COA #: 13-2500 UNITED STATES OF AMERICA Plaintiff/Appellee, v. KWAME KILPATRICK Defendant/Appellant On Appeal from the United States District Court for the Eastern District of Michigan Southern Division APPELLANTS BRIEF Harold Gurewitz (P14468) Attorney for Appellant Gurewitz & Raben, PLC 333 W. Fort Street, Suite 1400 Detroit, MI 48226 (313) 628-4733 Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 1 TABLE OF CONTENTS Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v Statement in Support of Request for Oral Argument. . . . . . . . . . . . . . . . . . . . . . viii Statement of Subject Matter and Appellate Jurisdiction. . . . . . . . . . . . . . . . . . . . . 1 Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of the Case and Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Statement of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Adoption of Statement of Facts by Appellant Bobby Ferguson in Case No. 14-1120 and Kilpatricks Additional Facts... . . . . . . . . . . . . . . . . . . . . . 5 C. Conflict of Interest Chronology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 I. KWAME KILPATRICK WAS DENIED HIS RIGHT TO CONFLICT-FREE REPRESENTATION GUARANTEED BY THE SIXTH AMENDMENT AND SHOULD BE GRANTED A NEW TRIAL. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Standard of Review: This Court reviews district court legal conclusions concerning defense counsel conflicts of interest de novo, and the underlying factual bases upon which the courts conclusions rest, for clear error. United States v. Osborne, 402 F3d 626,630 (6 th Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 A. THOMAS AND NAUGHTON HAD CONFLICTS OF INTEREST ADVERSE TO THE OREILLY FIRM TO WHICH THEY WERE OF COUNSEL ATTORNEYS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 -ii- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 2 B. THE COURT DENIED KILPATRICK HIS SIXTH AMENDMENT RIGHT TO CONFLICT-FREE COUNSEL BECAUSE IT FAILED TO THOROUGHLY INVESTIGATE AND RESOLVE THOMAS AND NAUGHTONS CONFLICTS AFTER IT WAS ON NOTICE OF THEM... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 C. THOMAS AND NAUGHTONS CONFLICTS OF INTEREST DEPRIVED KILPATRICK OF EFFECTIVE ASSISTANCE OF COUNSEL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 ISSUE II: THE TRIAL COURT ERRED BY ALLOWING LAY OPINION TESTIMONY BY CASE AGENTS THAT LACKED FOUNDATION REQUIRED BY FRE 701 AND THAT EXCEEDED THE LIMITS OF THE RULE. THE ERROR WAS NOT HARMLESS... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Standard of Review: This court reviews district court evidentiary rulings, including rulings on witness testimony under FRE 701 for abuse of discretion. United States v. Freeman, 730 F3d 590, 595 (6 th Cir. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 A. TESTIMONY AS DE FACTO EXPERTS. . . . . . . . . . . . . . . . . . . . . . . . . . 47 B. HEARSAY - TESTIMONY BY AGENTS FROM REVIEW OF RECORDS... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 C. INTERPRETATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 1. Kilpatrick Civic Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 2. DLZ And Contracts CM-2012, 2014 and 2015. . . . . . . . . . . . 51 3. Inland Waters and Contracts 1361 and 1368. . . . . . . . . . . . . 55 4. Heilman Recreation Center. . . . . . . . . . . . . . . . . . . . . . . . . . . 57 5. Baby Creek and Patton Park PC-748. . . . . . . . . . . . . . . . . . . 58 -iii- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 3 6. Synagro. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 D. THE COURTS ERROR IN ADMITTING THE AGENTS TESTIMONY WAS NOT HARMLESS.. . . . . . . . . . . . . . . . . . . . . . . . . . . 59 III. RESTITUTION TO DWSD AND IRS WAS NOT AUTHORIZED BY 18 USC 3664A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Standard of Review: This Court reviews de novo whether a restitution order is permitted. The amount of restitution is reviewed for abuse of discretion. United States v. Williams, 612 F3d 500, 510 (6 Cir, th 2010). This court abuses its discretion when it applies an improper legal standard. United States v. Andrews, 88 Fed Appx 903, 908 (6 th Cir, 2004).... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 IV. ADOPTION OF ARGUMENTS BY CO-DEFENDANT BOBBY W. FERGUSON IN UNITED STATES V. BOBBY W. FERGUSON, SIXTH CIRCUIT CASE NO. 14-1120... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Proof of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Addendum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 -iv- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 4 TABLE OF AUTHORITIES SUPREME COURT CASES: Page Cuyler v. Sullivan, 446 US 335 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 32 Holloway v. Arkansas, 435 US 475 (1978).. . . . . . . . . . . . . . . . . . . . . . . . 16, 19, 25 Hughey v. United States, 495 US 411 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Mickens v. Taylor, 535 US 162 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 33, 34 Nix v. Whiteside, 106 S Ct 988 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Strickland v. Washington, 466 US 668, 692 (1984). . . . . . . . . . . . . . . . . . . . . . . . 20 Wood v. Georgia, 450 US 261 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 SIXTH CIRCUIT CASES: Centra, Inc. v. Estrin, 538 F3d 402 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20 Harris v. Carter, 337 F3d 758 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 McFarland v. Yukins, 356 F3d 688 (2004). . . . . . . . . . . . . . . . . . . . . . 16, 19, 29, 33 United States v. Andrews, 88 Fed Appx 903 (2004).. . . . . . . . . . . . . . . . . . . . . . . 61 United States v. Butler, 297 F3d 505 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 United States v. Edkins, 421 Fed Appx 511 (11/18/10) . . . . . . . . . . . . . . . . . . . . 63 United States v. Freeman, 730 F3d 590 (2013). . . . . . . . . . . . . . . . . . . . . 16, 35, 38 United States v. Osborne, 402 F3d 626 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . 17 United States v. Williams, 612 F3d 500 (6 Cir, 2010).. . . . . . . . . . . . . . . . . . . . . 61 th -v- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 5 OTHER CIRCUIT CASES: Atley v. Ault, 191 F3d 865 (8 Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 th Salts v. Epps, 676 F3d 468 (5 Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 th Selsor v. Kaiser, 81 F3d 1492 (10 Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 th The People ex rel. Dept. of Corp. v. Speedee Oil Change Systems, Inc., 20 Cal. 4 1135, 980 P2d 371 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . 23-24 th United States v. Anderson, 545 F3d 1072 (DC Cir. 2008). . . . . . . . . . . . . . . . . . . 63 United States v. Badaracco, 954 F2d 928 (3 Cir, 1992).. . . . . . . . . . . . . . . . . . . 62 rd United States v. Batson, 608 F3d 630 (9 Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . 62 th United States v. Figueroa-Lopez, 125 F3d 1241 (9 Cir. 1997). . . . . . . . . . . . . . 47 th United States v. Freeman, 498 F3d 893 (9 Cir. 2007). . . . . . . . . . . . . . . . . . . . . 41 th United States v. Galloway, 509 F3d 1246 (10th Cir, 2007). . . . . . . . . . . . . . . 61-62 United States v. Garcia, 413 F3d 201 (2 Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . 41 nd United States v. George, 403 F3d 470 (7th Cir, 2005). . . . . . . . . . . . . . . . . . . . . . 62 United States v. Grinage, 390 F3d 746 (2 Cir. 2004). . . . . . . . . . . . . . . . . . . . . 41 nd United States v. Hampton, 718 F3d 978 (DC Cir. 2013). . . . . . . . . . . 41, 42, 43, 60 United States v. Jayyousi, 657 F3d 1085 (11 Cir. 2011).. . . . . . . . . . . . . . . . . . . 39 th United States v. Johnson, 617 F3d 286 (4 Cir. 2010). . . . . . . . . . . . . . . . 41, 42, 47 th United States v. Levy, 25 F3d 146 (2 Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . 33 nd -vi- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 6 United States v. Peoples, 250 F3d 630 (8 Cir. 2001). . . . . . . . . . . . . . . . 41, 47, 60 th STATE OF MICHIGAN CASES Avink v. SMG, 282 Mich App 110 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 RULES & STATUTES Harvard Law Review, 98 Harv L Rev 1023, n.5, 1985. . . . . . . . . . . . . . . . . . . . . 21 Pollack, Milton, Parallel Civil and Criminal Proceedings, 129 FRD 201 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 FRE 701. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 -vii- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 7 STATEMENT IN SUPPORT OF REQUEST FOR ORAL ARGUMENT Pursuant to FRAP 34(a)(1) and Sixth Circuit Rule 34(a), Appellant Kwame Kilpatrick respectfully requests oral argument. Counsel for Appellant believes oral argument will assist this Court in rendering its decision because of the complex and extensive record and because of the nature of the legal issues. -viii- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 8 STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION PURSUANT TO FRAP RULE 28(A)(4) The federal district court had jurisdiction of this case pursuant to 18 USC 3231 because the Government alleged violations of 18 USC 666(a); 1341, 1343, 1951, 1962(d), and 26 USC 7201 and 7206. The Court of Appeals for the Sixth Circuit has jurisdiction pursuant to 28 USC 1291. The appeal is from the district courts Judgment dated December 17, 2013. (R516, Judgment, Pg ID 16446). -1- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 9 STATEMENT OF THE ISSUES I. KWAME KILPATRICK WAS DENIED HIS RIGHT TO CONFLICT-FREE REPRESENTATION GUARANTEED BY THE SIXTH AMENDMENT AND SHOULD BE GRANTED A NEW TRIAL II. THE TRIAL COURT ERRED BY ALLOWING LAY OPINION TESTIMONY BY CASE AGENTS THAT LACKED FOUNDATION REQUIRED BY FRE 701 AND THAT EXCEEDED THE LIMITS OF THE RULE. THE ERROR WAS NOT HARMLESS. III. RESTITUTION TO DWSD AND IRS WAS NOT AUTHORIZED BY 18 USC 3664A. IV. ADOPTION OF ARGUMENTS BY CO-DEFENDANT BOBBY W. FERGUSON IN UNITED STATES V. BOBBY W. FERGUSON, SIXTH CIRCUIT CASE NO. 14-1120. -2- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 10 STATEMENT OF THE CASE AND FACTS A. PROCEEDINGS Kwame Kilpatrick (Kilpatrick) was charged as the only defendant in a 14- count Indictment on June 23, 2010, with fraud and tax offenses. (R1, Indictment, Pg ID 16-30). A First Superseding Indictment that added a charge of RICO Conspiracy was filed on December 15, 2010. (R20, 1 Superseding Indictment, Pg st ID 65-155). It named Kilpatrick, Bobby Ferguson, Bernard Kilpatrick (Kwame Kilpatricks father), and Victor Mercado as defendants. Trial began on September 6, 2012, on charges contained in the Fourth Superseding Indictment - Redacted (although not electronically docketed until February 15, 2013), in which Kilpatrick was charged in 30 counts. (R274, 4 th Superseding Indictment-Redacted, Pg ID 2166-90). Those charges were: Count 1, RICO conspiracy in violation of 18 USC 1962(d) (Id, Pg ID 2166-76); Counts 2- 5 and 7-10, extortion under color of official right and fear of economic harm in violation of 18 USC 1951 (Id, Pg ID 2177-81); Counts 16-17, bribery concerning programs receiving federal funds in violation of 18 USC 666(a) (Id, Pg ID 2181- 82); Counts 18-30, mail or wire fraud in violation of 18 USC 1341 or 1343 (Id, Pg ID 2182-84); Counts 31-35, subscribing false tax returns for the calendar years 2004-2007 in violation of 26 USC 7206(1) (Id, Pg ID 2184-87); and, Count 36, -3- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 11 income tax evasion in violation of 26 USC 7201. (Id, Pg ID 2188). Count 1 1 incorporated all but the tax offenses as part of the alleged conspiracy. James Thomas (Thomas) filed his appearance as counsel at Kilpatricks arraignment on the Indictment. (R4, Appearance, Pg ID 37). Thomas was appointed to represent Kilpatrick pursuant to the Criminal Justice Act two days later. (R8, CJA 20, Pg ID 42). Michael Naughton (Naughton) was also appointed as counsel for Kilpatrick pursuant to the Criminal Justice Act (for technical support). (R12, Order Granting Secondary Counsel, Pg ID 51-52). Trial concluded on March 11, 2013 with the return of guilty verdicts for Kilpatrick on 24 counts: Count 1, RICO conspiracy; Counts 2-5 and 9, Extortion; Count 17, Bribery; Counts 18-26, Mail fraud; Counts 28, 30,Wire fraud; Counts 31-35, Subscribing false tax returns; and, Count 36, Income tax evasion. (R277 Verdict Form, Pg ID 2213-34). Kilpatrick was sentenced on October 10, 2013, to 336 months (28 years) All four defendants were charged in Count 1. Ferguson was also charged 1 together with Kilpatrick in Counts 2 -5, 7-10 and 16-17. (R274, 4 Superseding th Indictment, Redacted, Pg ID 2166-90). Mercado entered a guilty plea during trial on November 5, 2012 to a charge of conspiracy in violation of 18 USC371. (R245, 5 Superseding Information, Pg ID 1826-29; R247, Rule 11 Agreement, Pg th ID 1831-38). Derrick Miller entered a guilty plea before trial, on September 12, 2011, to bribery and subscribing to a false tax return.(R67, 2 Superseding nd Information, Pg ID 252-54; R70, Rule 11 Agreement, Pg ID 258-78). -4- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 12 custody and three years supervised release. (R516, Judgment, Pg ID 16450-51). On December 17, 2013, the court entered a judgment that included forfeiture in the amount of $4,584,423; and restitution of $4,584,423 to the Detroit Water and Sewerage Department (DWSD) and $195,403.61 to the Internal Revenue Service (IRS). (Id, Pg ID 16453). 2 B. ADOPTION OF STATEMENT OF FACTS BY APPELLANT BOBBY FERGUSON IN CASE NO. 14-1120 AND KILPATRICKS ADDITIONAL FACTS.
