). (See Kilpatrick Br. 29–30). The Holloway rule applies
“only where defense counsel is forced to represent codefendants over his
timely objection.” Mickens, 535 U.S. at 168 (emphasis added); see also
Harrison v. Motley, 478 F.3d 750, 756 (6th Cir. 2007). Kilpatrick’s claim
does not, in any way, involve joint representation of codefendants. The
Holloway rule therefore does not apply.
Kilpatrick also cannot avoid the actual conflict standard by
chastising Thomas and Naughton for waiting to notify the district court
about their “of counsel” affiliation. (See Kilpatrick Br. 31–34).
Regardless of when the “of counsel” affiliation began, Kilpatrick must
still establish an actual conflict. Further, Kilpatrick is a trained lawyer,
and he knew about the “of counsel” affiliation almost from its inception.
(R.463: Rule 33 Order, 15663 n.2, 15665–66; R.362: Tr., 9398–99). If he
had really been concerned—and was not just playing a “cat and mouse
game” with his right to counsel, United States v. Krzyske, 836 F.2d
1013, 1017 (6th Cir. 1988)—he would have said something earlier.
Indeed, Kilpatrick’s gamesmanship here might have justified a waiver-
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by-misconduct finding. See, e.g., United States v. Blau, 159 F.3d 68, 73–
75 (2d Cir. 1998); see also Holloway, 435 U.S. at 486–87 (permitting
district courts to “deal with” conflicts motions made “for dilatory
purposes”). But rather than finding waiver, the district court went out
of its way to protect his rights—vetting the alleged conflict and
appointing independent counsel as a safeguard.
C. Kilpatrick also cannot establish that any conflict prejudiced him—as he must under Mickens.
Kilpatrick’s claim fails for yet another reason: he cannot show that,
absent the alleged conflict, “the result of [his trial] would have been
different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Before
the Supreme Court’s decision in Mickens, most courts had applied a
presumption of prejudice “unblinkingly” to “all kinds of alleged attorney
ethical conflicts.” Mickens, 535 U.S. at 174 (citation omitted). But in
Mickens, the Supreme Court explained that the rationale for presuming
prejudice only extends to joint representation cases. Id. at 174–76. Most
importantly for this case, the Supreme Court expressed skepticism that
a presumption of prejudice would apply for conflicts that only “somehow
implicate[] counsel’s personal or financial interests.” Id. at 174.
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The Supreme Court’s reasoning applies strongly here. Unlike in a
joint representation case, the ethical wall here blocked any exchange of
confidential information. Indeed, with respect to confidentiality,
Kilpatrick’s conflict claim is far weaker than claims involving the
successive representation of a defendant and a government witness—
where this Court has already declined to presume prejudice post-
Mickens. See, e.g., Gillard v. Mitchell, 445 F.3d 883, 891 (6th Cir. 2006);
cf. Moss v. United States, 323 F.3d 445, 462 (6th Cir. 2003). And unlike
in a joint representation case, Kilpatrick’s attorneys—including
independent counsel—did not represent two defendants with potentially
inconsistent stories; they only represented Kilpatrick. Kilpatrick must
therefore demonstrate Strickland prejudice.
Under that standard, Kilpatrick cannot prevail. He does not suggest
how the alleged conflict affected the jury’s verdict on count three—the
only extortion count involving the sinkhole. Nor does he show how the
alleged conflict could have affected the verdict on the other 23 counts of
conviction. See United States v. Martinez, 630 F.2d 361, 364 (5th Cir.
1980) (applying a count-specific prejudice analysis). Kilpatrick was
convicted because “the proofs of his guilt were overwhelming,” Powell v.
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Bordenkircher, 789 F.2d 425, 426 (6th Cir. 1986), not because of an “of
counsel” affiliation.
II. The case agents’ testimony was properly admitted, and any mistakes were harmless.
Because this was a six-month trial, the district court permitted the
government to present its case in “chapters”—the Civic Fund, each
DWSD contract, and each episode of RICO testimony. See Fed. R. Evid.
611(a). The government’s case agents, Robert Beeckman and Carol
Paszkiewicz, therefore testified several different times. Mostly, they
introduced and published documentary evidence pertaining to each
chapter: bank records, Civic Fund documents, DWSD documents,
calendar pages, emails, and text messages.
The defendants have now collected a grab bag of that testimony—
much of it unchallenged during trial—and labeled all of it lay opinion
testimony, citing this Court’s intervening decision in United States v.
Freeman, 730 F.3d 590 (6th Cir. 2013), to argue that the trial here was
unfair. Where the defendants objected at trial, this Court reviews for an
abuse of discretion. United States v. Goosby, 523 F.3d 632, 638 (6th Cir.
2008). Where the defendants failed to object, the Court reviews only for
plain error. United States v. Olano, 507 U.S. 725, 732–37 (1993).
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Freeman was a murder-for-hire case, where the “primary evidence”
implicating the defendant was 77 recorded phone calls. Freeman, 730
F.3d at 594. At trial, the government’s case agent offered his opinion
about cryptic conversations in those calls, expanding on otherwise plain
language “to broadly illustrate the prosecution’s theory of the case for
the jury.” Id. at 594–95. He even interpreted one phrase—“the
situation”—to narrate the entire murder plot: “The situation discussed
was regarding Leonard Day and his having stolen jewelry from Roy
West, Roy West having put a hit on Leonard Day, and Leonard Day
ultimately being killed.” Id. at 595.
This Court held that the agent’s testimony went too far under
Federal Rule of Evidence 701. Id. at 595–99. The agent’s vague
references “to the investigation as a whole” did not establish a sufficient
foundation for his interpretations—and perhaps even incorporated
hearsay. Id. at 596–97. The testimony also did not help the jury; it
simply told the jury what result to reach. Id. at 597–98.
