Kilpatrick Appeal

8/11/2019 Kilpatrick Appeal

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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 MichiganSouthern Division

APPELLANTS BRIEF

Harold Gurewitz (P14468)

Attorney for AppellantGurewitz & Raben, PLC

333 W. Fort Street, Suite 1400Detroit, MI 48226

(313) 628-4733

Case: 13-2500 Document: 50 Filed: 09/03/2014 Page: 1


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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 CaseNo. 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-FREEREPRESENTATION GUARANTEED BY THE SIXTH AMENDMENT AND

SHOULD BE GRANTED ANEW 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 conclusionsrest, for clear error. United States v. Osborne, 402 F3d 626,630 (6th

Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A. THOMAS ANDNAUGHTON HAD CONFLICTS OF INTEREST

ADVERSE TO THE OREILLY FIRM TO WHICH THEY

WERE OF COUNSEL ATTORNEYS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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B. THE COURT DENIED KILPATRICK HIS SIXTH AMENDMENT

RIGHT TO CONFLICT-FREE COUNSEL BECAUSE IT FAILED

TO THOROUGHLY INVESTIGATE AND RESOLVE THOMASANDNAUGHTONS CONFLICTS AFTER IT WAS ON

NOTICE OF THEM... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

C. THOMASANDNAUGHTONS 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 FRE701AND THAT

EXCEEDED THE LIMITS OF THE RULE.THE ERROR WAS

NOT HARMLESS... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Standard of Review: This court reviews district court evidentiaryrulings, including rulings on witness testimony under FRE 701 forabuse of discretion. United States v. Freeman, 730 F3d 590, 595 (6th

Cir. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

A. TESTIMONY ASDEFACTOEXPERTS. . . . . . . . . . . . . . . . . . . . . . . . . . 47

B. HEARSAY -TESTIMONY BY AGENTS FROM REVIEW OFRECORDS... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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

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6. Synagro. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

D. THE COURTS ERROR IN ADMITTING THE AGENTSTESTIMONY WASNOT HARMLESS.. . . . . . . . . . . . . . . . . . . . . . . . . . . 59

III. R ESTITUTION TO DWSDAND IRSWASNOT AUTHORIZED BY 18USC3664A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Standard of Review: This Court reviews de novowhether a restitutionorder is permitted. The amount of restitution is reviewed for abuse ofdiscretion. United States v. Williams, 612 F3d 500, 510 (6 Cir,th

2010). This court abuses its discretion when it applies an improperlegal standard. United States v. Andrews, 88 Fed Appx 903, 908 (6th

Cir, 2004).... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

IV. ADOPTION OF ARGUMENTS BY CO-DEFENDANT BOBBY W.FERGUSONIN UNITED STATES V.BOBBY W.FERGUSON,SIXTH CIRCUIT CASENO.14-1120... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Proof of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Addendum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

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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).. . . . . . . . . . . . . . . . . . . . . 61th

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OTHER CIRCUIT CASES:

Atley v. Ault, 191 F3d 865 (8 Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30th

Salts v. Epps,676 F3d 468 (5 Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

th

Selsor v. Kaiser, 81 F3d 1492 (10 Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . 30th

The People ex rel. Dept. of Corp. v. Speedee Oil Change Systems, Inc.,20 Cal. 4 1135, 980 P2d 371 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . 23-24th

United States v. Anderson, 545 F3d 1072 (DC Cir. 2008). . . . . . . . . . . . . . . . . . . 63

United States v. Badaracco, 954 F2d 928 (3 Cir, 1992).. . . . . . . . . . . . . . . . . . . 62rd

United States v. Batson,608 F3d 630 (9 Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . 62th

United States v. Figueroa-Lopez,125 F3d 1241 (9 Cir. 1997). . . . . . . . . . . . . . 47th

United States v. Freeman, 498 F3d 893 (9 Cir. 2007). . . . . . . . . . . . . . . . . . . . . 41th

United States v. Galloway, 509 F3d 1246 (10th Cir, 2007). . . . . . . . . . . . . . . 61-62

United States v. Garcia,413 F3d 201 (2 Cir. 2005).. . . . . . . . . . . . . . . . . . . . . . 41nd

United States v. George, 403 F3d 470 (7th Cir, 2005). . . . . . . . . . . . . . . . . . . . . . 62

United States v. Grinage, 390 F3d 746 (2 Cir. 2004). . . . . . . . . . . . . . . . . . . . . 41nd

United States v. Hampton, 718 F3d 978 (DC Cir. 2013). . . . . . . . . . . 41, 42, 43, 60

United States v. Jayyousi, 657 F3d 1085 (11 Cir. 2011).. . . . . . . . . . . . . . . . . . . 39th

United States v. Johnson, 617 F3d 286 (4 Cir. 2010). . . . . . . . . . . . . . . . 41, 42, 47th

United States v. Levy,25 F3d 146 (2 Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . 33nd

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United States v. Peoples, 250 F3d 630 (8 Cir. 2001). . . . . . . . . . . . . . . . 41, 47, 60th

STATE OFMICHIGAN 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

FRE701. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

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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.