Pursuant to FRAP 28(i), Kilpatrick hereby adopts by reference the Statement of Facts appearing in Appellant Bobby Fergusons brief, Case No. 14- 1120, at pages 6-23. Additional facts on behalf of Kilpatrick are set forth below. The Governments presentation of evidence at trial followed its indictment allegations that Kilpatrick received funds during his tenure as mayor from co- defendant Bobby Ferguson (Ferguson), others doing business with the city, and from a non-profit civic organization he had established, the Kilpatrick Civic Fund (KCF), that he did not report on his tax returns. Kilpatrick was the Mayor of the Ferguson was convicted of Count 1, RICO; Counts 2-5 and 7-9 - 2 Extortion; and, 17, Bribery. He was sentenced to 252 months custody. (R519, Judgment, Pg ID 16474-85). Bernard Kilpatrick was found guilty on one count of violating 26 USC 7206, Subscribing False Tax Return. He was sentenced to a term of 15 months custody. (R518, Judgment, Pg ID 16467-73). Miller and Mercado were each sentenced to 1 day custody, time served. (R557, Mercado Judgment, Pg ID 16805-10; R558, Miller Judgment, Pg ID 16811-16). -5- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 13 City of Detroit from January 2002 until he resigned in September 2008. Much of the testimony at trial concerned Ferguson, his companies, and work his companies performed on city contracts. It was part of the Governments theory that Kilpatrick steered city construction contracts to Ferguson and that Ferguson shared his profits with Kilpatrick. (R301, TR 9/21/12, Govt Opening, Pg ID 4661-63; R406, TR 2/11/13, Govt Closing, Pg ID 14452). Fergusons profits on that work also were used to determine Kilpatricks sentence guidelines pursuant to USSG 2C.1, and imposition of a 28 year sentence. (R492, 10/10/13, Sentencing, Pg ID 16165- 67, 16220-21). Ferguson performed excavation work for the city prior to the Kilpatrick administration. He was a long time friend of the mayor and it was understood by Derrick Miller, Kilpatricks chief of staff, that he should help Ferguson in his dealings with the city. (R385, TR 1/7/13, Miller, Pg ID 12136-43). Ferguson aggressively sought out work with engineering companies doing work on city contracts for his companies, Ferguson Enterprises, Inc, (FEI), and Xcel Construction Services (Xcel). (R352, TR 10/26/12, Hardiman, Pg ID 8090). He was more difficult to negotiate with than other contractors and often pushed hard for more work, more money, or both. (R350, TR 10/24/12, Rajadhyaksha, Pg ID 7768; R372, TR 12/6/12, McCann, Pg ID 10297; R370, TR 12/5/12, Soave, Pg ID -6- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 14 10049). One firm, Lakeshore Engineering (Lakeshore), chose to include Ferguson as part of its team on a city contract because he was doing a lot of work for the city and seemed to know how to get things done in the city administration. (R352, TR 10/26/12, Hardiman, Pg ID 8127). Fergusons companies typically performed excavation subcontractors for large engineering firms specialized in performing municipal infrastructure work. (Id, Pg ID 8072). These firms included Walbridge Aldinger (Walbridge), a diversified engineering company with about $2 billion in revenues. (R379, TR 12/19/12, Parker, Pg ID 11168); Lakeshore Engineering, that performed municipal contracts ranging in size from $500,000 to $250 Million (R356, TR 11/15/12, Rachmale, Pg ID 8632); DLZ, a 700 employee company that had about $700 million in gross revenue (R350, TR 10/24/12, Rajadhyaksha, Pg ID 7750-52); and, Inland Waters Pollution Control, Inc. (Inland) an engineering firm specialized in municipal infrastructure work. (R370, TR 12/5/12, Soave, Pg ID 10027-31). Each had a history of doing work for the Detroit Water and Sewer Department (DWSD). From 2002 to 2008, DWSD sought bids on as many as 60 contracts, having a total value of about $2.7 billion, to maintain its operations, to supply water, and to provide sewerage services for most of southeastern Michigan. The DWSD -7- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 15 operates the third largest system of its kind in the United States. (R348, TR 10/22/12, Edwards, Pg ID 7485-88). It was run by a director appointed by the mayor. From 2003 to 2008, the Director was Victor Mercado (Mercado). (Id, Pg ID 7488). He reported both to the mayor and to the supervising federal court judge under the federal consent decree. (Id, Pg ID 7490-91). The DWSDs complicated contracting process includes solicitation and evaluation of bids or proposals. City finance, law and human rights departments play roles as well, including equalization of bids pursuant to city ordinances to give preferences to city contractors. (Id, Pg ID 7492-98). DWSD contracts finally must be authorized by a city council vote, without any required approval by the mayor. In certain cases, the Mayor acting as Special Administrator, was empowered to sign contracts without a city council vote. The Mayors status as Special Administrator was the result of his appointment by a federal court judge acting in a lawsuit filed in 1977 by the Environmental Protection Agency (EPA) alleging department violations of federal regulations. (Id, Pg ID 7487-91, 7508). Only three of the contracts referred to in the Indictment were issued based on this authority: DLZ contract CM-2012 (Id, Pg ID 7510-13); Walbridge contract PC- 748 (R386, Miller, TR 1/8/13, Pg ID 12255-56); and, Inland contract CS-1368, Amendment IV (sewer collapse)(Id, Pg ID 12217-18). None of the other contracts -8- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 16 had a need to pass over the mayors desk for his signature. Testimony about the contracting process with DLZ, Walbridge, Lakeshore and Inland came from owners or executives of those companies. The only ones to testify about any contact with Kilpatrick were Anthony Soave of Inland (R370, TR 12/5/12, Soave, Pg ID 10035-36) and Bernard Parker of Walbridge (R379, TR 12/19/12, Parker, Pg ID 11156). Evidence of Kilpatricks knowledge or any involvement in the contracting process was otherwise based on text messages or intercepted calls. FBI Agent Robert Beeckman (Beeckman) and EPA Criminal Investigator Carol Paszkiewicz (Paszkiewicz) testified in a serial fashion, about a dozen times each, for each of the contracts and other parts of the RICO allegations as narrators of the Governments case to interpret the messages and explain involvement of city officials assisting Ferguson at Kilpatricks direction, the so-called steering. (R409, TR 2/15/13, Govt Rebuttal Closing, Pg ID 14773). C. CONFLICT OF INTEREST CHRONOLOGY A chronology of events relevant to the conflicts of interest discussed in Issue I is as follows: 2005 Thomas represents Gaspar Fiore (Fiore) in a federal investigation concerning a local public bus system in 2005. (R203, Memo re Conflict, Pg ID 1581-82). -9- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 17 2007 Thomas represents Fiore in 2007 in a federal investigation in which it is alleged that Fiore made a $25,000 contribution to the Kilpatrick campaign in July, 2004, through a PAC maintained by the Allen Brothers Law Firm. (R206, TR 8/7/12, Hearing, Pg ID 1684-86). 2008 Thomas begins representing Kilpatrick in a series of nine separate matters. (R203, Memo re Conflict, Pg ID 1581-82). 2010 Thomas refers Fiore to another attorney, Robert Morgan, in 2010. (Id, Pg ID 1580-86). 6/23/10 An Indictment is filed naming Kilpatrick in 19 counts of mail and wire fraud and tax violations. (R1, Indictment, Pg ID 16- 30). 7/15/10 Thomas is appointed to represent Kilpatrick in the criminal case for the purpose of continuity. (R203, Memo re Conflict, Pg ID 1586; R362, TR 8/14/12, Hearing, Pg ID 9386-87). Naughton is also appointed as a technical support attorney. (R12, Order, Pg ID 51). 12/15/10 A 1 Superseding Indictment (R20, Pg ID 65-155) is filed st adding charges of RICO, bribery, and extortion, and adding Bobby Ferguson, Bernard Kilpatrick, Victor Mercado and Derrick A. Miller as defendants. 7/18/11 A civil Complaint is filed in Macomb Interceptor Drain Drainage District v. Kwame M. Kilpatrick, et al. Case No. 11- CV-13101, US District Court, Eastern District of Michigan. (Macomb Drain litigation). (11-13101: R1, Complaint). It 3 names 32 individuals or businesses as defendants, including Kilpatrick as the lead defendant. Counsel for the plaintiff is the law firm of OReilly Rancilio, P.C. (the OReilly firm). The Record references hereinafter for the Macomb Drain litigation will be 3 referred to as 11-13101. -10- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 18 suit alleges a RICO claim parallel to the criminal indictment against Kilpatrick. It attaches the criminal indictment as Exhibit A. Also named as defendants are: Mercado, Ferguson, Derrick Miller and Bernard Kilpatrick. 9/15/11 Thomas and Naughton file an answer to the civil complaint on behalf of Kilpatrick on September 15, 2011. (11-13101: R42, Answer To Complaint, Pg ID 471-83). 11/16/11 Third Superseding Indictment is filed (R72, Pg ID 280-380). 1/24/12 Fiore is interviewed by the FBI concerning his contribution to the Kilpatrick campaign. (R203, Memo re Conflict, Pg ID 1587). 2/03/12 The OReilly firm moves to amend the complaint in the Macomb Drain litigation to add substantial factual background information regarding (a) the larger scheme at issue in this case... (11-13101: R176, Motion to File Amended Complaint, Pg ID 2542-46). 2/10/12 Thomas and Naughton move to withdraw as counsel for Kilpatrick in the civil case citing their inability to work with Kilpatrick. (11-13101: R181, Motion To Withdraw, Pg ID 2832). 2/15/12 Fiore testifies before the grand jury about, inter alia, his $25,000 campaign contribution made through the Allen Brothers Law Firm PAC. (Memo re Conflict, Pg ID 1606; R206, TR 8/7/12, Conference, Pg ID 1687). 2/15/12 A Fourth Superseding Indictment (R74) is filed against Kilpatrick and others adding allegations that the Kilpatrick enterprise received $80,000 from Fiore between 2003 and 2008 to influence the award of Detroit Police towing contracts and that Fiore was extorted by Kilpatrick and Ferguson.
-11- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 19 2/17/12 Thomas and Naughton re-file their motion to withdraw in the civil suit with a Kilpatrick stipulation to the withdrawal. The motion is held in abeyance to allow Kilpatrick to obtain other counsel. (11:13101: R197 Order Holding In Abeyance, Pg ID 2978-79). 3/12/12 The court in the civil case enters an order to hold counsels motion in abeyance to allow Kilpatrick to obtain substitute counsel, citing the complexity and Kilpatricks central role in the case.(11:13101: R197, Order Holding In Abeyance, Pg ID 2978-79). 3/21/12 Thomas and Naughton notify the court in the civil case that they must withdraw for a separate reason, because they will become of counsel to the OReilly firm on April 1, 2012 and will have disqualifying conflicts of interest mandating withdrawal pursuant to Rules of Professional Responsibility. (11-13101: R198, Supplement To Motion To Withdraw, Pg ID 2980-82). 3/28/12 Judge Cleland issues an order in the civil case granting their motion to withdraw. (11-13101: R199, Order Granting Motion To Withdraw, Pg ID 2984-86). 4/1/12 Thomas and Naughton become of counsel to the OReilly firm. (R203, Memo re Conflict, Pg ID 1581). 4/3/12 Thomas receives the FBI 302 of Fiores interview. (Id, Pg ID 1587). 6/1/12 Thomas receives the Government witness list listing Fiore as a witness against Kilpatrick. (Id, Pg ID 1588). 8/7/12 Thomas and Kilpatrick meet with Judge Edmunds. Thomas tells Judge Edmunds that he cannot cross-examine Fiore and that Kilpatrick wants him to withdraw because of his conflict. (R206, TR 8/7/12, Conference, Pg ID 1672-89). -12- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 20 8/9/12 Judge Edmunds asks the parties to brief every possible conflict of which counsel or defendants are aware, including the conflict involving representation of conflicting interests, specifically the representation of the plaintiff in the Macomb Drain litigation by the OReilly firm, as discussed in the Detroit Free Press that day. (R204, Govt Response to Potential Conflict, Pg ID 1654). 8/13/12 The Governments Brief on conflicts says that to resolve Thomas prior representation conflict it would withdraw the Fiore allegations in the Indictment. It briefly adds that Thomas relationship to the OReilly firm constituted no conflict because of its understanding of Thomas separate primary office and file system. (Id, Pg ID 1644). 8/13/12 Thomas brief says that his attorney-client relationship with Kilpatrick was unfettered until a complication arose concerning prior representation of a witness. He says that his relationship with the OReilly firm includes separate offices and file systems. (Id, Pg ID 1654). 