Newly armed with Freeman, the defendants here have adopted a
shotgun approach—scattering random bits of testimony in their briefs,
with little or no explanation of why each piece was inadmissible, much
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less prejudicial. Most of that testimony has nothing to do with Freeman;
it was admissible for reasons other than Rule 701. Most of the
remaining testimony involved uncontroverted names or nicknames—
which the defendants themselves conceded was proper. And any errors
were harmless in the context of this six-month trial.
A. The challenged testimony was proper—mostly for reasons unrelated to Freeman.
The defendants’ briefs include approximately eight categories of
testimony that they attempt to shoehorn into Freeman. Most of that
testimony was admissible under settled rules of evidence that remain
unaffected by Freeman.
First, the district court did not abuse its discretion in permitting
Paszkiewicz to describe how and why her investigation began.
Investigating agents are permitted “to explain how and why [they] came
to be involved with this particular defendant.” United States v. Aguwa,
123 F.3d 418, 421 (6th Cir. 1997). At least six of the bullet points in
Ferguson’s brief fall into this category: testimony detailing
Paszkiewicz’s collection and review of the text messages (Ferguson Br.
34 (citing R.337: Tr., 6452–54)), as well as testimony that she began
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investigating the defendants in response to allegations of extortion and
bid-rigging (id. 35–36 (citing R.350: Tr., 7841–44; R.351: Tr., 8052–53)).
Second, the district court did not err—much less plainly err—in
permitting the agents to publish documentary evidence for the jury.
Case agents may “read aloud from documents that . . . [are] properly
admitted,” even where there are “minor discrepancies between the
reading and the written text.” United States v. Tragas, 727 F.3d 610,
614 (6th Cir. 2013). Paszkiewicz was thus permitted to read from the
city’s organizational chart and Mercado’s employment agreement.
(Kilpatrick Br. 49 (citing R.374: Tr., 10457–70)). Also proper was
Paszkiewicz’s description of CM-2012—even if Paszkiewicz originally
described it mistakenly. (Ferguson Br. 36 (citing R.350: Tr., 7852); see
also Ex. DLZ-1A, App’x 35–42; R.351: Tr., 8021 (conceding the mistake
on cross-examination)). Proper too was Beeckman’s mundane
description of the Civic Fund’s articles of incorporation. (Compare
Kilpatrick Br. 48 (citing R.336: Tr., 6260–62), with Ex. KCF-2, App’x
129–68). And one of Kilpatrick’s other complaints—that Paszkiewicz
read “noisy” as “nosy” while publishing a text message (Kilpatrick Br.
54 (citing R.350: Tr., 7874))—was the very type of “minor discrepancy”
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that this Court allowed in Tragas, 727 F.3d at 614, and that the jurors
could evaluate for themselves by simply reading the exhibit.
Third, some of the testimony recited in the defendants’ briefs
consisted of simple “framing questions”: short references to previously
admitted evidence as a transition to a new exhibit. For instance, before
admitting Exhibit LS1-12, the prosecutor briefly referred Paszkiewicz to
Hardiman’s previous testimony as a way to put that text message in
context. (Ferguson Br. 36 (citing R.367: Tr., 9631–33)). Paszkiewicz’s
answers did not add anything to the text message; they just referred to
previous testimony as a benchmark. (R.367: Tr., 9631–33). Other
questions were similar—simple references to previously admitted
evidence. (E.g., Ferguson Br. 38–41 (citing R.390: Tr., 12822–23; R.400:
Tr., 13947–48, 13976–77, 13989–90); Kilpatrick Br. 49–50, 58 (citing
R.350: Tr., 7853–54, 7883; R.384: Tr., 12012)).
Allowing those framing questions was not an abuse of discretion.
Federal Rule of Evidence 611(a) permits district courts to “exercise
reasonable control” in making the trial “effective for determining the
truth.” And in a large, complicated case, the jury will often struggle to
remember where a given exhibit fits in context. A short reference to
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previously admitted evidence solves that problem—orienting the jury
and making the trial “effective for determining the truth.” Fed. R. Evid.
611(a).
Indeed, this Court has relied on similar reasoning to permit case
agents to summarize previously admitted evidence in far greater detail
than the framing questions here. United States v. Smith, 601 F.3d 530,
539–40 (6th Cir. 2010); see also United States v. Hall, 434 F.3d 42, 57
(1st Cir. 2006). Many courts, including this one, have even permitted
agents to describe otherwise inadmissible evidence as context for a trial
exhibit. United States v. Gadson, 763 F.3d 1189, 1211–12 (9th Cir.
2014); United States v. Holbrook, 1994 WL 419585, at *4–*5 (6th Cir.
1994). And for much the same reason, courts routinely permit leading
questions “to focus the witness or to otherwise clarify testimony.”
United States v. Pugh, 404 F. App’x 21, 28 (6th Cir. 2010). The framing
questions served the same purpose.
Fourth, the agents also permissibly summarized voluminous
“writings” and “recordings” under Federal Rule of Evidence 1006. Rule
1006 permits testimonial summaries, not just charts. See Fed. R. Evid.
1006; see also 6 Weinstein’s Federal Evidence § 1006.05[2] (“Summary
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evidence need not be an exhibit, but may take the form of a witness’s
oral testimony.”). Here, the only piece of Rule 1006 testimony preserved
by objection was Beeckman’s summary that DWSD records showed a
standard oversight fee of 5%. (Ferguson Br. 38 (citing R.389: Tr.,
12739–41); Kilpatrick Br. 58 (same)). As the prosecutor explained at
sidebar, Beeckman was summarizing “boilerplate” from DWSD’s
standard contracts. (R.389: Tr., 12740). The defendants do not suggest
why the government needed to admit hundreds of boilerplate contracts
just to prove that DWSD’s standard oversight fee was 5%. Nor could
they: that testimony is precisely what Rule 1006 permits, and nothing
in Rule 701 prohibits it. United States v. Faulkenberry, 614 F.3d 573,
588–89 (6th Cir. 2010); United States v. Madison, 226 F. App’x 535,
543–44 (6th Cir. 2007).