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STATEMENT OF SUBJECT MATTER

AND APPELLATE JURISDICTION

PURSUANT TO FRAPRULE 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).

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STATEMENT OF THE ISSUES

I. KWAME KILPATRICK WAS DENIED HIS RIGHT TO CONFLICT-FREE

REPRESENTATION GUARANTEED BY THE SIXTH AMENDMENT ANDSHOULD BE GRANTED ANEW TRIAL

II. THE TRIAL COURT ERRED BY ALLOWING LAY OPINION TESTIMONYBY CASE AGENTS THAT LACKED FOUNDATION REQUIRED BY FRE701AND THAT EXCEEDED THE LIMITS OF THE RULE.THE ERROR

WASNOT HARMLESS.

III. R ESTITUTION TO DWSDAND IRSWASNOT AUTHORIZED BY 18USC3664A.

IV. ADOPTION OF ARGUMENTS BY CO-DEFENDANT BOBBY W.FERGUSONIN UNITED STATES V.BOBBY W.FERGUSON,SIXTH CIRCUIT CASENO.14-1120.

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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, Pgst

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,

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income tax evasion in violation of 26 USC 7201. (Id, Pg ID 2188). Count 11

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 charged1

together with Kilpatrick in Counts 2 -5, 7-10 and 16-17. (R274, 4 Supersedingth

Indictment, Redacted, Pg ID 2166-90). Mercado entered a guilty plea during trialon 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, Pgth

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 Supersedingnd

Information, Pg ID 252-54; R70, Rule 11 Agreement, Pg ID 258-78).

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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

CASENO.14-1120AND 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 ofviolating 26 USC 7206, Subscribing False Tax Return. He was sentenced to a

term of 15 months custody. (R518, Judgment, Pg ID 16467-73). Miller andMercado were each sentenced to 1 day custody, time served. (R557, MercadoJudgment, Pg ID 16805-10; R558, Miller Judgment, Pg ID 16811-16).

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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

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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

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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

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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 federalinvestigation concerning a local public bus system in 2005.(R203, Memo re Conflict, Pg ID 1581-82).

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2007 Thomas represents Fiore in 2007 in a federal investigation inwhich it is alleged that Fiore made a $25,000 contribution tothe Kilpatrick campaign in July, 2004, through a PACmaintained 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, in2010. (Id, Pg ID 1580-86).

6/23/10 An Indictment is filed naming Kilpatrick in 19 counts of mailand wire fraud and tax violations. (R1, Indictment, Pg ID 16-

30).

7/15/10 Thomas is appointed to represent Kilpatrick in the criminalcase 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 filedst

adding charges of RICO, bribery, and extortion, and addingBobby Ferguson, Bernard Kilpatrick, Victor Mercado andDerrick A. Miller as defendants.

7/18/11 A civil Complaint is filed inMacomb Interceptor DrainDrainage 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). It3

names 32 individuals or businesses as defendants, including

Kilpatrick as the lead defendant. Counsel for the plaintiff is thelaw firm of OReilly Rancilio, P.C. (the OReilly firm). The

Record references hereinafter for the Macomb Drain litigation will be3

referred to as 11-13101.

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suit alleges a RICO claim parallel to the criminal indictmentagainst Kilpatrick. It attaches the criminal indictment asExhibit 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 onbehalf 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 tothe Kilpatrick campaign. (R203, Memo re Conflict, Pg ID1587).

2/03/12 The OReilly firm moves to amend the complaint in theMacomb Drain litigation to add substantial factual

background information regarding (a) the larger scheme atissue in this case... (11-13101: R176, Motion to File AmendedComplaint, Pg ID 2542-46).

2/10/12 Thomas and Naughton move to withdraw as counsel forKilpatrick in the civil case citing their inability to work with

Kilpatrick. (11-13101: R181, Motion To Withdraw, Pg ID2832).

2/15/12 Fiore testifies before the grand jury about, inter alia, his

$25,000 campaign contribution made through the AllenBrothers 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 Kilpatrickenterprise received $80,000 from Fiore between 2003 and 2008

to influence the award of Detroit Police towing contracts andthat Fiore was extorted by Kilpatrick and Ferguson.