8/14/12 A conflict hearing is held before Judge Edmunds. Thomas says that he should have seen the OReilly Macomb Drain litigation and Kilpatrick conflict issue; that disciplinary rules require consent from each client, and that he did not get it. (R362, TR 8/14/12, Hearing, Pg ID 9393). Kilpatrick says that he learned of the full scope of the Fiore conflict on 8/7/12 and he was losing confidence in Thomas. (Id, Pg ID 9403-9404; R203, Memo re Conflict, Exhibit 4: Kilpatrick Affidavit, Pg. ID 1620, 1621-22). 4 Kilpatrick signed a conflict waiver in January 2011 that referred to 4 Thomas prior representation of Fiore (R203, Memo re Conflict, Waiver, Pg ID 1616-17), before he was aware Thomas had represented Fiore in a federal investigation relating to the $25,000 contribution. (R362, TR 8/14/12, Hearing, Pg ID 9388; R203, Memo re Conflict, Exhibit 4: Kilpatrick Aff., Pg. ID 1622) At that time, while there was a disclosure of the representation of Witness A, it was -13- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 21 8/15/12 Judge Edmunds issues an order refusing to disqualify Thomas and Naughton. She finds no prior representation conflict because the government would dismiss the Fiore allegations. Concerning Thomas and Naughtons of counsel relationship to the OReilly firm, which was suing Kilpatrick for the same RICO allegations they were defending in the indictment, the trial court finds their conduct concerns prior representation (it refers to MRPC 1.10(b), and that Thomas and Naughtons separation of physical space and files, along with appointment of another attorney to cross-examine witnesses connected to the Macomb Drain litigation, will be sufficient. (R199, Opinion & Order, Pg ID 1561, 1563-67). 9/6/12 The criminal trial begins. 9/24/12 Plaintiffs, represented by the OReilly firm, to which Thomas and Naughton are of counsel, move a second time to amend the Complaint in the civil case alleging that additional facts had come to light, and add allegations about the Kilpatrick scheme and Kilpatrick enterprise and unlawful payments to Kilpatrick. (11-13101: R240, Motion to Amend, Pg ID 4047-48). 10/31/12 Judge Cleland grants Summary Judgment to the civil defendants and denies the Plaintiffs motion to amend. (11- 13101: R251, Opinion & Order Granting Summary Judgment and Denying Motion to Amend Complaint, Pg ID 4469-77). 11/14/12 Plaintiffs move for reconsideration and allege that informal discovery from co-defendants and from the criminal proceedings in the ongoing trial support their new allegations. (11-13101: R256, Plaintiffs Motion for Reconsideration, Pg ID 4774-83). 1/31/13 The Government rests and the defense began presentation of witnesses in the criminal trial. represented to be in an unrelated matter. (Id). -14- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 22 2/11/13 Closing arguments begin in the criminal case. Judge Cleland denies the motion for reconsideration in the civil case. (11- 13101: R289, Amended Opinion & Order, Pg ID 5486-97). SUMMARY OF THE ARGUMENT In Issue One, Kilpatrick argues that he was denied his Sixth Amendment right to effective assistance of counsel and to be represented by counsel free of the conflicts of interest that arose when Kilpatricks counsel, Thomas and Naughton, became of counsel to the OReilly firm on April 1, 2012, about six months before the start of Kilpatricks trial. The OReilly firm was then counsel for the Macomb Intermediate Drain Drainage District (MIDDD), a local government body suing Kilpatrick in the Macomb Drain litigation for claimed substantial overbilling on work done to repair a major sewer collapse in its jurisdiction. Its lawsuit incorporated allegations of Kilpatricks indictment. The MIDDD claimed it was the victim of a massive scheme orchestrated by Kilpatrick to steer contracts to Bobby Ferguson. The Inland contracts were part of that scheme. As a result, Thomas and Naughton were defending Kilpatrick in the criminal case on the very same alleged acts of corruption that the firm to which they were of counsel sought to establish in a parallel civil suit. Kilpatrick also argues in Issue I that he was denied his Sixth Amendment right to counsel by the district court when it failed to conduct the kind of hearing -15- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 23 required by Holloway v. Arkansas, 435 US 475 (1978), and when it failed to replace Thomas and Naughton. Kilpatrick also argues that his counsel had an actual conflict and was denied their effective representation because they failed to bring their conflict to the attention of the court in the criminal case for over five months, McFarland v. Yukins, 356 F3d 688 (6 Cir, 2004) while the court th scheduled pre-trial and trial proceedings. In Issue II, Kilpatrick asks for a new trial because the district court erred by allowing two case agents to repeatedly include inadmissible evidence in the guise of lay opinion testimony. Defendants objected in a pre-trial motion in limine because the testimony would be without foundation of the witnesses personal knowledge. During trial, the agents together testified a total of 23 times to introduce text messages, recorded calls, or documents related to the various parts of the lengthy case. Their testimony was repeatedly based on their entire investigation, a shorthand reference to the more than 300,000 text messages, numerous intercepted calls and volumes of documents never presented to the jury, on which they relied for their opinions. Their testimony included hearsay and expert opinions. They told the jury what conclusions to draw. United States v. Freeman, 730 F3d 590 (6 Cir. 2013). The courts abuse of discretion in allowing th the testimony was not harmless error. The agents interpretations of text messages -16- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 24 and intercepted calls was a pervasive part of the trial. It cannot be concluded beyond a reasonable doubt that the error was harmless. In Issue III, Kilpatrick asks that this Court conclude that the district court order requiring restitution to the DWSD of $4,584,423, be reversed because the court relied on evidence of profit instead of loss. He also asks this Court to conclude that the District Court was without authority to order $195,403.61 be paid to the IRS. ARGUMENT ISSUE I: KWAME KILPATRICK WAS DENIED HIS RIGHT TO CONFLICT FREE REPRESENTATION GUARANTEED BY THE SIXTH AMENDMENT AND SHOULD BE GRANTED A NEW TRIAL. Standard of Review: This Court reviews district court legal conclusions de novo, and the underlying factual bases upon which the courts conclusions rest, for clear error. United States v. Osborne, 402 F3d 626, 630 (6 Cir. 2005). th A. THOMAS AND NAUGHTON HAD CONFLICTS OF INTEREST ADVERSE TO THE OREILLY FIRM TO WHICH THEY WERE OF COUNSEL ATTORNEYS.
Thomas and Naughton created disqualifying conflicts of interest for themselves when they joined the OReilly law firm as of counsel attorneys on April 1, 2012. As a result of their affiliation, the OReilly firm was then suing Kilpatrick in a civil case while Thomas and Naughton as associated attorneys were -17- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 25 defending him in his criminal case on the same allegations. Thomas and Naughtons positions as Kilpatricks criminal defense attorneys were antagonistic to the firms in its representation of its client, the MIDDD, suing Kilpatrick. Attorneys of the same law firm cannot defend a client on a criminal RICO indictment, and sue him at the same time on a uniquely parallel civil RICO complaint. Centra, Inc. v. Estrin, 538 F3d 402, 413 (6 Cir. 2008)(Because th attorneys owe undivided allegiance to their client, they cannot represent both sides in the same lawsuit.). Parallel criminal and civil cases put Thomas and Naughton, and the law firm they joined, on opposite sides in two versions of the same complaint, one criminal and the other civil. The result is that Kilpatrick was denied his Sixth Amendment rights to effective assistance of counsel and to be represented by counsel free from serious conflicts of interest. Wood v. Georgia, 450 US 261, 271 (1981)(Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.). Thomas and Naughton could have chosen not to affiliate with the firm as of counsel attorneys, or they could have withdrawn from their representation of Kilpatrick in the criminal case. At the very least, they had an obligation to promptly advise their client of the impact of their new affiliation and bring it to the -18- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 26 attention of the court in the criminal case. Cuyler v. Sullivan, 446 US 335, 346 (1980)(Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.). They did neither. They waited for over five months to disclose their affiliation with the OReilly firm to the court until prodded a few weeks before trial. When they finally told the court of their conflicts before jury selection, the court had a responsibility to inquire. However, the court neither examined the details of Thomas and Naughtons relationship with the OReilly firm nor the allegations of that firms civil RICO complaint naming Kilpatrick as the lead defendant. Holloway v. Arkansas, 435 US 475, 484 (1978)(We hold that the failure, in the face of the representations made by counsel weeks before trial and again before the jury was empaneled, deprived petitioners of the guarantee of assistance of counsel.). The courts lack of diligence denied Kilpatrick his right to conflict-free representation guaranteed by the Sixth Amendment. As discussed below, Thomas and Naughton had actual conflicts that affected their representation of Kilpatrick and denied him effective assistance of counsel. McFarland v. Yukins, 356 F3d 688 (6 Cir. 2004). Each violation requires that th Kilpatrick receive a new trial. -19- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 27 Among the basic duties owed by a criminal defense lawyer to his client are the duty of loyalty, the duty to avoid conflicts of interest, and the overarching duty to advocate the defendants cause. Strickland v. Washington, 466 US 668, 688 (1984). Each is violated when attorneys represent clients with adverse interests in the same or in parallel litigation within the same law firm. Cannons of Ethics, the American Bar Association Model Rules, and state rules of professional conduct, including the Michigan Rules of Professional Conduct (MRPC), codify these principles. These rules are authoritative because they embody the duties described in Strickland, and because they all speak with one voice, Nix v. Whiteside, 106 S Ct 988, 994 (1986) [T]he Restatement (Third) of the Law Governing Lawyers (Restatement) and the 2007 edition of the American Bar Associations (ABA) 1983 Model Rules of Professional Conduct (ABA Model Rules) include the same prohibitions. Centra, Inc.,538 F3d at 409-410. The MRPC are also authoritative because they have been adopted by the United States District Court for the Eastern District of Michigan as federal rules of professional conduct. Centra, Inc.,538 F3d at 409; US District Court, Eastern District of Michigan, Local Rule 83.20(j) (App 22). Id. at 412. They apply equally 5 When clients are aligned directly against each other in the same 5 litigation, the institutional interest in vigorous development of each clients position renders the conflict non-consentable. Centra, Inc., 538 F3d at 413, citing -20- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 28 to parallel litigation. 6 Thomas and Naughton had conflicts because they were associated with the OReilly firm (MRPC Rule 1.10(a)) (App 8) and were prohibited by MRPC Rule 1.7(a) (App 1) from representing Kilpatrick while OReilly represented the plaintiff in the Macomb Drain litigation. There was no evidence of any consent by either party. As discussed below, their conflicts were not merely theoretical. Mickens v. Taylor, 535 US 162, 171 (2002). They had the obligation to tell the court about their association with the OReilly firm, but took no step to do so until prodded by the court. Although conflicting obligations make it difficult to measure the precise harm arising from counsels errors, Id at 168, counsel had the sole responsibility to direct trial preparation, to construct trial strategy, opening statement, closing argument and to cross-examine witnesses. 7 Restatement 122cmt.g(iii) & illus. 