The defendants did not object to any of the other summaries that fell
within Rule 1006. The agents summarized voluminous documents—for
instance, that records showed Ferguson negotiating with Inland.
(Kilpatrick Br. 56 (citing R.374: Tr., 10418); see also id. 50, 55–56 (citing
R.350: Tr., 7894–95; R.374: Tr., 10419; R.375: Tr., 10677; R.400: Tr.,
13961)). They also summarized a couple of long, uncontested wiretap
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recordings—such as calls detailing trips to Florida by Kilpatrick’s
father, Bernard. (Id. 50–51 (citing R.340: Tr., 6978–79; R.400: Tr.,
13954); see also id. 48–49 (citing R.394: Tr., 13292)). And they
summarized voluminous text messages—testifying, for example, that
texts showed Kilpatrick, Ferguson, and Miller meeting regularly after-
hours. (Id. 56 (citing R.375: Tr., 10679)).
Those summaries were not plain error—or error at all. Rule 1006
expressly permits witnesses to summarize “recordings,” and nothing in
Freeman affects that plain language. Fed. R. Evid. 1006; see United
States v. Lanzar, 69 F. App’x 224, 229 (6th Cir. 2003) (permitting
summarization of a videotape). And once again, the defendants do not
explain why the jury needed to see all documents in which Ferguson
and Inland negotiated Ferguson’s subcontract. Or should have sat
through all recorded phone calls detailing Bernard Kilpatrick’s trips to
Florida. Or needed to see all text messages in which the conspirators
arranged meetings.
Fifth, the district court also did not abuse its discretion in admitting
testimony “that an event did not occur because relevant records contain
no mention of it.” McCormick on Evidence § 234 (2013). This Court has
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long permitted this type of “dog that didn’t bark” testimony, because it
is the only feasible way to introduce that evidence. United States v.
Scales, 594 F.2d 558, 562–63 (6th Cir. 1979); see also United States v.
Diaz-Lopez, 625 F.3d 1198, 1202 (9th Cir. 2010). The agents here thus
properly testified that no city records authorized Ferguson to have a
role in the contracting process, and that Kilpatrick did not exchange
texts with other city contractors on the same subjects as he did with
Ferguson. (Kilpatrick Br. 53, 56 (citing R. 350: Tr., 7862; R.375: Tr.,
10685–90); Ferguson Br. 37 (same); see also Kilpatrick Br. 51 (citing
R.340: Tr., 6979); Ferguson Br. 39, 41 (citing R.400: Tr., 13952–53;
R.401: Tr., 14040–41)). Further, the defendants had access to all of
those city records and text messages. If the agents had testified
incorrectly, the defendants could have easily cross-examined them with
a document that contradicted the testimony.
Sixth, the defendants waived some of the objections that they now
raise in their briefs. For instance, the defendants agreed that
Paszkiewicz could briefly summarize Kathleen McCann’s notes, in lieu
of recalling McCann as a witness. (Compare Ferguson Br. 36, with
R.374: Tr., 10422–24). Parties are bound by their agreements, even
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informal ones. United States v. Spikes, 158 F.3d 913, 928 (6th Cir.
1998). Similarly, the district court actually sustained the defendants’
objection to Beeckman’s testimony that text messages showed a city
employee going “out of his way to assist Mr. Ferguson.” (Compare
Kilpatrick Br. 57, with R.378: Tr., 11038). The district court then
ordered the government to publish the text messages “without asking
[the agent] to characterize” them (R.378: Tr., 11038)—“thus answer[ing]
[Kilpatrick’s] objection,” United States v. Tasis, 696 F.3d 623, 625 (6th
Cir. 2012).
Likewise, much of the challenged testimony in Ferguson’s brief
consists only of short identifications: first names, last names,
nicknames, or pronouns—all of which were obvious, uncontested, or
given only for context. (E.g., Ferguson Br. 34 (citing R.347: Tr., 7374
(Kilpatrick and his dad called each other “this guy”)); see also id. 35–40
(citing similar testimony)). The defendants here agreed that
identifications were an appropriate subject for lay opinion testimony.
(R.153: Motion Reply, 1314–15; R.347: Tr., 7380–83). They also agreed
that the agents could base those identifications on a review of the text
messages. (Id.). The defendants have therefore waived any argument to
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the contrary. United States v. Street, 614 F.3d 228, 234–35 (6th Cir.
2010). And in taking the shotgun approach on appeal, they do not
explain how or why their bits of quoted testimony went beyond their
agreement. They have therefore waived that argument too. United
States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006) (“[I]t is a settled
appellate rule that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived.”).
Even if the Court were to address this issue on the merits, the
limited identifications satisfied Rule 701. The Ninth Circuit—which
this Court expressly followed in Freeman—recently permitted the same
type of testimony. Gadson, 763 F.3d at 1210–11. The First Circuit has
too, in an opinion joined by Justice Souter and cited with tacit approval
in Freeman. United States v. Albertelli, 687 F.3d 439, 449 (1st Cir.
2012); see also United States v. El-Mezain, 664 F.3d 467, 513–14 (5th
Cir. 2011); United States v. Garcia, 994 F.2d 1499, 1506–07 (10th Cir.
1993). Even in Freeman, this Court acknowledged in dicta that “code
words” could be a proper subject for lay opinion testimony. Freeman,
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730 F.3d at 598; see also United States v. Mack, 1998 WL 773996, at *1
(6th Cir. 1998).