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2/17/12 Thomas and Naughton re-file their motion to withdraw in thecivil suit with a Kilpatrick stipulation to the withdrawal. Themotion is held in abeyance to allow Kilpatrick to obtain othercounsel. (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 substitutecounsel, citing the complexity and Kilpatricks central role inthe case.(11:13101: R197, Order Holding In Abeyance, Pg ID2978-79).

3/21/12 Thomas and Naughton notify the court in the civil case thatthey must withdraw for a separate reason, because they will

become of counsel to the OReilly firm on April 1, 2012 andwill have disqualifying conflicts of interest mandatingwithdrawal pursuant to Rules of Professional Responsibility.

(11-13101: R198, SupplementTo Motion To Withdraw, Pg ID2980-82).

3/28/12 Judge Cleland issues an order in the civil case granting theirmotion to withdraw. (11-13101: R199, Order Granting MotionTo 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 ID1587).

6/1/12 Thomas receives the Government witness list listing Fiore as awitness against Kilpatrick. (Id, Pg ID 1588).

8/7/12 Thomas and Kilpatrick meet with Judge Edmunds. Thomastells Judge Edmunds that he cannot cross-examine Fiore andthat Kilpatrick wants him to withdraw because of his conflict.

(R206, TR 8/7/12, Conference, Pg ID 1672-89).

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8/9/12 Judge Edmunds asks the parties to brief every possible conflictof which counsel or defendants are aware, including theconflict involving representation of conflicting interests,specifically the representation of the plaintiff in the Macomb

Drain litigation by the OReilly firm, as discussed in the DetroitFree Press that day. (R204, Govt Response to PotentialConflict, Pg ID 1654).

8/13/12 The Governments Brief on conflicts says that to resolveThomas prior representation conflict it would withdraw theFiore allegations in the Indictment. It briefly adds that Thomasrelationship to the OReilly firm constituted no conflict

because of its understanding of Thomas separate primaryoffice and file system. (Id, Pg ID 1644).

8/13/12 Thomas brief says that his attorney-client relationship withKilpatrick was unfettered until a complication arose concerning

prior representation of a witness. He says that his relationshipwith the OReilly firm includes separate offices and filesystems. (Id, Pg ID 1654).

8/14/12 A conflict hearing is held before Judge Edmunds. Thomas saysthat he should have seen the OReilly Macomb Drain litigation

and Kilpatrick conflict issue; that disciplinary rules requireconsent from each client, and that he did not get it. (R362, TR8/14/12, Hearing, Pg ID 9393). Kilpatrick says that he learnedof 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 ID1616-17), before he was aware Thomas had represented Fiore in a federal

investigation relating to the $25,000 contribution. (R362, TR 8/14/12, Hearing, PgID 9388; R203, Memo re Conflict, Exhibit 4: Kilpatrick Aff., Pg. ID 1622) Atthat time, while there was a disclosure of the representation of Witness A, it was

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8/15/12 Judge Edmunds issues an order refusing to disqualify Thomasand 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 sameRICO allegations they were defending in the indictment, thetrial court finds their conduct concerns prior representation (it

refers to MRPC 1.10(b), and that Thomas and Naughtonsseparation of physical space and files, along with appointmentof another attorney to cross-examine witnesses connected to theMacomb 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 Thomasand Naughton are of counsel, move a second time to amend theComplaint in the civil case alleging that additional facts hadcome to light, and add allegations about the Kilpatrick schemeand 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 Judgmentand Denying Motion to Amend Complaint, Pg ID 4469-77).

11/14/12 Plaintiffs move for reconsideration and allege that informaldiscovery from co-defendants and from the criminal

proceedings in the ongoing trial support their new allegations.(11-13101: R256, Plaintiffs Motion for Reconsideration, PgID 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).

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2/11/13 Closing arguments begin in the criminal case. Judge Clelanddenies 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

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required byHolloway 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 courtth

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 allowingth

the testimony was not harmless error. The agents interpretations of text messages

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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

ISSUEI: 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 legalconclusions de novo, and the underlying factual bases upon which thecourts conclusions rest, for clear error. United States v. Osborne, 402

F3d 626, 630 (6 Cir. 2005).th

A. THOMAS ANDNAUGHTON 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

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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)(Becauseth

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

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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 thatth

Kilpatrick receive a new trial.