8. Civil and criminal actions arising from the same facts are commonly 6 referred to as parallel proceedings. Note: Harvard Law Review, 98 Harv L Rev 1023, n.5, 1985; Pollack, Milton, Parallel Civil and Criminal Proceedings, 129 FRD 201 (1989). Derrick Miller testified as a government witness for over 4 days. He had 7 been Kilpatricks chief of staff and testified about conversations with Kilpatrick regarding contracts in this case. (R385, TR 1/7/13, Miller, Pg ID 12032, 12136, 12149, 12165; R386, TR 1/8/13, Miller, Pg ID 12185, 12194, 12196, 12205, -21- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 29 The Macomb Drain litigation was parallel to the RICO conspiracy charge in the Indictment because it alleged the same widespread scheme and acts by Kilpatrick charged in the Indictment. (11-13101: R1, Complaint, Pg ID 3; R 240- 1, Proposed Amended Complaint, Pg ID 4053). It alleged the same Kilpatrick enterprise as did the Indictment. (11-13101: R1, Complaint, Pg ID 11; R240-1, Proposed Amended Complaint, Pg ID 4086). It asked for damages caused by alleged massive overcharging for repairs that followed a sewer collapse. A copy of the Indictment was attached as Exhibit A to the civil Complaint. (11-13101: Complaint, R1-1, Pg ID 21-109). A proposed amended civil complaint submitted to the court on February 3, 2012, alleged, based on additional information from the criminal case, that a larger scheme .... was predicated upon the unlawful use by Kilpatrick of his authority and influence as Mayor and as the federally appointed Special Administrator of DWSD... (11-13101: R176-1, Proposed First Amended Complaint, Pg ID 2543, 2547-51). A revised amended complaint submitted to the court on September 24, 2012 cited to the indictment numerous times for support of specific allegations; i.e.: as 12210, 12223, 12243) Thomas asked him no questions about those conversations on cross-examination. (R387, TR 1/10/13, Miller, Pg ID 12340-450; R388, TR 1/11/13, Miller, Pg ID 12453-591). -22- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 30 alleged in the First Superseding Indictment. (R240-1, 5, 34-38, 40, 48, 50, 53- 56, 60, 64, 74, 75, 79-82, 106, 118-119, 123, 142, 148-149, 159, 172 and 173, Pg ID 4053-4089). The OReilly firm explained that it was learning more daily from the criminal trial in which Thomas and Naughton were defending Kilpatrick. (Id, Pg ID 4782)(Evidence continues to pour in daily from the sworn testimony being offered in the U.S. v. Kilpatrick trial.). The OReilly firm continued as counsel for MIDDD at least through the end of Kilpatricks trial. Although Judge Cleland granted summary judgments to the defendants in the civil case at the end of 2012, the status of those orders was not finalized until the Plaintiffs motion for reconsideration was finally denied on February 11, 2013, (11-13101: R289, Order, Pg ID 5486), the day of the governments closing argument in the criminal case. Of counsel attorneys are treated as members of the firm for purposes of conflict of interest analysis. Lawyers and law firms that engage in of counsel relationships are cautioned that an of counsel affiliation is treated as one firm for purposes of the ethics rules, e.g., lawyer disqualification [MRPC 1.10] and lawyers as witnesses [MRPC 3.7(b)] . Michigan Bar Opinion No. RI-102 (October 1, 1991). (App 13). The opinion expresses the prevailing view on disqualification. The People ex rel. Dept. Of Corporations v. Speedee Oil, 20 Cal. -23- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 31 4 1135, 1155 (1999). th The core characteristic of an of counsel relationship is that it must be close, regular and personal. Michigan Bar Opinion RI-102 (App 13); see also ABA FORMAL OPINION 90-357 (App 16). It cannot be merely a mutual referral arrangement or one by which the of counsel attorneys act as occasional consultants to the firm. [F]requent and continuing contact, Id, is essential. (App 16). The principle rationale for this rule is that it is to prevent false or misleading communications to the public about the status of attorneys listed on firm letterheads or on other public documents. Id. ([I]t would be misleading to describe as of counsel a relationship that does not meet this standard.). Thomas and Naughton made public representations that they were associated with the OReilly firm. The judge picked up on this because it was the subject of a newspaper story. (R204, Govt Response re Conflict, Pg ID 1654). They identified themselves as part of the OReilly firm in their pleadings, including, for example, in their brief on conflicts of interest. (R203, Memo re Conflict, Pg ID 1580, 1604). They were using the OReilly firm email address for their email addresses. (jthomas@orlaw.com and mnaughton@orlaw.com). (Id, Pg ID 1604). It can only be presumed that Thomas and Naughton intended their of counsel relationship to be what the state rules required. There was nothing in the -24- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 32 record to indicate the contrary. B. THE COURT DENIED KILPATRICK HIS SIXTH AMENDMENT RIGHT TO CONFLICT-FREE COUNSEL BECAUSE IT FAILED TO THOROUGHLY INVESTIGATE AND RESOLVE THOMAS AND NAUGHTONS CONFLICTS AFTER IT WAS ON NOTICE OF THEM. The trial court failed to make the kind of inquiry required by Holloway, and deprived Kilpatrick of his Sixth Amendments guarantee of assistance of counsel. Holloway, 435 US at 484. The district court began examining their conflicts on August 7, 2012 when Kilpatrick himself came to Judge Edmunds, with complaints about Thomas prior representation of Fiore, a listed government witness (R206, TR 8/7/12, Conference, Pg ID 1675-81, 1689), and with his request for new counsel. (Id, Pg ID 1693-94). Thomas told the court then he did not believe he was required to withdraw. (Id, Pg ID 1673). He reversed his position at the hearing seven days later. (R362, TR 8/14/12, Pg ID 9392-95). He made no mention at the August 7, 2012 meeting that he was of counsel to the OReilly firm. The court asked the attorneys to submit briefs. (R206, TR 8/7/12, Id, Pg ID 1690). In an email two days later, on August 9, 2012, the court asked that the parties fully brief all conflicts and: address every possible conflict of which counsel or defendants are aware including, but not limited to, -25- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 33 Robert Schumake, Dante DeMiro, and also the conflict discussed in the Free Press this morning concerning the Macomb Interceptor Drainage District. (08/09/12 Email) (R204, Govt Response re Conflict, Pg ID 1654). 8 Thomas and Naughton memorandum on conflicts filed on August 13, 2012, was their first mention of their affiliation with the OReilly firm. (R203, Memo re Conflict, Pg ID 1580-1643). The government discussed it in less than a page and simply took the position that it was no problem. (R204, Govt Response re Conflict, Pg ID 1654). Kilpatricks own 7-page affidavit in support of his continued request for new counsel was appended to Thomas brief. (R203, Memo re Conflict, Pg ID 1619-26). He told the court that he and Thomas were no longer communicating and that Thomas had failed to properly advise him about the impact on his defense of Thomas prior representation of Fiore. (Id, Pg ID 1620)(I do not know whether my attorney is protecting my interests or his interests.). At the courts August 14, 2012, hearing on these issues, Thomas asked the court to allow him to withdraw. (R362, TR 8/14/12, Conflict Hearing, Pg ID 9395) (and so I regretfully ask you to allow me to remove myself, because of the Thomas had also represented Schumake and DeMiro who both had been 8 interviewed by the FBI during its investigation. (R203, Memo re Conflict, Pg ID 1584, fn. 3). -26- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 34 conflict, at my clients request). He referred to the Macomb Drain litigation problem as one that he should have considered. (Id, Pg ID 9393-95). He briefly mentioned a so-called wall to separate the firms work on the case from him (no financial interest, no information sharing, separate office locations). For its part, the government, without a specific attribution, called Thomas of counsel status a very loose referral affiliation. (Id, Pg ID 9404). Its position was that the ethics rules of a civil matter are not relevant. (Id, Pg ID 9405). However, it thought that if there was an imputed conflict arising from Thomas prior representation, from filing an Answer in the Macomb Drain litigation for Kilpatrick, any concern was limited to one of shared confidences, and could be neutralized if the court would appoint independent counsel to handle any of the defense witnesses in the civil matter. (Id). But no one looked at the wide scope of allegations in the civil case, similar to the criminal indictment, or what witnesses might be given to an independent attorney for examination or how that might impact the proceedings. Other than Kilpatricks statement to the court, there was no witness testimony and no information considered by the court about Thomas and Naughtons relationship to the OReilly firm, such as any mutual client involvement, financial relationships, marketing or other matters which would bear on the definition of of counsel as close, personal and regular relationship. -27- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 35 The court denied Kilpatricks request for new counsel and Thomas motion to withdraw on the record. (Id, Pg ID 9423). Its rationale was that Thomas of counsel status was extremely attenuated and that there was an ethical wall erected that has sealed off the exchange of any potential confidential information. (Id). It said nothing of the adverse relationship of Thomas and Naughton as to the OReilly firm or the parallel civil case based on the same allegations of misconduct as in the Indictment. In the courts written opinion, it also rejected Kilpatricks request for new counsel because it would cause a delay of as much as six months in the trial schedule. (R199, Opinion & Order Re Conflict, Pg ID 1560-69). The court incorrectly focused only on Thomas and Naughtons prior representation of Kilpatrick in the Macomb Drain litigation. (R199, Opinion, Pg ID 1563-64) In its view, that representation, complies with Rule 1.10(b) and rebuts any presumption of shared confidences between them and the OReilly firm. (Id, Pg ID 1567). It ignored the obvious concerns of adverse interests in their current representation and their professional affiliation with the OReilly firm. See Avink v. SMG, 282 Mich App 110, 119 (2009)(holding that a so-called Chinese wall is only a permissible remedy under MRPC 1.10(b), which applies to prior, not concurrent representation). -28- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 36 The courts concern about timing, when it learned of the conflict, similarly failed to take into account the nature of the conflict and the courts duty to thoroughly investigate and to resolve it. Neither duty was diminished because the judge learned of the conflicts about a month before the scheduled trial date. The factors relied on by the court as militating against Kilpatricks request, that prospective jurors had been called in to complete questionnaires and that the court had set aside time for the trial, did nothing to diminish the courts obligation nor remove the conflict. This Court has held that notice that requires a Holloway hearing is timely when the defendant or his counsel raises the issue with the court before or during trial. McFarland, 356 F3d at 702. In McFarland, the defendants had been represented by the same lawyer since their preliminary examination. One of them asked the court to appoint a separate lawyer on the day of trial. Id. at 694. This court held that her objection to joint representation was timely. Id. at 703 (Trial courts may not rigidly insist on objection a certain amount of time before trial when circumstances have prevented counsel or the defendant from speaking earlier.); See also, Harris v. Carter, 337 F3d 758, 764 (6 Cir. 2003)(Thus, a th conflict of interest objection is timely not only when it is raised before trial, but also when it is raised during the course of the trial.). Once objection to counsels -29- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 37 conflict is made, the court has a duty to make a sound resolution. Id., citing, Selsor v. Kaiser, 81 F3d 1492, 1503 (10 Cir. 1996)(unless the trial courts duty th upon timely objection encompasses a sound resolution of the conflict problem, the inquiry mandated by Holloway would be an empty ritual). Other circuits have agreed. For example, in Atley v. Ault, 191 F3d 865 (8 th Cir. 1999), a state court denied defense counsels motion to withdraw, made three days before trial, after he accepted a job as a prosecutor in the office prosecuting his client. The federal court granted relief, affirmed on appeal, because based on Holloway, once the conflict motion was made, the trial court was then constitutionally obligated to either substitute new counsel or take adequate steps to ascertain the seriousness of the risk presented by the conflict. Id at 871. In Salts v. Epps, 676 F3d 468 (5 Cir. 2012), defense counsels complaint on the day of th trial in a two year old fraud case, that he had a conflict of interest because he represented two co-defendants, was also found to be timely. Id at 478-479. Finally, the courts remedy, to appoint a fourth attorney to cross-examine all government witnesses connected to the Macomb Interceptor Drainage District litigation (R199, Order, Pg ID 1567), neither resolved nor ameliorated counsels adverse representation conflict. It was the courts intention to limit the role of fourth counsel to examination of Inland witnesses. (R200, FDO Appointment, Pg -30- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 38 ID 1576); but, fourth counsel could not resolve Thomas and Naughtons conflicts that fundamentally affected their duty of loyalty to Kilpatrick concerning all aspects of the case. The scope of the allegations in the OReilly civil complaint were as broad as the allegations of contract steering in the RICO count of Kilpatricks indictment. The civil complaint effectively incorporated references to all 11 contracts covered by the indictment, not just those associated with Inland. The conflicts were focused on loyalty to client, not primarily on concerns of counsels access to confidential information from a prior client. Thomas and Naughton still had full responsibility, after the courts order, to plan Kilpatricks defense strategy, to cross examine witnesses like Derrick Miller, who gave testimony about the Inland contracts and almost all other chapters of the governments case and to present opening and closing arguments for Kilpatrick. None of their problems were eliminated by the appointment of fourth counsel. C. THOMAS AND NAUGHTONS CONFLICTS OF INTEREST DEPRIVED KILPATRICK OF EFFECTIVE ASSISTANCE OF COUNSEL. Thomas and Naughtons performance was deficient because they waited almost six months from the time they associated with the OReilly firm to bring their adverse conflicts to the attention of the court while the court proceeded unaware of their status with planning for the criminal trial. They failed to give due -31- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 39 respect to their ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial. Cuyler, 446 US at 346. On April 27, 2012, Judge Edmunds set a status conference for May 15, 2012. (R76, Notice, Pg ID 489). On May 15, 2012, she set trial for September 6, 2012, and established a schedule for pre-trial motions and jury selection. (R78, Scheduling Order, Pg ID 491-92). It appears that there was no mention of their of counsel arrangements at any of these occasions. Obviously, Thomas and Naughton knew about the civil case long before they joined the OReilly firm because they filed an Answer on behalf of Kilpatrick on September 15, 2011. (11-13101: R42, Answer to Complaint, Pg ID 471-483). Lack of knowledge of representation of the civil plaintiff by the OReilly firm could not be an excuse for them. On March 21, 2012, days before Thomas and Naughton joined OReilly, they asked to withdraw from their representation of Kilpatrick in the civil litigation (but took no action to notify the court in the criminal case) because they would have conflicts of interest. (11-13101: R198, Motion to Withdraw, Pg ID 2981)(That pursuant to Michigan Rules of Professional Conduct 1.16(b) and the American Bar Association Model Rules of Professional Conduct, 1.7(a)(1), it is mandatory that undersigned counsel withdraw as attorneys for defendant, Kilpatrick.). (App 1). Judge Cleland granted -32- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 40 their motion seven days later. (R289, Order, Pg ID 5486-97). Judge Cleland agreed that they could not defend Kilpatrick against the civil RICO charges prosecuted by the law firm to which they were to be of counsel after they became associated with the firm. (11-13101: R199 Order Granting Withdrawal, Pg ID 2984-85) (The court agrees with counsels conclusion that, pursuant to Michigan Rule of Professional Conduct 1.16(a)(1)(App 11), their move to OReilly Rancilio creates a conflict of interest justifying their mandatory withdrawal as counsel without further delay.). When there is an actual conflict that adversely affects defense counsels performance, the defendants Sixth Amendment rights have been violated, without a showing that the conflict caused the defendant to lose his or her case, because there was an actual conflict. McFarland, 356 F3d at 705. An actual conflict, is one that adversely affects counsels performance. Mickens, 535 US at 172 n.5. This test requires a choice by counsel, caused by the conflict of interest. McFarland, 356 F3d at 706, such as where defense counsel avoids an obvious strategy to blame another party. United States v. Levy, 25 F3d 146, 157-58 (2 Cir. nd 1994). Thomas and Naughton chose to pursue their personal interests with the OReilly firm as of counsel attorneys six months before trial instead of providing -33- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 41 unconflicted representation to Kilpatrick, as was their duty. They inexplicably omitted any notice of their new affiliation to Judge Edmunds in Kilpatricks criminal case until August 13, 2012, and then, complied with their obligation only after the judge specifically asked about the civil case. If they had told Judge Edmunds on March 21, 2012, of their of counsel status, before the court finally set briefing, jury selection, and trial dates, the court could have permitted them to withdraw to pursue their plans to join the OReilly firm as of counsel as they chose, and appoint conflict-free replacement counsel for Kilpatrick in an orderly fashion, unconstrained by the time pressures caused by what the court referred to in its order denying Kilpatrick relief, as the most significant case on the courts docket. (R199, Opinion & Order re Conflict, Pg ID 1573). There is no explanation in the record for their 6-month wait. Counsel were well aware of their conflicts for months. They had an obligation to properly advise their client of the legal significance of their change in law firm affiliation, just as they had a related obligation to advise the court, so that it could make appropriate inquiries in a timely manner. They did neither. Their performance was deficient. They deferred to their own interests instead of their clients. Mickens, 535 US 172, fn.5. Kilpatrick should be given a new trial with conflict-free counsel. -34- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 42 ISSUE II: THE TRIAL COURT ERRED BY ALLOWING LAY OPINION TESTIMONY BY CASE AGENTS THAT LACKED FOUNDATION REQUIRED BY FRE 701 AND THAT EXCEEDED THE LIMITS OF THE RULE. THE ERROR WAS NOT HARMLESS. Standard of Review: This court reviews district court evidentiary rulings, including rulings on witness testimony under FRE 701 for abuse of discretion. United States v. Freeman, 730 F3d 590, 595 (6 th Cir. 2013). Beeckman and Paszkiewicz each testified about their extensive backgrounds in law enforcement and years spent investigating the allegations in the indictment. (R336, Beckman, TR 10/05/12 Pg ID 6249-50; R337, Paszkiewcz, TR 10/09/12, Pg. ID 6451). Together, they testified about two dozen times during the Governments case to introduce each of the chapters in the prosecutions proofs. They acted as expert witnesses on city contracting procedures, although the government never complied with expert notice requirements of FRCrP Rule 16(a)(1)(G). They interpreted text messages and audio recordings based on their investigations and reviews of evidence not presented to the jury. They offered opinions that usurped the function of the jury to decide the facts and which only served to argue the governments theory that Kilpatrick, himself or through others in the city administration, steered contracts to Ferguson. Their opinions touched on most aspects of the case and were offered as lay opinions pursuant to FRE 701. Their opinions far exceeded the pre-trial representations of the government in -35- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 43 response to the defendants motion to limit such testimony. Through the agents, the prosecution presented testimony on the roles of Kilpatrick and others that was based on the agents reviews of the entire investigation, never identified in specific evidence given to the jury. As such, it included unvetted hearsay and the agents speculation. The government continually reverted to objectionable lay opinion testimony throughout the trial in spite of frequent defense objections. Defendants objected numerous times during trial to specific questions to the agents from the prosecutors. As discussed below, this pervasive abuse of case agent testimony by the government far outside the permissible scope of FRE 701, is not harmless error. The frequent response from Kilpatrick to text messages initiated by Ferguson that were read to the jury by the agents, was simply the word Cool, or similarly short statements. (R337, TR 10/09/12, Paszkiewicz, Pg ID 6488; R 350, 10/24/12, Pg ID 7879, 7889). The agents opinions explaining the governments version of the messages, telegraphed their arguments that his simple responses signified joinder in the criminal acts alleged in the indictment. Bernard Kilpatrick filed a motion before trial to limit lay opinion testimony by case agents as interpretations of recorded evidence. (R89, Motion to Limit Interpretation of Recorded Calls, Pg ID 564-79). His motion anticipated that the -36- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 44 government would use case agents to offer lay opinions interpreting recorded evidence or text messages that would not be based on their own knowledge or perceptions. Kilpatrick joined in the motion. (R111, Kilpatricks Notice of Joinder, Pg ID 871-72). The government opposition told the court that it intended to offer case agent lay opinion testimony in installments over the course of the trial, at the beginning of each distinct chapter, (R129, Govt Response, Pg ID 1000-1019), to introduce and publish relevant text messages and audio-recordings. The prosecutors explained that the personal knowledge foundation for agents testimony would be satisfied by what they learned from review of tens of thousands of text messages, thousands of wiretap recordings, and hundreds of records and pieces of information. (Id). They made plain to the court that they were not relying on first hand observations by the witnesses. They also represented to the court that what they meant by context and background would be limited and was only an explanation of abbreviations, shorthand or nicknames used by the defendants to refer to individuals, companies or business transactions. (Id). The government assured the court before trial that it intended only to offer lay opinions that would be limited clarifications of certain communications. (Id, Pg ID 1009, 1013)(the agents will be testifying about the -37- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 45 context and meaning of unspecialized information described in text messages and audio-recordings...). They also offered as a reason their need to tie together the 9 far-flung aspects of their complex RICO allegations. The court denied the defense motion. (R178, Order Regarding Pretrial Motions, Pg ID 1479-82). In United States v. Freeman, 730 F3d 590 (6 Cir. 2013), this Court vacated th the conviction of Marcus Freeman for violating the murder for hire statute, 18 At a pre-trial hearing on the defense motion, AUSA Chutkow told the 9 court that its use of lay opinion testimony would be limited: Our intention was to do exactly what Your Honor had said as far as having agent testimony for particular chapters or episodes in this indictment. To the extent that they summarize something, it would be just solely for context purposes. For instance, if we're talking about a contract that was at issue and they have, they reviewed the contract itself, they would simply say, "This contract was bid and awarded on X date." It wouldn't go in terms of summarizing testimony that is going to be heard or that was previously heard or anything like that. We agree with Your Honor that that's what the opening statement, the closing argument's all about. As far as the agent interpretation, what we propose is limited, that they would simply interpret text messages and recordings so that the jury understands who the abbreviations are, what the contract reference is, what a nickname is. The defendants oftentimes, because they were so familiar with each other, spoke in a shorthand which the jury could not possibly understand. (R365 TR 8/6/12, Motion Hearing, Pg ID 9497). -38- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 46 USC 1958. It concluded that the prosecution failed to establish a sufficient foundation for the trial testimony of FBI case agent Peter Lucas as a lay witness under FRE 701, to interpret and give his personal impressions of recorded conversations. Id at 596. It also concluded that the error was not harmless. Id at 600. As discussed in Freeman, a lay witness may give opinion testimony under FRE 701 when it has the effect of describing something that jurors could not otherwise experience for themselves by drawing upon the witnesss sensory and experiential observations that were made as a first-hand witness to a particular event. Id at 595, citing, United States v. Jayyousi, 657 F3d 1085, 1120 (11 Cir. th 2011). Rule 701 provides: If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witnesss perception; (b) helpful to clearly understanding the witnesss testimony or to determining a fact in issue; and (c) not based on scientific, technical , or other specialized knowledge within the scope of Rule 702. It is the burden of the proponent to meet each of the rules three -39- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 47 foundational requirements. Freeman, at 595-96. The primary source of evidence at trial in Freeman was 23,000 phone calls among Freeman and co-defendants. Seventy-seven were admitted as exhibits. Portions were played for the jury. Lucas, who was qualified as an expert pursuant to FRE 702 to explain the meaning of specific code words and drug slang, Id at 597, was also asked to testify about his personal impressions of the recorded calls as a lay witness. In this role, he interpreted the conversations as they were played. Id at 594. His interpretations ranged from voice and nickname identifications and broadly illustrate[d] the prosecutions theory of the case for the jury. Id at 595. For example, he testified that the word situation, supra, when used in the recordings, referred to a co-defendant who put a hit out for the victim, who was ultimately killed. Although Lucas listened to all of the calls during his investigation, Id at 597, this Court concluded that he lacked first-hand knowledge required as foundation for his testimony under Rule 701(a) where he was neither a participant in any of the calls nor personally observed any relevant activity. He never specified personal experiences that led him to obtain his information, but instead repeatedly relied on the general knowledge of the FBI and the investigation as a whole. Id. This Court in Freeman relied on decisions from five other circuits which -40- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 48 had described inherent risks that undermine jury verdicts where the prosecution relies on the agents knowledge of the investigation as a whole, Id at 596, instead of on personal perceptions required by the rule. Each of these decisions supported this Courts decision to vacate Freemans conviction. They include: United States v. Hampton, 718 F3d 978 (DC Cir. 2013)(when a case agent relies on his knowledge of the entire investigation, the risk that he was testifying based on hearsay and that the jury would believe that he had knowledge not before them increases); United States v. Johnson, 617 F3d 286 (4 Cir. 2010)(the trial th court abused its discretion by allowing a DEA agent to interpret a recorded conversation based on second-hand information, his review of the wiretap and his investigation); United States v. Freeman, 498 F3d 893 (9 Cir. 2007); United th States v. Garcia, 413 F3d 201 (2 Cir. 2005); United States v. Grinage, 390 F3d nd 746, 750 (2 Cir. 2004)(Whether labeled as an expert or not, the risk that he was nd testifying based on information not before the jury, including hearsay, or at the least that the jury would think he had knowledge beyond what was before them, is clear.); and, United States v. Peoples, 250 F3d 630 (8 Cir. 2001)(Agent Neal th lacked first hand knowledge; her opinions were based on her investigations after the fact and not on her perceptions of the facts). It also noted that four other circuits have reached opposite results under different circumstances. Id. The -41- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 49 Freeman court found four of those risks. 10 First, the Court identified the risk that the agent witness who bases her opinion or interpretation of recorded conversations (and here, text messages), on knowledge of the entire investigation relies improperly on information not before the jury. Hampton, 718 F3d at 982. Her information may include hearsay. Her testimony may effectively smuggle in inadmissible evidence. Freeman, 730 F3d at 596. It also may include speculation. Freeman, 498 F3d at 903, 904. Second, agent lay opinion testimony derived from the agents entire investigation, as was repeatedly the case at Kilpatricks trial, leaves the jury to trust that [the agent] had some information information unknown to them that made him better situated to interpret the words used in the calls than they were. Freeman, 730 F3d at 597; See: Johnson, 617 F3d at 293. Because only a small fraction of the 23,000 recorded calls in Freeman were admitted in evidence, [w]hen Agent Lucas interpreted those conversations on the basis of his listening to all of the calls, the jury had no way of verifying his inferences or of independently assessing the logical steps he had taken. Freeman, 730 F3d at 597. Third, agents lay opinion testimony based on their review of thousands of The district court denied Kilpatricks post-trial motion addressing this 10 issue. (R463, Opinion & Order, Pg ID 15676-83). The courts opinion pre-dated this Courts decision in Freeman and relied on cases distinguished in Freeman. -42- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 50 out of court recordings and documents never presented to the jury, usurps the function of the jury. In Freeman, the government agent witness effectively spoon-fed his interpretations of the phone calls and the governments theory of the case to the jury. Id. By offering conclusions from thousands of calls and evidence the jury never heard or saw, Agent Lucas, infringed upon the role of the jury to decide what to infer from the evidence and instead told them what conclusions and inferences to draw based on his fifteen years of experience. Id. Fourth, the agent who offers interpretations and specialized knowledge gained from the entire investigation not presented to the jury, will receive unmerited credibility in the eyes of the jury. In Freeman, this Court concluded that the jury may have been unduly persuaded by Agent Lucas position as an FBI agent. Id. at 598. [T]he agent may receive unmerited credibility when the jury suspects he has investigative information they do not. Id. at 599; see, Freeman, 498 F3d at 903; Hampton, 718 F3d at 981-82. At Kilpatricks trial, the agents aura of authority in the eyes of the jury was enhanced by their presentation as de facto experts on specialized areas of DWSD contracting and as masters of the voluminous evidence gathered in their investigation. They testified they relied on their entire investigations for the bases of their opinions, but the jury was not given any of the out-of-court records to use -43- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 51 to draw its own conclusions on the same points. Beeckman testified thirteen times at trial as a Government witness (10/5/12, 10/16/12, 10/19/12, 12/5/12, 12/18/12, 1/4/13, 1/14/13, 1/15/13, 1/22/13, 1/23/13, 1/24/13, 1/29/13, and 1/31/13). He testified that he obtained the text messages between Kwame Kilpatrick, Bobby Ferguson, Bernard Kilpatrick, Derrick Miller and others using search warrants from SkyTel, a text message provider. (R336, TR 10/5/12, Beeckman, Pg ID 6251-6254). Beeckman testified about the Kilpatrick Civic Fund (Id, Pg ID 6260-6307; R340, TR 10/16/12, Pg ID 6958-7005); Charles Rutherford (R347, TR 10/19/12, Pg ID 7357-86); Karl Kado (R370, TR 12/5/12, Pg ID 9935-10002); Heilman Recreation Center (R378, TR 12/18/12, Pg ID 11037-65); Patton Park/ Baby Creek (R384, TR 1/4/13, Pg ID 12007-25; R389, TR 1/14/13 Pg ID 12737-50; R390, TR 1/15/13, Pg ID 12754-833); Synagro (R394, TR 1/22/13, Pg ID 13237- 299); Book Cadillac (R395, TR 1/23/13, Pg ID 13455-67; R396, TR 1/24/13, Pg ID 13471-511; R400, TR 1/29/13, Pg ID 13944-14008; R401, 1/31/13, Pg ID 14019-41). He gave opinion testimony in each of these parts of the trial. Paszkiewicz testified twelve times (10/9/12; 10/24/12; 10/25/12; 10/26/12; 11/30/12; 12/12/12; 12/13/12;12/14/12; 1/15/13; 1/16/13; 1/28/13; and, 1/31/13). She testified that she began working on the Kilpatrick investigation in 2009 -44- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 52 (R337, TR 10/9/12, Pg ID 6451-52); and that she was a principal investigator of allegations of contract fraud and extortion allegations involving members of the Kilpatrick administration, including employees of DWSD. (R350, TR 10/24/12, Pg ID 7841-42). Paszkiewicz testified about: (1) the Downtown Water Main Replacement Project, CM-2012 (R350, TR 10/24/12, Pg ID 7847-7900; R351, TR 10/25/12, Pg ID 7905-8061; R352, TR 10/26/12, Pg ID 8069-71); (2) CM 361-Sewer Emergency Repair Contract (R367, TR 11/30/12, Pg Id 9624-34), DWS 849- Outfalls Contract, Id, Pg ID 9635-38; (3) DWS 2014; (4) DWS 2015, (5) CMS 864 and 865-East and West Side Water Main Projects, Id, Pg ID 9644-48; (6) Sinkhole emergency repair contract, 1368, Amendment 4 (R374, TR 12/12/12, Pg ID 10415-515; R375, TR 12/13/12, Pg ID 10558-688; R376, TR 12/14/12, Pg ID 10696-99; R390, 1/15/13, Pg ID 12835-43; R391, TR 1/16/13, Pg ID 12853- 71); (7) CM 2015, Book Cadillac Hotel Rehabilitation and summary of Ferguson contract revenues (R399, TR 1/28/13, Pg ID 13782-826). She also testified that she participated in a search of the offices of Ferguson Enterprises and testified about some checks and other documents that were seized. (R401, TR 1/31/13, Pg ID 14042-68). She gave opinion testimony concerning each of those topics. The sources of information on which she and Beeckman relied included all -45- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 53 of the text messages obtained by subpoena. (R337, TR 10/09/12, Paszkiewicz, Pg ID 6451-54; R351, TR 10/25/12, Beeckman, Pg ID 7983). Paszkiewicz testified that she and Beeckman went through a total of about 370,000 text messages. They identified those that appeared to fall in the categories of extortion, bribery, conspiracy, fraud and racketeering. She testified they narrowed the total number down to 200 to use as exhibits at trial. She also obtained and reviewed emails, DWSD documents, bank records and other financial records of contractors. (R350, TR 10/24/12, Pg ID 7847). In addition, Beeckman listened to almost all of the calls intercepted on Bernard Kilpatricks cell phone during the time period of June 2007-April 2008 obtained pursuant to a Title III wire interception and calls recorded during a period of the Fall 2008 at the Wayne County Jail when Kilpatrick was incarcerated there. (R340, TR 10/16/12, Pg ID 6958-59). Paszkiewicz testified that she performed a comprehensive review of documents relating to the RICO and extortion charges in the indictment. (R337, TR 10/09/12, Paskiewicz, Pg ID 6452-73; R350, TR 10/24/12, Paskiewicz, Pg ID 7847). During her testimony, she read, explained, and interpreted text messages and documents for at least nine city or water department contracts and was a de facto expert witness about city contract procedures. -46- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 54 The prosecution repeatedly asked the agents to testify about their opinions and impressions based on their entire investigation. For example, they gave opinions about aspects of the Kilpatrick Civic Fund fraud charges, contract extortion, bribery and racketeering; in other words, all aspects of the case. The prosecutors questions included the phrase, Based on your investigation of the text messages in this case ... (R336, TR 10/19/12, Beeckman, Pg ID 7374)(And the big one, from your review of surrounding text messages, do you know what that means? (R350, TR 10/24/12, Paskiewicz, Pg ID 7873), or a variation, became a litany. A. TESTIMONY AS DE FACTO EXPERTS The credibility of the agents lay opinions was enhanced in the eyes of the jury because they were presented as government experts in both technical and legal aspects of the city contracting processes and in administration of the civic fund, although they were never qualified as experts. They were presented as experts in lay witness clothing. Johnson, 617 F3d at 293. This charade freed the agents from the rigorous cross-examination concerning their specialized knowledge upon which their opinions were based. Peoples, 250 F3d at 241; United States v. Figueroa-Lopez, 125 F3d 1241, 1246 (9 Cir. 1997). The use of th the agents in this way, throughout the trial, increased the risk that the jury was -47- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 55 improperly swayed by the agents who were presented ... with an aura of expertise and authority..., rather than rely on its own interpretation of the evidence. Freeman, 730 F3d at 599. Examples of this practice were numerous. Some are as follows: After Beeckman was asked to affirm that he investigated the KCF and its expenditures, and that the KCF was a public welfare organization, he testified about its legal status, that it is a tax-exempt nonprofit organization (R336, TR 10/05/12, Beeckman, Pg ID 6260), and that it can accept donations for social welfare purposes. (Id). He then opined that the KCF could not fund a political campaign. (No, that couldnt be possible. You couldnt change it to be able to fund a campaign and still call it a 501(c)(4). That just, that would make it necessarily not a 501(c)(4). (Id, Pg ID 6303). On a later appearance, Beeckman similarly opined about prohibitions on political contributions by licensed casino vendors (R400, 1/29/13, Beeckman, Pg ID 13960, 13991) and why Ferguson had to recuse himself from the Downtown Development Authority board when he had a Book Cadillac contract. (Id, Pg ID 13983, and Exhibit RC 29, App 69). He also testified, from [his] investigation, including listening to wiretap