Seventh, the defendants’ briefs include a few snippets of testimony
where the agents described an event, document, or concept, but the
foundation for the testimony does not appear in the record. Beeckman,
for instance, briefly described the law regarding § 501(c)(4)
organizations, explaining that § 501(c)(4) organizations are not
permitted to fund political campaigns. (Kilpatrick Br. 48 (citing R.336:
Tr., 6303)). Kilpatrick did not object to that testimony; it also did not
implicate Freeman, because it did not interpret any wiretaps or text
messages. And as described below, Kilpatrick’s own expert testified to
the exact same thing. (Compare R.336: Tr., 6303, with R.401: Tr.,
14144–46). The other testimony in this group was similarly minor,
uncontroverted, or at worst, harmless error. (Kilpatrick Br. 49–51, 54–
55 (citing R.336: Tr., 6303; R.350: Tr., 7890; R.351: Tr., 8038, 8041–42);
Ferguson Br. 36 (same)).
Eighth, the defendants’ briefs include a handful of interpretations
that expand beyond mere identifications. In Exhibit RUTH-43, for
example, Kilpatrick and Miller texted about an upcoming meeting with
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the “Venetian,” as well as an “[e]xtra tax on slots.” (Ex. RUTH-43, App’x
430). Beeckman interpreted the text message as referring to a “casino
development.” (Ferguson Br. 34–35 (citing R.347: Tr., 7397–98)). That
was hardly controversial. Derrick Miller even testified later to that
exact same thing. (R.385: Tr., 12106–08). Nor was it important to the
case. See Albertelli, 687 F.3d at 449 (permitting lay opinion testimony
that was neither “a debatable proposition” nor “prejudicial”).
The other bits of testimony here were similarly limited—
uncontroverted details or context for exhibits that did not relate to any
pivotal issue in the case. (See Ferguson Br. 37, 39–41 (citing R.378: Tr.,
11046–47 (text messages referred to “purchasing tailor-made suits for
Lee Stephenson”); R.400: Tr., 13956–57 (text message showed “that
Amru Meah was asked . . . to interfere with someone else’s permits”),
13959–60 (text message referred to a news article), 13982–84 (text
message referred to a city recusal requirement); R.390: Tr., 12756 (text
messages showed a “fee dispute” with Walbridge after the extortion
occurred)); Kilpatrick Br. 48, 59 (same)). Unlike the interpretations in
Freeman, none of this testimony “spoon-fed” the government’s theory of
the case to the jury. 730 F.3d at 597. It simply avoided prolonging the
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trial for undisputed asides. And even if this Court were to find or
assume any errors—here or anywhere else—those errors would be
harmless.
B. Any errors would be harmless as uncontroverted or cumulative testimony in the face of overwhelming evidence.
“A defendant is entitled to a fair trial but not a perfect one, for there
are no perfect trials.” Brown v. United States, 411 U.S. 223, 231–32
(1973). Thus, like all non-constitutional errors, an evidentiary error is
“harmless unless it is more probable than not that the error materially
affected the verdict.” United States v. Neuroth, 809 F.2d 339, 342 (6th
Cir. 1987) (en banc); see also United States v. Childs, 539 F.3d 552, 559
(6th Cir. 2008). Where the defendant has failed to object, he has the
burden of showing prejudice. Olano, 507 U.S. at 734–35.
Here, even if this Court were to assume that all of the challenged
testimony was admitted in error—and it was not—the evidence of guilt
towered over any imperfections. That evidence included $531,000 in
unexplained cash; bank records showing Kilpatrick’s fraud at the Civic
Fund; witness after witness testifying about that same fraud, the
extortion at DWSD, and the rest of the RICO enterprise; as well as
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emails, documents, and unambiguous text messages establishing the
same crimes.
Nor did the defendants have a plausible explanation for it. A
“relatively weak” defense is one factor pointing toward harmless error.
United States v. Garcia, 413 F.3d 201, 218 (2d Cir. 2005) (citation
omitted). Here, Kilpatrick tried to explain away $531,000 in cash with
$50 birthday checks. (R.396: Tr., 13595–603; see also R.397: Tr., 13710–
12). And Ferguson’s most notable attempt at a defense was to fabricate
a trial exhibit (R.391: Tr., 12852–906; Exs. IN1-72, -72A, -72B, App’x
116–23)—a strong sign that he thought “his case [was] a weak or
unfounded one,” United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th
Cir. 1986).
The challenged testimony here also differed markedly from Freeman,
where the wiretap recordings—and the agent’s interpretations—were
the primary evidence connecting the defendant to the murder
conspiracy. Freeman, 730 F.3d at 594–95. Indeed, in Freeman, that
evidence was so central to the case that the government did not even
advance a harmless error argument. Id. at 599 n.1. Here, in contrast,
the government neither needed nor relied on any of the challenged
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testimony to prove a contested element of its case—on any count of
conviction.
1. Mail and Wire Fraud at the Civic Fund (Counts 18–26, 28, and 30).
Kilpatrick cannot show prejudice from the four random pieces of
Civic Fund testimony that he quotes in his brief—none of which he
preserved by objection. First, the Civic Fund’s status as a “public
welfare organization” and “tax-exempt nonprofit organization” was
uncontested. Its articles of incorporation said as much, as did
Kilpatrick’s own expert witness. (Compare Kilpatrick Br. 48 (citing
R.336: Tr., 6260), with Ex. KCF-2, App’x 129–68; R.401: Tr., 14111–12).
Second, Kilpatrick’s expert likewise agreed with Beeckman’s
observation that a § 501(c)(4) organization could not fund Kilpatrick’s
mayoral campaign. (Compare Kilpatrick Br. 48 (citing R.336: Tr., 6303),
with R.401: Tr., 14144–46). And the fraud charges did not focus on tax
law. They focused on Kilpatrick’s misrepresentation to donors: “No
funds of the Civic Fund are donated to any political campaign.” (Exs.
KCF-90, -92 to -95, -97, -99, App’x 329–53). Third, April Edgar testified
in detail about Kilpatrick’s continuing control over the Civic Fund.