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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 equally5

When clients are aligned directly against each other in the same5

litigation, the institutional interest in vigorous development of each clientsposition renders the conflict non-consentable. Centra, Inc., 538 F3d at 413, citing

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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,Idat 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 commonly6

referred to as parallel proceedings. Note: Harvard Law Review, 98 Harv L Rev1023, 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 had7

been Kilpatricks chief of staff and testified about conversations with Kilpatrickregarding 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,

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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 conversationson cross-examination. (R387, TR 1/10/13, Miller, Pg ID 12340-450; R388, TR1/11/13, Miller, Pg ID 12453-591).

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alleged in theFirst 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. Kilpatricktrial.).

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.

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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 alsoABA

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. ([email protected] [email protected]). (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

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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 THOMASANDNAUGHTONS CONFLICTSAFTER IT WAS ONNOTICE OF THEM.

The trial court failed to make the kind of inquiry required byHolloway, 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 ordefendants are aware including, but not limited to,

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Robert Schumake, Dante DeMiro, and also the conflictdiscussed in the Free Press this morning concerning theMacomb 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 been8

interviewed by the FBI during its investigation. (R203, Memo re Conflict, Pg ID1584, fn. 3).

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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.

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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).

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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 aHollowayhearing is timely

when the defendant or his counsel raises the issue with the court before or during

trial.McFarland, 356 F3d at 702. InMcFarland, 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, ath

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

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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 dutyth

upon timely objection encompasses a sound resolution of the conflict problem,

the inquiry mandated byHollowaywould be an empty ritual).

Other circuits have agreed. For example, inAtley v. Ault, 191 F3d 865 (8th

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.Idat 871. In Salts

v. Epps,676 F3d 468 (5 Cir. 2012), defense counsels complaint on the day ofth

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.Idat 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

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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. THOMASANDNAUGHTONS 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

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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

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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

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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.

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ISSUEII: THE TRIAL COURT ERRED BY ALLOWING LAY OPINION

TESTIMONY BY CASE AGENTS THAT LACKED FOUNDATION

REQUIRED BY FRE701AND 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 forabuse of discretion. United States v. Freeman, 730 F3d 590, 595 (6th

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

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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

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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

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context and meaning of unspecialized information described in text messages and

audio-recordings...). They also offered as a reason their need to tie together the9

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 vacatedth

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 the9

court that its use of lay opinion testimony would be limited:

Our intention was to do exactly what Your Honor had said as far ashaving agent testimony for particular chapters or episodes in thisindictment. 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 contractitself, they would simply say, "This contract was bid and awarded onX date." It wouldn't go in terms of summarizing testimony that isgoing 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 theywould simply interpret text messages and recordings so that the jury

understands who the abbreviations are, what the contract reference is, whata nickname is. The defendants oftentimes, because they were so familiarwith each other, spoke in a shorthand which the jury could not possibly

understand.

(R365 TR 8/6/12, Motion Hearing, Pg ID 9497).

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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.Idat 596. It also concluded that the error was not harmless.Idat

600.

As discussed inFreeman, 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.Idat 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 formof an opinion is limited to one that is:

(a) rationally based on the witnesss perception;

(b) helpful to clearly understanding the witnesss testimonyor to determining a fact in issue; and

(c) not based on scientific, technical , or other specializedknowledge within the scope of Rule 702.

It is the burden of the proponent to meet each of the rules three

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foundational requirements.Freeman, at 595-96.

The primary source of evidence at trial inFreemanwas 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,Idat

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.Idat 594. His interpretations ranged from voice and nickname

identifications and broadly illustrate[d] the prosecutions theory of the case for

the jury.Idat 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,Idat597, 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 specifiedpersonalexperiences 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 inFreeman relied on decisions from five other circuits which

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had described inherent risks that undermine jury verdicts where the prosecution

relies on the agents knowledge of the investigation as a whole,Idat 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 trialth

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); Unitedth

States v. Garcia,413 F3d 201 (2 Cir. 2005); United States v. Grinage, 390 F3dnd

746, 750 (2 Cir. 2004)(Whether labeled as an expert or not, the risk that he wasnd

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 Nealth

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

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Freemancourt 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 inFreemanwere 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 this10

issue. (R463, Opinion & Order, Pg ID 15676-83). The courts opinion pre-datedthis Courts decision inFreemanand relied on cases distinguished inFreeman.

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out of court recordings and documents never presented to the jury, usurps the

function of the jury. InFreeman, 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. InFreeman, 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 factoexperts 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

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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

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(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

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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

factoexpert witness about city contract procedures.

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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 ASDEFACTOEXPERTS

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 ofth

the agents in this way, throughout the trial, increased the risk that the jury was

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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 p

Kilpatrick Appeal

Documents

Transcript of Kilpatrick Appeal