calls, (R394, TR 1/22/13, Beeckman, Pg ID -48- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 56 13292), that there was a period after the mayor signs and the city council approves that the city council members can change their minds. (Id.) (I believe its a week... and the reason I know that is because there are a number of wiretap conversations where Rosendall and Rayford Jackson were very worried about Monica Conyers because she was the deciding vote in this 5-4 majority, and they were paying her bribes, and they continued to do that after the contract was signed because they were afraid she was going to change her mind and upend the contract. Id). Paszkiewicz opined that as the special administrator, Kilpatrick had the ability to award contracts without having to go before the city council. (R350, TR 10/24/12, Paskiewicz, Pg ID 7854). She also testified that Mercado could not sign contracts without approval of the mayor. (R351, TR 10/25/12, Paskiewicz, Pg ID 8038). Paszkiewicz testified about the organizational structure of the city administration. (R374, TR 12/12/12, Paskiewicz, Pg ID 10457-70); and that it was the mayor who possessed the power to remove city officials from office (suggesting the officials were then beholden to him) and that various city departments have authority to approve contracts, except for water department special administrator contracts. (Id, Pg ID 10470). All of this was related to the governments claim that Kilpatrick, manipulated department heads or others to -49- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 57 steer subcontracts to Ferguson. Paszkiewicz testified about the importance of the city executive order on minority contracting processes, she read it last night, (R350, TR 10/24/12, Paskiewicz, Pg ID 7883), that in her opinion, To be eligible for this contract, you had to be Detroit based, so the fact that they were evaluated as such means they are Detroit based. (Id, Pg ID 7887). B. HEARSAY - TESTIMONY BY AGENTS FROM REVIEW OF RECORDS. Both agents repeatedly testified about what they knew from their review of records, files, or surrounding texts; e.g.: Beeckman from review of wiretaps, there were many calls between the two of them in discussing various business deals, (R400, TR 1/29/13, Beeckman, Pg ID 13947); he knows from the wiretaps that Bernard was planning a trip to Orlando, (Id, Pg ID 13954); he knows from his review of files in this case that Ferguson got demolition contracts from the Building Safety and Engineering Department. (Id, Pg ID 13961). Beeckman testified from his investigation and looking at the records that an independent construction consultant, IMG, did not review all the files in this case, that Judge Feikens in the federal EPA litigation expressed frustration with Mercado, and that he saw evidence of Ferguson hurting other minority contractors. (R351, TR 10/25/12, Beeckman, Pg ID 8041-42). -50- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 58 C. INTERPRETATIONS 1. Kilpatrick Civic Fund On October 5, 2012, Beeckman testified that Kwame Kilpatrick had a continuing role in the KCF, even after he ended his official role in July 2012. (R336, TR 10/5/12, Beeckman, Pg ID 6303). On October 16, 2012, Beeckman testified from intercepted cell call recordings that he listened to, but the jury did not hear, that KCF credit card charges for Bernard Kilpatricks Florida hotel stay in December 2007 were not for a KCF purpose. The government played a recording of a single call between Bernard and Kwame Kilpatrick on December 28, 2007, Exhibit 42A. Beeckman was then asked to opine based on other calls, not before the jury, what Bernards purpose was in Florida. Agent Beeckman testified he was there for pleasure and that he did not discuss Civic Fund business. (R340, TR 10/16/12, Beeckman, Pg ID 6978-79). 2. DLZ and Contracts CM-2012, 2014 and 2015 Paszkiewicz testified on October 24, 2012, after Daniel Edwards (a DWSD construction manager) and Pratap Rajadhyaksha (the former COO of DLZ, a construction management company). Both testified about sewer construction contracts CM 2012, 2014 and 2015 and subcontracts for FEI. Neither testified -51- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 59 about any contact with Kwame Kilpatrick. Paszkiewicz interpreted a series of text messages, emails and other documents relating to these contracts based on her investigation to support the prosecution theory that Kilpatrick played a role in these to steer subcontracts to Ferguson. Paszkiewicz testified to emphasize that she was not interpreting when she carefully read an email to the jury in her testimony, one from the city law department to the water department passing along the contract to the mayors office, DLZ-36 (App 67), [s]o that theres no interpretation. (R350, TR 10/24/12, Paskiewicz, Pg ID 7852); but abandoned carefulness and opined based on her investigation and over objection, that the contract was subsequently signed by Kilpatrick. (Id, Pg ID 7850-53). Q. So your understanding was that CM-2012 was actually signed and approved by the mayor? A. Yes. Q. And by Mr. Mercado? A. Yes. (Id). According to Paszkiewicz, Kilpatrick had the authority to award contracts without going before the city council for a vote. She later admitted that she was mistaken and that the contract, in fact, had not been signed by the mayor. (R351, -52- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 60 TR 10/25/12, Pg ID 8015-22). She interpreted text messages between Ferguson to Kilpatrick dated August 25-26, 2003, DLZ-2 (App 57), concerning whether Kilpatrick had authorized Mercado to go ahead with the Asian people on the downtown water main construction. (R350, TR 10/24/12, Paskiewicz, Pg ID 7855). She interpreted the term the Asian people to mean Rajadhyaksha and others at DLZ. (Id, Pg ID 7856). She interpreted Kilpatricks response that approval was only for the pilot program, from [her] investigation and surrounding text messages, to mean the emergency program for installation and repair of water mains in the downtown core. (Id, Pg ID 7857). She testified that Ferguson texting Kilpatrick about city contracts was evidence of steering: Q. as part of your investigation in this case, did you find any records or orders that authorized Mr. Ferguson to have [sic, a part in] a decision-making process? A. No. (Id, Pg ID 7862). After she was shown DLZ-9 (App 58), a text message between Ferguson and Derrick Miller, who testified as a government witness later in the trial for over four days, she opined based on her investigation as follows: -53- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 61 Q. From your review of the text messages, do you know who the boss is? A. Thats Mayor Kilpatrick. Q. And given the correlation between this and the previous text message, can you tell where Mr. Ferguson was at the time of this message? A. He was with the mayor. (Id, Pg ID 7864). Paszkiewicz gave opinions about the minority or majority status of contract bidders (A. Theyre majority owned. Id, Pg ID 7873); and, what the phrase, the big one meant in the text message DLZ-17 dated March 17, 2004 (App 64) between Ferguson and Kilpatrick. Counsel objected. (Id). She testified it referred to CM-2012. She explained plain language, whether when Ferguson said Damn, I not the noisy one, in his text, he really meant noisy or nosy. Q. Is that would you interpret it noisy? A. Yes. (Id, Pg ID 7874). Based on her investigation, Paszkiewicz testified after reviewing DLZ-23, a March 30, 2004 text message between Ferguson and Kilpatrick (App 65), and DLZ-10 (App 60), a letter from DLZ dated 3/15/12, attaching DLZs evaluation of -54- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 62 subcontractor bids listing Posen first and FEI ninth out of ten that it pertained to sample work, not the Washington Boulevard segment: Q. Oh, but youre saying but this bid evaluation had to do with Washington Boulevard? A. That was the sample. Based on my investigation, again, this is that was the sample piece of work that they gave him to bid on. It didnt mean that everyone was going to be awarded work on Washington Boulevard. (Id, Pg ID 7889-90). Counsel objected and was overruled. (Id, Pg ID 7890-92). Paszkiewicz interpreted text message DLZ-25 (App 66) dated July 20, 2004, which stated only, Washington blv, fei instead of Posen, that Ferguson got the work, and Posen did not: Q And from your review of the documents and your investigation, did FEI, in fact, get work on the Washington Boulevard? A. Yes. Q. And did, pursuant to this 2012 contract, did Posen get work on the Washington Boulevard? A. No. (Id, Pg ID 7894). 3. Inland Contracts 1361 and 1368 On December 12, 2012, after the testimony of Anthony Soave, the owner of Inland in 2002, and Kathleen McCann, its Sr. Vice President at that time, -55- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 63 Paszkiewicz was asked to testify from her review of records on IN1-11, a November 4, 2002 text message between Ferguson and Kilpatrick (what we need to talk about is that fucking soave), about what was going on involving Soave and Ferguson. (App 68). She opined based on sources not before the jury, that Mr. Ferguson was in negotiations with his, for his subcontracts with both Inland Waters and Insituform at the time. It had not been signed yet. (R374, 12/12/12, Paszkiewicz, Pg ID 10418). She also testified from her review of records that there were some issues with Fergusons companys performance on the contract. (Id, Pg ID 10419). On December 13, 2012, she testified from her review of records, that in a joint venture including Ferguson, a $3.1 million pass-through payment was approved by Mercado from other contacts after his original contract funds were depleted. (R375, TR 375, Paskiewicz, Pg ID 10677). She also testified that she concluded from her review of text messages and other sources that Bernard Kilpatrick, Kwame Kilpatrick and Bobby Ferguson were meeting regularly after hours, and that they were joined by Derrick Miller (Id, Pg ID 10677-81), and that Ferguson was the only contractor who had texting access to Kilpatrick. (Id, Pg ID 10681-86). To further support the government argument that Ferguson was the -56- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 64 beneficiary of substantial assistance not afforded any other city contractor, Paszkiewicz testified, based on her review of text messages not before the jury, that: Mayor Kilpatrick did not talk about prices for city contracts that were under consideration for the award by the city with any other contractors besides Mr. Ferguson, (Id, Pg ID 10685), that he did not communicate with other city contractors on meetings to determine how they could move into contracts, (Id, Pg ID 10687), and that he did not communicate with other city contractors to discuss moving into a particular piece of city business. (Id, Pg ID 10689). That was the essence of the government theory, that Ferguson got subcontracts because the mayor paved the way for him; and Paszkiewicz was permitted to give those opinions to the jury based on her review of voluminous evidence the jury never had a chance to review in order to reach its own conclusions. 4. Heilman Recreation Center On December 18, 2012, Beeckman testified about text messages between Vincent Anwunah, the parks department manager for the Heilman project and Ferguson that: There are many text messages between those two. Mr. Anwunah goes way out of his way to assist Mr. Ferguson. (R378, TR 12/18/12, Beeckman, Pg ID 11038). Counsel objected. He was then asked, based on his investigation and review of text messages, to describe the status of the Heilman project, who -57- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 65 was in charge of evaluating the bids, and the roles played by various city employees. (Id, Pg ID 11038-41). Counsel objected that the testimony was argument. (Id, Pg ID 11041-42). 5. Baby Creek and Patton Park PC-748 On January 4, 2013, Beeckman testified on the meaning of equalization credits and contract credits as applied by the city in evaluation of contract bids. (R384, TR 1/4/13, Beeckman, Pg ID 12012). The relevance was the claim that the contract process was manipulated to favor Ferguson. On January 14, 2013, Beeckman testified, based on his review of the records, (R389, TR 1/14/13, Beeckman, Pg ID 12739), about his opinion concerning a dispute discussed in a text message, WA1-20, between Ferguson and Anwunah concerning a 5% construction management fee. (Exhibit WA1-20, App 71). Counsel objected that the question asked for expert testimony and hearsay. (Id, Pg ID 12740-42). He went on to describe the administration of the project by the city and who was in charge. Beeckman testified that the standard oversight fee was 5%, who from the DWSD was in charge, and that he knew how the Parks Department allocated responsibilities on the project with DWSD. (Id, Pg ID 12738). Based only on his review of the records (Id), he testified who the main parties were and explained -58- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 66 a $500,000 fee mentioned in the text message. On January 15, 2013, Beeckman testified over objection that the word boss in text message between Ferguson and Anwunah in WA1-27 (App 72) meant Kilpatrick. (R390, TR 1/15/13, Beeckman, Pg ID 12755). He also testified that based on text messages he had read in court, there was a fee dispute between Ferguson and Waldbridge. (Id, Pg ID 12756). 