(R.339: Tr., 6696–98, 6722–23, 6762–63). And the Civic Fund’s
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expenditures were unambiguous on that point. Beeckman’s passing
comment added nothing. (Kilpatrick Br. 51 (citing R.336: Tr., 6303)).
Fourth, regardless of Bernard Kilpatrick’s trip to Florida (Kilpatrick Br.
51 (citing R.340: Tr., 6978–79)), the evidence overwhelmingly showed
that Kilpatrick used the Civic Fund as a scheme to fund his personal
expenses.
2. Extortion of Inland (Counts 2 and 3)
The three challenged bits of Inland testimony are just as harmless—
and just as unpreserved for appeal. The first is Paszkiewicz’s statement
that Ferguson and Inland were negotiating Ferguson’s contract in
November 2002. (Kilpatrick Br. 56 (citing R.374: Tr., 10418)). That was
uncontested. Even the defense agreed that the negotiations “continued
into the fall of 2002, actually to even the early spring of 2003.” (R.373:
Tr., 10392). And in the second and third bits of challenged testimony,
Paszkiewicz just briefly referenced Ferguson’s performance issues.
(Kilpatrick Br. 56 (citing R.374: Tr., 10419); Ferguson Br. 36 (citing
R.374: Tr., 10422)). At worst, that testimony was cumulative. McCann
had already described those same performance issues (R.372: Tr.,
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10315–18), and DWSD even sent Inland a stop-work order because
Ferguson’s performance was so bad (Ex. IN1-31, App’x 87–88).
Moreover, none of the Inland-related testimony in the defendants’
briefs touched on the central issue at trial: whether Kilpatrick and
Ferguson extorted Inland in the first place. On that point, the testimony
by Inland’s executives said all the jury needed to know to convict.
3. Extortion of Lakeshore (Counts 7, 8, and 9)
The challenged Lakeshore testimony was equally insignificant. The
defendants cannot seriously contend that Beeckman misidentified
“Tom” as Tom Hardiman in Exhibit LS2-2. (Ferguson Br. 40 (citing
R.400: Tr., 13975–78); see Ex. LS2-2, App’x 380). Both Hardiman and
Miller testified about the events described in that text message. (R.352:
Tr., 8124–32; R.355: Tr., 8577–78; R.386: Tr., 12222–37). Hardiman also
sent Ferguson another text message—on that very same day—about
that very same contract. (R.352: Tr., 8129–30; Ex. LS2-1, App’x 379).
And the remaining bits of challenged Lakeshore testimony all involved
framing questions—short references to previous evidence to benchmark
new exhibits. (Ferguson at 36, 40 (citing R.400: Tr., 13975–78; R.367:
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Tr., 9631–33)). Those questions did not expand on the text messages;
they thus could not have resulted in any prejudice.
The CM-2014 count must be affirmed for an even simpler reason: the
defendants do not challenge any testimony related to it. Harmless error
is a count-specific inquiry, even under the most stringent view of Rule
701. Gadson, 763 F.3d at 1231–32 (Berzon, J., dissenting); see also
United States v. Johnson, 831 F.2d 124, 129 (6th Cir. 1987). CM-2014
occurred after Kilpatrick and Ferguson had replaced their pagers with
Blackberries to prevent anyone from accessing their text messages.
(R.381: Tr., 11430–37). The evidence for CM-2014 thus did not include
any text messages, much less any interpretations. And tellingly, in
Kilpatrick’s argument section where he lists CM-2014, he does not
include any testimony related to that contract. (See Kilpatrick Br. 51–
55).
4. Extortion of Walbridge (Counts 4 and 5)
The few snippets of Walbridge testimony were also harmless. On the
Baby Creek contract, all but one piece of challenged testimony
concerned events—such as the 5% fee dispute—that occurred after
Ferguson had already extorted his way onto the contract. (Ferguson Br.
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38 (citing R.389: Tr., 12739–44; R.390: Tr., 12755–57); Kilpatrick Br.
58–59 (same)). That evidence was only for context, and the government
did not mention it when discussing Baby Creek during closing
argument. (R.406: Tr., 14484–86). And the only other challenged
testimony is Beeckman’s passing reference to equalization credits
(Kilpatrick Br. 58 (citing R.384: Tr., 12012))—which other witnesses
had already described at length (e.g., R.348: Tr., 7492–500; R.379: Tr.,
11180–85).
In addition, like the CM-2014 count, the Oakwood Pump Station
count occurred after the text messages stopped. So the defendants only
challenge one piece of unobjected-to testimony: Beeckman’s remark that
Walbridge was bidding on the contract when Walbridge’s CEO met with
Kilpatrick. (Ferguson Br. 38–39 (citing R.390: Tr., 12823)). Again, that
point was uncontroverted: Bernard Parker’s testimony and Kilpatrick’s
own calendar page had already established the same thing. (R.379: Tr.,
11213–15; Ex. WA2-1A, App’x 516).
5. RICO Conspiracy (Count 1)
The remaining testimony relates only to RICO conspiracy evidence—
such as CM-2012 or the Heilmann Recreation Center—that was not
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charged separately. With or without that testimony, the RICO
conspiracy evidence was staggering. The separately charged extortion
counts alone showed Kilpatrick and Ferguson agreeing to commit far
more than two predicate acts. United States v. Fowler, 535 F.3d 408,
421 (6th Cir. 2008). And the mass of trial testimony and documentary
evidence established—in painstaking detail—how Kilpatrick and
Ferguson conspired to turn the mayor’s office into a criminal enterprise.
Moreover, most of the challenged RICO testimony was tangential to
the case—or had “nothing to do with any criminal activity.” United
States v. Johnson, 440 F.3d 832, 847 (6th Cir. 2006). The defendants, for
instance, complain that Beeckman identified “Matthew Flynn” as the
contractor in Exhibit RC-42. (Ferguson Br. 40; Kilpatrick Br. 59). But
the contractor’s identity was unimportant; what mattered in Exhibit
RC-42 was Ferguson’s request to “fuck[] with” someone else’s permits.
(Ex. RC-42, App’x 415). The defendants also conceded later that this
contractor was, in fact, Matthew Flynn. (R.401: Tr., 14019–20).
Likewise, the identity of “Gary” was not what made Exhibit RC-28
incriminating. (Ferguson Br. 40). Exhibit RC-28 was incriminating
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because of Kilpatrick’s comment that Ferguson “wanted to strategically
lose a major bid.” (Ex. RC-28, App’x 413–14).
Other challenged RICO testimony was either cumulative or very
obvious. Several texts, for instance, showed Ferguson referring to
Kilpatrick as “boss.” (Compare Ferguson Br. 38 (citing R.390: Tr.,
12755), with Exs. BFF-25, IN1-33, App’x 32, 90–92). Several other
texts—and Miller’s testimony—confirmed Paszkiewicz’s summary that
the conspirators regularly held meetings. (Compare Kilpatrick Br. 56
(citing R.375: Tr., 10679), with Exs. RC-1, -3, -5 to -15, App’x 399–412;
R.385: Tr., 12147–50). The plain language of the wiretap recordings
alone showed that the people identified in them were “Jim Jenkins” and
“George Jackson.” (Compare Ferguson Br. 39 (citing R.395: Tr., 13463–
64), with Exs. BCD-11A, -12A, App’x 3–6). And four separate witnesses
identified Elizabeth Benson and her role in the Heilmann bidding.
(Compare Ferguson Br. 37 (citing R.378: Tr., 11041–43); Kilpatrick Br.
57–58 (same), with R.377: Tr., 10916–17, 10985–87, 11000–03; R.378:
Tr., 11073, 11086; R.386: Tr., 12181–82).
At bottom, the defendants do not point to a single piece of improper
testimony that prejudiced them on anything material to any of the
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charges. Their opening briefs were their opportunity to do so, Sanborn
v. Parker, 629 F.3d 554, 579 (6th Cir. 2010)—and they failed. That basic
point resolves this issue on appeal.
III. The district court did not abuse its discretion in admitting non-hearsay evidence of the extortion victims’ fear.
The district court properly admitted non-hearsay testimony showing
that the extortion victims feared the defendants. Where, as here, an
extortion scheme exploits a fear of economic harm, the reasonableness
of that fear is “highly relevant”—“an essential element of the crime
charged.” United States v. Collins, 78 F.3d 1021, 1036 (6th Cir. 1996);
United States v. Williams, 952 F.2d 1504, 1518 (6th Cir. 1991). Thus, in
extortion cases, courts frequently admit two types of non-hearsay
statements. First are out-of-court statements to the victim, offered to
show the effect on the listener—“that the victim heard them and that
they would have tended to produce fear in [the victim’s] mind.”
Williams, 952 F.2d at 1518; see also United States v. Horton, 847 F.2d
313, 324 (6th Cir. 1988). Second are out-of-court statements by the
victim, offered as circumstantial evidence of the victim’s state of mind—
that the victim feared the defendant. Collins, 78 F.3d at 1036. These
statements differ from evidence admitted under Federal Rule of
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Evidence 803(3), because they are not being used to prove the truth of
anything asserted in the statements. See 5 Weinstein’s Federal
Evidence § 801.11[5][c].
A. The extortion testimony was properly admitted under Williams and Collins.
The district court did not abuse its discretion in admitting the block-
quoted testimony in Ferguson’s brief. (Ferguson Br. 46–50). The four
statements to Inland’s decision-makers, Anthony Soave and Kathleen
McCann, were admissible “testimony of victims as to what others said
to them.” Williams, 952 F.2d at 1518. Soave, for instance, testified that
McCann kept him abreast of Ferguson’s threats. (R.370: Tr., 10046–50).
As the prosecutor explained at trial, that testimony showed “why
[Soave] decided not to cut off Ferguson.” (Id., 10046). Likewise, McCann
properly described three out-of-court statements in which she heard
that Kilpatrick wanted contractors to hire Ferguson. (R.372: Tr., 10291–
93, 10322–23). That testimony was admissible for its effect on
McCann—to show why she believed that Inland needed to hire and pay
Ferguson. See Williams, 952 F.2d 1517–18; see also United States v.
Hyde, 448 F.2d 815, 845–46 (5th Cir. 1971) (approving testimony about
statements to victims “that payoffs were necessary”).
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Some of those same out-of-court statements to McCann were also
admissible as non-hearsay evidence “indicating fear of the defendant.” 4
Mueller & Kirkpatrick, Federal Evidence § 8:71 (4th ed.); Collins, 78
F.3d at 1036. For instance, Soave told McCann—after meeting with
Kilpatrick—that Ferguson needed to be Inland’s subcontractor. Those
statements not only influenced McCann’s state of mind (as explained
above), but also demonstrated Soave’s—that he took Kilpatrick’s
demands seriously enough to implement them within Inland.
The remaining statements were similarly admissible. For example,
the statements by Lakeshore’s executives, Avinash Rachmale and Tom
Hardiman, provided contemporaneous evidence that they feared losing
work if Lakeshore did not cave to Ferguson. (R.352: Tr. 8178–79, 8191–
92; R.357: Tr., 8785–86; R.379: Tr., 11231). Tim Tousignant’s reaction
(“this is extortion”) likewise conveyed his state of mind after Ferguson’s
threats. (R.379: Tr., 11152–53). And it echoes the out-of-court statement
that this Court found admissible in Collins, 78 F.3d at 1028, 1036
(“those guys are tough”).