6. Synagro Beeckman identified RC-42 as a text message between Ferguson and Kilpatrick, dated March 20, 2003, (App 70) concerning money owed to Ferguson for work he did at a private club. In the message, Ferguson asked if it was all right if building safety fucks with his permit. (R400, TR 1/29/13, Beeckman, Pg ID 13958). Kilpatrick replied: Will call later. (Id). Beeckman testified over objection from his review of records, that Ferguson was owed money by Matthew Flynn for work done on Flynns club. (Id). D. THE COURTS ERROR IN ADMITTING THE AGENTS TESTIMONY WAS NOT HARMLESS. The courts error by admitting the agents plethora of testimony under the guise of Rule 701 was not harmless. Based on the governments theory of prosecution, that evidence of Kilpatrick steering contracts to Ferguson was in the -59- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 67 text messages and recordings, the agents testimony was intertwined in all aspects with information not otherwise before the jury to explain the governments version of subcontractor awards on city contracts as the result of steering. The agents repeatedly offered opinions about the DWSD contracting processes based on their review of all their files or all the evidence. It cannot be concluded that it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Freeman, 730 F3d at 599; Kotteakos v. United States, 352 US 750, 765 (1946); Hampton, 718 F3d at 984; Peoples, 250 F3d at 641 (The erroneous admission of testimony is not harmless when there is significant possibility that the testimony had a substantial impact on the jury.) Kilpatrick was denied a fair trial because the court allowed the two case agents to testify 23 times and spoon-feed the jury the prosecution theory of the case based on the agents review of all the text messages, recorded calls and documents, the jury never had the opportunity to review on their own and to use to draw their own conclusions. The agents were allowed to pose as experts about most aspects of the Governments case but avoided the kind of scrutiny that a Daubert hearing would have required, if the Government had complied with the expert witness notice rules as it should have. Kilpatrick should be granted a new trial. -60- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 68 ISSUE III: RESTITUTION TO DWSD AND IRS WAS NOT AUTHORIZED BY 18 USC 3664A. Standard of Review: This Court reviews de novo whether a restitution order is permitted. The amount of restitution is reviewed for abuse of discretion. United States v. Williams, 612 F3d 500, 510 (6 Cir, 2010). This court abuses its discretion when it applies an th improper legal standard. United States v. Andrews, 88 Fed Appx 903, 908 (6 Cir, 2004). th After a hearing on December 10, 2013, the district court ordered Kilpatrick to pay restitution to DWSD in the amount of $4,584,423, and to the Internal Revenue Service in the amount of $195,403.61. Those amounts were initially calculated by the U.S. Probation Department as part of Kilpatricks PSR. (R508, Response Opposing Govts Memorandum on Restitution, Pg ID 16421, CM-1361 & CM-1368), PSR 38-57; PC-748, PSR 58-64; CM-2014, PSR 80-81). The PSR explicitly referred to the amounts as gain, not loss. The court recognized the amounts as profits when it overruled Kilpatricks objection to his guideline calculations at sentencing. (R492, TR 10/10/13, Sentencing, Pg ID 16165). The courts use of gain as a proxy for loss was error. The MVRA requires the court to determine the specific amount of loss to the victims for the counts of conviction. Hughey v. United States, 495 US 411, 416 (1990) (failure to calculate loss is a fundamental defect in an order of restitution); United States v. Galloway, -61- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 69 509 F3d 1246, 1253 (10th Cir, 2007) ([A]lthough gain may be used to determine a defendants offense level under the Guidelines (if it more closely reflects actual harm than actual loss does), it is not an appropriate estimate of loss when determining the amount of restitution under 5E1.1 or the MVRA.); United States v. George, 403 F3d 470, 474 (7th Cir, 2005) (Restitution must be based on the victims loss rather than the offenders gain.); United States v. Badaracco, 954 F2d 928, 942-43 (3 Cir, 1992) (Although . . . gross gain is a valid measure rd of the loss attributable to this offense for purposes of guideline sentencing, a restitution order, in contrast, must be limited to the amount of [the victims] loss as a result of [the defendants] bank fraud.). The court also erred by imposing restitution to the IRS. Restitution for tax crimes pursuant to Title 26 is not authorized by either the MVRA, 18 USC 3663A, or the Victim and Witness Protection Act (VWPA), 18 USC 3663. United States v. Butler, 297 F3d 505, 518 (6th Cir. 2002)(WVPA does not apply to Title 26 offenses such as tax evasion.); United States v. Batson, 608 F3d 630, 632-33 (9 Cir. 2010)(concluding that restitution for tax crimes under Title 26 is th not permitted under 3663A and 3663). Title 26 offenses do not fall within the requirements for mandatory restitution under the MVRA because they are not crimes of violence, crimes against property, or crimes involving tampering with -62- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 70 consumer products. Nor do they fall within the requirements of restitution for any other statute. United States v. Anderson, 545 F3d 1072, 1077 (DC Cir. 2008) (explaining that the VWPA does not authorize restitution for a violation of 26 USC 7201). The district court did not have authority to enter an order or restitution for the tax charges against Mr. Kilpatrick. United States v. Edkins, 421 Fed Appx 511, 518 (6 Cir, 11/18/10) (vacating sentence where a district court th erroneously ordered restitution under VWPA for tax offense). ISSUE IV: ADOPTION OF ARGUMENTS BY CO-DEFENDANT BOBBY W. FERGUSON IN UNITED STATES V. BOBBY W. FERGUSON, SIXTH CIRCUIT CASE NO. 14-1120. Pursuant to FRAppP 28(i), Appellant Kwame Kilpatrick hereby adopts by reference issues raised in the brief on appeal of Bobby W. Ferguson in Case No. 14-1120, as follows: Issue II: The District Court Erred by Not Limiting Statements of Third- Party Declarants Offered Under the State of Mind Exception Permitted by Fed R Evid Rule 803(3) Should Not Have Allowed Other Hearsay Testimony. Issue III: The Errors Were Not Harmless. -63- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 71 CONCLUSION For all of these reasons, Kwame Kilpatrick respectfully requests that this Court vacate his judgment of conviction and remand his case for a new trial before the district court. Respectfully Submitted, GUREWITZ & RABEN, PLC By: s/Harold Gurewitz 333 W. Fort Street, Suite 1400 Detroit, MI 48226 (313) 628-4733 Email: hgurewitz@grplc.com Date:September 3, 2014 Attorney Bar Number: 14468 -64- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 72 CERTIFICATE OF COMPLIANCE Appellant Kwame Kilpatrick certifies that his Brief on Appeal contains 14,078 words and complies with FRAP 32(7)(B)(I). The type face is 14 point Times New Roman. s/Harold Gurewitz CERTIFICATE OF SERVICE I hereby certify that on September 3, 2014, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to all parties of record. s/Harold Gurewitz (P14468) Gurewitz & Raben, PLC 333 W. Fort Street, Suite 1400 Detroit, MI 48226 (313) 628-4733 Email: hgurewitz@grplc.com -65- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 73 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Name of Case: UNITED STATES OF AMERICA Plaintiff/Appellee v KWAME KILPATRICK Defendant/Appellant COURT OF APPEALS#: 13-2500 APPELLANT <S ADDENDUM Appellant Kilpatrick, pursuant to Sixth Circuit Rule 11(b), hereby designates the following findings in the district courts record as items to be included in the joint appendix. DESCRIPTION OF ENTRY RECORD ENTRY NUMBER PAGE ID RANGE Docket Entries 10-CR-20403 Indictment 1 16-30 Notice of Appearance 4 37 CJA 20 - Appointment of J. Thomas 8 42 Appointment of 2 Counsel - nd Naughton 12 51-52 First Superseding Indictment 20 65-155 Second Superseding Information - Derrick Miller 67 252-254 Rule 11 Plea Agreement - Derrick Miller 70 258-178 -66- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 74 Third Superseding Indictment 72 280-380 Fourth Superseding Indictment 74 383-484 Notice to Appear 76 489 Scheduling Order No. 1 78 491-492 Motion in Limine to Limit Interpretation of Recorded Calls 89 564-579 Joinder in Bernard Kilpatricks Motion in Limine to Limit Interpretation of Recorded Calls 111 871-872 Governments Response in Opposition to Limit Interpretation of Recorded Calls 129 1000-1019 Order re Pretrial Motions 178 1479-1482 Opinion & Order re: Conflict of Interest 199 1560-1575 Appointment of Federal Defender 200 1576 Memorandum re: Potential Conflict of Interest 203 1580-1643 Governments Response re: Conflict of Interest 204 1644-1656 Fifth Superseding Information - Victor Mercado 245 1826-1829 Rule 11 Agreement - Victor Mercado 247 1831-1838 Fourth Superseding Indictment - Redacted 274 2166-2190 Verdict Form 277 2213-2234 Opinion & Order Denying Post-Trial Motion 463 15676-15683 -67- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 75 Response Opposing Governments Memorandum on Restitution 508 16417-16425 Judgment - Kilpatrick 516 16446-16456 Judgment - Bernard Kilpatrick 518 16467-16473 Judgment - Ferguson 519 16474-16485 Judgment - Mercado 557 16811-16816 Docket Entries 11-CV-13101 (related civil case) Complaint 1 1-225 Kwame Kilpatricks Answer to Complaint 42 471-483 Motion to Amend Complaint Exhibit A: Proposed Amended Complaint to Motion for Leave to File Amended Complaint 176 176-1 2542-2546 2547-2592 Motion to Withdraw 181 2830-2833 Order Holding Motion to Withdraw in Abeyance 197 2978-2979 Supplement to Motion to Withdraw 198 2980-2983 Order Granting Motion to Withdraw 199 2984-2986 Amended Motion to file First Amended Complaint 240 4047-4315 Opinion & Order Granting Summary Judgment 251 4469-4477 Motion for Reconsideration 256 4744-4784 Amended Order Denying Satellite Motions 289 5486-5497 -68- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 76 WITNESS TESTIMONY DESCRIPTION OF PROCEEDING OR TESTIMONY DATE RECORD # & PAGE ID Beeckman, Robert 10/5/12 10/16/12 10/19/12 10/25/12 12/5/12 12/18/12 1/4/13 1/14/13 1/15/13 1/22/13 1/23/13 1/24/13 1/29/13 1/31/13 R336, Pg ID 6241-6307 R340, Pg ID 6958-7005 R347, Pg ID 7357-7386 R351, Pg ID 7983, 8041- 8042 R370, Pg ID 9935-10002 R378, Pg ID 11037-11065 R384, Pg ID 12007-12025 R389, Pg ID 12737-12750 R390, Pg ID 12754-12833 R394, Pg ID 13237-13299 R395, Pg ID 13455-13467 R396, Pg ID 13471-13511 R400, Pg ID 13944-14008 R401, Pg ID 14019-14041 -69- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 77 Paszkiewicz, Carol 10/9/12 10/24/12 10/25/12 10/26/12 11/30/12 12/12/12 12/13/12 12/14/12 1/15/13 1/16/13 1/28/13 1/31/13 R337, Pg ID 6451-6454, 6488 R350, Pg ID 7841-7900 R351, Pg ID 7905-8061 R352, PG ID 8069-8071 R367, Pg ID 9624-9638, 9644-9648 R374, Pg ID 10415-10515 R375, Pg ID 10558-10689 R376, Pg ID 10696-10699 R390, Pg ID 12835-12843 R391, Pg ID 12853-12871 R399, Pg ID 13782-13826 R401, Pg ID 14042-14068 Edwards, Daniel 10/22/12 R348, Pg ID 7485-7498, 7502-7513 Rajadhyaksha, Pratap 10/24/12 R350, Pg ID 7750-7776 Hardiman, Thomas 10/26/12 R352, Pg ID 8072, 8090, 8127 Rachmale, Avninash 11/15/12 R356, Pg ID 8632 Soave, Anthony 12/5/12 R370, Pg ID 10027-10031, 10035-10036, 10049 McCann, Kathleen 12/6/12 R372, Pg ID 10297 -70- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 78 Parker, Bernard 12/19/12 R379, Pg ID 11156, 11168 Miller, Derrick 1/7/13 1/8/13 1/10/13 1/11/13 R385, Pg ID 12032, 12136- 12143, 12149, 12165 R386, Pg ID 12185, 12194, 12196, 12205, 12210, 12217-12218, 12223, 12243, 12255-12556 R387, Pg ID 12340-12450 R388, Pg ID 12453-14591 -71- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 79 TRANSCRIPTS: OTHER PLEADINGS DESCRIPTION OF ENTRY DATE RECORD # & PAGE ID Motion Hearing 8/6/12 R365, Pg ID 9497 Preliminary Hearing re: Conflict of Interest 8/7/12 R206, Pg ID 1672-1694 Hearing on Conflict of Interest 8/14/12 R362, Pg ID 9386-9405, 9423 Government Opening Statement 9/21/12 R301, Pg ID 4661-4663 Government Closing Statement 2/11/13 R406, Pg ID 14452 Government Rebuttal Closing 2/15/13 R409, Pg ID 14773 Sentencing 10/10/13 R492, Pg ID 16165-16167, 16220-16221 -72- Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 80
Dickie Freling Wimmer v. County Commission President Woodrow Cook Chief Sheriff Harold L. Hatfield Chief Deputy Sheriff Jimmy Craft Jailer Dorthe Bolt Jailer Nancy Rust Jailer Brenda Perdue, 774 F.2d 68, 4th Cir. (1985)
Alabama Dry Dock and Shipbuilding Corporation v. John W. Sowell, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Party-In-Interest, 933 F.2d 1561, 11th Cir. (1991)