The same reasoning applies to Walbridge’s executives, who were
“angry” and “worried they weren’t going to get the contract” when
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Bernard Parker relayed Miller’s demand to hire Ferguson. (R.379: Tr.,
11186–87, 11193). Parker’s testimony described the executives’
contemporaneous reaction: their fear of what would happen if they
refused to yield. Again, that testimony mirrors extortion testimony that
this Court has approved previously. E.g., Collins, 78 F.3d at 1028, 1036
(approving testimony that the victim “reacted angrily”); see also 4
Mueller & Kirkpatrick, Federal Evidence § 8:71 (4th ed.) (approving
testimony that the victim said, “I’m afraid X is going to kill me if I don’t
pay him”).
Ferguson’s remaining argument loses because he already won it. At
trial, when Parker testified that Walbridge’s executives had “said that
[Ferguson] wasn’t the lowest bidder,” the defendants objected and
requested a sidebar. (R.379: Tr., 11187–90). At sidebar, the district
court agreed with the defendants and instructed Parker not to
volunteer “what somebody else said.” (Id., 11189–90). Satisfied, the
defendants did not request any further remedy. (Id.). And in his brief,
Ferguson does not suggest what other remedy he wanted—or why its
absence amounted to plain error. That omission forecloses any relief.
See United States v. Walker, 615 F.3d 728, 734–35 (6th Cir. 2010).
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Ferguson’s complaints about the limiting instructions also fail.
Although Ferguson implies in his brief that the district court only gave
one limiting instruction, that is untrue: as in Collins, 78 F.3d at 1036,
the district court gave an instruction whenever the defendants
requested—and other times too. (E.g., R.342: Tr., 7198–99; R.352: Tr.,
8098; R.356: Tr., 8698–99; R.370: Tr., 10046; R.392: Tr., 13027; see also
R.380: Tr., 11286–87 (offering to give an instruction whenever
requested)). And as this Court emphasized in Collins, the defendants—
not the government or district court—had the burden to request any
limiting instructions. 78 F.3d at 1036. Where they failed to do so, they
“waived [their] right to complain.” Id.
Nor should the Court adopt Ferguson’s remedy of excluding all state-
of-mind testimony. A blanket prohibition would keep out some of “the
most convincing and reliable proof of fear,” 4 Mueller & Kirkpatrick,
Federal Evidence § 8:71 (4th ed.), arbitrarily cabining the evidence on
an essential element of the charges. It would also reward defendants
who threaten their victims indirectly—or whose victims are businesses
that necessarily use internal communications to relay and react to
threats.
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B. Any errors would be harmless given the victims’ firsthand testimony and other trial evidence.
Even if the Court assumed error, it would be harmless given the
other, uncontested evidence at trial. Erroneously admitted testimony is
harmless where it is “merely cumulative of other overwhelming and
largely uncontroverted evidence properly before the jury.” Brown, 411
U.S. at 231; see also United States v. Johnson, 581 F.3d 320, 332 (6th
Cir. 2009). Here, Soave’s firsthand account of Kilpatrick’s extortion was
far more compelling than McCann’s secondhand narration. The same
goes for the firsthand testimony of McCann, Hardiman, and
Rachmale—all of whom testified at trial, in far more detail, to the
events referenced in their out-of-court statements. Further, the
Walbridge count involved one of the most damning documents in the
entire trial: a hastily scrawled, one-page, handwritten, $12.7 million
subcontract that did not require Ferguson to post a bond and was
executed immediately before Walbridge was awarded the contract. (Ex.
WA1-14, App’x 514; R.379: Tr., 11194–97). Every bit of that document
screamed extortion.
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IV. The restitution amounts were not an abuse of discretion.
The defendants’ restitution obligations should be affirmed. This
Court reviews restitution for an abuse of discretion—legal questions de
novo, fact-findings for clear error. United States v. Boring, 557 F.3d 707,
713 (6th Cir. 2009). Neither of the defendants’ arguments suffices.
First, the district court did not clearly err in calculating the
restitution amounts to DWSD. Restitution “is calculated based on the
victim’s loss.” Id. at 714. And that is how the district court calculated it,
finding that the extortion-based payments were overpayments—and
thus a loss—for DWSD. (R.543: Tr., 16688–90).
Second, the district court correctly ordered restitution for Kilpatrick’s
tax offenses. Under 18 U.S.C. §§ 3583(d) and 3563(b)(2), the district
court could order restitution as a condition of supervised release. United
States v. Batson, 608 F.3d 630, 633–36 (9th Cir. 2010) (explaining the
statute); accord United States v. May, 568 F.3d 597, 607 n.6 (6th Cir.
2009). That is what it did. (R.516: Judgment, 16452–53).
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Conclusion
The judgments should be affirmed.
Respectfully submitted, Barbara L. McQuade
United States Attorney /s/ Andrew Goetz
Andrew Goetz Assistant United States Attorney 211 West Fort Street, Suite 2001 Detroit, MI 48226 Phone: (313) 226-9522 Fax: (313) 226-5892 Email: [email protected]
Dated: October 9, 2014
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75
Certificate of Compliance with Rule 32(a)
This brief complies with the type-volume limitation of
Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure because it
contains 13,852 words, excluding the parts of the brief exempted by
Rule 32(a)(7)(B)(iii). This brief complies with the typeface requirements
of Rule 32(a)(5) and the type-style requirements of Rule 32(a)(6)
because it has been prepared in a proportionally spaced typeface using
Microsoft Word in 14-point Century Schoolbook.
/s/ Andrew Goetz Andrew Goetz Assistant United States Attorney Eastern District of Michigan 211 West Fort Street, Suite 2001 Detroit, MI 48226 Phone: (313) 226-9522 Fax: (313) 226-5892 Email: [email protected]
Case: 13-2500 Document: 54 Filed: 10/09/2014 Page: 85
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Certificate of Service
I certify that on October 9, 2014, I electronically filed this brief for
the United States with the Clerk of the United States Court of Appeals
for the Sixth Circuit using the ECF system, which will send notification
of such filing to the following:
Harold Z. Gurewitz, [email protected] Susan W. Van Dusen, [email protected]
/s/ Andrew Goetz
Andrew Goetz Assistant United States Attorney Eastern District of Michigan 211 West Fort Street, Suite 2001 Detroit, MI 48226 Phone: (313) 226-9522 Fax: (313) 226-5892 Email: [email protected]
Case: 13-2500 Document: 54 Filed: 10/09/2014 Page: 86
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Relevant District Court Documents
Appellee, the United States of America, designates as relevant the
following documents available electronically in the district court’s
record, case number 2:10-cr-20403 in the Eastern District of Michigan:
Record Number Document Description Page ID Range
4 Notice of Attorney Appearance 37
10 Motion to Appoint Counsel 44–48
12 Order Appointing Counsel 51–52
74 Fourth Superseding Indictment 383–484
153 Defendants’ Motion Reply Regarding Interpretations 1312–1316
199 Opinion and Order Regarding Potential Conflict of Interest 1560–1575
200 Order Appointing Independent Counsel 1576
203 Thomas Conflict Memorandum 1580–1643
204 Government’s Conflict Brief 1644–1656
206 Conflict Hearing Tr. 08/07/12 1670–1697
207 Appointment of Harold Gurewitz as Independent Counsel 1698
247 Mercado Plea Agreement 1831–1838
277 Jury Verdict Form 2213–2234
301 Jury Trial Tr. 09/21/12 4638–4755
302 Jury Trial Tr. 09/24/12 4756–4929
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78
Record Number Document Description Page ID Range
330 Jury Trial Tr. 09/27/12 5389–5551
331 Jury Trial Tr. 09/28/12 5552–5671
332 Jury Trial Tr. 10/01/12 5672–5803
334 Jury Trial Tr. 10/03/12 5944–6069
335 Jury Trial Tr. 10/04/12 6070–6213
336 Jury Trial Tr. 10/05/12 6214–6367
337 Jury Trial Tr. 10/09/12 6368–6514
338 Jury Trial Tr. 10/10/12 6515–6662
339 Jury Trial Tr. 10/11/12 6663–6834
340 Jury Trial Tr. 10/16/13 6835–7006
341 Jury Trial Tr. 10/17/12 7007–7138
342 Jury Trial Tr. 10/18/12 7139–7289
347 Jury Trial Tr. 10/19/12 7297–7480
348 Jury Trial Tr. 10/22/12 7481–7597
350 Jury Trial Tr. 10/24/12 7745–7901
351 Jury Trial Tr. 10/25/12 7902–8062
352 Jury Trial Tr. 10/26/12 8063–8211
353 Jury Trial Tr. 10/29/12 8212–8319
354 Jury Trial Tr. 11/13/12 8320–8471
355 Jury Trial Tr. 11/14/12 8472–8601
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79
Record Number Document Description Page ID Range
356 Jury Trial Tr. 11/15/12 8602–8736
357 Jury Trial Tr. 11/16/12 8737–8809
358 Jury Trial Tr. 11/26/12 8810–8958
359 Jury Trial Tr. 11/27/12 8959–9108
360 Jury Trial Tr. 11/28/12 9109–9247
361 Jury Trial Tr. 11/29/12 9248–9381
362 Conflict Hearing Tr. 08/14/12 9382–9429
367 Jury Trial Tr. 11/30/12 9535–9650
368 Jury Trial Tr. 12/03/12 9651–9783
369 Jury Trial Tr. 12/04/12 9784–9929
370 Jury Trial Tr. 12/05/12 9930–10075
372 Jury Trial Tr. 12/07/12 10223–10357
373 Jury Trial Tr. 12/10/12 10358–10409
374 Jury Trial Tr. 12/12/12 10410–10553
375 Jury Trial Tr. 12/13/12 10554–10690
376 Jury Trial Tr. 12/14/12 10691–10861
377 Jury Trial Tr. 12/17/12 10862–11009
378 Jury Trial Tr. 12/18/12 11010–11128
379 Jury Trial Tr. 12/19/12 11129–11280
380 Jury Trial Tr. 12/20/12 11281–11422
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80
Record Number Document Description Page ID Range
381 Jury Trial Tr. 12/21/12 11423–11573
382 Jury Trial Tr. 12/06/12 11574–11720
384 Jury Trial Tr. 01/04/13 11871–12026
385 Jury Trial Tr. 01/07/13 12027–12170
386 Jury Trial Tr. 01/08/13 12171–12295
387 Jury Trial Tr. 01/10/13 12296–12450
389 Jury Trial Tr. 01/14/13 12594–12750
390 Jury Trial Tr. 01/15/13 12751–12848
391 Jury Trial Tr. 01/16/13 12849–12985
392 Jury Trial Tr. 01/17/13 12986–13102
394 Jury Trial Tr. 01/22/13 13193–13340
396 Jury Trial Tr. 01/24/13 13468–13607
397 Jury Trial Tr. 01/25/13 13608–13746
399 Jury Trial Tr. 01/28/13 13749–13891
400 Jury Trial Tr. 01/29/13 13892–14008
401 Jury Trial Tr. 01/31/13 14009–14155
406 Jury Trial Tr. 02/11/13 14404–14506
425 Sealed Conference Tr. 12/05/12 15060–15066
426 Sealed Conference Tr. 12/10/12 15067–15085
463 Rule 33 Order 15636–15709
Case: 13-2500 Document: 54 Filed: 10/09/2014 Page: 90
81
Record Number Document Description Page ID Range
516 Kilpatrick Judgment 16446–16456
543 Restitution Hearing Tr. 12/10/13 16677–16704
Case: 13-2500 Document: 54 Filed: 10/09/2014 Page: 91